author: • Emeby, Y. C.

text:
    Edward J. Moore, surviving trustee, &c., of Thomas C. Barr, deceased, v. J. Nethermark Downey et al.
    [Decided June 25th, 1914.]
    1. A bequest to trustees to pay the testator’s wife “annually in quarterly payments during her natural life an amount equal to one-half the net income” from his estate, which consisted of 'both real and personal property, was not an “annuity,” which is the bequest of a sum certain and does not even include the gift of the interest of a fixed and certain sum of money.
    2. Annuities are not generally apportionable.
    3. A bequest in trust to pay the testator’s wife quarterly during her natural life an amount equal to one-half the net income accruing from his estate, which included both real and personal property, was not a bequest of income payable at fixed times, and the wife’s representatives were entitled to such an apportionment of the income as would have given her so much as accrued from day to day during her life, including interest accruing on mortgages and dividends declared during her life, although not payable until after her death.
    4. Testator, after specific legacies, devised the entire residue to trustees for investment and to pay out of the balance one-half of the net income to his wife for life, and after her death certain amounts to each of two legatees for life with cross-survivorship, and a certain amount to another legatee for life, such legatees being the wife’s kin, and to pay out of the principal certain amounts to the issue of two of the legatees in contingencies which had not occurred, and out of the remaining one-Half of his income not disposed of directed two annual payments of $2,500 each to a nephew and niece for life, and a payment out of the principal to the issue of such nephew and niece, respectively, of $50,000, with cross-remainders on survivorship, upon contingencies which had not occurred, and gave all the remaining surplus income equally to two sisters during their natural lives, and three-ninths of all the residue to each of them, their heirs and assigns, and one-ninth each to a nephew and two nieces. The payments to legatees other than his sisters amounted to less than the annual income of the estate, leaving a surplus. — Held, that during their joint lives the sisters were equally entitled to the surplus income of the entire estate, after deducting the special legacies, and that until the happening of the contingency requiring the payment out of one-half of the principal of the legacies to the issue of the- nephew and niece or either of them, the principal was to be held as an entire fund.

      On bill for construction. Heard on bill, answers and proofs.

      Mr. Frank Bergen, for the complainant.

      Mr. Ghauncey (?. Pa/rker, for the defendants Dorey and Birch.

      Mr. Halsey M. Barrett, with Mr. William B. Brinton (of the Pennsylvania bar), for the defendants Downey and Lees. (Barrett & Barrett, solicitors.)

      Mr. Borman W. Marker, for the defendants, executors of Mrs. Barr.
   • Emeby, Y. C.

This bill is filed by Edward J. Moore, the surviving trustee under the will of Thomas C. Barr, for a construction of Iris will on three contested points. The first is a question arising on the claim of the executors of the widow of the testator for the payment to them of certain income of the estate, amounting to $2,-760.76, now in the hands of the trustee, and being a portion of the income of the residue of the estate which was given and devised to the executors and trustees by the eleventh clause of his will, upon trusts therein specified. The first trust (as to payments) was as follows:

“First. I direct that my said executors or trustees pay to my beloved wife Loraine H. Barr annually in quarterly payments, during her natural life, an amount equal to one-half the net income accruing from my said estate.”

The testator died February 26th, 1908, and during the lifetime of the widow payments to her under this clause were made quarterly on the 28th days of February, May, August and November of each year. The last payment to her was made on February 28th, 1913, and she died on May 21st, 1913. If the income is apportion able, then the sum of $2,760.76 is the proportion of the quarterly payment to which the widow at the time of her death would have been entitled out of the entire income up to the quarter ending on the 28th of May, 1913. Her executors claim that they are entitled to such apportionment of this entire income. The ground upon which counsel for these executors base this claim is that this bequest to the widow is a gift of an annuity, and while admitting that annuities are not generally apportionable, claim that this annuity was in lieu of dower and for the maintenance and support of the widow, and, therefore, under the decisions of our courts, is excepted from the general rule and is apportionable. This bequest of income is not, however, in my judgment, an annuity. An annuity is the bequest of a sum certain, and even the gift of the interest of a fixed and certain sum of money is not an annuity. 3 Pom. Eq. Jur. (3d ed.) § 1134; citing, inter al., Whitson v. Whitson (1873), 53 N. Y. 479, 481; 2 Redf. Wills 453. Much less can the gift of the income or of a specified portion of the net income of the general residue of the estate, including, as here, real as well as personal estate, be considered an annuity or the gift of a sum certain.

Treating this devise and bequest to the wife not as the income payable at fixed times, her executors are, however, under the general rule well settled, entitled to such an apportionment of the income as will give to the widow the benefit of so much of the income as accrued from day to day during her ife. Brombacher v. Berking (Vice-Chancellor Reed, 1897), 56 N. J. Eq. 251, 255. This would include interest accruing on mortgages and also dividends declared during her lifetime, although not payable until after her death. The ease does not show what the apportionment would be on this basis, and this may be the subject of further inquiry, if necessary.

The second and third questions are connected and involve the general question whether the entire principal trust estate or fund in the hands of the surviving trustee must be held intact for the purpose of paving the income of the entire estate (after certain deductions) to the two sisters of the testator during their joint lives, or whether, after the death of the widow, who was entitled to one-half of the net income during her life, one-half of the principal of the estate becomes immediately divisible among the persons entitled as residuary legatees to the estate, and whether, therefore, the sisters of testator ,are entitled to require only one-half of the principal to be retained for the payment of income to them on this half for their lives. For the sisters it is contended that the entire principal must be held at least during their joint lives for the payment to them equally of all the income thereon, including that previously enjoyed by the wife, after deducting specific annual payments of income to other relatives under the will. These payments to other legatees, together amounting to $10,500 annually, are much less than the income of the estate, which exceeds $800,000, and which, as now invested, yields an annual income of about $48,000.

The sisters are also the residuary legatees to the extent of one-third each of the entire fund not otherwise disposed of, but they claim that no portion of the principal is yet divisible. The residuary legatees of the trust fund other1 than the sisters, being a nephew and nieces of the testator and a niece of his wife, and who are each entitled to one-ninth of the residue, claim that the sisters are entitled only.,to the income of one-half of the principal fund (less the special deductions), and that after the death of the wife, one-half of the principal became immediately divisible among the residuary legatees. These two questions, the right of the sisters to the income of the entire fund, and the right to distribute any portion of the principal, are thus inseparably connected, and decision upon one point affects the disposition of the other. The difficulty in reference to the construction of the will on these question — for there is a difficulty — arises from the fact that the will is not only inartificially drawn, but in reference to the particular point now in question, it is drawn confusedly, as will appear from a recitation of its provisions.

The will, after a direction for payment of debts and funeral expenses, and for the payment of specific legacies (all of which amounted to about $50,000), gave and devised the entire residue of his estate to his executors and trustees, in trust for the uses thereafter named. This residuary clause vested in the executors the legal estate in the entire residue, leaving, however, the equitable or beneficial estate therein to be further declared. Directing that the trustees invest and keep the estate invested and collect the rents and profits therefrom, pay all taxes or other charges, the testator then directed that they pay over the balance after such payment. This “balance” must be taken on the face of it to relate to and include only the payment of net income of the estate, considered as a whole. The first payment to be made is to his wife annually in quarterly payments during her life “of an amount equal to one-half of the net income.” This direction contemplates apparently a division into two parts of the net income of the whole estate invested as one trust fund. A provision for the payment of one-lialf of the net income of an entire principal fund is manifestly a different thing from a direction to pay the net income of one-half of the principal fund. And under this direction, I think the trustees have no authority to make such division of the principal Eand into two separate parts or funds. This direction completes the eleventh item or paragraph, and the next, or twelfth paragraph, provides for the payment after the death of his wife, to each of two legatees, Mrs. Fretz and Miss Nippes, of $2,500 during their respective lives, ■with cross-survivorship to each of these legatees, and to Frank P. Nippes, Jr., of $500 during his life, without survivorship provision. These three legatees are, it is said, of testator’s wife’s kin, but although these payments are not to he made until after his wife’s death, there is no direction that they are to come out of the half of the net income, which would have been paid to the wife had she been living, nor is there any direction which would make them payable otherwise than out of the income generally after his wife’s death. Following this is the thirteenth paragraph, which provides for the payment out of the principal of the estate of two sums of $50,000 each to the issue of these two legatees, Mrs. Fretz and Miss Nippes, in certain contingencies. These contingencies have not yet occurred, and at present only have a bearing, as being required to be provided for in case any distribution of principal be now directed. The important features of the thirteenth paragraph, on the present questions, are— first, that this payment of principal is not specially directed to be made out of a half of the principal, nor is there any provision that would indicate it is not payable out of the principal generally, and second, that these payments of principal to the issue of these two life tenants are not, by this clause or.any other, made expressly dependent on Mrs. Barr’s death. They only become so dependent bjr reason of the fact that such payment out of the principal (considered as a single trust fund) would, pro tanto, deprive Mrs. Barr during her life of one-half of the net income of the whole estate, previously given upon this trust, and might therefore by implication be payable only after her death; After these directions which, it will be seen, fall far short of one-half of the net income and do not dispose at all of the balance of the one-half of the net income payable to the wife during her life, the testator without any further special express reference to this balance of the one-half of the net income which the wife had received, seems to assume by the next paragraph of his will that he had in fact already made such direction as to this balance of income.

The fourteenth paragraph reads: “I further direct that out of the remaining one-half of the income of my estate not yet disposed of [the italics are mine] there be paid two annual payments of $2,500 each” to a nephew and niece during their respective lives. This clause apparently treats the “remaining one-half income,” i. e., the income which remained after the half income given to the wife for life, as a separate fund, and apparently authorizes the inference that the payments of income to the wife’s relatives after her death were by the testator considered as being made as, in part at least, “disposing of” the one-half income previously given to the wife. But while the entire income is apparently divided, there is so far no indication or suggestion that the principal is to be divided, or is not to remain entire.

The next paragraph, the fifteenth, provides for a payment to the issue of this nephew and niece, respectively, of the sum of $50,000, with cross-remainders on survivorship, and these two sums of $50,000 each are to be paid on contingencies which have not yet occurred. These payments, however, are specially directed to be made “out of the principal or corpus of tire second one-half of my estate.” Up to this point in the will, as I have said, there had been no indication of an°intention that the entire principal of the trust estate should at any time be divided into two portions, and this direction for manner of payment at this time by a division of principal cannot, in my judgment, avail or be considered sufficient to establish the right to make such division or principal into two funds from the inception of the trust.

It seems to be, however, a plain, clear direction that these payments, when made, shall be made in this manner, and when the contingency arises requiring the payments, or either of them, to be made, under this clause, a division of the principal into two trust funds may then be required, in order to carry out all the express provisions of the will. Had similar directions been given that the $50,000 legacies previously given to the issue of the wife’s kin be paid “out of the first half of my estate,” I am inclined to think that the division of the entire estate into two trust funds would then have been required on the happening of the contingencies therein provided for payment, and that in the absence of any special direction for a previous division, the division into two funds must have taken place as soon as the contingency for payment out of either specified half of the principal first arose. But no such provision for payment of the two $50,000 legacies to the issue of the Avife’s kin was made, and in the absence of any other provision controlling the holding of the trust estate as an entire estate, it must, I think, be so held, at least, until this contingency for payment under this fifteenth paragraph arises, and the trustee under the will has no authority to divide the principal of the trust estate into two portions until that time.

The matter of the disposition of the “surplus income” until the time arrives for the division of the principal, remains to be specially considered.

Up to this point in his will (the fifteenth paragraph), the testator had made provision, first, for the entire one-half of the net income during his wife’s life, Avith an express disposition after her death, among her relatiA^es, of a portion only of this one-half income Avhich would have come to her, leaving the balance of this one-half undisposed of by any express direction, and he had also, secondly, made express provision for only a portion of the other one-half of the income of the entire estate.

Then folloAVS a separate distinct paragraph, the sixteenth, dealing aaíüi income alone, as follows: “I further direct that all remaining surplus income be divided equally and- annually between my two sisters, Katherine V. Dorey and Helen L. Birch, during their natural lives.” This provision gives rise'to the principal dispute, which is, whether “surplus income” under this clause means the income not previously effectively disposed of by the previous bequests of income, or whether the “surplus income” bequeathed by this clause is the surplus only of the second half of the income, being that not given to the wife during her life. The latter contention is based on the general claim above discussed that it sufficiently appears on the whole will that a division of the principal into two funds from its inception is contemplated, and that if this be established as the true construction of the will, then the “surplus income” referred to in this paragraph must be the surplus only of the income of the second or remaining half of the principal fund referred, to in the fourteenth paragraph as being the surplus “of the remaining one-lialf of the income not yet disposed of” by the legacies to the wife and others after her death, by the paragraphs preceding the fourteenth.

The “surplus” income, taking this in the sense of income not actually or effectively disposed of, certainly included a balance of income after the wife’s death not absorbed by the payments to the previous legatees, and the precise question is whether this express direction as to “surplus income” includes all income not actually disposed of, or whether this bequest of the surplus income is to be treated as a specific bequest of the surplus of the remaining or second one-half. If so, the “surplus” of the first one-half falls into the general residuary bequest of the equitable or beneficial estate in which the trustees have the residuary legal title. This clause, the seventeenth, directs all the residue to be divided into nine equal parts and paid over, three-ninths to each of his sisters, her heirs and assigns, and one-ninth each to his nephew J. H. Downey, Ms niece Helen L. Downey, and Katherine IST. Hippes, his wife’s niece. The time for this payment Is not expressly fixed, but treating the previous clause as one disposing of the entire surplus income of the estate, not merely of the surplus of one-half of the income, this last residuary clause applies to the principal fund alone of the equitable estate, leaving the previous clause tó be construed as the residuary clause apptying to the income.

It must be conceded, I think, that by reason of the confused and inartificial character of the will as bearing on these points of dispute, the contention can fairly be made that such division of piincipal into two funds from its inception and a separation of the incomes into two distinct portions is suggested or indicated, but, as I have stated, it cannot be safely said, that taking the whole will, such division has been directed, or that there are any directions in the will sufficient to justify the conclusion that the testator intended in the sixteenth paragraph to restrict the "surplus income” to that of the second half of the fund referred to in the fourteenth paragraph.

On considering the whole will and the arguments and briefs of counsel, I reach the conclusion, first, that during the joint lives of the sisters, they are equally entitled to the surplus income of the entire estate after deducting tire special legacies, and second, that until the happening of the contingency requiring the payment out of one-half of the principal fund of the legacies to the issue of J.'Fethermark Downey and Helen M. Downey, or either of them, the fund is not divisible under the will, but is to be held as an entire fund. And this construction, as to the time of division, does, I think, carry out all the provisions of tire will. Any construction fixing either the -inception of the trust or any other time for the division of the principal, must necessarily rest more on a supposed plan, indicated or suggested by the partial and incomplete provisions, rather than on the construction of the -words of the entire will actually used by the testator and from which his intention must finally be determined.

Whether, on the death of either of the sisters, the payment to the survivor of either the entire or any portion of this surplus income is to be continued, is not decided. Decision upon this point should not take pláee until the' question arises and the parties then interested are heard, and at this time would be premature.


source: Caselaw Access Project

author: Emery, V. C.

license: Public Domain

text:
    William C. Clift et al. v. James Frenche.
    [Decided July 23d, 1914.]
    1. Under P. L. 1903 p. 432 § 59, providing that the purchaser of land at a tax sale may give written notice to all persons interested in the land of their right to redeem, and that unless they do so within two years after the sale, if the notice is served more than sixty days before the end of the term, or otherwise within sixty days after the service of the notice, their right of redemption will be barred, and that, if there shall be no redemption within such term of two years or within the time limited by the notice, the right of redemption shall be barred, to bar the right of ■redemption the statute must be strictly followed.
    2. Where a purchaser of land at a tax sale, after giving notice to all persons interested to redeem within sixty days, pursuant to P. L. 1903 p. 432 § 59, on an application by a party interested within such period to redeem, requested a delay beyond the sixty days for the purpose of taking up the matter, and thereby induced such party not to attempt to redeem within the statutory period, the purchaser was estopped, as against such party, from using such notice as the basis of a statutory foreclosure of the right to redeem, and, to avail himself of the statutory remedy, was bound to give a new notice.
    3. A suit to redeem from a tax sale proceeds on the assumption that the defendant has or can acquire an absolute title, and the validity of his title under the sale cannot be attacked.

      Messrs. King & Yogi, for the complainants.

      Mr. Edwin A. Rayner, for the defendant.
   Emery, V. C.

This is a bill by a mortgagee to redeem lands sold for nonpayment of taxes. The lands were sold for thirty years and the purchaser claims that the right of redemption has been cut off by proceedings taken under the “Act for the assessment and collection of taxes.” P. L. 1903 ¶. 432 ch. 208 § 59. This section provides two methods for barring or foreclosing the right of redemption, after the period of redemption (two years after the sale) has expired. The first is by an ex parte proceeding entirely within the control of the purchaser, and is by his giving written 2iotice to all persons interested in the land of their right to redeem, and that unless they do so within sixty days after the service of the notice, their right to redeem will be barred. After this time (sixty days) has expired without redemption, the purchaser may annex the notice and affidavit of service to the certificate of sale, together with an affidavit that the sale has not been redeemed, and record and file the same therewith in the office of the county clerk or register. By the statute “the said notice and affidavits and the record thereof shall be presumptive evidence of the service and facts therein stated.” Section 56 provides for the recording of tire certificate of sale with these notices and affidavits annexed and also that the certificate of sale shall be presumptive evidence in all courts of the title of the purchaser. The second method of barring the right of redemption given by section 59 is by a hill to foreclose, and this method may be taken whether the sixty days’ notice has been given or not, and where a bill is filed, the right to redeem continues until barred by the decree of sale of the court of chancery.

As to the expiration of the right to redeem, the fifty-seventh section provides that persons interested

“may redeem the same at any time within two years from the date of sale, or at any time thereafter, until the right to redeem has been cut off in the' manner hereinafter set forth,”

by paying the purchase-money, interest, fees and expenses.

Under the first method provided in the fifty-ninth section, this right of redemption would be barred on the failure to redeem within sixty days from the service of the notice to redeem. This method, therefore, is manifestly a strictly ex parte statutory method, and if the purchaser proposes in this manner to foreclose the right to redeem, it must be strictly followed.

In the present case, the purchaser received a certificate of sale from the . collector of taxes, dated April 3d, 1908, reciting the sale for taxes on March 23d, 1908, of the lands in question to him for thirty years, for the sum of $24.86. On March 26th, 1910, written notices of this sale, and to redeem the same within sixty days, were served on both complainants Clift and Best. On May 7th, 1910, and within this sixty-day period, Best wrote to Erenche: “If yon will send me an assignment of yonr tax claim on the Schentz property by Mr. Beilis, I will,give yon a certified check for the amount,” to which Erenche replied by letter of May lltli, 1910:

“Box 125,
“Hoboken, N. J., May 11, TO.
“Mr. J. Frank Best,
“Dear Sir — In reply to yours of May 7th I have too much to attend to at present to take up the Scheutse business which would require considerable time, hut as I stated to you that you could have your time for redemption extended if necessary I now state specifically that your time to redeem as joint mortgagee of the premises is hereby extended sixty days beyond its fixed expiration, so that there is no need to bother about it at present. I think Mr. Maelear will want some similar accommodation as he does not appear to have his mind made up about redemption. Please acknowledge this letter.
“I am, Dear Sir,
“Tours respectfully,
“James Frenche.”

The complainants, reiving on this letter, took no further steps to redeem within the sixty days. Subsequently, on July 20th, 1910, and within the sixty-day extension period given, Mr. King, one of the complainants’ solicitors, enclosed his firm’s check for the amount of taxes, $50.54, the same being figured as nearly as he could from defendant’s statement, said by him to have been previously sent them. Defendant, by a letter of July 22d, 1910, to Mr. King, written for him by a Mr. O. Beilis, returned this check, stating that the amount was insufficient, asserting further that he had never sent a statement, and that the amount due would have to be settled by agreement or by the court, as the expenses and the trouble connected with it had been a great deal more than the taxes. He further stated that the right to redeem the property expired May 24th, but he had favored Mr. Best by allowing him some extra time “to continue Ms negotiations for Ms own individual interest,” and then continues :

“He has had four months and has done nothing and there is nothing can be done now except to leave the tax lease stand. If you want to buy it, which I think you ought to do, let me know.”

Mr. King, on July 27th, replied to this letter, addressing it to defendant at Waterloo, New Jersey, that being the post-office address of the defend ant’s'letter to him of July 22d. This letter was returned to Mr. King undelivered, and a letter of Beilis (who had been defendant’s agent at Waterloo) to Mr. King, and who received the Frenche letter, stated that a letter from his firm had come to Waterloo for James Frenche, "but cannot be delivered, as he is absent, and I have remailed it to the senders.” No address was given. Mr. King’s letter of July 27th, 1910, was then remailed by him to Mr. Frenche in a letter addressed to him at Hoboken, on August 1st, at the address given by defendant’s own letter of May 11th, stating that the enclosed letter had been sent to him at Waterloo, and returned unopened by Beilis. This letter of Mr. King was also returned to the writer unopened, and with the endorsement "refused.” On the following day, August 2d, defendant himself wrote to complainant’s solicitors that he had been informed that they had been addressing letters to him which he did not receive, and further, "this is to inform you that as I have no business with you, no letters from you will be received.” On the day of writing this letter from Newton, August 2d, 1910, the certificate of tax sale, with the notice to redeem and affidavits of service on complainants and others, were recorded in the clerk’s office at Newton, in Sussex county, where the lands lie. From this correspondence, and the evidence given at the-hearing in connection with it, I conclude that the defendant, at least as early as July 22d, which was within the time to which he had himself extended the time of redemption, had determined to stand on his strict right of foreclosure under the statute, by reason of the failure to redeem within sixty da}Rs from the time of the service of the notice on March 26th. The certificate, with its accompanying notice and affidavits, derive their whole efficacy from this failure to redeem within the sixty days so fixed by the notice. Complainant’s equity to be relieved from the effect of this statutory ex parte foreclosure of the right to redeem arises from the fact that the defendant, on an application to redeem made within the time limited by the sixty days’ notice, himself requested a delay beyond the sixty days for the purpose of taking up the matter, and thereby induced defendant not to attempt to redeem within the statutory period of sixty days. By this conduct he must be considered as in equity to be estopped from setting up, as against the complainants, the right to use this sixty-day notice as the basis of the strict statutory foreclosure. The result of this action on his part was, that as against the complainants, defendant was obliged to give a new sixty-day notice under the statute, if he desijed to avail himself of this ex parie method of foreclosure. This statutory ex parte proceeding affords no method whatever for extending the time originally fixed by the notice, or fox the settlement of any equities arising between the parties by reason of their agreements, express or implied, made after serving the notice, to waive or not to proceed on the statutory notice given. By himself leading the complainants to delay beyond the fixed statutory time, defendant is, in my judgment, estopped in equity, under the circumstances of this case, from setting up this failure to redeem under this notice as the basis of his statutory absolute title. And this tax title must therefore be declared subject to redemption. What payments are to be made on redemption will be determined, if the parties fail to agree.

Several other questions were raised on the arguments and briefs, one by the complainant questioning the validity of defendant’s title under the sale. As here presented, this question strikes me as purely a question of legal title which could not be decided in this suit. Belief on this bill to redeem proceeds on the assumption that the defendant has, or can, acquire absolute title under the statute.

Another was raised by the defendant questioning complainant’s title to the mortgage and setting up title in a third person, a Mr. MacLear. This question has been decided in complainant’s favor in a suit to foreclose the mortgage brought against MacLear. and others.


author: Emery, Y. C.

text:
    William C. Clift et al. v. Elizabeth Scheutz et al.
    [Decided July 23d, 1914.]
    1. Unless affected by the recording acts, the earlier in time of two assignments of the same mortgage prevails.
    2. Under Conveyance act (P. L. 1898 p. 690 § 54), providing that instruments which may be recorded under section 21 shall be void and of no effect against subsequent judgment creditors without notice, and against all subsequent Toona fide purchasers and mortgagees not having notice thereof, whose deed or mortgage shall have been first duly recorded, an assignee of a mortgage, to whom the bond and mortgage were not delivered, and who over a year before acted as attorney in a suit in which the interest of the mortgagee was attached in the possession of the holder of a prior unrecorded assignment, was not a Iona fide purchaser without notice.
    3. Where a mortgagee assigned the mortgage to D., and thereafter made a subsequent assignment to another party, D.’s assignee succeeded to the title and rights of D., though he paid only a small sum for the assignment, and the subsequent assignee was not entitled to redeem on payment of such sum.
    On bill to foreclose. Heard on bill, answer, replication and proofs.

      Messrs. King & Vogt, for tlie complainants.

      Mr. Franklin W. Fori, for the defendant MacLear.
   Emery, Y. C.

Elizabeth Scheutz and husband gave to Walter P. Lindsley a mortgage on lands in Susses county, dated July 12th, 1904, for $1,500, payable in one year with interest. On October 9th, 1905, Walter P. Lindsley assigned this mortgage to Dey & Sutphen as collateral securityp for payments to become due on a building contract between Dey & Sutphen and the O. K. Building Company, in which Walter P. "Lindsley was interested. The bond and mortgage were delivered to the assignees with the assignment. The amount which afterwards became due on the contract 'to Dey & Sutphen was $3,500, and on January 12th, 1910, Dey & Sutphen assigned the bond and mortgage, as well as the contract and the debt due thereon, to the complainants Clift and Best. The two assignments of the mortgage Were recorded on January 21st, 1910.

A writ of attachment at the suit of the Manalapan Light Company was issued against Walter P. Lindsley, subsequent to the assignment to Dey & Sutphen, and on June 19th, 1906, the sheriff, under this writ, attached in the hands of Dey & Sutphen all the right, title and interest of the defendant Walter P. Lindsley in this mortgage, and made return that he attached such interest on the mortgage “in the hands of Dey & Sutphen, but not assigned to them.” The authority for inserting this statement, “but not assigned to them,” in the return, has not been shown, and so far as Dey & Sutphen are concerned, the inclusion of this statement in the sheriff’s return has no effect in this case. Mr. MacLear was the attorney for the company in this attachment suit, and more than a year later, on August 23d, 1907, he received an assignment of this bond and mortgage from Walter P. Lindsley, executed in his name by Morris B. Lindsley, his attorney-in-fact, under a power of attorney referred to in the assignment. This assignment was made to MacLear to secure money owing by Lindsley to him (about $625), and to the Manalapan company, about $800 or $900. Neither the bond nor mortgage were delivered to MacLear with the assignment. Mac-Lear’s assignment was recorded nearly two years later, May 19th, 1909, but the previous assignment to Dey & Sutphen was not recorded until January 21st, 1910, shortly after the assignment of the mortgage to complainants. The power of attorney from Walter P. Lindsley to Morris B. Lindsle}r was recorded still later, May 16th, 1910. The assignment to MacLear was indexed in the clerk’s index book under the name of Morris B. I/indsley, and not of Walter P. Lindsley, and complainants, who had before their purchase of the mortgage had the indexes examined, had no actual notice of the MacLear assignment.

Complainants, as assignees of Dey & Sutphen, are 'entitled to stand upon the rights of the latter to the bond and mortgage in question. The mortgage and assignment convey an interest in lands, both legal and equitable, and the assignment to Dey & Sutphen being prior in time to the assignment to MacLear, must prevail against it, unless the general rule as to priority is affected by the recording acts. Jenkinson v. New York Finance Co. (Vice-Chancellor Emery, 1911), 79 N. J. Eq. 247, 258.

■ The recording acts provide for the recoi ding of assignments of mortgages and other instruments, “Conveyances,” Rev. of 1898 § 21 (Comp. Stal. p. 154-1), and (Ibid. § 53; Comp. Stat. 1552), and that the record “shall be notice to all subsequent judgment creditors, purchasers and mortgagees of the execution and contents of the instrument.” As to the effect of not recording the assignment or other instrument, it is provided (Ibid. § 54)

"that it shall be void and of no effect against subsequent judgment creditors without notice, and against all subsequent bona fide purchasers and mortgagees not having notice thereof, whose deed or mortgage shall have been first duly recorded.”

The previous act relating to mortgages (Revision of 1874), Comp. Stat. pp. 3407, &e., had provided only that the record of assignment of mortgages should be “notice to all concerned” that the mortgage was assigned (section 32, page 3418, and section 34, page 3419) that payments made to the assignor in good faith without actual notice and releases to persons not having actual notice should be valid.

These sections of the Mortgage act revision do not, as do the Convej'ancc acts, expressly make the assignments invalid, if unrecorded, against any persons, but save only the rights of the mortgagor on payments or releases of the mortgaged lands.

Section 51- of the Conveyance act applies to every deed or instrument set forth in the twenty-first section of the act, which includes assignments of mortgages, and the question therefore is whether Mad.ear, who was a subsequent purchaser of the mortgage, was a bona fide purchaser for a valuable consideration, not having notice of the prior assignment to Dey & Sutphen. In my judgment, MacLear cannot be considered a bona fide purchaser for a valuable consideration without notice.

The fact that the assignor did. not have the bond and mortgage to deliver with the assignment, while it might not, as between, the assignor and the assignee, prevent the passing of such title thereto as the assignor had, was a notice that they were or might be held by someone other than the assignor, Kamena v. Huelbig (Chancellor Zabriskie, 1872), 23 N. J. Eq. 78, 80. And actual notice to MacLear that Dey & Sutphen held the possession at the time of the attachment is proved. He was the attorney for the company who attached the bond and mortgage as in Dey & Sutphen’s possession, and, subsequently, took his assignment of the mortgage to secure this company’s debt. No circumstances have appeared which deprive these facts of their effect as notice. No acts of Dey & Sutphen have been proved which disentitle them to stand upon their assignment and possession of the bond and mortgage as prior to MaeLear’s assignment, and the complainants have succeeded to the title and rights to Dey & Sutphen. The fact that complainants paid only a small sum for the assignment does not create any equity in favor of the subsequent assignee, and the claim of counsel that the subsequent assignee is entitled to redeem on pajunent of this sum cannot be allowed.

A decree that the assignment to the complainants is prior to that of the defendant MacLear, and that as between them they are entitled to be first paid out of the proceeds of sale under foreclosure will be advised.


text:
    Isaac H. Blanchard v. Rachel Neill.
    [Decided July 30th, 1914.]
    1. A complainant who has received less than the relief demanded, or a defendant who has not been accorded the full amount of his set-off or counter-claim, is aggrieved by the judgment, and may sue out a writ of error to review the same, though it is in his favor.
    2. Where a suit for injunction involved the trial of an issue of title which was determined both by a verdict and finding in favor of defendant, the complainant will not be granted a final decree as against an application by defendant to have the issue of title tried at law.
    On application of complainant for final decree and of defendant for leave to bring suit at law.

      Mr. William A. Lord, for the complainant.

      Mr. Thomas A. Davis¿ for the defendant.
   Emery, Y. C.

So far as I have examined the authorities cited by complainant on the right of a party to bring writ of error on a judgment in his own favor, they are all cases where the judgment was rendered, either for the plaintiff-appellant on his claim or the defendant (appellant) on his set-off, and the judgment was less than the amount appellant claimed he was entitled to. In such cases the appellant is clearly "aggrieved” by the judgment in his favor. Parker v. Newland (1841), 1 Hill 87; Ingalls v. Lord (1823), 1 Cow. 240; Johnson v. Jebb (1772), 3 Burr. 1772.

In Capron v. Van Noorden (1804), 2 Cranch 126. the verdict and judgment was in favor of the defendant in error, not in favor of the plaintiff in error.

The right to a review, hy writ of error in the suit of the ruling of the trial judge against the defendant on the question of title is so doubtful that I do not think he should be required to pursue this’ remedy. But if he does not do so, he must abide by the effect of this verdict and judgment as res adjudicaba upon the matter of title, if it should be held to have this effect, and I have no right to require complainant to abandon this benefit of his suit, if he be entitled to it. Defendant should, however, in my judgment, be allowed to bring an action to settle the disputed question of title, in such manner as he may be advised, and this permission is given, in order that an opportunity may be afforded to him of carrying ilie disputed question of title to an appellate court, if, notwithstanding the judgment, he still has that right. I do not consider that a permanent injunction settling the title, on the basis of the judge’s ruling, should be granted without giving this opportunitjq if defendant desires it. The action, however, should be brought and prosecuted wdthout delay.

An order will be advised directing that the cause stand over until September 15th, 1914., and that if within thirty days the defendant commence an action at law against the complainant to settle defendant’s disputed title, and prosecute said action, then the defendant have a right to apply that the cause stand over to await the determination of said action, and upon failure to bring the said action within said time and prosecute the same, that complainant have leave at said time to apply for final decree in this cause.

Order may be presented for settling on July 31st, unless agreed on.


text:
    William H. Reich v. Augusta W. Reich et al.
    [Decided August 21st, 1914.]
    1. A parol agreement by a mother to transfer land worth at least $6,000 to her son in consideration of his agreement to execute to her a mortgage on the land for $2,000, and pay her annually for life an amount equal to five per cent, on such sum, the mortgage to be canceled on her death, if regarded as a sale, was not based on a consideration sufficient, in proportion to the value of the property, to justify a decree of specific performance.
    2. Where a mother, to induce her son to remain with her, offered to convey to him a tract of land worth $6,000 on his agreeing to pay her interest on $2,000 at five per cent, annually during her life, and he, in consideration of the agreement, entered and made certain expenditures in improvements, &e., which, however, were comparatively small and could be secured to him by decreeing a lien on the land, he could not enforce the gift in equity.
    Heard on bill, answer, replication and proofs.

      Mr. Joseph M. Degnan, for the complainant.

      Messrs. Smith & Dugan, for the defendants.
   Emery, V. C.

This is a bill filed by a son against his mother for the specific performance of an oral agreement to convey a tract of land to him, being about fifty-six acres of her farm, comprising, altogether, about eighty-three acres. The fifty-six acres are situated on the southerly side of a public road which runs through the farm, and on this portion a barn is located, the homestead being on the northerly or twenty-seven-acre portion.

The oral agreement set up in the bill, which is denied by the answer, is one for the conveyance of two tracts of land, the one a lot of one acre, situate on the southerly side of the road, and the other, the fifty-six acres in question. The one-acre lot has' been conveyed, but the defendant refused to convey the farm, and after this refusal, conveyed her entire fauna to a daughter, Mrs Cobane, and her husband, who have been made parties to the bill, because of this conveyance. This subsequent conveyance was made with notice of complainant’s claim, and, as also appears from the answer, was made without the payment of any consideration, and for the purpose of protecting the mother against complainant’s claim. The oral agreement set up in the bill is that Mrs. Reich agreed to convey to William Reich, the complainant, the one-acre lot, free and clear, and that the fifty-six-acre tract should he conveyed to him on condition that he give a mortgage to his mother for $2;000 with interest at five per cent., payable semi-annuallv during her natural life, and after her death to be null and void. So far as appears by the bill, no further or other money payments to the mother were agreed to be made as the consideration for the conveyance, but the further consideration, claimed to lie established by the proofs, is substantially as follows: Complainant, then unmarried, had been living or. the farm and with his mother and his sister, then unmarried, for about three years, and carrying on the dairy business, with his own stock, paying no rent for the farm but, as he claims, maintaining, or assisting in maintaining, the common household. In December, 1912, proposing to marry and to give up the farm, he finally, at the request of his mother, gave up his plans for removing and consented to .remain on the farm, upon certain conditions: these were, first, that he should have a deed for the one-acre lot, free and clear, for the purpose of building his house on it, the money for which he proposed to procure in part by giving a mortgage on the lot; next, that his mother was to convey the fifty-six-acre tract to him, taking hack a mortgage for $2,000, the interest of which at five per cent, he was to pay semi-annually during her life, and at her death, it was to be null and void. It appears by the proofs that the final oral agreement was that the complainant was to have the option of paying to his mother the principal'sum of $2,000 at any time, and that this provision was made on the suggestion by his mother that her son might sell the farm after he received the deed. He was also to pay the taxes and insurance. This agreement was made in December, 3912, and the deeds were to be given as soon as the surveys could be made. The deed for the one-acre lot was delivered on or about January 29th, 1913, and complainant at once erected his dwelling thereon, costing, as he says, 'over $3,000, of which $1,800 was procured by mortgage thereon. The mortgagee took this mortgage, which he thought a rather large one, for the security offered, retying on complainant’s statement that he was to have the farm and intended to install a water system for the barn, and this mortgagee had previously been informed by Mrs. Eeich that she was going to give her son William this land adjoining the one-acre lot as long as she lived. The surveying of the farm was delaj^ed on account of the weather, but complainant continued the occupation of the fifty-six acres, which was separated by a highway from the remaining portion of the farm on which the homestead stood. He kept his cattle thereon, using the manure, worth about $300, on the farm, and made substantial repairs to the barn, at a cost, as he says, of about $200, and also repaired the fences. He also incurred an expense of $435 in putting down an artesian .well upon the one-acre lot. This was done for the purpose of providing water for use at the barn on the farm property adjoining, and the expense was increased by reason, of this, beyond that necessary for the use of his dwelling alone. The connection of the water for use in the barn has, however, not been made. This part of the farm so occupied by the son was the portion which, by a will Mrs. Eeich had drawn, was given to complainant. Mr. Kahn was the executor of the will and knew of this fact at the time when the parties were brought together by him. The oral agreement was made in his presence and with his advice given to both parties.

I think the proofs show substantially the oral agreement for conveying the lands set up in the bill with the addition of the provision for complainant pajdng the taxes and insurance and the option of complainant to pay the principal sum of $2,000 at any time during his mother’s life, in discharge of the mortgage, and that the possession of the fifty-six acres taken under the oral agreement was a sufficient part performance to take the case out of the operation of the statute of frauds. The real point of difficulty in the case is whether both conveyances were not, and were uot intended to be, so substantially in the nature of gifts that the specific performance of them farther than actually carried om cannot he enforced. That no money or other valuable consideration passed, or was intended to pass, to the mother at the time of the agreement, is obvious, for the agreement on the son’s part was only to pay interest on $2,000 mortgage on the land conveyed, and as the grantee was to have possession of the land, the interest is presumably supplied by the rents ©r profits. The lowest valuation put on tire lands by complainant’s witnesses is $4,000, and defendant’s witnesses place it as high as $200 per acre. It is worth, in my judgment, at least $6,000, and if the agreement is to he considered as resting only on the basis of a sale, and for a valuable consideration, then it would clearly be so hard and unreasonable a bargain that the court should not enforce it. The annual payment of $100 during Mrs. Reich’s life (her age is sixty-five), estimated according to the tables, would he only about $700, and even if she had the right to demand the payment of the principal sum of $2,000, this sum is so much below the real value that on the basis merely of a sale, it should not be specifically enforced.'

The transaction as to the farm was, in my judgment, intended at the time to be substantially a gift to the son in consideration of love and affection, and the question is whether the expenses subsequently incurred by the complainant and the changes in his plans, made by him, relying on the agreement to convey the farm in him, in connection with this consideration of love and affection, arc sufficient to entitle him to compel the execution of the parol gift. In this case the complainant on his part did not bind himself bjr any contract to stay on the farm during his mother’s life or to render any future services to her in consideration of the conveyances, and the whole consideration on his part, therefore, apart from natural love and affection, was his giving up his plan for immediate removal, and the expenses or outlay made after the agreement. The expenses incurred in building the house on the lot conveyed to him, being on his own land, or the mortgage given thereon, cannot he considered as 'part of the expense incurred in canying out an oral agreement to convey the farm, for this expense was incurred for his own benefit, which he retains, and there has been no proof or claim that any loss has or will result by reason of it. Mrs. Reich certainly gets no benefit from this expense. Actual pecuniary loss by reason of change in complainant’s original plan for leaving the farm has not been established, and as there was no agreement on complainant’s part that he should stay on the farm either during his mother’s life or for any definite time, if the agreement should now be specifically enforced as to the farm claimed, complainant would be as free at any time to leave the farm and rent or sell it as he is now to sell or lease the house and lot. His original consent to stay cannot be considered as any substantial consideration on which to base a decree for specific performance.

As to the expenses incurred by him after taking possession of the farm, on tire strength of the agreement, the situation is different, and had these been of such an amount and character as permanently to increase the value of the farm, and, if in addition the complainant, was unable to- be compensated therefor except by specific performance, he might then be entitled to relief.

The cases in our courts where parol agreements to devise or convey property in consideration, of services rendered or other valuable consideration subsequently given, have been specifically enforced, have been those where the remedy at law was inadequate, and such enforcement was necessary in order to prevent fraud. See cases cited in Clawson v. Brewer (1904), 67 N. J. Eq. 201, 207; affirmed on appeal, 70 N. J. Eq. 803 (1905); Vreeland v. Vreeland (Chancellor McGill, 1895), 53 N. J. Eq. 387; cases cited pp. 389, 390.

But, in this case, the amounts expended on the farm were comparatively small, and for the expenses so incurred, of which the farm receives the benefit, he may, I think, by the decree of the court on this bill, under the prayer for general relief, be protected. This is upon the principle that where the court refuses to perform a verbal agreement against- the vendor, it may, in favor of the vendee in possession, decree compensation for the fair value of improvement. Pom. Spec. Perf. (3d ed.) § 129; citing, inter al., Parkhurst v. Van Cortlandt (1814), 1 Johns. Ch. 278; approved in Copper v. Wells (Chancellor Vroom, 1830), 1 N. J. Eq. 10, 17. The principle of these cases covers, I think, a case where the court cannot decree specific performance over an objection for want of consideration or inadequacy. This being the status of the complainant as to the changes made or expenses incurred by him in reliance on the agreement to convey the farm, the case must be finally disposed of, I conclude, on the basis of it being in substance one where the donee applies to the court for the specific performance of an incomplete gift. The settled general rule in equity is that a valuable consideration is necessary. Fry Spec. Perf. (1th ed.) § 1J6; Pom. Spec. Perf. § 89; Drake v. Lanning (Vice-Chancellor Pitney, 1892), 49 N. J. Eq. 452, collecting the New Jersey case and Tunison v. Bradford (Vice-Chancellor Green, 1910), 49 N. J. Eq. 210, 214.

None of our decisions have ever extended the right to specific performance to an agreement which appears on the proofs to be substantially a gift based only on the good consideration of love and affection. In my judgment, these are not enforceable.

The bill, so far as it seeks specific performance, should be dismissed, but under the prayer for general relief complainant is ■entitled io compensation for repairs and nnprovements made by him on the property.

I will hear counsel as to other expenses being chargeable. Eor the amounts chargeable he is entitled to a lien upo-n the premises. The conveyance to the Oobanes is voluntary and with notice, and no defence against the lien.


text:
    Emma L. Schickhaus v. Margaret J. Sanford.
    [Decided August 21st, 1914.]
    1. 8 Comp. Stat. 1910 p. 8226 § 5, declaring that contracts of a married woman shall be enforceable in equity as if she were a feme sole, is qualified by" section 14, declaring that a married woman may not execute any conveyance of her real property or any instrument encumbering the same without her husband’s joinder.
    2. Restrictions, in a general plan adopted by the owner to sell lots, may in equity be imposed on the lands beyond the express restrictions contained in the deeds to the purchaser, on the theory of implied covenant.
    3. 8 Comp. Stat. 1910 p. 8226 § 5 declares that contracts of a married woman shall be enforceable in equity as though she were sole, and section 14 provides that a married woman may not execute any conveyance or encumbrance on her real property without her husband’s joinder. —Held, that section 14 related only to the character of conveyances and instruments by which a married woman’s real property might be conveyed or encumbered, and did not restrict the power of a wife, under section 5, to make contracts, express or implied, with reference to the improvement of real property which would be enforced in equity, though not created by conveyance or other instrument.
    4. Where a husband and wife, owning a tract of land by the entirety, laid it out in building lots according to a general plan, imposing limitations on the use of the land as building lots and restrictions intended to secure the erection of first-class one-family residences on the tract, and the husband sold complainant a lot, with reference to the plan, which showed that certain other lots were abutting and subject to such restrictions, the wife after the death of her husband, and becoming a feme sole, was liable to complainant for the performance of the limitations and restrictions with reference to the adjoining property as an implied covenant, though all of the restrictions and limitations were not specified in complainant’s deed.
    On motion to strike out- for want of equity.

      Mr. William C. Headley, for the motion.

      Mr. Ernest F. Keer, contra.

   Emery, Y. C.

The facts set out in the bill substantially show that one Sanford and his wife, being the owners by the entirety of a large tract of land in bíewarlv, laid out the same for sale in building lots according to a general and uniform, plan relating to the limitations made upon the use of said lands as building lots, and with restrictions, intended to secure the erection of first-class one-family residences on the tract.

The bill also shows specially as to the lot which was purchased by the complainant’s predecessor in title, that according to the general plan as declared by the owners, appearing by the map adopted by the owners, complainant’s lot was to be a lot fifty feet by about one hundred feet in depth, located on Sanford avenue, one of the three streets laid out through the tract, and abutted on two lots fronting on Clinton avenue, each about fifty feet in width and one hundred and seventy-five feet in depth. According to the general plan, as alleged in the bill, these two lots were to be sold together as a lot fronting one hundred feet on Clinton avenue and one hundred and seventy-five feet deep. Complainant’s lot was purchased, relying on the existence of this .map and plan making the adjoining lots abutting lots, and upon the special representation by the owners that these lots on Clinton avenue were to be sold as abutting lots and as thus shown on the map then produced for the purpose of inducing complainant’s purchase of the adjoining lot — the price of which as then agreed on was increased by reason of this adjacency to the abutting lots. But the deed for complainant’s lot, which is also set out in the bill, while it referred to the lot as being No. 22 on the map, did not contain any express restriction or covenant on the part of the grantors that the adjoining lots should be sold as abutting lots as shown on the map. It did, however, contain express restrictions as to the character and use of the building to be erected by complainant upon the lot conveyed, its distance from the curb line, its cost, and also contained a covenant on behalf of the husband (in which the wife did not join) that no stable should be erected or placed on the lands lying south of and adjoining the lots conveyed (being the abutting lots) within forty feet of the dwelling-house to be erected on. the premises conveyed. The wife herself made no express covenant by the deed in relation to the adjoining lots.

Complainant’s predecessor in title, as her bill states, refused to accept this deed, because she desired further and more explicit assurances that the building plan or scheme would be carried on in respect to the lot conve3red being an abutting lot, and thereupon Mr. Sanford wrote the following letter:

“In regard to the sale of lot 22 on map of my property (being complainant’s lot) in answer to your request of me to my intentions in regard to my other property lying between the lot conveyed by me to you and Clinton avenue (the abutting lots), state that my intention is to sell all my property under restrictions, and the lots lying between your lot and Clinton avenue, in two lots or plots only, and if a stable be allowed on either of said lots that the same be placed on the dividing or central line of the lots and at least forty feet from any dwelling-house erected by you.”

This letter was not signed by Mrs. Sanford, who has survived her husband, and is now the sole owner of the unsold portions of ihe tract. Since her husband’s death she has, as the bill alleges, repudiated any obligation to observe the assurances of the letter in reference to the method of sale of the lots, and has (among other acts) offered the rear portion of the lots abutting on complainant’s lot for sale as a single lot fronting on the same street with complainant, and as an adjoining lot. If this change should be carried out and a dwelling be erected adjoining complainant’s lot, it would deprive complainant of certain advantages of light, air and access which she claims the right to enjoy as the owner of a residence on abutting lots. The bill is filed to establish and enforce the restriction claimed to have been imposed by the owners on the sale of these Clinton avenue lots b3r the general building plan as declared and announced by the husband and made in connection with the sale by reference to the map, and to require these adjoining lots to be sold as abutting lots.

A motion to strike out the bill for want of equity is made, and the reason mainly relied on at the argument is that no contract or agreement in reference to the sale of the lots as abutting lots enforceable against Mrs. Sanford appears in the bill. It is claimed that the alleged building plan set out in the bill appears to have been made or joined in by her while she was a married woman and while holding an estate in entirety with her husband; and that in the absence of any deed or conveyance imposing the equitable burden or restrictions on her remaining lands, she is not, as the owner of the entire estate after her husband’s death, bound by such plan made during the coverture and during the continuance of the estate by the entirety.

The Married Women’s act (Comp. Slat. p. 3226 5) makes the contracts of a married woman enforceable in equity as if she were a feme sole, but the subsequent section of the same act (Ibid. 3237 14) qualifies the effect of this section by providing that it shall not enable a married woman to execute any conveyance of her real estate or any instrument encumbering the same, without her husband’s joining therein, as heretofore.

The husband, in the deed conveying complainant’s lot, entered into an express covenant restricting the character and use of the adjoining lots, but in this covenant the wife did not join, nor did the covenant entered into by the husband expressly restrict the sale as an adjoining lot, or the erection of any building other than a stable within forty feet of the dwelling-house to be erected on the purchaser’s lot. The husband did, however, by his letter set out in the bill, impliedly, if not expressly, agree that the lots in question should be abutting lots, and procured the sale and the acceptance of the deed for the purpose of erecting a dwelling-house on the faith of this assurance. It is not claimed that the wife’s estate after her husband’s death is bound by this letter as a contract on her part, and under the decisions, it could not be encumbered by the husband’s sole agreement. Washburn v. Burns, 34 N. J. Law 18; Servis v. Dorn (Vice-Chancellor Walker, 1909), 76 N. J. Eq. 241; 2 Kent Com. 133. It is claimed, however, that she is bound in equity to observe these restrictions by reason of the general building plan imposed and adopted by both of them in connection with the map referred to in the deed, whicli showed the lots as abutting lots and the representations relative thereto at the time of the purchase.

Eestrictions under a general plan adopted by the owner for the purpose of selling lots may, in equity, be imposed upon lands of the owner extending beyond the express restrictions contained in the deeds to a purchaser, and on the doctrine of implied covenants. Lennig v. Ocean City Association (Court of Errors and Appeals), 41 N. J. Eq. 606, 608; Herold v. Columbia Investment Co. (Court of Errors and Appeals, 1907), 72 N. J. Eq. 857, 860; Tallmadge v. East River Bank (1862), 26 N. Y. 105.

In this case (heard as on demurrer) the imposition of the restriction on the sale of the comer lots by the general plan, in connection with the map, and the special representations at the time of the sale must be taken as admitted. But, as it sufficiently appears by the bill, that these restrietionsi on the adjoining lots now solely owned by the defendant, were not imposed by a conveyance or instrument in which her husband joined and which was acknowledged by the wife as a deed, the question is whether the wife’s contracts, representations or acts of other lands imposing such restrictions are not within the exception of the fourteenth section.

In my judgment, they are not, for the reason that this provision of the fourteenth section was, I think, one which related only to the character of conveyances and instruments which were intended to be the means employed for conveying or encumbering the legal or equitable title of a married woman in the lands, and to prescribe the formalities for such conveyance or instrument if made. Tt was not intended, in my judgment, to restrict the power of the wife, under the fifth section, to enter into such obligations and contracts, express or implied, as would be enforced by a court of equity, independent of their being created by a conveyance or other instrument. Had the defendant, as a feme sole, imposed the plan and entered into the restrictions alleged in the bill, there would be no question of the right of a court of equity to enforce the restrictions by injunction, independent of any conveyance or other instrument creating them, and, in my judgment, the construction of the two sections together as applied to the facts in the present case, is that the wife’s contracts or obligations which relate to lands which she owns or in which she has an interest are enforceable in equity to the same extent as if she were a feme sole, with the qualification that if, as against a feme sole, the creation or enforcement of such contracts requires a conveyance or other instrument, then in the ease of a married woman this conveyance or instrument must be executed with her husband as heretofore, otherwise it cannot be created or enforced. But where a feme sole, in equity, without a conveyance or other instrument, would be required by injunction to specifically perform a contract, and this performance does not require the execution of a conveyance or other instrument, then a married woman in similar circumstances may be required to perform the contract. This construction prevents any decree for specific performance of a contract for conveyances of land by a married woman in which the husband did not join, as was held by Vice-Chancellor Stevens in Corby v. Drew (1897), 55 N. J. Eq. 387, 391, but does not prevent the enforcement by this court by injunction of restrictions as to her lands under a building plan, made by her as a married woman which would have been binding on her as a feme sole, and which may be enforced without requiring any conveyance or other instrument.

The motion to strike out must be denied, and the bill should be answered.


author: Emery, Y. O.

text:
    Albert Bollschweiler v. Packer House Hotel Company et al.
    [Decided October 1st, 1914.]
    1. Promissory notes of an insolvent corporation are not either accommodation or ultra vires paper, when given partly in consideration of the surrender by a creditor of notes of equal amount by a new corporation, which latter corporation at the same time conveyed to the insolvent corporation all its assets by bill of sale.
    2. The fact that it was also a part of the consideration that the stock of the new corporation held by the creditor was to be transferred to the purchasing company and made in part the basis for issuing its own stock to an equal amount, and that this new stock of the purchasing company was to be delivered to the creditor as security for the notes of the purchasing company, does not make the paper accommodation paper.

      3. A claim against an insolvent corporation founded in part upon notes of the new company given to him upon the surrender of the notes of the old company upon the transfer of its assets to the new company, and in part ($400) for notes of that amount given to another creditor and transferred to the. claimant, should be allowed to the full extent of the notes of the old company surrendered to the new company on the transfer.
    4. The Chattel Mortgage statute (1 Oomp. Btat. p. 463 ¶ 4), requiring “immediate delivery” of the mortgaged chattels, or the “recording” as directed by the act, means “immediate- possession” or “immediate recording,” and where five days elapsed between the execution and the recording of a chattel mortgage — Held, upon the evidence, that such chattel mortgage was not “immediately” recorded as required by the statute, and although as against creditors of the insolvent corporation who became such subsequent to the recording, the chattel mortgage is preferred, it is not a preferred claim against the creditors of the company whose claims arose prior to its recording.
    5. Under the Chattel Mortgage statute (1 Oomp. Btat. p. 463 ¶ 4) the affidavit must set out “the consideration of said mortgage and as nearly as possible the amount due and to grow due thereon,” and if the execution of a contract in the chattel mortgage referred to was so essential to the validity of the mortgage as to entitle the mortgagee under the statute to the benefit of at least two days delay against the creditors for the purpose of recording it, it would seem that it must be considered as so much a part of the consideration of the mortgage as to entitle them to have it set out in the affidavit, and the failure to set it out is a fatal objection to the validity of the chattel mortgage.
    On appeal from determination of receiver allowing and disallowing claims against insolvent corporation.

      Mr. Joseph E. E bicker, for the receiver.

      Mr. John A. Goon and Mr. James S. Wight, for John N. Peterson, exceptant.

      Mr. Thomas II. Brown, for exceptant Taylor.
   Emery, Y. O.

I will state briefly the conclusions reached on the hearing of the appeals.on the claims of Mallon and Taylor.

(1) The claim of William P. Mallon, as allowed by tire receiver, must stand. The notes of the insolvent corporation on which it is based are not, as claimed by the exceptants, accommodation paper. They were given partly in consideration of the surrender by Mallon of notes of ecpial amount of the Packer Plouse company, which latter company at the same time conveyed to the insolvent corporation all its assets by bill of sale. The fact that it was also part of the consideration that the stock of the Packer House company held by Mallon was to be transferred to the purchasing company and made in part the basis for issuing its own stock to equal amount, and that this new stock of the purchasing company was to be delivered to -Mallon as security for the notes of the purchasing company', does not make the paper accommodation paper. This purchase of the stock of the vendor company, under the act of February 19th, 1913 (P. L. 1918 ch. 15 p. £8), amending the forty-ninth sectiop. of the Corporation act, may be held to be not full-paid stock under the first proviso of that section, but that question is not now an issue. That act amends the section of the Corporation act which made the judgment of tbe directors as to value conclusive as to the value of the stock purchased, in the absence of fraud. The subsequent act of the same year (chapter 18, page 32), prohibiting purchases of stock, expressly excepts purchases authorized by the Corporation act. This will include supplements thereto then in force, and include chapter 15 of the same date, authorizing purchases of stock necessary for its business.

The transaction as disclosed by the evidence was substantially the taking over by bill of sale and delivery of possession of the entire assets and property of the Packer House company, and in connection with it, its entire capital stock, by the new company which was organized for the purpose of taking it over and continuing the business, and as part of the consideration gave its notes to a creditor of the vendor company, who was entitled to follow and hold its assets for payment. He surrendered to the new company the notes evidencing his claims as creditor of the old company on receiving from the new company its notes for the same amount. Its notes in his hands are therefore not accommodation. The circumstance that when these notes of the new company were given for the debts of the old company, stock in the new company were given to Mallon as collateral to an amount equal to the stock of the old company, and which he also held as collateral and surrendered, and the further circumstance that by the provision of an agreement signed by Mallon, the new company and Brevoul, one of its officers, it was agreed that on the payment of these notes of Mallon by the company the stock of the new company held as collateral should be the joint property of Bollschweiler and Brevoul, may, either on the evidence at the healing or whc-n the question comes to issue, raise the question as to whether this stock in the hands of: Brevoul and Bollschweiler is fully paid. But Mallon received the stock of the new company only as collateral, and, in view of the whole evidence given on the appeal as to the circumstances under which the notes were given, this agreement does not, as against him,have the effect insisted on so strenuously by complainant’s counsel, of making the new company’s notes in Mallon’s hands, either accommodation or ultra vires paper.

(2) The claim of John S. Taylor is also founded in part upon notes of the new company given to him upon the surrender of notes of -the old company upon the transfer of its assets to the new company, and in part ($400) for notes of that amount given to Mallon and transferred to him. The receiver has allowed only the latter amount disallowing the balance of his claim. For the reasons stated in reference to the Mallon claim, Taylor’s claim should be allowed to the full extent of the notes of the old company surrendered to the new company on the transfer.

As Mr. Taylor, however, was the principal stockholder of the old company, and on the transfer to the new company was one of the three persons to whom the entire stock of the new company ($19,000) was issued as fully-paid stock for the purposes of the transfer, a question may hereafter arise-whether the stock thus issued to Taylor is full-paid stock, and whether, as holder of unpaid stock, he is liable to assessment for payment of the debts of the insolvent company, and whether any amount for which he is so liable should not be set off against his claim. On this proceeding the only question is the validity and amount of the claim. .

(3) Claim of John N. Pederson: The amount and validity of this claim as a claim against the company for $6,478.25 is not disputed, but it is secured by a chattel mortgage, and its preference as against Mall on and Taylor, who became creditors on March 1st, 1913, and before it was recorded on March 6th, 1913, and who seem to be the only creditors of this kind, is disputed. As against creditors who became such subsequent to the recording, the mortgage is preferred. Roe v. Meding (Court of Errors and Appeals, 1895), 53 N. J. Eq. 350, 369. The statute (1 Comp. Stat. p. 1(63 If) requiring “immediate delivery” of the mortgaged chattels, or the “recording” as directed by the act as construed in Roe v. Meding, supra (at p. 368), means “immediate possession” or “immediate recording.” There was a further declaration — Mr. Justice Van Syckel (at p. 859) — that “immediate” means “'as soon as may bo by reasonable dispatch under the circumstances of the caseand in subsequent cases, both in the supreme court and in this court, this construction of the meaning of the term “immediate,” as given in Roe v. Meding, was adopted. Hardcastle v. Stiles (1903), 69 N. J. Law 551; affirmed, for reasons stated, 70 N. J. Law 828; Brockhurst v. Cox (Vice-Chancellor Garrison, 1906), 71 N. J. Eq. 703, affirmed on appeal, 72 N. J. Eq. 950; Gulden v. Lucas (Vice-Chancellor Garrison, 1913), 81 N. J. Eq. 106. The chattel mortgage in question, given by the Packer House Hotel Company to Pabst Brewing Company and John H. Peterson, was dated March 1st, 191.3, and conveyed all the chattels then in the hotel known as the Packer House, in Perth Amboy, or to be afterwards added to or substituted for these chattels. These were the chattels which had been purchased by bill of sale from the Packer House company, executed and delivered on the same day to the Packer House Hotel Company, in' connection with the delivery of the notes “on this purchase, above referred to, which also took place on the same day, but was a separate and independent transaction. Pabst Brewing Company ¿and Peterson supplied the money which was paid on the purchase, and this chattel mortgage was given in part to secure them for the money advanced in cash, which was paid over that day to the vendors, who, at the same time, received the new company’s notes in substitution for the old company’s notes, as above stated. Mallon and Taylor do not appear to have bad any knowledge of the proposed mortgage given to secure the money advanced to make the cash payments to them on the transfer. On the day of executing the mortgage, an affidavit as to its consideration was taken by Peterson, in which this consideration is stated to have been

“$4,000 thereof money actually loaned by the mortgagees in order to enable the mortgagor to pay part of the purchase price of the property herein described. The remaining $4,000 to secure the mortgagee, Peterson, for his endorsement of a note made by the Packer House Hotel Company and discounted with the First National Bank of Perth Amboy, N. J., in order to raise additional funds to meet the balance of the purchase price for the property herein described,”

and

“that there is actually due on the mortgage $4,000, and in the event of the failure of the mortgagor to pay the note endorsed by Peterson, then the additional sum of $4,000 will be due, making in all the sum of $8,000.”

There was no reference in the affidavit to any other consideration of the mortgage. The mortgage itself, however, is by its terms conditioned not only for the payment of the sum of $8,-000 on demand with interest, but is also upon condition that the mortgagor

“pay all other sums which may be due or become due by it to the parties of the second part, or either of them, for merchandise sold to it by either of them, and shall also fully comply with the terms of an agreement between the parties, bearing even date herewith, for the sale of Pabst beer and other merchandise exclusively.”

This agreement is only referred to, but is not set out in the mortgage, and the affidavit does not refer to it as constituting part of the consideration. It appears by the evidence that such an agreement to be executed in triplicate was drawn at the time of the execution of the mortgage, signed by the mortgagor and ■Peterson, and was to be signed by the brewing company. The mortgage and contracts were left with Mr. Gilbert, the attorney of the brewing companjr, who acted for them in arranging the contract. The papers were left with him at his office in New York upon their execution on Saturday, March 1st, 1913. After the execution of the mortgage and contracts, Mr. Gilbert, being satisfied that the brewing company would approve, delivered checks for the money to be advanced by the brewing company on account of the purchase price on the transfer from the old company to the new company, and this transfer was completed independently and subsequently on the same day. The execution of the mortgage took place on Saturday after the closing of the public offices, and Mr. Gilbert, before whom as notary public the affidavit as to the consideration of the chattel mortgage had been taken, gave directions for procuring this certificate on the Monday following, and also on Saturday mailed to the Pabst Brewing Company in New York the contracts for their execution and return to him in New York. On- Sunday Mr. Gilbert was called to Albany to attend to a ease in the court of appeals of New York, and at the time expected to return on Monday. On Monday, March 3d, the brewing company, by its letter of that date, returned two signed copies of the contract to Mr. Gilbert’s office. Whether this letter was received on March 3d or March 4th does not appear. On March 3d the certificate of the county clerk to Mr. Gilbert’s notarial authority was also received at his office. Mr. Gilbert was unexpectedly detained at Albany and did not return to his office until Wednesday, March 5th. He does not seem to have given, either before leaving for Albany or while there, any directions as to the forwarding of the chattel mortgage for record after procuring the clerk’s certificate, and the return of the contracts executed. The transaction had been under his exclusive charge and the chattel mortgage with the contract remained in his office until his return on March 5th, and on that day he sent the chattel mortgage by mail to the county clerk of Middlesex county, where it was received and recorded on March 6th, at eight a. m.

Pive days thus elapsed between the execution and the recording of the mortgage, and treating the direction of the statute as to “immediate recording” to mean, as declared by Vice-Chancellor Pitney in Roe v. Meding, 53 N. J. Eq. 358, 359, “as quickly as the circumstances of the case and the character of the chattels will permit,” or, as declared by the appellate court in the same case (Ibid. 368), to be “as soon as may be by reasonable dispatch under the circumstances of the case,” the question of fact to be decided is, whether applying this test the chattel mortgage, under the circumstances of the case, was “immediately recorded” as required by the statute. On the part of the mortgagee, it is claimed that the original delivery of the mortgage on Saturday, March 1st, to Mr. Gilbert was in escrow only; that the mortgage, as appears by the terms of it, was to secure not only the payment of money, but the performance of a written agreement therein referred to; that this agreement did not become effective until the agreement itself was signed by Pabst Brewing Company, and not until after its execution had been approved personally by Mr. Gilbert, in whose hands the chattel mortgage had been left in escrow; that as he had no opportunity to give his approval until his return on March 4th, the question as to delay is reduced to the delay of a singlo day in sending the mortgage by mail from New York. And it is further insisted that the unexpected delay in not sending the mortgage on Monday, March 3d, has been reasonably explained, and that under the decisions such reasonable explanation of the delay in recording satisfies the-statute. In my judgment, the contention that delay “reasonably explained” .satisfies the statute, cannot be allowed. The statute itself requires “immediate” recording, and, as construed by the courts, recording “as soon as may be with reasonable dispatch under the circumstances of the case.” This is a different statutory rule from “immediately recording, unless the delay be explained.” The delay may be explained, and this explanation may be entirely satisfactory, as it is in this ease, so far as the parties to the mortgage and their attorney, to whom it was delivered for record, are concerned. But that is an entirely different question, I take it, from whether, as between the creditors of the mortgagor and the mortgagee, the mortgage was, under the circumstances of the case, recorded either as quickly as the circumstances permitted or with reasonable dispatch. Circumstances of the case which, among others, have a bearing on the question of “reasonable dispatch,” are these: The mortgaged chattels, owned by a New Jersey corporation and located in New Jersey, were conveyed to the mortgagor on March 1st by bill of sale delivered in New York City, at the office of a New York attorney, and the notes representing part of the purchasemone,v, or arising out of the purchase, were then delivered to the creditors, who became creditors of the mortgagor on that date, and without, so far as it appears, any knowledge as to a proposed mortgage to be given on the property sold, to secure the payment of portion of the purchase-money paid on the transfer to the person or persons who had advanced it for the mortgagee. The chattel mortgage was executed and acknowledged on March 1st, but in Yew York and before an officer of that state, which re-quired a delay of at least a day for procuring an official certificate to the acknowledgment. The additional delay in recording or sending for record arose by reason of the Yew York attorney’s engagements in the courts of Yew York. While this explains the delay it does not, in my judgment, as against these creditors, make the recording or sending for record after this delay either an “immediate recording,” as the express terms of the statute require, or a recording “as soon as may be” or “with reasonable dispatch,” as construed by the courts.

In the cases referred to by counsel, as adopting by construction the qualification “unless ihe delay is explained,” it appears that prima facie the delay in recording, was such as to preclude its being considered as- an “immediate recording,” and the fact that no explanation was given -was referred to, not by wa}r of importing a qualifying clause into the statute, but by way of confirming the conclusion justified by the facts which did appear. This seems to be the express declaration in these cases relied on. Dunham v. Cramer (Vice-Chancellor Grey, 1902), 63 N. J. Eq. 151, 158; Brochhurst v. Cox (Vice-Chancellor Garrison, 1906), 71. N. J. Eq. 703, 706.

Treating the case as one where the delivery of the mortgage was suspended until the execution of the contract by the brewing company, this took place on March 3d, on which day also the clerk’s certificate was procured. The agreements were to be executed in triplicate. On Saturday Mr. Gilbert mailed all three copies (executed by the hotel company and Peterson) to the brewing company, who were to execute all. three, and, as appears . by the brewing company’s letter to Mr. Gilbert of March 3d, to return only two of them to him. The brewing company apparently retained the third copy, and on the mailing of the two signed copies to Mr. Gilbert, for delivery to the other parties, the contract was complete. The retention of the chattel mortgage from record, or the failure to send it for record either by mail or messenger on the morning of the 4th, was due to the retention of all the papers in Mr. Gilbert’s office, pending his return, and his apparent failure or omission to give any directions in relation to the matter during his unexpected absence. He intended and expected, as be sa}rs, to be at his office on Monday, and had he been there the mortgage would undoubtedly have been sent or mailed on the 3d or the morning of the 4th. Delay beyond this time, under all the circumstances proved in this case, seems to me to have been a failure to record the mortgage either “as soon as may be,” or with “reasonable dispatch.” The fact that our courts allow “reasonable dispatch,” under the circumstances, to be treated as “immediate recording” under the words of the statute; and have thus by construction extended its terms to a reasonable limit, requires, I think, that in the application of the statute, under this construction, we should continue to keep in mind that the language to be construed is still the direction for “immediate recording,” not these words as qualified by an express statutory direction “for reasonable dispatch,” or “unless the delay is explained,” leaving these expressions to be construed and applied to subsequent cases as being likewise statutory provisions. The original words of the statute are to be kept in view as the rule or standard to be applied in each case, and in giving a “reasonable” application of them to the circumstances of each case, their force and effect must not be practically destroyed by a liberal construction of “explanations of delay.” These “explanations of delay,” so far as creditors protected by the recording act are concerned, must be equivalent to proof that the recording was “with all reasonable dispatch.”

The mortgagee’s counsel insists strenuously that the mortgage did not become effective until the contract to be signed by the brewing company was personally approved by Mr. Gilbert, and that this would not have taken place until March 4th on his return. Assuming this to be proved in the case, this would still make a delay until the 5th, and, apparently, a late mail on that day, and this delay of a day, in my judgment, was a failure to record with reasonable dispatch within the temrs of a statute for “immediate recording.” As to the delivery of the mortgage in escrow until after Mr. Gilbert’s personal approval of the execution of the contract by the brewing company, no direct proof -of any such understanding between the parties that Mr. Gilbert should personally approve the formal execution of the contract by the brewing company appears in the case. And although it may have been expected by the mortgagors, as well as Mr. Gilbert himself, that it would be approved by him, yet it appears by his evidence that the substantial matter awaiting the delivery of the mortgage was the approval by the brewing company of the terms of the contract, which, as Mr. Gilbert says, had been agreed on after much discussion, and which had been in a measure finally settled by him, on behalf of the brewing company, but without an opportunity for consultation with them. If the terms were approved, the formal execution and its correctness was a matter entirely within the routine duties of the officers of the company. The contracts were prepared to be signed only by the secretary, the officer who usually affixes the seal, and the formal execution was also a matter as to -which any member of Mr. Gilbert’s firm could pass on in his absence. There is nothing to indicate, in my judgment, that after the brewing company had in fact actually mailed the contract, properly executed on their part, the chattel mortgage was still to be considered as held in escrow by Mr. Gilbert for his personal approval of the execution of the contract by the company.

But, assuming that it was so held, and that this chattel mortgage did not become valid by delivery until after the formal approval by Mr. Gilbert personally of the execution of the contract, then, on the evidence, a further and- apparently a fatal objection to the validity of the chattel mortgage under the recording act appears. This contract between the parties was expressly referred to in the chattel mortgage itself as one of the conditions thereof, and on the theory that the mortgage was not valid until the execution and delivery of the contract, the contract clearly became part of the true consideration of the mortgage. The contract was not, however, set out in the mortgage itself, nor was it referred to in the affidavit as making up any part of the consideration of the mortgage. The mortgage treats the advance of money as the sole consideration of the mortgage. If this contract was such ail essential part of the transaction that the validity of the mortgage depended on its delivery, then, as it now seems to me, either the contract or its substance and effect should have been set out in the affidavit as to consideration. Under the statute (1 Comp. Slat. p. Jf.68 4-) the affidavit must set out “the consideration of said mortgage and as'nearly as possible the amount due and to grow due thereon.” If the execution of the contract was so essential to the validity of the mortgage as to entitle the mortgagee under the statute to the benefit of at least tivo days’ delay against the creditors for the purpose of procuring it, it would seem that it must be considered as so much a part of the con- ' sideration of the mortgage as to entitle them to have set it out in the affidavit.

The chattel mortgage must be held not to be a preferred claim against the creditors of the company whose claims arose prior to its recording.


author: Stevens, V. C.

text:
    The Mayor and Common Council of Newark v. National Silk Dyeing Company et al.
    [Decided August 21st, 1914.]
    An injunction could not be granted to enjoin separate suits at law, brought by mill owners, whose factories adjoin the Passaic river, for damages for the wrongful abstraction of water from the river by a water company, which suits had no connection with each other, since to do so would violate a fundamental equity rule that distinct and independent causes of action may not be united in one bill.

      Mr. Herbert Boggs, for the complainant. ,,

      Mr. William I. Lewis, for the National Silk Dyeing Company and others.

      Mr. Gilbert Collins, for the East Jersey Water Company.
   Stevens, V. C.

This is an application to enjoin twelve suits at law, brought by mill owners whose factories adjoin the Passaic river, for damages for the wrongful abstraction of water by Newark, Jersey City and the East Jersey Water Company.

The application must be denied, for the reasons given by me in the case of Newark v. Chestnut Hill Land Co., 77 N. J. Eq. 24.

It is said that the ease in hand is distinguishable from the case cited, in that there it did not appear that a multiplicity of suits would be prevented by the mere transfer of jurisdiction, while here it does, for the object is to consolidate twelve suits into one. But if this court sustained the contention, it would violate one of the fundamental rules of equity pleading, viz., that distinct and independent causes of action must not be united in one bill. The suits by the. National Silk Dyeing Companjr against Newark have no connection with those against Jersey City or the Eafct Jersey Water Company. The suits by the different companies against those corporations have no connection with each other. Simmons v. Paterson, 60 N. J. Eq. 385, was quite different. There several complainants suffering from a common nuisance to riparian lands joined in one bill. The effect of this nuisance was the subject dealt with by the court of errors and appeals. Here it would seem that the injury,, or principal injury, complained of, is the injury to the various and distinct businesses of the plaintiffs. There, the complainants were were affected by the same act. Here the plaintiffs are affected %by the perfectly distinct acts of Newark, Jersey City and the water companj''.

It is true that the aggregate damage resulting from the separate acts of the three wrong-doers may be variously estimated by different juries, if ihe cases be tried separately, but the possibility of different findings on the same state of facts is- not á ground of equity jurisdiction. Besides there is nothing to indicate that if the verdicts should be the result of differing or eon-dieting estimates of total damage, Newark would be the one to suffer If consolidation of the suits for the purpose of trial be, to a greater or lesser extent, desirable, I know of no reason why the supreme court should not be asked to consolidate.

I cannot, moreover, overlook the fact that the supreme court in the suits brought by the Weidman Dyeing Company has formulated a lule which it has applied to this very class of cases, thus declaring that it deems itself competent properly to deal with them.