text:
    Bertha T. Steerman, otherwise known as Bertha Snow, petitioner, v. Isaac Snow, defendant.
    [Decided October 18th, 1922.]
    1. The petition for nullity of marriage on the ground of impotence contains two separate causes for action, which are labeled “first count” and “second count,” as in common law actions; they should be “first cause for action” and “second cause for action” under chancery rule 59.
    2. A marriage may be annulled for impotence under the statute, where there has been discovery only after marriage, or such marriage may be annulled under the inherent jurisdiction of this court relating to fraud; and the fraud may be either suggestio falsi or suppressio veri.

    3. A voidable marriage is treated as valid and binding unless and until its nullity is ascertained and declared by a court of competent jurisdiction in a suit instituted for that purpose by one of the parties during the lifetime of both; but the effect of a decree of nullity, when pronounced, is to render the marriage null and void from the beginning.
    On final hearing on master’s report and depositions ex parte.

      Mr. Joseph B. PerTesie, for the petitioner.
   Walker, Chancellor.

The petition in this ease is one for nullity of marriage on the ground of impotence. It contains two separate causes for action, which are labeled “first count” and “second count,” as in common law actions. They should be “first cause of action” and “second cause of action.” See chancery rule 59. The first separate cause alleges marriage on March 28th, 1920; that at that time the defendant was physically and incurably impotent to consummate the marriage by reason of the frigidity of his parts of generation or some other physical cause; that petitioner was ignorant of defendant’s impotence at the time of the marriage and has not subsequently ratified it; that petitioner and defendant cohabited together from their marriage until January 21st, 1921, occupying the same room and bed, but that the marriage was never consummated. After an allegation of residence the petitioner prays that the pretended marriage may be decreed to be null and void for the cause aforesaid, pursuant to the statute, and that the petitioner may have further and other relief. There is in this cause of action an averment that prior to the performance of the ceremony of marriage the defendant falsely represented to the petitioner that he was in perfect physical health and condition and that he was able and willing to consummate the marriage, upon which representations the petitioner relied, but that defendant was then and there impotent to consummate the marriage, which was fully known to him. This latter is a cause for annulment for fraud inducing the marriage, and this allegation may be stricken out or will be disregarded, leaving the first count to stand as a petition for annulment under the statute. The, second separate cause of action is founded entirely upon fraudulent representations as to virility, which were believed by th'e petitioner, and in reliance upon which she entered in the. contract of marriage. The prayer is for a decree of nullity and for further and other relief.

Marriage, residence and the impotence of the husband at the time of the marriage are sufficiently proved. It is also proved that he falsely represented himself to be virile and capable of consummating the marriage. This is somewhat extraordinary and arose in this way: The wife had been married before and had two children by her first husband. Prom her testimony it is clearly to be inferred, although she does not state it in terms, that her first husband became impotent some time after their marriage, and she apparently was fearful that she might encounter the same situation again, and, therefore, made bold to ask the defendant if he were capable, to which he untruthfully replied that he was.

In the case Anonymous, 24 N. J. Eq. 19, Chancellor Runyon held that this court will annul a contract of marriage outside of its statutory jurisdiction only where the contract is void; and he refused to annul the marriage for impotence on the part of the husband which existed at the time of marriage,-had continued ever since and was incurable, and this for the reason stated by Bishop, whom he quotes—that is, because impotence is a canonical defect which only makes the marriage voidable and not void until sentence of nullity is pronounced, and he stated that whether the application before him be considered as one for divorce according to the special prayer of the bill, or for a decree of nullity under the general prayer, it must be denied; and he concluded as follows: “If, in the opinion of the legislature, sound public policy demands that the jurisdiction of this court be extended to such cases as this, it will SO' enact.” And it did, for the next legislature, that of 1874, incorporated into the revision of the Divorce act of that year section 4, which provides:

‘‘Divorces from the bond of matrimony may be decreed in case the parties, or either of them, were, at the time of such marriage, physically and incurably impotent; and all such marriages shall be invalid from the beginning and absolutely void.” .

See Rev. of 1877 p. 315. On the margin is a note, “P. L. 1857 p. 399." This is a mistake. In that year the legislature passed a supplement to the Divorce act dealing only with the time of desertion. This mistake is also in the marginal note in the Divorce act to be found in Gen. Stat. p. 1267 § 4. The same mistake has been carried into the note under section 1, subdivision 3 of the Divorce and Nullity acts, of 1907. Comp. Stat. p. 2022.

Now, in Carris v. Carris, 24 N. J. Eq. 517, the court of errors and appeals held (at p. 522), reversing ChancellorZabriskie, that the jurisdiction of the court of-chancery to annul fraudulent contracts is sufficient to include a contract of marriage, although a new application of it; that the absence of ecclesiastical courts, the existence in the court of chancery of the general jurisdiction stated, and there being no provision in the constitution for a different tribunal, and consent being a common law essential of the marriage contract, all show that that jurisdiction must embrace the right to annul such a contract for sufficient fraud. And Chancellor Runyon, in the case Anonymous, construed this decision of the court of errors and appeals as not extending to cases of impotence, because the defect in them was canonical and voidable, and that nullity was effectual only upon pronouncing a decree, remarking that the distinction is between marriages void because there is no contract and those which are voidable merely, asserting that oyer the former this court has jurisdiction but not over the latter; and because the legislature had not authorized a dissolution of, marriage for impotence, he said it must be presumed to have withheld the power of divorce for that cause, and whether the application before him was to be construed as an application for divorce or for decree of nullity, it must be denied.

But Chief-Justice Beasley, speaking for the supreme court, in Gulick v. Gulick, 41 N. J. Law 13, said (at p. 14) that it was urged that section 4 of the Divorce act, supra, was only applicable when there is a fraudulent concealment of the matrimonial impediment of impotence, but that the act would not yield such a meaning; that if such were its office it added nothing to the efficacy of the law as it existed at the time of the enactment, for at that period it had been definitely settled by the court of errors and appeals in Carris v. Carris, supra, that a fraudulent concealment of the kind in question constituted a ground for which the marriage would be dissolved. The opinion of the supreme court in Gulick v. Gulick, written by the learned chief-justice, who participated in the decision in Carris v. Carris in the court of errors and appeals, is therefore authority for the proposition that both the statute and the inherent jurisdiction of this court to annul contracts for fraud, are invokable and efficacious in cases of impotence. In other words, that a divorce (now nullity) could be granted for impotence under the statute, where there has only been discovery after marriage, or that the marriage could be annulled under the inherent jurisdiction of this court relating to fraud. And the fraud may be either suggestio falsi or suppressio veri. Turney v. Avery, 92 N. J. Eq. 473.

There is a line of cases subsequent to Carris v. Carris, following its doctrine. Among the latest is Ysern v. Horter, 91 N. J. Eq. 189, wherein Vice-Chancellor Stevenson held that an unconsummated marriage, which is infected with fraud of anjr kind whatsoever, which would render a contract voidable, is voidable at the option of the injured party if promptly disaffirmed before any change of status has occurred, and that what is sufficient.fraud to avoid such a marriage, is the subject of ascertainment in every case in which the complaining spouse alleges that his or her consent was induced by the other’s fraud. This includes impotence. See, also, Dooley v. Dooley, 93 N. J. Eq. 18.

In a recent opinion by former Vice-Chancellor Stevenson, sitting as advisory master in the same case of Ysern v. Horter (opinion filed. September 7th, 1922, 94 N. J. Eq. 135), he held that a so-called voidable marriage, which the injured party has the option to have declared void ab initio during the lifetime of both parties, may at any time before final decree of annulment be ratified and confirmed. This means, of course, that a voidable marriage, wjhich is valid until voided by the court, is, nevertheless, when decree of nullity is pronounced, void from the beginning.

In 2 Bouv. Law Dic. (Rawle’s rev.) 527, it is stated that the distinction between a marriage absolutely void, or one voidable at the election of one or both of the parties, is important; that in the case of the latter the marriage will be treated as valid and binding until its nullity is ascertained and declared by a competent court in a suit instituted for that purpose, during the lifetime of both parties; but the effect of a sentence of nullity, when pronounced, is to render the marriage null and void from the beginning. It appears therefore that in either case, when a decree of nullity is pronounced, the status of the parties is as though they had never been married, and the result in the last analysis is the same, so that it is quite immaterial whether the decree is obtained for fraud under the general jurisdiction of the court or under its statutory jurisdiction.

Since the petitioner before me has pleaded and proved a case of fraud, she may have a decree of nullity for that cause.

Decree nisi accordingly.


source: Caselaw Access Project

author: Walker, Chancellor.

license: Public Domain

text:
    Inez Colomba Rinaldi, by her next friend, Morris Roncoroni, petitioner, v. Peter Rinaldi, defendant.
    [Decided October 18th, 1922.]
    1. Upon marriage, the domicile of the wife merges into that of the husband, as a legal sequence of the nuptial contract, and this unity of domicile, called the matrimonial domicile, exists during coverture, unless the wife acquires one elsewhere by the husband’s consent manifested by acquiescence, or abandonment, or by such conduct on his part inimical to cohabitation, as would secure to the wife a decree of divorce a vinculo matrimonii or a mensa et thoro.

    2. A wife whose matrimonial domicile is in another state may come into this state and acquire a separate domicile here, when she has been so offended against by her husband as to entitle her to a decree of divorce or judicial separation from him for and on account of such conduct, the only requirement® being absolute good faith in the taking up of such residence and an intention to remain here.
    3. No length of residence without intention to remain will constitute domicile. 4. Wien a change of residence is effected the question as to whether the newly-acquired one is to be the ¡party’s legal domicile depends upon both fact and intention; the best evidence of mtmtic/n being ascertained from the party’s declarations, which are always available in a suit for divorce or nullity of marriage because the parties are alive.
    5. 'The domicile of a legitimate unemancipated minor is, if its "father be alive, the domicile of the latter, ¡but the marriage of a female minor emancipates her.
    6. The residence required by our statute to give this court jurisdiction to grant a divorce or annul a marriage, means fixed domicile or permanent home as distinguished from mere residence.
    7. The court of its own motion and in the interest of justice will sometimes permit the taking of further testimony to legally establish what has ¡been insufficientlly proved.
    On finál hearing on master’s report and depositions ex parte.

      Messrs. Smith <& Brady, for the petitioner.
   Walker, Chancellor.

Onr statute conferring jurisdiction of causes for the purpose of annulment of marriage provides that jurisdiction may be acquired (1) by personal service of process upon the defendant within this state, when either party is a bona fide resident here at the time of the commencement of the action, or (2) when the defendant cannot be served personally with process within this state, and when at the time of the commencement of the action the petitioner is a bona fide resident here, jurisdiction may be acquired by publication to be followed where practicable by service upon, or notice to, the defendant without this state, &c. P. L. 1907 p. 474 § 5 subdivs. 1, 2.

On examining this case on the master’s report and depositions annexed, I filed a memorandum in which I recited that the parties were married February 23d, 1917, at Syracuse, New York, when the petitioner was twelve years, eight months and five days old; that they have not cohabited since March 17th, 1917, when, on the latter date, petitioner left the defendant and went to the home of her brother in Phillips-burg, in this state, where she has lived ever since; and I cited Jimenez v. Jimenez, 93 N. J. Eq. 257, in which I held that a marriage as to its dissolution is governed by the lex dornicilii, and that this applies to nullity suits as well; that here, as there, the petitioner claims to be domiciled in New Jersey, and invokes the jurisdiction of our court, but that there may be an impediment to the granting of the decree, for the proofs show that the defendant is a resident of the State of New York, where the' parties were married and lived through the brief period of their cohabitation; and the question arises, Can this wife, by deserting her husband in that state, come here and obtain a domicile for the purpose of bringing a nullity suit ? Jimenez v. Jimenez, supra,. The desertion here referred to meansl leaving, and the word is not used in a technical sense. I concluded my memorandum with the statement that counsel- might be heard orally or on briefs upon the question of residence.

In pursuance of the leave thus given counsel for petitioner appeared before me and argued the reserved question, citing Avakian v. Avakian, 69 N. J. Eq. 89, as authority to the effect that the petitioner is domiciled in New Jersey and has the reqirisite residential status to maintain this suit. In that case Vice-Chancellor Pitney observed (at p. 99) : “The notion that the domicile of the wife follows that of her husband has little or no practical application to suits between husband and wife, since if the wife was justified in leaving her husband she thereby became entitled to adopt a new domicile, and if she was not justified she will fail in her suit on the merits.”

Avakian v. Avakian, supra, is also an authority that' this court has power to annul a marriage solemnized in another jurisdiction and when the cause for action arose in a foreign state.

In order, apparently, to lay a foundation for the obtaining of a Iona fide residence in this state by the petitioner upon her actual desertion of her husband, counsel has filed an affidavit of the petitioner, in which she says that prior to her marriage she was in good health, robust and strong for a girl of her age (twelve years); that her experience oh the first night of her married life was such that she incurred a feeling of fear of the defendant, and from that time on she never had intercourse—meaning, of course, sexual intercourse—with him of her own free will and consent, and on each occasion thereafter when they had intercourse she complained of pain and suffering that she underwent, and begged the defendant not to try to have intercourse with her; that her health failed and it.was necessary to call in a doctor to treat her; that he tolcl her that she was very nervous and that her condition was such that she should go to bed and remain there; that she remained in bed for about one and a half weeks, or up to the very day she was taken from her husband’s home by her father, whom she begged to take her away from the defendant, saying if her father did not take her she would run away, because she could not stand that life any longer.

This affidavit is intended as a showing that the wife was justified in leaving' her husband. That may be so. In English v. English, 27 N. J. Eq. 579, upon bill for divorce a mensa et thoro, on the ground of extreme cruelty, consisting mainly in gross abuse by the defendant of his marital rights in insisting on having intercourse with his wife against her entreaties and expression of apprehension that it would be fatal to her, she being kept awake many nights by the pain she suffered during and after intercourse, Chancellor Eunyon decreed a divorce from bed and board forever, ante p. 74. The corirt of errors and appeals in reversing the decree said that the action of that court was not based upon any approval of the acts of the husband of which his wife complained, nor upon his requests for her return, nor upon any formal security that he could offer for his future good behavior, and held that a divorce a mensa et thoro will be granted where there is gross abuse of marital rights.

Vice-Chancellor Pitney in his assertion in Avakian v. Avakian that a wife could acquire a domicile independent of that of her husband, if she is justified in leaving him, could not have meant she could leave him for any cause sufficient unto herself not affording legal justification. The fact in the case before him was that a marriage contract between a girl fourteen years of age with a man fifty-five years old, in the circumstances recited, was procured through duress by the man practiced on the girl. This, of course, was an offence which justified her leaving.

In re Geiser’s Will, 82 N. J. Eq. 311, I held, as ordinary (at p. 313), that upon marriage the legal domicile of the wdfe merges into that of the husband as a legal sequence of the nuptial contract, and the unity of domicile exists during coverture, unless the wife acquires one elsewhere by the husband’s consent. That consent may be either actual or constructive, and may be manifested by acquiescence, by abandonment or by such conduct inimical to cohabitation as would secure to the wife a decree of divorce a vinculo or a mensa et thoro.

In Suydam v. Suydam, 79 N. J. Eq. 144, I held, when vice-chancellor, that if a husband be guilty of conduct amounting to a matrimonial offence that would constitute ground for divorce, his wife is justified in leaving him and the desertion thereby becomes his.

In Rogers v. Rogers, 81 N. J. Eq. 479, the court of errors and appeals held that desertion is justified only when the deserting party has been so offended against as to authorize at his or her instance a decree of divorce or judicial separation

In Thompson v. Thompson, 89 N. J. Eq. 70 (at p. 77), Vice-Chancellor Baches held that in legal contemplation the husband’s domicile is that of the wife, and unchangeable by her, except with his acquiescence or consent or for misconduct on his part, inimical to the union, as justified her in selecting another, citing, among other authorities, In re Geiser’s Will, supra, and Tracy v. Tracy, 62 N. J. Eq. 807. And the vice-chancellor observed that whether there was justification for a wife’s leaving is purely a question of fact to be passed upon by the trial court in determining whether a separate domicile has been acquired. In the 'latter case (Tracy v. Tracy) the court of errors and appeals held (at p. 810) that a feme covert’s residence follows that of her husband,- but terminates with the reasons upon which it rests, and when the union between the two ceases and an attitude of hostility arises they may each have different residences. This holding was, of course, based upon the facts of the Tracy Case, which were that the husband deserted his wife in the State of New York, where they were then residing, after which she came to this state and acquired a residence as is required by the statute to entitle her to a divorce.

From the above authorities it clearly appears, I think, that a cause sufficient to justify a wife in leaving the matrimonial domicile of her husband and herself and acquiring an independent domicile of her own, is such cause only as would entitle her to a decree of divorce or a judicial separation from him under the statute.

In Wallace v. Wallace, 65 N. J. Eq. 359, Judge Yroom, speaking for the court of errors and appeals (at p. 364), said: “I concur entirely in the principle laid down by the special master in this case that a person may legitimately move to another state in order to avail himself of the laws of that state, and this includes, necessarily, the right to remove into the jurisdiction of this state for the purpose of procuring a divorce, the only requirements being absolute good faith in the taking up of such residence and of the animus manendi; in other words, the factum of residence and the animus manendi proves the domicile. Magowan v. Magowan, 12 Dick. Ch. Rep. 324; Harral v. Harral, 12 Stew. Eq. 285.” This, of course, presupposes the right to acquire a new domicile.

The doctrine of Wallace v. Wallace, without more, would make a perfect case of domicile for the petitioner before me, but, it must be remembered, that decisions are rendered with reference to the facts of the particular cases under consideration; and in this Wallace Case the petitioner was deserted by her husband. That disrupted the matrimonial domicile, and she had the right, under the cases, to acquire a new one for herself. And in the Wallace Case the opinion concludes: “The proofs in this case, showing that the residence of the complainant was acquired with the animus manendi, and that she is corroborated by satisfactory evidence as to her intention to remain permanently in New Jersey, the avowal on her part that her object in moving into the state was to obtain a divorce cannot effect the bona fides of her residence or her right to a divorce under the provisions of our statute.”

In the instant case there is sufficient corroboration of the petitioner’s actual residence in New Jersey for the last five years, but there is no declaration by her that she has had the intention of making, and continuing to make, it her permanent home; and, for aught we know, she may intend the very reverse.

In Firth v. Firth, 50 N. J. Eq. 137, it was held by Vice-Chancellor Van Fleet: “The actual intention of the person whose domicile in dispute is in most cases a fact of great importance, but the best and most trustworthy evidence of it is found, as a general rule, in his acts rather than in his declarations.” See, also, Stout v. Leonard, 37 N. J. Law 492, 496. And no length of residence without intention of remaining will constitute domicile. Ibid. 495.

From the foregoing it appears that when a change of residence is effected the question as to whether the newly-acquired one is to be the party’s legal domicile is a question which depends upon both fact and intention. The best evidence of intention is to be ascertained from the party’s declarations, which are always available in a suit for divorce or nullity because the parties are alive.

The case at bar differs from that of Blumenthal v. Tannenholz, 31 N. J. Eq. 194, where it was held that the domicile of a legitimate unemancipated minor is, if his father be living, the domicile of the latter; that an infant, whose parents resided in Canada, who filed a bill to annul her marriage on the ground of fraud, her husband being domiciled elsewhere, was incapable of changing her own domicile, and that consequently the court had no jurisdiction. But Vice-Chancellor Pitney in Avakian v. Avakian, supra (at p. 98), said that that case was distinguished from Blumenthal v. Tannenholz. in that in the Arabian Case the petitioner was placed bjr her father, who lived in Armenia, in the hands of a man to be escorted to the home of her aunt in Hoboken, New Jersey, according to the petitioner’s own account, and to be married to a man in New Jersey, according to the account of her escort; that in either case New Jersey was to be her home, and that it follows that she did by her father’s command change her domicile to New Jersey, which was true whether her story as to the object of her journey or that of her escort be accepted. The father of the petitioner, in the case before me, with her brother and sister, actually took her to the residence of her brother in this state and left her there to live, and has apparently abandoned her ever since. While this might of itself emancipate her, still she was already emancipated because she was a married woman; and the marriage of a female minor emancipates her. See 1 Bish. M., D. & S. § 557. Even when an infant, emancipated by marriage, becomes a widow before reaching the age of maturity, she does not relapse into pupilage. 22 Cyc. 518, tit. “Pupil;” inter alia; one who has not reached his or her majority. 2 Bouv. Law Dic. (Rawle’s rev.) 796.

In Hess v. Kimble, 79 N. J. Eq. 454, Vice-Chancellor Learning held, inter alia, that the term “residence,” as used in our Divorce and Annulment act of 1907, includes not only the factum of residence but also the animus manendi, the residence required by the statute being equivalent to domicile ; that the domicile of a legitimate unemancipated minor, whose will cannot concur with the fact of residence is, if his father be living, the domicile of the father; that a minor cannot change his domicile of his own will; and that the burden of proof to establish a 'change of domicile on the part of a minor is on him. In Coddington v. Coddington, 20 N. J. Eq. 263, Chancellor Zabriskie held that the residence required by the statute concerning divorces to give the court jurisdiction, means fixed domicile or permanent home.

The defendant was not served with process within this state, but was brought in by publication and mailing of certified copies of the order of publication and petition for annulment. He was therefore notified that the petitioner alleged that she was a bona fide resident of this state at the time of the commencement of his suit, having her permanent residence at, &c., continuously, &c. He did not answer, but defaulted in pleading, and this entitled the petitioner to proceed ex parte, which she had done. To prove her residence in this state she is entitled to show that the defendant committed a marital offence against her entitling her to a decree of divorce a mensa el Ihoro for extreme cruelty, or for a divorce a vinculo matrimonii for desertion—constructive desertion—they having been separated for more, than two years' and she having lived here during all the time of the separation. See Csanyi v. Csanyi, 93 N. J. Eq. 11. But the petitioner has not sufficiently proved her residence'—that is, domicile, in this state. The affidavit which she has filed setting out the alleged 'cruelty of her husband cannot be accepted as proof of the fact; besides, her intention to make New Jersey her permanent residence does not appear, only the fact of her residence is shown. In the recent case of Ysern v. Horter, opinion filed September 7th, 1922, 94 N. J. Eq. 135, former Vice-Chancellor Stevenson, now advisory master, said that the court was asked to accept merely the ex parte affidavit of the petitioner to establish the important fact that the presumptive ratification of a voidable marriage is inoperative on account of duress; that the fact of duress must be established in court, where witnesses can be cross-examined by counsel or by the court, or, as that was an ex parte case originally, by the master upon a re-reference of the case back to him.

The court, of its own motion and in the interest of justice, will sometimes permit the taking of further testimony to legally establish what has been insufficiently proved. Kirschbaum v. Kirschbaum, 92 N. J. Eq. 7, 12.

The petitioner may have an order re-referring the cause to the special master, with leave to take further testimony to prove residence (legal domicile) in Eew Jersey in accordance with the tests laid down in this opinion, if she so desires, and moves therefor within thirty days; otherwise her petition will be dismissed.


author: Walker, Chan cellor.

text:
    Colia Markowitz, petitioner, v. Samuel Markowitz, defendant.
    [Decided October 31st, 1922.]
    A decree nisi of divorce or nullity of marriage cannot be made or entered name pro< tune, but must be dated in the body and filed and docketed on the same day and at the same time, to the end that the time provided by the statute (P. L. 1907 p. 474 § 20) for appeal or showing cause why it should not be made absolute after the entry thereof, shall neither be abridged nor abolished.
    On petition, &c. On application to enter decree nisi nunc pro tunc.

      Mr. /Iquilla N. Venino, for the motion.
   Walker, Chan cellor.

This is a litigated divorce case heard before one of the vice-chancellors. The cause was tried in November, 1921, and at the conclusion of the hearing the vice-chancellor announced that he would advise a decree of divorce for the petitioner. The Divorce act (P. L. 1907 p. 474 § 20) provides that if after hearing the court shall be of opinion that the petitioner is entitled to a decree of divorce or nullity of marriage, a decree nisi shall be entered. Shortly after the hearing counsel for petitioner sent the vice-chancellor a draft of a decree nisi. 'This the vice-chancellor declined to sign because it contained matter not within his decision, and so wrote the solicitor, who, believing that the vice-chancellor had signed the decree, eliminating the matter objectionable to him, and that it had been entered—that is, filed and docketed, discovered after the lapse of more than six months from the time he had forwarded the decree to the vice-chancellor, that it had not been filed.

Counsel for petitioner moves that a decree nisi may now be filed nunc pro iunc as of a date more than six months ago (time of hearing), and that immediately thereupon a final decree may be entered. This cannot be done.

Section 21 of the Divorce act, supra, provides that a decree nisi shall become absolute after the expiration of six months from the entry thereof, unless appealed from, or proceedings for review are pending, or the court for sufficient cause, upon its own^motion, or upon the application of any party, whether interested or not, otherwise orders; and at the expiration of six months such final or absolute decree shall then be entered upon application to the court by the petitioner, unless prior to that time cause be shown to the contrary. Ho decree nisi has been entered in this cause.

The present Divorce act went into effect during the incumbency of Chancellor Pitney, and he promulgated a rule of practice (unwritten) that a decree nisi of divorce or nullity should be dated in the body thereof on the same date and at the same time when thé decree was actually filed and docketed by the clerk, so that no part of the six months allowed by statute for appeal or objection should be curtailed. And this is obviously correct practice. It is unfortunate for the petitioner in this case that by inadvertence and mistake a decree nisi was not made, filed and docketed at or about the time the vice-chancellor’s decision was rendered, which was nearly a year ago; but this hardship cannot be relieved against in the situation in which the legislature has placed this proceeding. It is because the entry of a decree nisi nunc pro tunc would abridge or abolish the time wherein an appeal could be taken, or objection urged, to the making absolute of such decree, accordingly as it might be dated back less -or more than six months before its entry, and thereby nullify pro tanto or in toto the provision for time in the statute just adverted to, that a decree nisi cannot be made and entered nunc pro tunc.

Let a decree nisi be entered as of present time.


text:
    State of New Jersey, defendant in error, v. Iva Giberson, plaintiff in error.
    [Decided November 20th, 1922.]
    1. A criminal case “punishable with death” is the same as a “capital case”-—that is, one in which the death penalty may, but need not necessarily, be inflicted.
    2. In all capital cases in which sentence of death or a term of imprisonment has been pronounced, and the convict is desirous of suing out a writ of error, application is required to be made to the chancellor therefor, and, if he grants it, the writ issues out of the supreme court as a writ of grace, but, if he refuses it, it issues out of the court of errors and appeals as a writ of right.
    On application for writ of error from the supreme court on conviction of murder in first degree with judgment of life imprisonment.

      Mr. William Howard Jeffrey, Mr. Charles M. Atlcinson and Mr. J ames M ercer Davis, for the application.
   Walker, Chancellor.

This is an application for a writ of error from the supreme court in behalf of Iva Giberson, convicted in the Ocean oyer and terminer of murder in the first degree, with recommendation to imprisonment at hard labor for life, under P. L. 1919 p. 303, which carries-with it that sentence which has been imposed. The application is made under the act of 1795 (Pat. L. p. 163), which provides in section 13 that writs of error in all criminal cases, not punishable with death, shall be considered as writs of right and issue, of course, and in all criminal cases, punishable with death, writs of error shall be considered as writs of grace, and shall not issue but by order of the chancellor for the time being. This is a jurisdiction vested in the chancellor as a statutory magistrate or agent. See In re Prudential Insurance Co., 82 N. J. Eq. 335. But the proceeding, not being one in the court oí chancery, is, nevertheless, to be entitled in the court of chancery and filed with the clerk thereof. P. L. 1915 p. 28.

In 1878 (P. L. p. 80) the legislature amended the Paterson act, in terms, so as to make writs of error in criminal cases punishable with death, writs of right instead of writs of grace, by omitting the provision for the chancellor’s order and expressly providing that such writs should issue as of course out of the court of errors and appeals, and this amendment has been carried forward since, and is now section 134 of the Criminal Procedure act. Comp. Stat. pp. 1816, 1862. Its constitutionality has been considered but never determined.

In Kohl v. State, 59 N. J. Law 195, the court of errors and appeals, considering the amendment of 1878, left undecided the question whether the authority of the supreme court, dependent upon the allocatur of the chancellor, is a jurisdiction guaranteed by the constitution; but observed, that if it were not it forms no impediment to the legislative grant of the writ of error as a writ of right out Of the court of errors and appeals in all cases punishable with death; that if it be, it narrows that grant only so far as the jurisdiction of the supreme court extends, leaving the convict entitled to his writ of error out of the court of errors and appeals whenever the chancellor refuses to order the writ of grace out of the supreme court. In the Kohl Case the defendant, who had been convicted' of murder in the first degree and sentenced to be hanged, caused a writ of error to be issued from the supreme court, which, on motion of the prosecutor, was dismissed by that tribunal because it had not been allowed by the chancellor. That action was reviewed by the court of errors and appeals in Kohl v. State, supra; and that court held that the writ sued out by the plaintiff in error was neither the writ of grace provided by the act of 1795 nor the writ of right given by the act of 1878, and was therefore properly quashed. Since this decision, which was in the year 1896, it has been the universal practice to apply to the chancellor for allowance of a writ of error in a criminal case after judgment of death pronounced, and if he allowed the writ it issued from the supreme court as a writ of grace; if he refused it, it issued from the court of errors and appeals as a writ of right. But in some cases, capital in character, where the judgment has been imprisonment instead of death, the convicts have sued 'out writs of error from the supreme court, assuming them to be writs of right—notably in the two cases now about to be mentioned.

(1) In State v. Mowser, 91 N. J. Law 395, the defendant was convicted of murder in the first degree with recommendation to life imprisonment. A writ of error was issued out of the supreme court, without the order of the chancellor, and Mr. Justice Swayze, in that tribunal, reviewing the conviction, observed that no question has been made as to the propriety of that course, and it was assumed that the case was hot one punishable with death since the jury recommended life imprisonment. This case (State v. Mowser) went to the court of errors and appeals, where it was reversed, but on ground not involving the point under discussion here, which was not mentioned. State v. Mowser, 92 N. J. Law 474.

(2) In State v. Barone, 96 N. J. Law 374, the defendant, , on an indictment for murder, was convicted of murder in the first degree with recommendation to imprisonment for life, which carried that sentence with it, and, after judgment, he sued out a writ of error from the supreme court, without the .order of the chancellor, and the judgment was affirmed on the merits without the question now before me having been raised or noticed. From the judgment of the supreme court Barone appealed to the court of errors and appeals, where the judgment was affirmed on the opinion of the court below, which involved no notice of the question of the chancellor’s power. Barone v. State, No. 11, June term, 1922, court of errors and appeals, 96 N. J. Law 417.

Pending the prosecution of his writ of error in the supreme court, Barone applied for release on bail under the Criminal Procedure act (2 Comp. Stat. p. 1867 § 143), which provides that pending the prosecution of a writ of error the court in which judgment was rendered shall admit the defendant to bail, provided the section shall not apply to capita] cases. The supreme court decided that Barone was excluded from the.privilege of giving bail because he was convicted of a capital offence, and in the opinion Mr. Justice Bergen (without passing upon the question whether the action of the trial court could be properly reviewed by a writ of certiorari rather than mandamus or habeas corpus), observed (at p. 810) that, assuming a capital case is one in which the only punishment is death, the defendant was under an indictment which charged a capital offence, and the judgment against him .did not require the taking of his life, but, notwithstanding, if successful (on error), he would remain charged with a capital offence, and the jury on the second trial might withhold any recommendation relating to punishment, if they should find him guilty of murder of the first degree; and that where the indictment charges the defendant with murder, it remains a capital case until finally disposed of, and is not within the mandatory clause of the section referred to concerning bail, because the crime charged is a capital one and its character is not changed by bringing a writ of error. Barone took a writ of error from the judgment entered on this decision, and, in the opinion of the court of errors and appeals, which led to' a dismissal of that writ (because the order of the trial court refusing bail was certioraried to the supreme court for review wfyen a proper writ to enforce the performance of such duty was by mandamus), Mr. Justice. Kalisch observed, that as the crime of murder in the first degree is by our statute punishable with death, it follows that a person convicted of that degree is subject to the imposition of the death penalty unless the jury recommends that life imprisonment be inflicted; that, notwithstanding the imposition of the milder punishment, it is quite clear that the conviction in its very nature remains a conviction of a capital crime and falls within the class of cases in which bail under our statute shall not be taken pending appeal.

Blackstone, speaking of criminal judgments and their consequences, says- that some are capital and extend to the life of the offender. 4 Bl. Com. 376. In 1 Bouv. Law Dic. (Rawle’s rev.) 284, capital punishment is defined to be “the punishment of death.”

It is to be borne in mind that the language of the act of 1795 is “punishable with death.” The word “punishable” means “deserving of or liable to punishment; capable of being punished by law or right.” Web. New Int. Dic. 1736. The word “punishable,” as used in statutes which, declare certain offences are punishable in a certain way, means liable to be punished in the way designated, and does not mean must be so punished; and the fact that a recommendation to mercy may reduce the punishment, otherwise prescribed, does not take the offence out of the operation of the general provision as to offences punishable, &c. See Words and Phrases 5849.

The principle involved in the application before me was present in the case of State v. Barone on the question of admission to bail, and the doctrine enunciated by the supreme court and court of errors and appeals thereon is quite decisive of the question sub juclice. In other words, if a capital case, which, as we have seen, means one in which the death penalty may be denounced, retains its character of capital, although a milder punishment may be inflicted, so, a case punishable with death, which is capital, retains its characteristic of punishable with death, notwithstanding a milder punishment may be inflicted. These views lead inevitably to the conclusion that the application in this case, for allowance of a writ of error, is properly made to the chancellor under the established procedure in this state.

In the matter before me I am not persuaded that I should order a writ of error out of the supreme court as a writ of grace; and will therefore deny the application. An order to that effect will be made and filed and a certified copy will be sent the clerk of the court of errors and appeals, to the end that counsel may cause a writ of error to be issued out of the court of errors and appeals as a writ of right.

Order accordingly.


author: Leaming, V. C.

text:
    James Stevens v. Ward B. Robinson et al.
    [Decided July 8th, 1922.]
    1. A bill, of strict interpleader cannot 'be treated as a bill in tlie nature of a bill of interpleader, as this would be equivalent to allowing a new cause of action to be stated by amendment.
    2. Under chancery rule 69, where defendants have answered a bill of interpleader and contested the complainant’s right to compel them to interplead, the only issue is the complainant’s right to the relief asked for.
    3. Person® supplying labor and materials to a contractor were privileged to assume that an installment would not be paid to the contractor until it was due and pajnable under the contract, and the owner’s payment thereof to the contractor before it became due and payable did not absolve him from liability to laborers and materialmen serving statutory stop-uotices.
    4. An owner, completing his building upon the contractor’s default, cannot maintain a bill to compel laborers and materialmen to inter-plead with each other with respect to> the balance of the contract price where they claim that the owner is liable for a larger amount because of a payment made to the contractor before it was due, and there is a substantial issue as to whether or not such payment was made.
    5. While a bill of strict interpleader is not defeated by the mere presentation of an issue touching the amount for which the complainant is liable, if the issue is real and substantial and supported by a great amount of testimony, and the conflict of testimony renders a finding of fact difficult and uncertain, such bill must be dismissed.
    On hearing on bill of interpleader.

      Mr. Edward West, with whom was associated Mr. Harvey F. Carr, for the complainant.

      Mr. Oscar B. Redrow, for the defendant Robinson.

      Mr. Francis G. Homan, with whom was associated Mr. Howard L. Miller, tor the defendant Wilson Brothers.

      Mr. Charles W. Letzgus, for the defendants West and others.
   Leaming, V. C.

The sole question for determination at this time is whether complainant is entitled to a decree permitting him to pay into this court certain money which he claims to hold as a mere stakeholder and to compel the several defendants to inter-plead with each other touching their several rights to the fund. This decree, if awarded, will be operative to wholly discharge complainant from liability to the several defendants touching the matters referred to in the bill, and will entitle him to his costs payable from the fund.

The bill filed by complainant is a bill of strict interpleader. It is impossible to treat the bill as a bill in the nature of a bill of interpleader; to do so would be essentially equivalent to allowing a new cause of action by amendment.

The several defendants have answered the bill and by their answers contest the right of complainant to compel them to interplead. Under the present practice, as controlled by chancery rule 69, the single issue is that of complainant’s right to relief.

Complainant caused certain buildings to be erected on his land under a written contract duly filed. The contract called for the payment to the contractor of the contract price in installments, payable at certain times to be determined by the progress of the work. By the terms of the contract the fifth installment, $4,000 in amount, was to be paid to the contractor “when the two comer stores are full}'- completed and ready for occupancy and all buildings lathed and plastered.” Complainant claims that this installment of the contract price became due and payable and was paid by him to the contractor; that the contractor then abandoned the woyk and that complainant then caused the buildings to be completed in accordance with the contract plan and paid the cost of completion out of the final contract installment. The balance of the final contract installment complainant has paid into court and now seeks to compel defendants to interplead as to their respective rights to that fund.

The claims of the several defendants are based upon statutory stop-notices served by them after the contractor abandoned the work. Their claim is that the $4,000 installment was paid by complainant to the contractor before it was due and that it was not due when the contractor abandoned the work and when the stop-notices were served.

It is obvious that the several defendants, who supplied labor and materials to the contractor, under our statute were privileged to assume that the $4,000 installment would not be paid to the contractor until it was due and paj^able to the contractor under the terms of the contract; accordingly, if that installment did not become due and payable to the contractor, its payment to the contractor in no way absolved complainant from liability to the several defendants for the amount of that installment.

A number of witnesses on behalf of defendants have testified that the two corner store buildings were not completed by the contractor and that the two1 corner stores were in fact completed in part by the new contractor whom complainant employed to finish the work.

Testimony was also given on behalf of defendant Robinson, to the effect that complainant had personally contracted to pay him, Robinson, for the lumber supplied by him to the contractor; this was in turn denied by complainant.

A great amount of testimony was taken on the issue of whether or not the two corner stores were fully completed and ready for occupancy and all the buildings lathed and plastered at the time the $4,000 installment was paid to the contractor. On this issue the testimony is in irreconcible conflict in most respects. It was established as an admitted fact that at that time the toilets of each of the two stores referred to had not been put in, and that the registers controlling the heat from the basement were not installed in the stores by the contractor, and that the furnaces were not installed and that the cesspools for the use of the two corner stores had not been constructed, nor had the plumbing been extended to the locality where the cesspools were to be placed. Some of the witnesses testified that the trim had not been in place in one of the corner stores referred to; that the doors were not on one of the corner stores; that the woodwork of one of the comer stores had not been stained or varnished. On the other hand, witnesses on behalf of complainant testified that all of these things had been done except the installation of the toilets, registers, furnaces, cesspools and cesspool plumbing already referred to.

Prom the foregoing it is sufficiently apparent that the primary issue involved herein, aside from the rights asserted by defendant Robinson, is whether or not the $4,000 installment which was paid by complainant to the contractor became due and payable under the terms of the contract. If it did not become due, it is obvious that the defendants, relying on stop-notices, are entitled to recover from complainant to the same extent as though that contract installment had not been paid to the contractor.

I am convinced that in the circumstances above outlined complainant is not entitled to a decree compelling defendants to interplead touching the funds which complainant claims to be the limit of his liability.

The controversy in this case is not touching the rights of the several defendants as against each other, but is in reality a controversy as to the amount for which complainant is liable.

While many authorities hold that any dispute touching the amount for which complainant is liable will defeat a bill of strict interpleader, I think it may be said that the mere presentation of that issue by defendants should not deny the court the right to inquire into and ascertain whether a real and substantial dispute of that nature exists. But when, as here, it is disclosed that that issue is a real and substantial one, and where, as here, the claim of defendants to a liability upon the part of complainant of a larger amount than complainants admits, and of a wholly different nature than that asserted by complainant, is supported by a great amount of testimony, and the conflicting testimony renders a finding of fact difficult and uncertain, it seems clear that the office of a bill of strict interpleader fails. I think that no case will be found to justify an adjudication of the amount due under a bill of strict interpleader where that issue is a real and substantial one and is the real question in controversy.

In Diplock v. Hammond, 2 Sm. & G. 141, B undertook to pay to A the sum of three hundred and sixty-five pounds sterling at ■ a particular time, and afterward paid him forty pounds sterling on account. A then assigned the sum of three hundred and sixty-five pounds sterling alleged to be due to him from B both to C and D, and C and D each claimed the right to be paid this sum from B. B filed a bill of inter-pleader against C and D, stating payment of the forty pounds sterling on account and requiring them to interplead as to the remaining three hundred and twenty-five pounds sterling. Held, that on account of the difference of the two sums of three hundred and sixty-five pounds sterling and three hundred and twenty-five pounds sterling, interpleader would not lie. To the same effect is Mitchell v. Hayne, 2 Sim. & St. 63, and Moore v. Usher, 7 Sim. 383. In Bignold v. Audland, 11 Sim. 23, A, having in his hands a sum of money which B and C claim adversely to each other, filed a bill praying that they might interplead respecting the sum. It was held that the bill could not be sustained as a bill of strict interpleader, because A sought a decision of the court as to a claim of B for interest on the sum, the court holding that A was not in such circumstances an indifferent stakeholder. See, also, Crawshay v. Thornton, 2 My. & Cr. 1.

In Chamberlain v. O’Connor, 8 How. Pr. 45, it is specifically held that where the amount due from complainant is not beyond the field of dispute no interpleader can be allowed. See, also, City Bank v. Bangs, 2 Paige 570, and Montpelier v. Capital Savings Bank, 75 Vt. 433.

In Bridesburg Manufacturing Co. Appeal, 106 Pa. St. 275, the' complainant denied that he was liable for interest on the fund. Defendants affirmed in their answers that he was liable for interest on the fund in dispute. That issue was held to be fatal to the bill.

See, also, Baltimore and Ohio Railroad v. Arthur, 90 N. Y. 234, cited in Williams v. Matthews, 47 N. J. Eq. (at p. 199).

See, also, Wakeman v. Kingsland, 46 N. J. Eq. 113.

In Williams v. Matthews, supra, the vice-chancellor said (at p. 199): “Portions of these answers objected to .question the amount stated in the bill to be due on the contract. While it is not a matter over which an issue can be framed for settlement in a suit of strict interpleader, it may be inquired into to ascertain if the action is maintainable—that is, as the only proper decree is that the defendants interplead or the bill be dismissed, the decree cannot adjudge this or that amount due, but the amount offered to be paid into court may have a controlling influence in deciding if the complainant is simply a disinterested stakeholder, and for that purpose be inquired into. There is nothing on the face of this bill to demonstrate what is due; the averment is made, but no facts are given to verify the statement. If, as was alleged on the argument, the complainant made his own adjustment of his own claims, made allowances to himself and struck his own balance, over which he asks the defendants to litigate, they are not to be concluded by his averring that such sum is the amount due, and that he is indifferent. They may, by answer, show he is not so, and is interested in the matter of the controversy.”

It is urged on behalf of complainant that at the time the $4,000 installment was paid to the contractor but little work, at most, needed to be done to render the installment due and payable, and that the contractor could have maintained an action at that time for substantial compliance giving credit for the unfinished work. Should that be conceded, it is obviously unavailing. If the installment was not due and payable when it was paid, lawfully it could not have been paid to'the contractor as against the rights of defendants.

I am obliged to advise a decree dismissing the bill.


author: Leaming, y. C.

text:
    Clara A. Dengler Rittenhouse et al. v. Michael Swiecicki et al.
    [Decided July 10th, 1922.]
    1. Where it clearly appears that the defendants’ failure to answer in a specific performance suit was not due to. negligence, and their .petition to open the decree pro. oonfesso therein entered against them was- properly filed, the decree should he opened, and they should be permitted to. defend if a meritorious defence is adequately disclosed.
    2. A bill for the specific performance of a contract to. purchase land filed before the day for performance fixed in the contract was not prematurely filed when the other party repudiated the contract.
    3. A .provision in the contract for liquidated damages does not necessarily bar specific performance.
    4. Whore a contract .by a married woman and her husband to convey her land is not acknowledged by her, the purchaser cannot enforce it.
    5. W'he're a wife who did not originally acknowledge a contract for sale of land afterwards signed and acknowledged it, and also the deed which was tendered in performance of the contract, there was mutuality of remedy to support a suit for specific performance.
    On bill for specific performance. On hearing on petition of defendants to. open final decree.

      Mr. William G. French (for whom appeared Mr. James V. McAdams), for the petitioners.

      Mr. Wilfred B. Wolcott, for the respondents.
   Leaming, y. C.

This is an application bj’ defendants to open a final decree which has been entered against them in this court. No material facts are in dispute.

January 5th, 1922, a written contract was entered into wherein complainants, who are husband and wife, agreed to sell and convey to defendants, and defendants agreed to buy for a specified price certain real estate owned by the complainant Clara.

Defendants, vendees in the contract, refused to perform and complainants thereupon filed a bill for specific performance. Defendants promptly employed counsel to represent them. Their counsel, after careful consideration, became satisfied that no successful defence could be made and accordingly determined to file no answer. A decree pro confesso was then entered, and under an order for proof complainants’ testimony was duly taken before a master and a final decree thereon entered. The decree requires defendants to pay within a time specified the unpaid balance of the purchase-' money named in the contract.

Defendants now show that they did not know of the determination of their counsel to make no defence and did not know of the decree until shortly before the petition herein to open the decree was filed.

1. It is clearly established herein as a fact that petitioners’ failure to answer in the specific performance suit can in no way be attributed to their negligence or fault; and this petition to open the decree therein entered against them and to permit them to defend was promptly filed. The decree entered against defendants should be open and defendants sbxrald be permitted to defend if a meritorious defence is adequately disclosed. Day v. Allaire, 31 N. J. Eq. 303; Boyer v. Boyer, 77 N. J. Eq. 144.

2. The first defence presented by defendants is a claim that the bill was prematurely filed.

The bill was filed before the date named in the contract for the final pajrment. This was because defendants had, through their counsel, apprised complainants that they would not perform. This was first communicated by parol and subsequently confirmed by a letter in which it was stated that defendants “positively will not take the property under any circumstances;” the letter also demanded the return of the money theretofore paid. It is not claimed that this repudiation of the contract by the solicitor was not directed by the vendees.

In Stein v. Francis, 91 N. J. Eq. 205, I determined that a vendee’s bill for specific performance filed before the day for performance 'was not prematurely filed if the vendor had absolutely repudiated the contract. Obviously, the same principles there discussed are applicable to a vendor’s suit after absolute repudiation by the vendee. Indeed one of the authorities there cited was a vendor’s suit filed after repudiation of the contract by the vendee and before the contract day for performance. I find no reason to modify the views expressed in Stein v. Francis, supra.

3. It is next urged on behalf of defendants that by reason of a penalty clause contained in the contract, the contract must be understood as alternative in its nature and authorizing defendants to forfeit or surrender the $1,000 which they had paid and be thereby released from the obligation to accept the land and pay the balance of the purchase price.

As already stated, in the letter in which defendants absolutely repudiated the contract and declined “to take the property under any circumstances,” they also demanded the return of the $1,000 which they now offer to surrender as liquidated damages.

But aside from that circumstance, it seems clear that the contract cannot be understood as alternative.

The material language of the contract is as follows:

‘‘The 'said party of the first part agrees to sell and convey to the said party of the second part, who agrees to purchase property known and numbered as 116 East Walnut avenue, in the borough of Merchantville, county of Camden and State of New Jersey, with lot 70 x 150 feet, more or less, on the terms and conditions following, to wit: The said party of the second part agrees to pay for the said property the sum of twelve thousand ($12,500) five hundred dollars, as follows: One thousand dollars on the signing of this agreement (which deposit shall he forfeited to the said party of the first part as liquidated damages in case of 1he default by the said party of the second part in the performance of the terms of this agreement) and the balance of the purchase-money as follows: The balance of $11,500' in cash at time of final settlement. The premises are to he conveyed free and clear of all encumbrance and easements. Thé gas and electric light fixtures, heaters, ranges, &c., annexed to the said, building are included in the sale. Possession is to be given within ten days from the date hereof; if possession is not given within that time the above deposit to be returned.
“Taxes, water rent, house rent and interest on encumbx'ance (if any) to be apportioned for the current term.
“Gas and electric light bills, if any, to be paid by the seller.
“The title is to be such as will be iusui’ed by any reputable title company.
“And the said pax-ties hereby bond themselves, their heirs, executors and administrators, for the faithful performance of the above agreement within forty-five days from the date hex-eof, said time to be the essence of this agreement, unless extended by mutual consent in writing endorsed hereon.”

No circumstances have been disclosed in aid of the terms of the contract as above quoted. From its terms it is urged tiiat it is alternative in its operation. The relevant adjudicatiehs in this state, so fax as they have been brought to my attention, are the following: St. Mary’s Church v. Stockton, 8 N. J. Eq. 526; Crane v. Peer, 43 N. J. Eq. 553; O'Connor v. Tyrrell, 53 N. J. Eq. 15; Brown v. Norcross, 59 N. J. Eq. 427; Avon Land Co. v. Thompson, 60 N. J. Eq. 207; American Ice Co. v. Lynch, 74 N. J. Eq. 298; Porter v. Williams, 93 N. J. Eq. 88.

From these authorities the rule is well defined, to the effect that there must be something apart from the fact that there is a provision for liquidated damages to show that its' payment is to be the equivalent for performance. There must be found in the engagement a contemplated alternative whereby the partie's are given an option to perform or to refuse to perform and pay the specified damages. That alternative engagement is easily expressed, and if relied upon should appear with reasonable clearness and certainty. Porter v. Williams, supra, is in no way inconsistent with these views. There the odd amount of the liquidated damages was apparently fixed to cover the contingency of the vendor’s inability to perform in case she failed to procure her divorce in the suit then pending for that purpose, the amount fixed having been about equal to the rent then to he due from the vendee to the vendor, plus the $600 that had been paid. All the circumstances were there held to indicate an alternative contract based upon and made necessary by the possible inability of the vendor to get her divorce, in which contingency it appears to have been assumed by the parties that she would not be able to convey.

4. It is next urged that the decree should be opened to permit an answer to be filed settting forth as a defence the fact that the agreement of sale which was signed by complainants was not acknowledged and the title to the land to be conveyed was in complainant Clara Kittenhouse, wife of the co-complainant.

Since Corby v. Drew, 55 N. J. Eq. 387, it has been uniformly held in this state that where a contract by a married woman and her husband to convey her land is not acknowledged by her as required by our statute, the vendee cannot enforce the contract. Schwartz v. Regan, 64 N. J. Eq. 139; Goldstein v. Curtis, 63 N. J. Eq. 454; Ten Eyck v. Seville, 64 N. J. Eq. 611; Saldutti v. Flynn (New Jersey Court of Chancery), 65 Atl. Rep. 246; Chassman v. Wiese, 90 N. J. Eq. 108; Schwabinger v. Saxon, 92 N. J. Eq. 461; Binns v. Smith, 93 N. J. Eq. 33.

It is also a general rule, subject to certain exceptions, that specific performance of a contract will not be decreed in any case where mutuality of obligation and remedy does not exist at the time of rendering the decree. Richards v. Green, 23 N. J. Eq. 536 (at p. 537); Ten Eyck v. Manning, 52 N. J. Eq. 47.

But the evidence discloses that3 complainants have at all times not only desired to convey to defendants but have now acknowledged the contract of sale, and have also executed and acknowledged a deed of conveyance to defendants which they tender. Assuming that there may not have been mutuality of remedy in the first instance, such mutuality clearly exists at this time. Will this court open the decree to permit defendants to file an answer which will avail them nothing? Can the defence be said to be a defence going to the merits of the case when the defence which is now sought to be made cannot be successfully made ?

I am convinced that the application to open the decree for the purposes of making the defences specified must be denied.


text:
    Frederick L. Holman v. Ellis Parker et al.
    [Decided July 20th, 1922.]
    1. Restrictive building covenants should be construed strictly against the covenantee, and when vague or uncertain, they will not be enforced in equity.
    2. The purchaser of land, which was subject to a covenant that no building other than a dwelling-house or cottage to be-used solely as such shall be erected thereon, cannot build a row of four cottages for residential purposes thereon.
    On bill for enforcement of restrictive building covenants submitted on the pleadings.

      Messrs. Carr & Carroll, for the complainant.

      Mr. Joseph C. Haines, for the defendant Bennett. •

      Mr. Albert F. Burling, for the defendant Parker.
   Leaming, V. C.

No material facts are here in dispute. The single question for determination is whether there can be said to be any substantial doubt touching the meaning of the restrictive building covenant which complainant seeks to enforce.

It is an established rule that courts of equity will not aid one in the enforcement of restrictive covenants of this nature unless his rights are clear; that such covenants are’ to be strictly construed against the person claiming the right to enforce them; that when vague or uncertain or the right to relief is doubtful, relief must be denied. Fortescue v. Carroll, 76 N. J. Eq. 583; Goater v. Fly, 80 N. J. Eq. 40; Meaney v. Stork, 80 N. J. Eq. 60; Ocean City Land Co. v. Weber, 88 N. J. Eq. 476; affirmed, 84 N. J. Eq. 505.

It is admitted by defendants that on December 31st, 1919, defendant Parker conveyed to complainant a portion of land then owned by him, and that by an agreement between the same parties, a copy of which is annexed to the bill, the land retained by defendant Parker was restricted in its use in favor of complainant. Prior to that time the Parker land was subject to a restrictive building covenant in favor of complainant identical in all respects with the covenant then agreed upon between complainant and Parker, except the distance the restricted area extended from Gilmore street. The new covenant merely reduced the restricted area from sixty-five feet in width to fifty feet in width, complainant by the agreement waiving the benefit of the covenant as to the extra fifteen feet.

The restrictive covenant thus agreed upon was as follows:

“That no building other than a dwelling-house or cottage and to be used as such solely shall at any time hereafter be erected on any part of the land of the said Ellis Parker, extending from the southerly line of the land of the said Frederick L. Holman [complainant] southward to Chestnut street within fifty feet from the westerly line of Gilmore street.”

Defendant Bennett is now in possession of the land so retained by Parker (except as to ten feet frontage thereof on Gilmore street) under a contract of purchase, and proposes to build on the restricted area a row of four cottages for residence purposes.

The defendants are clearly bound by the covenant above quoted. Their defence is that the covenant cannot properly be understood as restricting the number of buildings on the restricted area, but should be understood as restricting the class of buildings which are privileged to be there erected— that is, forbidding the erection of any building except those of the defined type.

The difficulty encountered in accepting the view last stated is that the plain language of the covenant is to the contrary. The covenantor has in exact language engaged to erect no building other than a dwelling-house or cottage on the restricted territory. If the mutual intent was to engage to erect no buildings other than dwelling-houses and cottages on the restricted territory, the remedy should be reformation, since the clear and unmistakable meaning of the terms of the covenant are to the contrary.

The land retained by Parker at the time he conveyed to complainant was not in area more than could appropriately be devoted to a single residence property. It was at that time but one hundred and sixty feet in frontage on Gilmore street. The same may be said of the similar covenant of Parker’s predecessor in title. His frontage at the time he executed his covenant to complainant was but one hundred and eighty-five feet. Obviously, the mere assumed possibility that the amount of frontage retained may have been more than the covenantor would have devoted to the use of one residence building cannot justify a doubt as to the meaning of language that is clear, definite and certain.

The recognized rule requiring a high degree of certainty touching a complainant’s right to relief in a ease of this nature has impelled me to earnestly search for some circumstance that could suggest a reasonable doubt as to the meaning of the covenant, and I have been unable to find any circumstance of that nature.

T will advise the restraint sought.


text:
    Thomas Whitesell et ux. v. William L. Collison et ux.
    [Decided July 29th, 1922.]
    Where the form of a farm lease uniformly used in a certain locality forbade the tenant to remove manure or compost, and it was the custom for the tenant to1 leave the manure when no agreement was specifically made, a tenant under a parol lease containing no specific stipulation as to manure was not entitled to take the manure although it exceeded in amount what manure he received when he went into possession.
    On final hearing on bill for injunction.

      Messrs. Waddington & Mathews, for the complainants.

      Mr. William A. W. Grier, for the defendants.
   Leaming, V. C.

The single inquiry at this time is whether an outgoing tenant of farming lands, in the absence of a covenant to the contrary, may remove from the farm the manure made by him in the ordinary course of husbandry.

The rule which appears to have been almost universally adopted in this country is stated in 16 R. C. L. 754, as follows:

“It is generally held that manure made on a farm, occupied by a tenant at will or for years, in the ordinary course of husbandry, consisting of collections from the stable and barnyard, or of composts formed bjr an admixture of these with the soil or other substances, is, by usage, practice, -and the general understanding, so attached to and connected with the realt3' that, in the absence of any express stipulation on the subject the tenant has no right to remove the manure thus collected, or sell it to be removed. In such a case, the manure is not regarded as a product of the land to which the tenant is exclusively entitled, but a® ordure or compost resulting from the consumption or decay of those products, required by the land to repair the waste to which it has been subjected in producing the crops consumed; and it is for that reason that the law holds the manure in such a case toi be an accretion to the land which the tenant cannot remove.”

The following cases are there collected in support of the text above quoted: Haslem v. Lockwood, 37 Conn. 500; Brigham v. Overstreet, 128 Ga. 447; Munier v. Zachary, 138 Ia. 219; Chase v. Wingate, 68 Me. 204; Gallagher v. Shipley, 24 Md. 418; Fay v. Muzzey, 13 Gray (Mass.) 53; Daniels v. Pond, 21 Pick. (Mass.) 367; Nason v. Tobey, 182 Mass. 314; Pickering v. Moore, 67 N. H. 533; Lewis v. Jones, 17 Pa. St. 262. The only authority to the contrary appears to be Smithwick v. Ellison, 24 N. C. 326. See, also, 11 R. C. L. 1080, to the same effect as the text above quoted.

There appears to be no authority in this state in which this question has arisen between a landlord and his tenant. But in Ruckman v. Outwater, 28 N. J. Law 581, it is held that as between a grantor and grantee of a farm by a deed of conveyance without any clause of reservation, the title to the manure lying in and around the barnyard does not pass to the grantee; that manure lying in a barnyard, where it has accumulated, is personal property, but after it is spread upon the land, and appropriated to fertilizing purposes, it becomes a part of the freehold, and passes with it.

In the absence of any evidence tending to establish a common understanding or custom of the locality to the effect that manure accumulated in the ordinary course of husbandry should not be removed by a tenant, it may well be doubted whether, in view of the principles defined by our court of errors and appeals in the case above referred to, this court should be privileged to adopt the view stated in the text first above quoted.

It seems impossible, however, to wholly disregard the manifest differences that exist between the interests and relations of the parties to a contract of sale and a contract of letting for purposes of husbandry. In the former the vendor permanently parts with his interest in the land, and if the purchaser seeks to acquire the manure then existing in the form of personaltv, he may be appropriately required to specifically and expressly make it the subject of his purchase; whereas in a tenancy the landlord and tenant are equally interested in the maintenance of a standard of good husbandry that will attain appropriate result and benefits to the tenant during the term and to the landlord thereafter. Good husbandry is well known to include the use of such fertilizers as may be necessary to insure -good crops and maintain the land in a reasonable degree of fertility, and in uniform practice the manure that accumulates on the farm is utilized for that purpose. This, of course, does not include manure not made in the ordinary course of agriculture by a farm tenant, such as manure made at a livery stable or in any other manner not connected with agriculture. See Daniels v. Pond, supra, and Nason v. Tobey, supra; but the manure which accumulates in the ordinary course of agriculture appears to be uniformly regarded in the southern section of our state as necessary for use on the land to attain a fair and reasonable standard of cultivation, since to otherwise dispose of it is to require other equally effective fertilizers to take its place. It is indeed difficult to conceive a contract of farm-letting in which the tenant is to be privileged to leave the farm either impoverished or stripped of manure; and I strongly incline to the view that in the absence of specific stipulation touching manure a farm tenant in the southern portion of our state will be held to an implied engagement to leave on the farm at the end of his term all manure that has there accumulated in the ordinary course of agriculture, even though the amount at the end of term may exceed in quantity the amount on the farm at the beginning of the term; and that this implied engagement may be inferred without specific proof of a custom to that effect in that locality.

But it is here unnecessary to adopt that broad view. The evidence in this case fully justifies the conclusion that a custom of that nature exists in the locality of the farm here in question. In this case the letting was by parol, and no specific stipulation' touching the manure to be left on the farm is disclosed to have been made. But there has been introclucecl in evidence in this case a printed form of lease which is shown .to be in uniform use in that locality when written leases are executed. This form of lease not only requires a tenant to farm the land “in a good farmer-like manner,” but specifically forbids the tenant -to remove manure or compost unless it be agreed upon to the contrary. The testimony also indicated that it is the custom in that locality for a tenant to leave the manure on the farm when no agreément touching the manure has been specifically made.

My conclusion in this case is that the manure, which is the subject of dispute herein, is the property of the owner of the farm, although it appears to somewhat exceed in amount the amount which the tenant received the benefits of when he went into possession.


text:
    Anna M. Sechler v. Roy W. Sechler.
    [Decided October 13th, 1922.]
    1. A decree of divorce in a foreign state, procured by the husband who had gone to such foreign state to obtain the divorce for a cause which occurred while the parties resided in (New Jersey, and was not a ground for absolute divorce under the New Jersey laws, is void.
    2. Where a husband without justifiable cause abandoned his wife, went to a foreign state and procured a divorce which was void in New Jersey, and thereafter refused and neglected to maintain and provide for her, the wife could sue for maintenance.
    On final hearing on bill for maintenance.

      Mr. James M. Davis, for the complainant. .

      Mr. Clarence L. Cole (by Mr. Clarence L. Cole, Jr.), for the defendant.
   Leaming, V. C.

The single inquiry here presented is whether a certain decree of divorce entered in the State of Nevada in favor of defendant herein is operative as a bar to this suit of complainant for support. The bill seeks a decree compelling defendant to support her and her child and also adjudging the Nevada decree of divorce of no force or effect in this state.

The parties were lawfully married and Atlantic City was the domicile of both until March 30th, 1919, when defendant left Atlantic City for Reno^ Nevada, arriving there April 4th, 1919. Since that time complainant has continued to reside in Atlantic City and defendant has remained in Reno under a claim of domicile there. Six months and four days after defendant’s arrival in Reno he filed a bill for divorce against complainant, and in the following December procured a decree of divorce from the bonds of matrimony on the ground of extreme cruelty. In that suit complainant herein was served in New Jersey by substituted process, but did not appear.

In this suit defendant has appeared and defended.

The concluding part of section 33 of our Divorce act is as follows:

“Provided, That if any inhabitant of this state shall go into another state, territory or country, in order to obtain a decree of divorce for a cause which occurred while the parties resided in this state, or for a cause which is not ground for divorce under the laws of this state, a decree so obtained shall be of no force or effect in this state.”

The evidence in this case renders it impossible to escape the conclusion that defendant herein went to Reno in order to obtain a decree of divorce for a cause which occurred while the parties resided in this state, and also for a cause which is not ground for a divorce from the bonds of matrimony under the laws of this state.

In support of his defence defendant herein has testified in a general way that he went west because he heard there were better business prospects in the west for a music teacher. He does not disclose how he heard or from whom or that Reno was specifically brought to his attention in that respect. While he denies that he went to Eeno for a divorce, his testimony as to that is in part as follows:

“Q. Why did you come to Reno and Nevada April 4th, 1919?
‘‘A. Well, my practice had been ruined in the east and I heard there was more of an opening in the west, so I started west and of course I thought while I was out here that I might apply for a divorce.
“Q. In other words, that was not the sole reason why you came here?
“A. No.
“Q. What was the other reason?
“A. I came to try to ¡build up a practice because I heard the openings were greater here.”

Complainant and a witness on her behalf testified to three several occasions before defendant left Atlantic City for Eeno on which defendant had said that he intended to go to Eeno and get a divorce and get rid of complainant.

The Eeno attorney who procured the divorce for defendant testified touching the divorce laws of Nevada and stated that he had known defendant since April, 1919. Erom that it appears at least probable that defendant on his arrival at Eeno promptly consulted his attorney touching a divorce.

In view of these circumstances, it seems impossible to escape the conclusion that defendant went to Eeno in order to obtain a decree of divorce, just as he said he intended to do. As already stated, the divorce which was procured by defendant was for a cause which occurred while the parties resided in this state, and also was for a cause which is not ground for a divorce from the bonds of matrimony under the laws of this state. The case thus comes within the very terms of the statute above quoted, and by the terms of that statute the Nevada decree is of no force or effect in this state.

The sufficiency of the legislation above referred to cannot be said to be an open question in this court. Jung v. Jung, 85 N. J. Eq. 372; Lister v. Lister, 86 N. J. Eq. 30; Thompson v. Thompson, 89 N. J. Eq. 70; Pitel v. Pitel, 90 N. J. Eq. 286; Hollingshead v. Hollingshead, 91 N. J. Eq. 261.

This view renders it unnecessary to here pass upon the bona fides of defendant’s residence in Nevada prior to his suit for divorce in that state. It is clear that he went to Eeno to obtain a divorce; whether like so many others he became wholly captivated by the beauties of that city at sight becomes immaterial under our statute. *

The evidence herein further discloses that defendant, without any justifiable cause, abandoned complainant and separated himself from her and has since refused and neglected to maintain and provide for her. Since his abandonment of complainant defendant has supplied $25 per month for his child, now five years of age, and nothing for complainant. Defendant’s income at this time, according to his testimony, averages about $200 to $225 per month. The child of. the marriage is with complainant. A decree will be advised requiring defendant to pay to complainant for her support and the support of the child of the marriage $100 per month and costs herein.


author: Lewis, V. C.

text:
    Florence Shubert and August Shubert, her husband, et al., v. Florence E. Baker.
    [Decided June 12th, 1922.]
    Where a brother and sister would have been the sole heirs of their father in case of his intestacy, and prior to the probate of their father’s will, there being some doubt as to its validity, compromised and adjusted their property rights by making mutual conveyances, these conveyances cannot be set aside by the heirs of the brother.
    On bill to set aside conveyance and for accounting. On pleadings and proofs.

      Messrs. Hunzilcer & Randall, for the complainants.

      Mr. Garret Van Gleve, for the defendant.
   Lewis, V. C.

This is a bill filed by the widow and children of Samuel Dutton, deceased, to set aside the conveyance of certain property made by Samuel .Dutton to his sister, Florence E. Baker, the defendant, and for an accounting for the rents, issues and profits.

The property in question came to the defendant by will from her mother, Annie Dutton, and was, together with other property, later given to her father, Thomas Dutton.

Thomas Dutton died February 21st, 1919. He appears to have made three wills. By the first will all his property was devised to his son Samuel; by the third will, the premises in question were devised to the defendant’s daughter. The second will does not come into the case, and was apparently destroyed by Thomas Dutton, prior to his death. The third will was declared invalid because of defective execution, and the first will was duly admitted to probate. Under this will, Samuel took the entire estate of his father. Samuel died March 15th, 1919, about three weeks after his father’s death. After the death of the father, Thomas Dutton, the son Samuel and his sister, Florence Baker, made an arrangement between themselves whereby a deed for the premises involved in this suit was made by Samuel to the sister, Florence Baker; and a deed for certain other premises was made by her to the brother Samuel. All this was part of their father’s estate at the time of his death.

These mutual conveyances took place before the third will was adjudged invalid, and prior to the probate of the first will of Thomas Dutton.

The physical condition of Samuel Dutton was such that he and his sister were doubtless actuated by a mutual desire to thus adjust their property relations because of the uncertainty of their ultimate status, either as devisees or as heirs-at-law of the father.

If neither of the wills of Thomas Dutton was valid, Samuel and his sister would have taken real property of which their father died seized as tenants in common. It transpired that the first will was probated and 'the third will was held invalid; and hence, Samuel took as the sole devisee.

Whatever misapprehension there may have been of the legal status of the parties, and of their rights in the properties at the time the cross-conveyances were made, I think that it was the clear intent of Samuel Dutton that the premises involved in this suit should be vested in his sister, Florence Baker; and that it was the clear intention of Florence Baker that the properties which she conveyed to Samuel should vest in him; and thus they compromised and adjusted their ultimate respective rights in these properties in the manner they both desired.

This property of Florence Baker’s had been her mother’s originally, and by her mother had been devised to Florence, who, thereupon, for some reason that does not appear, conveyed it to her father. That her father did not desire .Samuel to have this property is evident from the fact that he devised the same to the daughter of Florence by his last will and testament, although by the first will he had left jt to Samuel.

I think that it was these mutual considerations that led the brother and the sister to adjust their property rights in the manner in which they did at the time the conveyance in ¡question was made, and that the conveyance to Florence should stand.

If there were any mistake, as argued by complainants, it was a mistake of law, against which, under the circumstances of this case, equity affords no relief.

Notwithstanding the physical condition of Samuel at that time, he was entirely responsible and competent to make the conveyance and was acting under the advice and guidance of counsel. There is therefore no basis for granting the relief prayed for on this ground.

The question whether the property thus conveyed to the defendant should contribute in any part to the payment of the debts of the father is not in issue or before me on the present pleadings and proofs.

I will advise a decree in accordance with these conclusions.


text:
    Amalia Fischer, Emily A. Fischer and Florence H. Taylor v. Henrietta A. Gerndt and Mathilda Vogeley.
    [Decided September 12th, 1922.]
    1. The recording by a mother of an assignment of a mortgage to her daughters constituted a delivery to them which was accepted by them when they claimed the benefit of it upon learning of its existence more than twenty years later.
    2. Where a mother assigned a mortgage to her daughters and ha-d the assignment recorded, and the daughters knew5 nothing of it for twenty years, the presumption -of payment after twenty years’ repose was overcome.
    On pleadings and proofs.

      Mr. John J. Fallon and Mr. Merritt Lane, for the complainants.

      Messrs. Lichtenstein & Lichtenstein, for the defendants.
   Lewis, V. C.

This is a bill to quiet title under the statute. 4 Comp. Stat. p. 5399.

Prior to 1919 the land involved in the action was owned by-Ernst Eischer, to whom it had been conveyed by his father, Henry Eischer, and his mother, Sophie Eischer, on May 16th, 1888. Two days after that conveyance the father died. The mother lived with Ernst Eischer for a year or more after the death of the father. After that they lived separate, the mother residing with her daughter, Henrietta A. Gemdt, one of the defendants. The other defendant, Mathilda Yogeley, is also a daughter of Sophie Eischer. There was another son, Henry Eischer, at the time of the death of the father. The mother, Sophie Eischer, died in 1911. The son, Ernst Eischer, died in 1919, seized of the property in question, and by his will it was devised to his wife, Amalia Eischer, for life, and at her death, to his children, who are the present complainants, Amalia Eischer and Elorence H. Taylor, who continued in possession of the lands after the death of their father, Ernst Eischer. In Eebruary, 1921, they contracted to sell the land. The search disclosed a mortgage on record upon this land, made by Ernst Eischer and Amalia, his wife, to Sophie Eischer, the mother of Ernst, dated September 14th, 1888; and an assignment of that mortgage, dated January 29th, 1891, made by Sophie Eischer to her two daughters, Henrietta A. Gerndt and Mathilda Yogeley, the defendants herein. It was recorded on Eebruary 17th, 1891, in the register’s office of Hudson county, in Book 54 of Assignments, at page 463. The'mortgage was for $2,200; and by its terms was due September 14th, 1893, with interest.

The proofs show that neither of the defendants had knowledge of the assignment of the mortgage until the search upon the property disclosed it,, and they were requested by the complainants to cancel the mortgage. This, however, they refused to do when it was brought to their attention and insisted that it should be paid.

The mortgage and the bond, which it secured, and the assignment of the mortgage, were found by Amalia Eischer in a tin box which had belonged to her husband, Ernst Eischer, after his death. There is no proof to show how they came into the possession of Ernst Eischer, except what may be inferred from the fact that he was the administrator of his mother’s estate; and the presumption that he obtained them from his mother’s effects after her death. He told his sisters, the present defendants, when they sought information regarding their mother’s estate, that she had left nothing. Counsel for complainants, however, argue that from his possession of these papers is to be drawn the inference that he had paid his mother the obligation which the mortgage secured; and that the mortgage had therefore been satisfied. But there is not a scintilla of direct proof to establish payment. Neither is there any direct proof of non-payment. Indeed, aside from the inferences, and the reasonable probabilities to be drawn from the meagre evidence presented, the whole case is vague and conjectural.

The complainants ask for the cancellation of the mortgage, resting their prayer for relief upon the well-established legal presumption of payment after the twenty-year period has elapsed unexplained. Blue v. Everett, 55 N. J. Eq. 329.

The defendants, however, assert that they were not in a position to seek or enforce payment of the mortgage during the twenty-year period, because they had no actual knowledge of the assignment to them by their mother until after that period had elapsed; but when they learned of the assignment of the mortgage to them, they at once claimed the benefit of it and insisted upon its payment.

My conclusions are that the recording of the assignment in the register’s office constituted a delivery to the daughters, which was accepted by them when they claimed the benefit of it upon learning of its existence. The law presumes an acceptance by one for whose benefit a gift or grant is made. 13 Cyc. 570, 571; Jones v. Swayze, 42 N. J. Law 279; Lake Weaver, 76 N. J. Eq. 280; Rowley v. Bowyer, 75 N. J. Eq. 80.

The English authorities uniformly sustain this view. Exton v. Scott, 6 Sim. 31; Thompson v. Leach, 2 Vent. 198, 201; Clavering v. Clavering, 2 Vern. 473; Hope v. Harmon, 16 Q. B. *751 note b.; Fletcher v. Fletcher, 4 Hare 67: Doe Garnons v. Knight, 5 B. & C. 671; Jeffries v. Alexander, 8 H. of L. 594.

And there are numerous authorities to the same effect in this country. They are collected in Fisher v. Hall, 41 N. Y. 416 (at pp. 418, 423).

Important among them are Moore v. Houghton, 9 Allen 102, 105; Tibbals v. Jacobs, 31 Conn. 428; Harris v. Saunders, 2 Strobh. Eq. (So. Car.) 370; Young v. Guilbeau, 70 U. S. 636; Stewart v. Redditt, 3 Md. 67, in which it was held that the mere recording of a deed is sufficient to constitute delivery and that the clerk holds as agent for the grantee.

I think that the delay in claiming payment of the mortgage is satisfactorily explained by the fact that the daughters were unaware of the assignment to them until the search disclosed it, and they were requested to cancel it; and that the presumption of payment after twenty years’ repose is thereby overcome.

I do not find satisfactory evidence in the proofs showing payment of the mortgage. I am therefore constrained in this proceeding to hold that the complainants are not entitled to have the mortgage encumbrance removed as a lien upon their land. As to what the position of the present holders of the mortgage would be in the event of their instituting foreclosure proceedings I express no opinion.

I will advise a decree dismissing the bill.