text:
    James P. Dusenberry, executor and trustee of Thomas Johnson, deceased, v. James Johnson and Margaret A. Johnson.
    [Submitted December 24th, 1899.
    Decided December 30th, 1899.
    Filed March 24th, 1900.]
    A testator left §2,000 of the residue of his estate in trust, to be invested and the income paid to two grandchildren until they became of age, when they were to be paid the principal, and if one dmd before majority the other was to receive the whole; if both died before majority, it was to be paid to their father. — Held, that the legacy to the grandchildren vested on the testator’s death, subject to be devested in favor of their father in case they both died before majority, and that where both died before majority, but subsequent to the death of their father, the legacy vested in the survivor, and passed to his mother, as his next of kin.
    Heard on bill, answer and proofs.
    The suit is in the nature of an interpleader, brought by the complainant, executor and trustee of Thomas Johnson,'deceased, custodian of a fund of $2,000, to determine which of two claimants is entitled to it.
    The solution of the question depends upon the true construction of the will of the testator, who died in Novembex-, 1882, leaving two children, Nathaniel (who was married and had two children, Nathaniel, Jr., arid Charles H.), and the defendant James, who appears to have been the issue of a second marriage, and to have then been an infant.
    After providing for the payment of his debts, the will proceeds as follows:
    “Second. I give and bequeath to mv beloved wife Mary B. Johnson, all my household goods and the sum of one thousand dollars, the same to be paid do her as soon as conveniently can be after my decease, and to be in lieu of all dower and claim of dower in my real estate.

      “Third. All the rest and residue of my property, both real and personal, I give, bequeath and devise to my executors, or the survivor of them, and their successor or successors in trust for the following purposes, to wit: 1st, I direct my executors to invest immediately upon my decease the sum of two thousand dollars and to pay the income thereof at stated and convenient intervals to the guardian or guardians of Nathaniel Johnson and Charles S. Johnson, children of my son Nathaniel Johnson until they respectively become of the age of twenty-one years, to be divided between said children in equal shares, or if-one shall die before reaching that age, to the guardian or survivor of them, and when they respectively'attain that age, to pay each of said children one thousand dollars of said principal sum; if one only shall live to attain that age, then that one to receive the entire sum of two thousand dollars; and if both shall die before attaining said age I direct that said sum shall be held and disposed of as is hereinafter provided. * * *
    “ I direct that the interest and income of all the rest of my estate excepting said two thousand dollars, from whatever source arising, shall be paid to my wife during her lifetime. Upon the death of my wife I direct that my executors at their convenience, pay to my'son Nathaniel Johnson the sum of two thousand dollars, and Ifurther direct that if the children of my said son both die before attaining the age of tvjenty-one years the sum of two thousand dollars above given to them be paid to hirn.

    “All the rest and residue of my estate whatsoever the same may be, I direct my executors, upon the death of my wife, to pay over and transfer to my son James Johnson, if he be twenty-one years of age, if not, I direct that the interest be paid him, until he reach that age, and then the principal. But if he should die before reaching that age, then I direct that the rest and residue of my estate be divided into two parts, one part to be paid to the children of Nathaniel in equal shares, or to the survivor of them, and the other part to my said son Nathaniel. And I hereby declare that my executors, the survivor of them, their successor or successors shall not be held liable for any mistake of judgment in the management of the trust imposed upon them.”
    Nathaniel Johnson, son of the testator, and father of Nathaniel, Jr., and Charles, died in the year 1885, and in the lifetime of the two grandchildren, Nathaniel, Jr., and Charles, who both died under twenty-one years of age, without issue, leaving their mother, the defendant Margaret Johnson, their next of kin.
    The question submitted is as to the ownership of the fund of $2,000, bequeathed to the two grandchildren.

      Mr. Charles G. Titsworth, for the complainant.

      Mr. Adrian Riher, for Mrs. Johnson,

      Mr. Francis J. Swayze, for James Johnson.
   Pitney, V. C.

Three questions were argued :

First. Was the legacy of $2,000 to the two grandchildren contingent upon their arriving at the age of twenty-one years, or •was it vested, subject to be devested in case both died before reaching twenty-one ?

Second. If vested, what was the effect of the death before the grandchildren, of their father, to whom it was limited, by way of executory bequest, in case of the death of each grandchild before attaining twenty-one?

Third. If the legacy was contingent, and never vested in either the two grandchildren or their father, then did it lapse, or was it included within the gift of the residuary bequest to the younger son James, who still survives?

As to the first question. I think it quite clear that the legacy vested in the two grandchildren, subject to be devested in favor of their father in case they both died before attaining twenty-one years. The giving of the interest to the grandchildren during their minority shows that the testator, to use the language of Lord Mansfield in Goss v. Nelson, 1 Burr. 227, attached the contingency to the time of the payment, and not to the substance of the gift. The authorities on the subject are collected and commented upon by Chief-Justice Green, sitting for the chancellor, in Gifford v. Thorn, 1 Stock. 702 (at p. 708), where he says: Where the interest of the legacy is directed to be paid to the legatee until he receive the principal, or where the legacy is placed in the hands of trustees for the exclusive benefit of the legatee until it is directed to be paid over, the legacy will be deemed vested,” citing authorities. And Mr. Justice Potts, speaking for the court of errors and appeals (at p. 731 bottom, p. 732 top, quotes Lord Mansfield in Goss v. Nelson, as follows: “In legacies there is a known distinction between the time being annexed to the substance of the gift, or to the payment. If complete words of gift direct the executor to pay, the other words only fix the time of such .payment; and then the legacy vests and is transmissible, though the legatee should die before the day of payment, as a legacy given ‘ to be paid at twenty-one.’ But if the time is annexed to the substance of the gift, as a legacy ‘if’ or ‘when’ he shall attain twenty-one, it will not vest before that contingency happens; ” also citing Fonereau v. Fonereau, 3 Atk. 645.

This rule of construction was approved and acted upon by the court of errors and appeals in Post v. Herbert, 12 C. E. Gr. 540, where some of the numerous authorities are collected by the late chief-justice in speaking for that court.

See, also, 2 Jarm. Wills (R. & T. ed.) 459 et seq.; 2 Wms. Ex. (R. & T. ed.) 527 et seq.; 1 Rop. Leg. *572 ch. 10, § 3, second subdivision, and cases there collected; Hawk. Wills *227, and cases cited ; Theob. Wills 276, and cases there cited.

As to the second question. I am of the opinion that the death of the father of ^he grandchildren during their lifetime did not result in a lapse. In other words, the death of the father of the two grandchildren in their lifetime prevented the devesting of the legacy by their death before attaining twenty-one years, and that the survivor died vested of it.

This was directly decided by Chancellor Runyon in the case of Drummond’s Executor v. Drummond, 11 C. E. Gr. 234 In that case there was a bequest to the testator’s adopted daughter, Jane, but if she should die without leaving lawful issue, then testator gave all his property to his nephew, “ Philip McGran, now living in the city of Augusta,” &c. Jane Drummond lived and attained her majority, but McGran died in the lifetime of the • testator. The chancellor cited in support of his opinion in that case Den v. Schenck, 3 Halst. 34; Jackson v. Noble, 2 Keen 590. The latter case is quite in point here, for there, the property consisting of both realty and personalty, was given to trustees in trust for the daughter for life, with remainder to her heirs and executor, &c., with a provision that in case she should marry and have no children, then the property was to belong to testator’s son, or in case of his son’s decease before her death, then to the sou’s children ; and the son having died in the lifetime of the daughter, leaving no children, it was held that the executory gift over could not take effect, and that the estate was vested absolutely in the daughter. The difference between that case and Drummond v. Drummond, is that in the English case the legatee of the executory bequest surviv'ed the testator, while in Drummond v. Drummond he pre-deceased the testator.

Jackson v. Noble seems to be quite in point with this, not only upon the question now under discussion, but upon the proposition that the legacy was vested in the grandchildren. To the same effect is 2 Jarm. Wills (R. & T. ed.) 489.

The doctrine, of Drummond v. Drummond was adopted ‘and followed in Groves v. Cox, 11 Vr. 40 (at p. 44).

The result is that the survivor of the grandchildren died vested with the whole legacy, and it belongs to his personal representatives, if any, and if none, to his mother as next of kin.

The case of Jackson v. Noble was commented upon by Vice-Chancellor Kindersley in Robinson v. Wood, 27 L. J. Eq. 726 (1858), (also reported in 4 Jur. N. S. 625, the former the better report). There was there a devise of land to trustees for the benefit of the daughter of the testator during minority, and at her majority to convey to the daughter in fee, with a proviso that in case the daughter should die under twenty-one, leaving issue, then for the benefit of the issue, but if she should die under twenty-one without, issue, then upon trust to sell the properly and pay the proceeds to a charity. The daughter died without issue before twenty-one, and the question was whether the land went to her heirs-at-law or remained vested in the trustees; and it was held, in obedience to a decision of the court of exchequer chamber, in the case of Doe, d. Bloomfield, v. Eyre, 5 C. B. 713 (assuming that the effect of the devise was to vest the estate in the daughter during her minority, subject to be devested in case of her dying without issue before arriving at maturity), that- the-fact that the bequest over to the Gharity was void 'did not prevent the devesting of the estate from the daughter.

The learned vice-chancellor, in delivering judgment, expressed strong personal dissatisfaction with the rule as laid down in Doe v. Eyre, and his approbation of the rule in Jackson v. Noble. He says (at p. 728): It has been argued that the entire gift over being void, there is nothing to devest the estate from the original taker, and I confess that I have much difficulty in getting over that reasoning; but I find that the precise question has been brought before the court of common pleas and the court of exchequer chamber. * * * Now, whatever opinions I may entertain upon the point, it is not for me, in the exercise of my functions, to overturn that decision.”' And further on : The only other case is that of Jackson v. Noble, which it is extremely difficult to reconcile with Doe v. Eyre, by reason of the language there used; but when it is looked into it will be found that the ground of the decision [in Jackson v. Noble] was that the contingency there contemplated, on which the gift over was to take effect, had never happened. Of course, if that was the ground upon which the decision was founded, it does not touch the present question, * * * and whatever my opinion might have been but for the ease of Doe v. Eyre, and I confess it is extremely doubtful whether 1 should have been of the opinion there expressed, I feel myself under the necessity of coming to the same conclusion.”

The distinction taken between Doe v. Eyre and Jackson v. Noble was that the testator in Doe v. Eyre must have been presumed to know that the devise over for the benefit of the charity was void and never could take effect. Hence it was argued that he deliberately made a devise over which he knew from the start never could take effect. While in Jackson v. Noble (and the present case) there was a possibility, from the testator’s standpoint, that the bequest over could take effect; and the inference is that he did not intend that the estate should be devested from his grandchildren except upon the condition that their father was alive at the time of their decease, under twenty-one.

This distinction between Jackson v. Noble and Doe v. Eyre is illustrated by the case decided in our courts in dealing with this question, of Den v. Schenck, 3 Halst. 34, which was a devise of land with an executory devise over, which, after the death of the testator, became impossible by the death of the devisee of the executory devise in the lifetime of the first taker, and it was held that the title became absolute in the first taker.

It is argued against this result that, reading the whole of the present will, the intention of the testator is clear that none of his estate should pass away from his descendants, and that the gift of the residue to his son James amounted to a further disposition of the fund in the contingency which has happened. I am unable to adopt that view. In fact, while I do not find it necessary to decide the third question above stated, namely, whether, supposing the vested interest in the grandchildren was devested by their dying under twenty-one, it lapsed or passed under the residuary clause to the younger son James, I find the question, upon the authorities cited, quite open to doubt.

Upon the question of the intent of the testator, to be derived from a consideration of the whole will, it is worthy of remark that he seems not to have had in his mind a complete scheme for the disposition of his property, for he omits to provide for the quite possible contingency of one or both of his grandchildren dying under twenty-one and leaving issue. If either of them had left issue, the fallacy of the argument just made in behalf of James -would be palpable; for its result would be that the fund would have gone to James, to the exclusion of the offspring of the grandchildren.

I will advise a decree in accordance with the above views.


source: Caselaw Access Project

author: Pitney, V. C.

license: Public Domain

text:
    Edward S. Campbell, receiver of the Middlesex County Bank, v. Cortlandt Parker, Jr.
    [Submitted December 27th, 1899.
    Decided January 5th, 1900.
    Filed March 24th, 1900.]
    1. A sale of real estate made by a receiver is a judicial sale, in which the. doctrine caveat emptor applies, though such sale was not ordered by the court.
    2. Defendant, an attorney-at-law, purchased certain real estate at a receiver’s sale, paid a portion of the price, and signed a memorandum acknowledging the purchase, and agreeing to comply with the conditions of the sale.- — Held, that since there was no proof that the property was not worth the sum bid, the purchaser would be compelled to accept a conveyance, though he was ignorant of a restriction in the title, shown by the records, prohibiting the sale of liquors on the premises, and though the receiver, after such sale, verbally warranted the title to be free from all encumbrances.
    3. A restrictive clause found in a deed of conveyance of land forbidding a particular use of the property, inserted for the benefit of other adjoining lots, owned and about to be conveyed by the grantor, is not such an encumbrance as is recognized as such in ordinary conversation among laymen, and included within the general representation by a layman made at a public sale that the property was free and clear of encumbrances.
    Heard on petition, answer and proofs.
    The petitioner, Edward Sr Campbell, is the receiver appointed by this court of the Middlesex County Bank, an insolvent corporation, and as such advertised for sale, at public auction, on the 23d of September, 1899, a piece of real estate belonging to said bank, in the city of Perth Amboy. Written conditions were used at the'sale providing for the payment of a percentage of ten per cent.,-and the signature of a memorandum of purchase by the purchaser, and for paying or securing the balance after the sale should be confirmed by the chancellor. On that day— September 23d — the property was put up for sale, and purchased by the respondent, Cortlandt Parker, Jr., for the sum of $8,400. He signed a memorandum of purchase in these words:
    “ I bid in the property described in the annexed notice of sale for the sum of eighty-four hundred dollars (§8,400), and agree to comply with the above conditions of sale.”
    The receiver gave to the respondent a receipt for the payment of the percentage, in these words:
    “ Received, September 23, 1899, eight hundred and forty dollars, being ten per centum (10 %) of eighty-four hundred dollars, at which price the property above referred to has been struck off to Cortlandt Parker, Jr., subject to above conditions or terms of sale.”
    After the property was struck off, and before signing the bid, the respondent inquired of the petitioner whether the land was free and clear of encumbrances, and he replied, “Yes, as I understand it.” The sale was duly confirmed by the chancellor, and a deed tendered to the respondent, but he declined to complete the purchase because the property was subject to a restriction in its use contained in the deed of conveyance to the bank, in these words:
    “This deed is accepted by the party of the second part, subject to the express covenant and restriction and condition, that no spirituous, malt, in which latter term lager beer is included, intoxicating or vinous liquors, preparations, or substances in the nature thereof, shall be manufactured, bought, sold, bartered, exchanged, given away, or kept for sale as a beverage, on the above described premises, or to be drunk thereon, and upon failure to comply with said covenant, condition and restriction, by said party of the second part, their successoi's and assigns, for and during the period of five years from the first day of October, A. D. 1891, that is to say, until the first day of October, that will be in A. D. 1896, then the party of the first part shall have the right to enter forthwith upon said premises without previous notice, and take such measures as may be necessary to enforce a compliance with the terms of said covenant, condition and restriction, during said period of five years, without incurring any liability for damages by reason of such entry, at law or in equity, to the said party of the second part, their successors or assigns. And said party of the second part hereby do give and grant to said party of the first part, full power and authority to make such entry as aforesaid, for which this shall be a sufficient warrant.”
    The deed in question was made by John D. Patterson and Richard Sharpe, Jr., executors of Ezekiel M. Patterson, to the Middlesex County Bank, dated September 19th, 1891, and recorded on October 3d, 1891, in the records of deeds of Middle-sex county.
    The lot in question is a triangular piece, situate in the northwesterly part of the city of Perth Amboy, several hundred feet east of the railroad, and on the edge of the business portion of the town. It is formed by the intersection of Smith street and New Brunswick avenue, formerly the turnpike; is one hundred feet front on Smith street, one hundred feet in depth on the west side, twenty-nine feet in the rear and one hundred and twenty-three feet on the turnpike, and its easterly corner forms an angle of about forty-five degrees. It is part of a tract of about thirty acres lying-in that neighborhood, and to the west and north of the lot here in question, which belonged to Ezekiel M. Patterson in his lifetime. His executors laid it out in building lots, and about the year 1892 sold several in that neighborhood by deed, which contained the same restrictive clause.
    Proof was given by an expert in real estate in the neigborhood that such a clause would tend, in that locality, to reduce the market value of the premises; but no proof was offered, nor was it distinctly alleged in the respondent’s answer to .the petition that the property subject to the restriction was not worth 'the amount bid.
    Respondent is a member of the New Jersey bar, of high standing and much experience.

      Mr. Sherrerd Pepue, for the petitioner.

      Mr. Chauncey G. Parker, for the respondent.
   Pitney, V. C.

The questions presented by the record in this case have been argued with great ability and a complete exhaustion of the learning applicable thereto.

The principal grounds relied upon by the petitioner are:

First. That this was a judicial sale, in which the doctrine of caveat emptor measurably applies, and is brought within the reasoning and decision of the case of Boorum v. Tucker, 6 Dick. Ch. Rep. 135, which was affirmed, sub nom. Hartshorne v. Boorum, by the court of errors and appeals, in 7 Dick. Ch. Rep. 587, for the reasons given in the court below.

Second. Failing in that point, then that the clause in the deed is in the nature of a condition and not a covenant, and that the time fixed for the forfeiture of the estate having elapsed, it has spent its force and is no longer efficacious; and

Third. That, even if construed as a covenant, it expired by its own limitation at the end of five years.

These positions were all contested with great force and spirit by the counsel for the respondent.

No question was made as to the power of the court to deal with the matter by petition.

On the first question counsel for the respondent contended that this was not a judicial sale in the sense in which that phrase is used in Boorum v. Tucker, and the line of cases which preceded it.

I am unable to adopt that view. It seems to me that if a sale by a sheriff by virtue of a writ directed to him by this court is a judicial sale, a fortiori one made by a receiver, who is appointed by this court, and who is in a sense an arm of the court and, so to speak, a part of it, is also a judicial sale. A sheriff is a ministerial officer elected by the people, and is not identified with the court in the same sense that a receiver is. It is urged that the sale in this case was not made by special order of the court, nor that it was what is called a forced sale. But I am unable to see any strength in that position. It is not of the essence of a judicial sale that it is made pursuant to an order of a court. Ordinary sales by a sheriff under a common law writ are not made by order of a court. The title of the premises in question was vested in the receiver upon his appointment by this court, and it then became his duty under his appointment to proceed at once to dispose of all the assets of the insolvent corporation, including this particular piece of real estate. Hence, it was a forced sale. No order of sale was necessary, but it was, nevertheless, a sale by the court in the strict sense of the term. And if a sale by the court is not a judicial sale, I am unable to imagine what sale would be properly so termed.

I conclude, therefore, that it must, be dealt with precisely the same as if it had been made by a master of this court by special order, or by a sheriff under a writ of fieri facias directed to him. If so, then the rule found in the line of cases which culminated in Boorum v. Tucker, applies. The rule was there stated as follows (6 Dick. Ch. Rep. 139): “ I understand the rule in New Jersey to be that a purchaser at a judicial sale is bound to take such title as an examination of the proceedings will show that he will get; he is bound to examine for himself beforehand to see what title he will obtain by the sale. The court, however, treats a contract made with one of its officers as being made with the court itself, and will deal with its contractee upon equitable principles — the same principles, indeed, which govern in all cases of specific performance.”

It is unnecessary to review all the authorities which preceded that case. Those not there particularly mentioned are collected and cited by Vice-Chancellor Van Fleet in Hayes v. Stiger, 2 Stew. Eq. 196; and the only question is whether or not the respondent has shown such a case of fraud, accident or mistake as will induce a court of equity to relieve him from the purchase upon the principles stated in that case.

Ho accident or fraud is here set up, but a verbal representation amounting to a sort of verbal warranty, like that set up in Boorum v. Tucker, is pleaded and proven; also a mistake on the part of the respondent, namely, ignorance of the existence of the clause found in the deed under which the bank held title. That representation in Boorum v. Tucker was held not sufficient of itself to relieve the purchasers from their liability to carry out their contract.

The i’estriction there was quite similar to that here. It was, to be sure, a restriction in the character of the building, and not in the use which should be made of it, but its object was to prevent the erection of any buildings that would be used for any purpose to make the locality any less desirable for first-class private residences. Thus it aimed at and was intended indirectly to affect the use of the property. In this case the object of the provision is precisely the same, although it is sought to be attained by" a direct specification of the uses to which the premises should not be put. I can see no difference, in principle, for present purposes, between the two restrictive clauses. In Boorum v. Tucker it was held that, while the restriction was, strictly speaking, and, using the language of a learned conveyancer, an encumbrance, yet it was not such an encumbrance as is recognized as such in ordinary conversation among laymen, and included within the general representation by a layman made at a public sale that the property was free and clear of encumbrances. I think that the same must be said of the casual remark made by the petitioner to the respondent after the property was struck off to him and before he signed the bid, namely, that' he understood it to be free and clear of encumbrances. By encumbrances he meant encumbrances which must be satisfied by the payment of money, or would result in the adverse occupation of the premises — such as a widow’s dower, or a mortgage, or a judgment, or an assessment for taxes or improvements. The respondent must have so understood it.

Further, I think the respondent has not brought himself, oil the ground of mistake, within any exception to the general rulé which has thus far been sanctioned by the courts. In Twining v. Neil, 11 Stew. Eq. 470, a plain man, not acquainted with the rules of law or methods necessary to be pursued to protect a dealer in real estate, purchased at a sheriff’s sale under foreclosure, supposing, as many laymen do, that a sheriff’s deed under foreclosure would give him a clear title to the whole premises free of other encumbrances, when, in point of fact, the sale was made under the foreclosure of a second mortgage to which the first mortgagee was not made a party, and the equity of redemption offered for sale was absolutely valueless, and he paid a price which represented the full value of the premises free of encumbrances. Upon proceedings to enforce the bid, he was relieved from his purchase on the ground, to use the language of the syllabus, “ that, though the purchaser was negligent, and though there was no fraud or misrepresentation, on the ground of the gross inadequacy of the estate compared with the bid, this court ought not to interfere.”

In Sullivan v. Jennings, 17 Stew. Eq. 11, a Dr. Smith held a first mortgage of over one thousand dollars. The complainants in the foreclosure held a second mortgage for $2,000, and Dr. Smith was not made a party. The sale was had, of course, subject to Dr. Smith’s mortgage. He heard of thé sale and supposed that he must attend and bid up the property in order to protect his own mortgage, and did so, and bid a great deal more than it was worth, supposing that his own mortgage was to be paid out of the bid. The language of the chancellor, in dealing with the case, is this: “ "When Dr. Smith made his bid he did not design to trifle with the court. I am satisfied that he intended in good faith to bid for the protection of his own interests, and that he now withholds the amount of his bid solely to obtain relief, if possible, from the consequences of his error. So far then as thé'element of contempt, in the doctor’s attitude, is concerned, I fail to see that it is deserving of such punishment as the granting of this application will inflict.”

In both the cases just cited the purchasers were, severally, laymen, and without counsel.

In contrast with these cases is Hayes v. Stiger, 2 Stew. Eq. 196, where a somewhat similar mistake was made, but the purchaser was assisted at the sale by a member of the bar. The defect in that case was that there was a failure to make the wife of the owner of the equity of redemption of one-half of the mortgaged premises a party to the foreclosure proceedings, whereby her inchoate right of dower was not cut off; and Vice-Chancellor Van Fleet, after an exhaustive examination of the authorities, refused to relieve the purchaser, on the ground that it was his duty to have examined the foreclosure proceedings and the history of the title to ascertain whether or not a clear title would be obtained thereunder.

Now, here, the restrictive clause in question is contained'in the deed' under which the insolvent bank obtained title, and was spread upon the records of the county. The respondent is a lawyer of eminence and experience, and perfectly familiar with the rule that a purchaser of land at a judicial sale takes it subject to all encumbrances and defects shown by the record of the title. Restrictions of this character are quite common in deeds of conveyance in New Jersey, particularly those conveying lots in suburban towns. If the respondent at all anticipated the purchase of these premises, I think it was his duty to have examined the record of the title beforehand to ascertain what sort of a title he would get under the receiver’s deed; and if he had asked the question of the receiver, within a seasonable time before he made the bid, he could have seen the original deed, which was in the possession of the receiver, and have examined it for himself. It seems to me it was clearly and decidedly negligent in him to bid upon the property without such preliminary examination. It would produce great inconvenience in the conduct of business of this character if parties might come in and bid upon land under such, circumstances, and rely upon an examination of the title afterwards. *

It is a part of the present case that there is no proof that the property is not worth the sum bid for it, subject to the restrictive clause in. question. So far as appears to the court, all that the purchaser may lose is the increased value which the property might have if there were no restrictive clause in the deed. Under these circumstances it is no hardship upon him to be compelled to accept and pay for a conveyance of the premises at the price named.

This renders it unnecessary to consider and determine the true construction and effect of the restrictive clause in question.

The respondent, in his letter to the petitioner giving his reasons for repudiating the sale, besides setting up the defence already considered, referred to a small assessment for benefits which was laid on the property at about the time of the sale. This, I think (though without giving the subject full consideration), the receiver should either pay or let the purchaser assume and have a credit for its amount on the purchase-money. But as the receiver has succeeded on the point principally litigated, I do not think that that matter should prevent him from recovering costs, with interest on the purchase-money from the time it was due, and I will advise a decree accordingly.


author: Reed, V. C.

text:
    Peter Schlicher v. Louis Vogel et al.
    [Filed April 2d, 1900.]
    Where an insolvent partner credited his wife on the partnership books with an amount she owed the firm for provisions furnished for use in her boarding-house, she was a proper party defendant to a suit brought by another partner against her husband, after dissolution, to compel an accounting of the partnership business and to cancel the credit given her and re-establish her indebtedness to the firm, and her joinder was not subject to an objection of multifariousness.
    On bill and demurrer.
    This suit is against Louis Yogel, John R. "White and Catherine White, his wife. Catherine White has filed a demurrer to the bill.
    The main purpose of the bill is to get an accounting from Louis Yogel and John R. White, who were partners with the complainant in the meat business in Princeton, in this county. The bill first sets out a partnership agreement between Peter Schlicher, the complainant, and White & Yogel, to conduct a • general butcher business under the firm name of White & Yogel, the contribution of capital to be made by each partner, and the manner in which the business shall be conducted, and how the firm may be dissolved. It sets out that on November 3d, 1898, John R. White bought out the business of said firm, under an agreement of that date signed by Schlicher & White, which agreement recited that Yogel had, on September 2d, 1897, sold his interest in said business to Schlicher, and dissolved said copartnership upon the following basis: White to buy all the stock and fixtures for $500; the accounts due the firm of White & Yogel to be collected and deposited, and out of the same the debts due by said firm to be paid, and the balance to be divided equally between Schlieher, White and Vogel. The bill then states that the moneys collected were insufficient to 2>ay the debts, and that the complainant has advanced $92.80 to. pay such debts, and that there is not more than $50 of debts to be collected aside from the personal debts of Vogel, of Mr. White and of Mrs. White. It sets out that the firm books show that on May 3d, 1899, Vogel was indebted to the firm in the sum of $931.19; that the said books show that on October 27th, 1898, White was indebted to the firm in the sum of $2,702.15; that the books show that Mrs. White on September 20th, 1898, was indebted to the firm in the sum of $1,622.15; that on October 27th White caused a credit of $1,622.15 to be given to his wife on the books of the firm, and had the same transferred to and charged in his account; that the books show that erasures were made and said credit forced on both accounts, and that the object was to balance his wife’s account by assuming her debt himself. The bill sets out that Vogel and White each personally contracted debts, and had his creditors trade the same out in meat, and would charge himself with the amount on the books of the firm; that Mrs. White not only bought meat of the firm for her boarding-house, but contracted debts for milk, vegetables, &c., which she bought from third parties, and her husband would have the said parties trade out the said bills at the firm’s store and would have his wife’s account with the firm credited with the amount of said bills, and then charge the same against himself. The bill charges that there is a large indebtedness due said firm from different parties, as shown by the books of the firm, for meat bought, and said parties claim that they furnished milk, &c., to Mrs. White with the understanding with her husband that they were to trade the same out in meat at the firm’s store, and the pass-books of said firm and of Mrs. White show that they were given said credit by Mr. and Mrs. White, but no charge made of the same against Mrs. White or Mr. White in their personal account with said firm, and no entry made of the same or of any moneys 2>aid to the said firm; that White & Vogel and some of the employes of the said firm boarded with Mrs. White, and that said board bills were credited upon the account of Mrs. White’s indebtedness to said firm, and the same were charged on the personal account of White & Vogel to said firm; that Mr. White owns no real estate in Princeton, and his personal property is mortgaged up to its value, and that he is believed to be insolvent, but that his wife owns property; that the firm is insolvent ; that the complainant has paid certain debts, and that there are others debts due.
    The bill prays for au accounting from each member of the firm, and that all personal debts of Vogel & White paid by meats of said firm and charged to their personal account be disallowed, and that they may be decreed to pay the same; that the accounts for board and other accounts of Mrs. White which were credited on her account may be charged back again to her account, and that it may be ascertained how many bills traded out by the different parties and never charged to her account, and how much she owes the firm; and that Vogel and White, and his wife, may each be decreed to pay over to the firm the amount so found due from them.
    As already remarked, to this bill Mrs. White demurs upon the ground of multifariousness.

      Mr. Frank S. Katzenbach, Jr., for the demurrant.

      Mr. George O. Vanderbilt and Mr. John T. Bird, for the complainant.
   Reed, V. C.

This bill, as it appears,' is filed by Mr. Schlicher against Mr. White and Mr. Vogel, his former partners, to compel an accounting. Mrs. White, the wife of one of the partners, is made a party to the suit. She is related to the firm transactions in this,, that she kept a boarding-house and bought meats and groceries from the firm. She did not pay for them,'but her husband gave her a credit for her debt, which amounted to $1,622.15, on the books of the firm, and then charged this sum to his own personal account with the firm. The bill attacks this transaction and asks that the charge against Mrs. White may be restored against her upon the books of the firm. She interposes a demurrer to the bill upon the ground that it is multifarious. The insistence of her counsel is that she has no interest in the accounting required of the members of the firm, and that therefore she should not be put to the trouble and expense of participating in that litigation.

The vice of multifariousness was elaborately considered by Lord Cottenham in the case of Campbell v. MacKay, 1 Myl. & C. 621, 622. Judge Story gives credit for the observations concerning this matter contained in his book on “Equity Pleadings” to the elaborate 'judgment of the chancellor in that case. As pointed out in that opinion, and in the text-books, multifariousness may consist of a joinder of claims of a different character in favor of the same plaintiff or plaintiffs against the same defendant or defendants. But what, says Judge Story, is more familiarly understood by multifariousness as applied to a bill is, where a party is brought in as a defendant upon a record, with a large portion of it,.and of the case made by which, he has no connection whatsoever. In such case he has a right to demur and to state the evil of those uniting distinct matters in one record to be (and so the old form of demurrer was) that it put the parties to great and useless expense.

As to what constitutes misjoinder or strict multifariousness is a matter not easily defined. Says Judge Story:

The conclusion to which a close survey of all the authorities would conduct us, seems to be that there is not any positive inflexible rule as to what, in a court of equity, constituted multifariousness which is fatal to the suit on demurrer. These courts have always exercised a sound descretion in determining whether the subject-matters of the suit are properly joined or not, and whether the parties, plaintiff and defendant, are also properly joined or not.” Story Eq. Pl. § 539.

Bolles v. Bolles, 17 Stew. Eq. 385. In respect to what matters, apart from the accounting itself, can be brought into a suit for an accounting, there is considerable contrariety of judicial opinion. The weight of authority as well as reason, seems to be, in respect to suits by and against partners, that whenever the right of a firm to reclaim property, which has been improperly or fraudulently transferred to a third party, has to be settled before an accounting can be completed, then such right can be tried in, and the third party be made a party to, the accounting suit.

In Penneman v. Jones, 58 N. H. 447, the bill alleged that the plaintiffs and all of the defendants, except one Stark, had been partners; that Jones, who was manager of the firm business, had combined with Stark in certain transactions to defraud the firm. The bill prayed that Stark be compelled to account. Stark moved to dismiss the bill as to himself. The court held that Stark was properly made a defendant, as Jones, with whom Stark'was jointly interested in the transaction, was a member of plaintiff’s firm, and could not be sued at law and be made plaintiff and defendant in the same suit.

In Wade v. Rusher, 4 Bosw. 537, a suit was brought by one' of two partners against the other to obtain an accounting, and to set aside a release given by plaintiff to defendant. A third person, who had fraudulently obtained from the defendant portions of the partnership property, was also made a party in order to subject the property so held by him to the payment of any balance due from the defendant. It was held that all persons who had come into possession of the property who were not purchasers for value, were proper parties to the suit.

The same doctrine was held in Webb v. Helion, 3 Rob. 625. In Palmer v. Tyler, 15 Minn. 106, the bill was by one against two other partners to compel an, accounting. Two persons, not partners, were made parties to the bill and charged with fraudulently abstracting, in collusion with one of the partners, from the mill of the firm, certain machinery. The court said : “A partner has a lien upon partnership assets, and if any portion of the property has, by the combined and ’collusive action of his copartner or other persons, been transferred to other persons through a sham sale for the purpose of putting the same out of his reach and in'fraud of the copartnership, he has the right to follow it and subject it to his lien and to the accomplishment of the purpose for which the lien exists. Why should not all this be embraced in one action? The object is single, viz., to bring about a complete and final settlement of the business of the co-partnership.”

In Hayes v. Heyer, 4 Sandf. Ch. 485, a bill was filed by one partner against another partner and an assignee, to whom the latter partner had privately assigned the effects of the firm. The bill asked that the assignment be set aside and that the firm be wound up and' an account taken. Vice-Chancellor Sandford said: “The bill shows an equal right in both persons to liquidate the affairs of the old partnership, which has been invaded by a collusive transfer of its effects by one partner to a creditor of the firm, and it claims to have the effects vested in a receiver and the account of the partners adjusted. It brings in Mr. Bement as one who has become mixed up with ■ a part of the general object of the suit, a part which is essential to obtaining its legitimate end.”

The case of Attorney-General v. Cradock, 3 Myl. & C. 85, was one for an accounting, not against partners, but against trustees of certain charities. With the defendants was united a person whom it was charged had, in concert with one of the trustees, fraudulently effected the exchange of a farm in .which he and the trustee were jointly interested for a portion of the charity lands. Lord Chancellor Cottenham, in respect to the objection that Cradock, who it was charged had colluded with the trustee, was an improper party, said : “The object of the rule against multifariousness is to protect a defendant against unnecessary expense. But it would be a great perversion of that rule if it were to'impose on the plaintiffs and all the other defendants the expense of two suits instead of one. The object of the suit is to establish that Cradock has, by means of the transaction stated in the information, become a trustee of part of the charity estate.” What the chancellor meant by his “ becoming a trustee,” was that he held by his collusive action a part of the property which belonged to the trust estate.

In Bolles v. Bolles, supra, a bill was filed to compel an executor to account, and also to set aside a deed made by him as executor to his daughter. The bill was held not to be multifarious. And, in addition to the ground that the grantee-in the deed was one of those interested in the accounting, it seems also to have been held that the litigation concerning the validity of the deed was essential to the completion of such account.

Now, in taking an account of the firm matters in the present case, the first question would be whether Mr. White is to be charged with the debt which was transferred to him from the firm books. If this debt was improperly charged off and has to be restored, then Mr. White’s liability will be so much the less. Therefore, no complete account can be stated until this question is settled. All the members of the firm are interested in the settlement of this question, for inasmuch as it is. charged in the bill that Mr. White is insolvent, and his wife is pecuniarily responsible, the point involves the query whether this credit is a valuable or worthless asset. The analogy between the posture of affairs of this case and in those cases already cited seems to me to consist in this, that the bill of $1,622.15 was an asset of the firm. If, owing by Mrs. White, it is a valuable asset. By the transference of the asset from a debt due by Mrs. White to a debt due by Mr. White, the firm lost the value of this asset. The transaction was equivalent to a gift of so much of the funds of the firm to Mrs. White. This gift is charged by the bill to have been an illegal transaction, and the bill seeks to set it aside and to hold the debt against the wife as a still subsisting portion of the firm’s assets. She stands, therefore, in the posture of one who has received illegally a portion of the firm’s property, upon which the partners and the creditors of the firm have a lien. She, therefore, does not stand in the attitude of an ordinary creditor, but in the position of one who has improperly received and still holds partnership assets.

Again, it is to be observed that the wife stands in a peculiar attitude; being the wife of one of the partners, the partnership cannot sue her on her contract at law. National Bank of Rahway v. Brewster, 20 Vr. 231.

As the question of her liability,-therefore, would have to be settled in a court of equity, I am of the opinion that it can be settled in this suit without imposing upon her any undue ex-pease or trouble. I do not perceive how there can be any increased cost of pleading, under our practice, imposed on her by the fact that she is joined in the accounting suit, and it was the imposition of this additional expense which was the main reason for declaring the joinder of the defendant obnoxious to the criticism of multifariousness.


author: Emery, V. C.

text:
    Hannah S. Curtis et al., executors of William H. Curtis, deceased, v. Rena P. Crossley et al.
    [Filed March 14th, 1900.]
    1. Where a married woman sought to set aside a conveyance to her husband, though it was solely for his benefit, it was not incumbent on him to show that it. was reasonable or fair, but the burden of proof was on her to show that it was secured by improper influence.
    2. A settlement by a wife and her husband which was unreasonable in amount, and which was made without individual counsel for the wife and at a time when she stated to others that she was about to make it under the influence of threats of her husband, the making of which threats was corroborated by other evidence, will be set aside as obtained by undue and improper influence.
    On bill, answer and cross-bill, &c., and oral proofs.

      Mr. John R. Hardin, for the complainants.

      Mr. Chandler■ W. Riher, for the defendant Rena P. Crossley.

      Mr. Washington B. Williams, for the infant defendants.
   Emery, V. C.

The questions in this case relate to the operation and to the validity of a deed of trust executed by a married woman, Mrs, Rena P. Crossley, to William H. Curtis, now deceased. The deed of trust, executed under Mrs. Crossley’s seal, assigned and transferred to "William H. Curtis the stock standing in the grantor’s name on the books of four corporations and authorized the trustee to transfer the same on the 'books, the stock to be held in trust (with power to sell and change investments) and to pay the dividends and income to the grantor during her life, and on her death to assign and convey to her husband absolutely. If the husband did not survive the grantor, the interest and income were, after the death of the grantor, to be paid to Annie Crossley, a sister of the husband, during her life, and on her death to the survivors of four nephews of the husband, James Crossley Neilson, James George Kowan, James Crossley and Thomas Crossley. The deed of trust was dated and executed on December 13th, 1894, and was actually delivered into the hands of Mr. Curtis on the day after its date, and at the same time the certificates of stock of all the companies were also actually delivered to him, but only one of .the certificates was endorsed or assigned on the back of the certificate. Mr. Curtis died on February 18th, 1895, and did not, previous to his death, have any of the stock transferred to himself on the books. The deed of trust and certificates were not among the private papers of Mr. Curtis which came to the hands of the executors, but after his receipt of them the deed and certificates, all within an envelope, remained in the vault of the bank, of which he was president, up to the time of his death, and the executors did not learn of the existence of the deed of trust or of the testator’s possession of the deed or securities until February, 1897, when a demand or request for them was made on behalf of Mrs. Crossley. Complainants, after receiving this information and examining the deeds, took possession of the securities and deed by advice of their counsel and gave the corporations notice of their ownership of the stock under the trust deed and claimed payment to themselves of the dividends, which had, up to this time, been paid directly to Mrs. Crossley by the corporations. Two of the corporations assigned the stock to complainants’ names, in compliance with this demand, and one of them refused to so do. Thomas B. Crossley, the husband, died on December 8th, 1896, .and Anne Crossley, his sister, died before that date and after the execution of the deed of trust. The four nephews named as remaindermen are all living and are defendants to this suit, three of them being infants. The adult nephew has not filed an answer, and as to him the hearing has proceeded on decree pro confesso.

The bill is filed by the executrices of the trustee to settle the accounts of their testator and themselves as trustees under the deed, and to be relieved from the trust, the complainants being unwilling to undertake its further execution.

By the answer and cross-bill of the defendant Mrs. Crossley, two defences are raised — -first, that the trust's in the deed were never accepted or assumed by Mr. Curtis; and second, that the deed is illegal aud void and should be set aside. The grounds alleged are — -first, that it was executed under the. misrepresentation that it was a will and was revocable; second, that it was executed under undue influence of her husband, especially under the influence of threats of his suicide; third, that she had no independent advice or counsel before the execution of the paper; and lastly, that the deed contained no power of revocation.

The cross-bill prays that the deed be declared void, and that the securities in complainants’ hands be delivered up to her. The infants have filed formal answers, but have been fully represented by counsel on the hearing.

So far as relates to the question of fact involved in the cause, I reach the conclusion, first, that the deed of trust was executed and delivered to Mr. Curtis and that he accepted the trust. No evidence has been offered by the defendants, or appears in the case, which is sufficient to overcome the effect of the actual receipt and retention within his control, of the deed itself and of the securities by the grantee named in the deed, corroborated by the evidence of Mr. Taylor, who delivered the deed and securities to Mr. Curtis, and the evidence of Mi-. Curtis, then the cashier of the bank, as to the declaration's and actions of Mr. Curtis relating to his acceptance of the trust. Giving to the evidence produced by defendant upon this point its utmost effect, it goes no further than to show that Mr. Curtis, after he had accepted the deed and securities and had declared his acceptance of the trust, refrained from having the certificates of stock formally assigned to his name, because of information he received which cast some doubt upon the propriety or legality of the transaction. But as he retained the deed and securities after this information and until his illness in January, 1895, without any communication to the grantor or any of the parties interested, there’ is no basis for relieving him or his estate from the responsibilities and duties incurred under a trust which has been actually accepted. As to the failure to endorse the certificates of stock the evidence shows that Mrs. Crossley intentionally withheld her endorsement of the certificates (except as to the one certificate which had been previously endorsed by her in blank), and that she expected or hoped by this omission, either to retain some hold on the stock or affect Mr. Curtis’ willingness to accept the trust or his transfer of the stock to his own name. This omission was by the advice of Judge Fort, who was called on before the signing to advise her as a friend about signing the deed, and the advice was given, because Mrs. Crossley’s statements and conduct during that interview were such as to show that the execution of the deed was not or might not have been voluntary on Mrs. Crossley’s part, but under fear or undue influence on the part of her husband. But without the communication of this situation of duress, if it existed, to any one else connected with the execution of the deed, Mrs. Crossley executed and acknowledged the deed, after the Usual form, declaring to Mr. Taylor, who took the acknowledgment, that it was her voluntary act, without any fear, threats or compulsion of her husband, and she had further made the same statement to Mr. Taylor, on special inquiries he had made. An excuse was made for not endorsing the certificates and the certificates themselves were delivered to Mr. Taylor at the time, for the purpose of handing to Mr. Curtis with the deed.. This secret intention of the grantor not to endorse the certificates evidently did not prevent the operation of the deed, as vesting the title in the securities in the trustee, if the actual endorsement of the certificates themselves was not necessary for this purpose. That such endorsement of the certificates is not necessary to pass the title where a deed has been executed assigning the stock and authorizing the transfer on the books, is settled. Lowell Transfer Stock 44; Grymes v. Hone, 49 N. Y. 17, 22 (1872). The authorities cited by me in Tarbox v. Grant, 11 Dick. Ch. Rep. 199 (at p. 204), show further that the gift or trust would probably have been complete by the delivery of the deed assigning the stock without the delivery of the certificates themselves.

In the second place, I reach the conclusion that Mrs. Crossley has failed to establish that she signed the deed in question under the belief that it was a will. I conclude, on the contrary, that the evidence of the two counsellors-at-law, with whom she had interviews relating to the deed, shows satisfactorily that she knew the paper she was executing purported to be an irrevocable deed and was not a will. From the advice to decline endorsing the certificate, Mrs. Crossley may have got the notion that the operation of the trust deed was in some way still under her control, and she may also have received from Judge Fort tlie further idea that, under the circumstances which she stated to him, the enforcement of the trusts by the courts was doubtful, but I am satisfied that this was the extent of the advice or information communicated to her, at or before the execution of the deed, as to her control over the property after its execution, and that she then knew from both gentlemen that the deed itself purported to be and was an irrevocable deed and was not a paper or will which she could revoke. Mrs. Crossley’s evidence is the sole basis for the claim that it was executed under the representation that it was a will, and upon this point, and generally as to what took place at the time of the execution, her present memory or statement is unreliable. Conclusive evidence of this unreliability appears in the fact that she now says that she did not disclose at all to Judge Fort the threats her husband had made, but kept these to herself, while it is entirely clear from his evidence that she did so, and that in consequence of these disclosures Judge Fort declined to have anything to do with the transaction as a witness.

Third, I conclude upon the entire evidence that the deed was executed through fear of her husband and undue influence on his part. The evidence of Judge Fort, who was called in to see Mrs. Crossley, not as her counsel, but as a friend, just previous to the execution of the paper, and who was present at its execution, shows that at that time Mrs. Crossley was nervous and excited, and seemed, from her own account, to be then under the influence of a fear that her husband would kill himself if she did not sign the paper, and also in fear of her own life. As the result of an interview of twenty minutes’ duration, during which he tried to quiet her, he said he was not willing to advise her to sign the paper, and further told her that under the circumstances he didn’t believe it would be of any force if she did, but she must do what she thought she ought to do about it. After the interview Mrs. Crossley and Judge Fort went together to the room where the paper was executed in the presence of Mr. Crossley and Mr. Taylor, but nothing was said to either of them about the communication of the husband’s threats. Judge Fort, when requested to witness the deed, declined to do so, and he also declined to witness a will of Mr. Crossley’s, which was executed at the same time. He had never been employed as Mrs. Crossley’s counsel, was not so employed at this time, and did not understand that he had been called in except for advice as a friend and neighbor of Mrs. Crossley’s and of her family.

Mrs. Crossley’s statements to Judge Fort as to her husband’s threats and their influence over her, with respect to the signing of the deed, are corroborated by her own evidence and by the evidence of several witnesses. Mrs. Crossley’s sister, who lived with Mr. and Mrs. Crossley at the time, says that shortly before December 14th, 1894, she overheard a conversation between them, in which Mr. Crossley said he would kill himself if Mrs. Crossley didn’t sign a will and provide for him liberally, and that after the conversation Mrs. Crossley told her about it, that she didn’t want to sign the will, and that she was very much afraid he would take his life. Mrs. Lyon, her aunt, also proves Mrs. Crossley’s complaints to her of her husband’s threats to kill himself if she didn’t sign a paper, and her fears. Other evidence as to Mr. Crossley’s disposition and habits also tends to show the truth of Mrs. Crossley’s statements to Judge Fort, and upon the entire evidence I reach the conclusion -that the deed must be declared void/as procured by undue influence of the husband.

It is insisted by counsel for the infants that the settlement upon the husband was only a reasonable provision for him out of his wife’s large estate, and that by this settlement the husband .received only a- moderate amount beyond the provisions for him under previous wills and much less than he would have received on the wife’s death intestate. But the contention cannot. ayail to sustain-the settlement as-reasonable because, first, the present: settlement is, for all that appears, additional to the provisions for the husband in any of the previous wills, and left him free to claim under any future wills;-second, the irrevocability of the settlement was the real imposition on the wife in this case. While the-husband, if he survived the wife, received the settled property absolutely, the wife, as survivor, received only the income, and, no matter what change in .circumstances occurred, was without power to touch the principal for her own use or to divest it from those relatives of her husband who were nominated by him in the settlement, and who were, with one exception, unknown to the wife. The trusts of the settlement, in practical effect, were an absolute conveyance of the settled property to the husband, subject to the life estate of the wife and a disposition of the property by a will of the husband in case he died before he received the absolute property for his sole benefit, which will of the husband was part of the settlement. If the reasonableness of the provision were the test of the validity I should not uphold the settlement as reasonable because of the omission of the power of revocation in case the wife survived the husband. But settlements by a wife upon the husband are not made dependent for validity on their reasonableness or upon the absence of influence upon the husband’s part, and the reasonableness-or unreasonableness of the settlement is only a circumstance to be considered on the vital question whether the deed was executed under undue or improper influence of the husband. The law recognizes and sustains the right of a husbaud to the use of all proper influence over the wife, even for his own benefit, and does not impose upon him or those claiming under him, who seek to uphold her settlement, the burden of showing that the settlement is fair or reasonable or was made under independent advice, as in the case of settlements made in the other relations, which are called confidential or fiduciary. But the wife is protected against settlements made upon the husband through fear or improper influence on his part, and if she is able to establish this the settlement will be declared void. And while a court of equity will scrutinize the transaction with jealousy, in order to ascertain whether the settlement was made through fear of the husband or whether the husband exercised improper influence over the wife, the burden is on the wife to show improper influence of the husband, in order to avoid her settlement on him. 2 Lead. Cas. Eq. (4th ed.) 1215, 1216 (notes to Hugenin v. Baseley); Grigby v. Cox, 1 Ves. Sr. 518 (Lord Hardwicke, 1750); Nedby v. Nedby, 21 L. J. (N. S.) 446 (Vice-Chancellor Parker, 1852).

The unreasonableness of the settlement, the lack of independent counsel for the wife and the omission of the power of revocation are therefore only circumstances to be considered upon the vital question of improper influence exerted by the husband to bring about the settlement on him and his relatives. As to this question I conclude, upon consideration of these and all the other circumstances of the case bearing upon the question, that the wife has proved that the settlement was brought about by the use of undue and improper influence on the part of the husband, and the deed of settlement must therefore be declared void. A decree will be advised setting aside the deed and directing that complainants settle their accounts as trustees and transfer the securities to Mrs. Crossley, the form of decree to be settled on notice unless agreed on.


text:
    Edward C. Robertson et al. v. Leopold Meyer et al.
    [Filed March. 29th, 1900.]
    "Where, in an action to enjoin defendants from using complainants’ private court as an access to defendants’ property, there is no substantial evidence of any right in defendants to use the court, and damages at law would not be an adequate remedy, complainant will be granted an injunction without being sent to law to establish his legal rights.
    Ou bill for injunction. On final hearing on bill, answer, replication arid proofs.

      Mr. Corra N. Williams and Mr. Robert H. MoCarter, for the complainants.

      Mr. James R. Nugent and Mr. Samuel Kalisch, for the defendants.
   Emery, V. C.

The substantial question involved in this case upon the pleadings is whether a certain open court-yard, about one hundred and fifty feet long by thirty feet wide, of which complainants are the owners in fee, has been dedicated to the public as a highway or street. Access to the court from the public street is through a twelve-foot alley, which opens into the court on its southerly side and runs from Green street, in the city of Newark, and on the north side of the court, opposite to the entrance from the alley, a row of dwellings (twelve in number) are located, extending from the west side of the court along the whole north side, up to the line of factory buildings which are erected on the north and on the east side of the court. These factory buildings also extend on the south side of the court as far as the east side of the alley and for about thirty feet along the alley. Complainants are the owners in fee of the alley for this distance. These factory buildings and the houses were all built by the predecessor in title of complainant, and the court was originally laid out about 1850 by the then owner of the premises, in connection with the buildings and for the use of these dwellings and factories. The court-yard was paved some years subsequently, presumably by the owner, as the city has never taken charge of it for such purpose. On the west side of the alley a factory building was also erected by the complainants’ predecessor in title, and the alley was used for entrance to the latter building, but access to the court.for this building was (with the exception of two or three years, as hereafter mentioned) prevented by the erection of a fence along the south side of the court, west of the alley. Defendants are the owners of land fronting on Green street, about sixty feet west of the alley and running back beyond the court, the boundary between complainants’ and defendants’ property being the west line of the court-yard and of the row of dwellings. From at least as early as 1860, up to November, 1898, a fence existed along this west line of the court-yard, and coal-bins for the use of the tenants of the factory, on complainants’ property, were built against this fence as early as 1864 and remained there until they rotted down with it in twelve or fifteen years. Defendants, in erecting a factory building on their lot, in November, 1898, removed the fence along the west line of the court-yard, and upon the complainants thereupon erecting another fence across the west end of the court, about two feet east of the line of the old fence and entirely upon their own lands, the defendants forcibly destroyed the fence .erected by complainants, and- since the completion of their building have, without complainants’ consent and against their protest, used the court for access to the rear of their factory, with-horses, wagons, &c. Defendants’ sole claim to exercise this right over the court for access to their factory rests upon its dedication to public use as a public street or highway, and the issue between the parties on the pleadings is whether the court has been so dedicated.

On the application for preliminary injunction, I held that while there was no sufficient reason for a preliminary injunction, yet inasmuch as defendants were using, and by their answer claimed the right to use, the court, aud to use it continually in a burdensome way, for which an action for damages at law would afford inadequate relief, the injury was of a character which would justify this court in giving relief without sending complainants to first establish their rights at law, unless the evidence produced on the hearing showed such a substantial dispute over the fact of dedication to public use as to entitle defendants to a trial by jury. This rule as to the jurisdiction of the court in cases of the present character, was declared by the court of errors and appeals in Hart v. Leonard, 15 Stew. Eq. 416, 419, and it is specially applicable where the objection to the jurisdiction of this court is not raised by defendants’ answer, and the question of jurisdiction cannot be ruled' on until after the evidence on both sides has been taken on final hearing. In Bailey v. Schnitzius, 8 Dick. Ch. Rep. 235 (Court of Errors and Appeals, 1895), an injunction against obstructing a water course was granted, at final hearing, without settling right at law, where, on the admitted facts proved by defendant, the complainants’ right was clear. A preliminary injunction had been refused in this case. Ibid., 18 Stew. Eq. 178.

Upon the evidence offered at the hearing I conclude that there is no such substantial dispute and that complainant is entitled to an injunction without further establishing his legal rights.

In the first place, the precise question in issue is the right of the defendants to use the court as a public highway for access to their property on the west side of the court. This property, up to the time of the removal by the defendants in November, 1898,. of the fence along the boundary line, had been kept shut off from public or other access by a fence, which is proved to have been erected by complainants’ predecessor in title, the owner of the court, as early as 1860, and also by coal-bins erected against the fence as early as 1864, for the use of the tenants of the factory on the east side of the alley. By this enclosure on the west, and also by a similar enclosure on the south of the court, the owner who erected them negatived, as far as it was possible for him to do so, the intention to dedicate the court as a public highway for access to properties other than his own buildings. So long as these obstructions to access to the property on the west continued, the owners of the court are entitled to the benefit of this original exclusion of access to defendants’ lands, in the absence of evidence sufficient to show that notwithstanding this exclusion, the public use has been such as to show the intention to' dedicate the court as a public street entirely across the west line. The effect of such erection obstructing or enclosing a street or court opened by an owner in connection with the use of dwellings built on his own land is discussed in Woodyear v. Hadden, 5 Taunt. *125 (1813), a case in many points similar to the present. In that case the plaintiff laid out a street leading out of a highway across his own lands and terminating at defendant’s lands, on which there was a fence erected by defendant, and which continued to separate the end of the street from defendant’s lands for twenty-one years. Defendant pulled down his fence and claimed use of the street laid out on plaintiff’s land as a highway dedicated to public use, basing his claim on the public use for access to the houses which had been built on the street and plaintiff’s lands. Lord Mansfield says, on this point (at p. 141): It is admitted that if the plaintiffs themselves had built another wall at the extremity, they would have been safe, * * * but I have great difficulty to see why the plaintiffs should build another fence when there was a fence already there.-”

The erection of this fence along the west- line and its maintenance until removed by defendants, in 1898, is conclusive in this case, between the owners of the respective lands, as to the intention to dedicate the court as a highway to defendants’ property. The court, not being a thoroughfare, can only be considered dedicated to public use up to the’ line where it was used and not beyond it, and no evidence has been offered sufficient to overcome the effect of this erection or to deprive complainants of its benefit.

Second, the evidence offered by defendants as to the use of the court-yard shows substantially only a use in connection with the dwellings and factories on complainants’ lands, for whose use it was laid out. No use whatever, either for reaching or passing defendants’ lands, has been shown, and the only general use of the court claimed to have been shown other than that of persons visiting or serving the dwellings or factories, is that of peddlers or hucksters, who drove into the court to sell their wares, and of persons who came through the alley and crossed the court to draw water from a pump located in front of one of the houses opposite the alley. A special use was shown of the court-yard for two or three years, by a tenant of the factory on the west side of the alley, who took out a section of the fence which stood along the south side of the court, and cut off access to his factory, and who used this opening for access to the leased premises from the court. But it appears also that one of the complainants made objections to the landlord about this action of his tenant, and that on the tenant’s removal the section of the fence was rebuilt by complainants without any objection from the owner of the factory. This special use, therefore, cannot be considered as evidence tending to establish a dedication of the whole court on the west to public use, nor can the use of the court-yard at the entrance of the alley, for the purpose of turning the wagons which came to the factory, be considered as such evidence. The maintenance and lighting by the city of a lamp at the entrance of the alley into the court-yard, and the collection by the city scavenger of garbage and ashes from boxes in the court-yard or alley, also relied on as public uses, are, I think, manifestly to be considered rather as uses of the court in the way of police regulations, and are not uses of a character to create a dedication to the public even as to the portions of the court where these uses were exercised, and they certainly afford no evidence of dedication of the court up to and across the defendants’ line. Nor does the designation of the locality as Maple Place, by sign on the alley at Green street, and its similar designation on a map made, in 1856,' by the commissioners to lay out streets, afford any sufficient evidence of dedication. Complainants and their predecessors in title had nothing to do with the making of this map, and it was not made for the purpose of settling questions such as arise in this suit. The city has not in any way accepted the court as a street or assumed control over it. Giving to the defendants’ evidence the full weight and effect it would be entitled to if standing alone in the case, I reach the conclusion that the uses shown, except so far as' they may be considered as mere licenses for neighborly accommodation (such as getting water from the pump), are merely uses which are properly referable to private ways in connection with the houses and’ are not such general and undisputed public uses of the court for access to all of the property around the court, as is sufficient to overcome the evidence negativing or excluding dedication, supplied by the erection and maintenance of the fence along defendants’ property.

Upon the question of the effect of defendants’ evidence, the position of defendants is that the question of dedication is one of intention, which is a mixed question of law and fact, and therefore defendants are entitled to have the question submitted to a jury. If they have not waived the right by failure to set it up in proper time, they might have such right, if upon the whole evidence they show a case, upon which a jury, giving their evidence its full weight, would be entitled to find a dedication. But if the case as to dedication presented by defendant is such that no disputed questions of law are involved and the evidence is such that a court of law would direct a verdict for the plaintiff, or set aside a verdict for defendant, as without evidence, then I think it must be said that no substantial dispute as to the right has been shown, and that this court has jurisdiction to give an injunction without requiring complainants’ title to be established at law. A court of law will direct a nonsuit or set aside a verdict in cases where there is no evidence to warrant a finding of dedication. O’Neill v. Annett, 3 Dutch. 290 (1850).

Third, the injury suffered by complainants in this case is one for which damages at law are not an adequate remedy. The only damage recoverable at law is for the injury to the complainants by the passage across an open court, which complainants are obliged to keep open for the use of the tenants of their dwellings. They cannot in this case protect their property rights from infringement by defendants by closing up the whole court. The damages recoverable at law being based, as they must be, on the damage to the plaintiffs and not on the profit to defendants, would be nominal, and the only object of an action at law would be to settle a right to be protected finally by injunction. The real injury in this case is the appropriation of- complainants’ property without compensation for the defendants’ profit and convenience and in a burdensome.way. Upon the evidence of dedication here presented, the complainants should not be required to bring suit for nominal damages in order to settle the question of legal title, but their rights not being contested on any substantial basis, they are now entitled to relief by injunction.