author: Vooehees, J.

text:
    Caroline Wood, guardian, complainant, and Alice C. Price, defendant and respondent, v. Jacob C. Price, appellant.
    [Argued March 21st, 1911.
    Decided November 28th, 1911.]
    1. “An act respecting notice of Us pendens (Revision of 1902)” (P. L. 1902 p. 477), took origin in order to eradicate the injustice of the rule of the old law, which was that, during the pendency of an equitable suit, neither party to the litigation can alienate the property in dispute so as to affect the rights of his opponent.
    2. The omission to file and record the statutory notice under the act of 1902 (P. L. 1902 p. 477) left the parties free to deal with the subject-matter of the litigation untrammeled, and one acquiring an interest therein pendente lite'is unaffected by the litigation, provided his acquisition was made hem, fide and without notice of equities.
    3. This statute (P. L. 1902 p. 477) does not deal with the rights of persons who had notice, either actual or constructive, of equities which would bind or charge their rights.
    4. Possession of real estate which is actual, open and visible occupation, inconsistent with the title of the apparent owner by the record and not equivocal, occasional, or for a temporary or special purpose, is constructive notice to all the world of the rights of the party in possession.
    5. This rule also includes those equities of one who occupies as tenant, that are connected with the tenancy, as well as interests under collateral agreements, as a contract to convey the land, or to renew the lease.
    6. The possession of premises by a tenant is constructive notice, not only of such tenant’s rights and equities, but as well notice of those of the landlord.
    7. The provision for the endorsement of a writ of sequestration contained in the act of 1907 (P. L. 1907 p. 482 § 26) is for the benefit of the person against whom the writ is directed, and if it lack such endorsement, until application be made by such person to set it aside, it is not wholly void, but merely voidable.
    On appeal from a decree of the court of chancery made by the chancellor, whose opinion is reported ante p. 1.

      Messrs. Vreeland, King, Wilson & Lindabury, for the appellant.

      Mr. Charlton A. Reed, for the respondent.
   The opinion of the court was delivered by

Vooehees, J.

The opinion Avritten for the court of chancery by the learned chancellor has the approval of this court, and but for the stress in argument and in the briefs filed on appeal upon points which Avere not particularly treated in it, it would be quite unnecessary to add in any way to the careful exposition of the principles therein set forth. A restatement of the facts is, of course, uncalled for.

The argument is made that a suit for alimony is a personal action and results in a personal decree for the payment of money, therefore, to sustain it, service of process upon the defendant within the territorial limits of the state, is requisite to give the courts of such state jurisdiction to render such judgment. Elmendorf v. Elmendorf, 58 N. J. Eq. (13 Dick.) 113; Hervey v. Hervey, 56 N. J. Eq. (11 Dick.) 424.

It is also further contended that the employment of the writ of sequestration in order to compel an appearance, pursuant to section 26 of the Divorce act (P. L. 1907 p. 482), at once ipso facto, renders the suit a proceeding in rem, or quasi in rem. This was the vieAV entertained by the court of chancery.

The defendant, however, further argues from this premise that the suit, having thus become an action in rem, the land being the res which is proceeded against, the suit, from the time of issuing the writ of sequestration was thereby transformed into a “suit relating to or affecting the possession of or title to lands or real estate,” and so falls directly within the purview of “An act respecting notice of lis pendens (Revision of 1902)” (P. L. 1902 p. 477), which act provides that

“neither the issuing of a * * * subpoena or other process or writ nor the filing of a * * * bill * * * nor any proceedings had or to be had thereon * * * shall be deemed or taken to be constructive notice to any Iona fide purchaser * * * of any lands or real estate to be affected thereby until the complainant * * * shall have first filed * * * a written notice of the pendency of such suit.”

Conceding for argument’s sake, the correctness of the reasoning, and that the action, by the employment of the writ of sequestration and the filing of the preliminary petition for it, has been transformed from an action in personam into one m rem, as distinguished from a personal action, commenced by subpoena, but wherein sequestration had been resorted to merely by way of mesne process, for some incidental purpose, the fallacy of the proposition lies in the misconception of the general doctrine of lis pendens, and of the distinction existing between that doctrine and the doctrine of notice.

Our statute, above cited, while it uses the words hereinbefore quoted, as to “constructive notice,” yet a consideration of the purposes for which it was enacted will demonstrate that it took origin in order to eradicate the injustice of the old law.

Although many judicial deliverances, as well as text-writers, have stated that the doctrine of Us pendens is referable to the doctrine of notice, that view has by the best authority been denied, .and, as stated by Professor Pomerojq in his Equity Jurisprudence, section 633, the rule is, “during the pendency of an équitable suit, neither party to the litigation can alienate the property in dispute so as to affect the rights of his opponent.”

In this state, this view has been adopted. Vice-Chancellor Pitney, in Houpt v. Turner, 53 N. J. Eq. (8 Dick.) 526, examined and collated many authorities on that subject and recognizes the rule above set forth, and, continuing, refers to the reason which led to the adoption of the statutory notice of Us pendens in the following language:

“The manifest hardship of applying this necessary maxim in cases of conveyances in good faith to parties without notice led to a statutory provision for the public registry of a notice.”

While this case was formally overruled (55 N. J. Eq. (10 Dick.) 593), yet not upon this point, and the doctrines enunciated by the learned vice-chancellor have not been by it at all repudiated. McMichael v. Webster, 57 N. J. Eq. (12 Dick.) 295 (at p. 300), sets forth the reasons for the reversal. Indeed, this court, in White v. White, 61 N. J. Eq. (16 Dick.) 629, refers approvingly to the case. So that, what our statute really did, not only in effect, but in words, for it is limited in its scope to any bona fide purchaser or mortgagee, &c., was to abrogate the rule, that parties to a litigation could not alienate the property in dispute as against the rights of the opposing parties to such suit.

It made the recording of such notice necessary in order to preserve the former effect of the litigation. So, that the result of omitting to file and record the statutory notice under the act of 1902, left the parties free to deal with the subject-matter of the litigation untrammeled, and one acquiring an interest therein pendente lite is unaffected by it, provided his acquisition was made bona fide .and without notice of equities.

It will thus be clear that the statute did not at all deal with the rights of persons who had notice, either actual or constructive, of equities which would bind or charge their rights.

The old rules, under which the litigation itself was made to limit the rights of parties acquiring interests in the subject-matter were changed by the statute above cited, unless the statutory notice was recorded.

Having now disposed of the effect of the lis pendens act, and shown that it does not apply to persons who do not acquire interests in the subjeet-mafter bona fide, we must look to the situation of the parties and discover whether there was notice, either actual or constructive, to the purchaser of the property.

Jacob C. Price had purchased the premises at the foreclosure sale on October 8th, 1908. The equity of redemption had been conveyed to him by the mortgagor, his brother, in August pre- . vious, pending the foreclosure suit. Before that, the writ of sequestration had been issued and served. Now, Doctor Price took the deed without the signature of the wife, whom he knew to be entitled to dower, subject to payment of the mortgage. He was, therefore, put upon inquiry as to the rights of the wife, at least, so far as her strict dower interest was concerned.

He was also put upon inquiry as to the lien of the writ of sequestration, by reason of the open, notorious and exclusive possession of the tenant of the property, and it is conceded that so far as the tenant’s rights were concerned, he was chargeable with notice of whatever rights the tenant had to remain in the property, and which the tenant could enforce against it.

All authorities are agreed that the general rule is that possession of real estate which is actual, open and visible occupation, inconsistent with the title of the apparent owner by the record and not equivocal, occasional or for a temporary or special purpose, is constructive notice to all the world of the rights of the party in possession.

This agreement of the authorities also extends to include those equities of one who occupies as tenant that are connected with the tenancy, as the contents of and the covenants contained in the lease, and as well to interests under collateral agreements, as a contract to convey the land, or to renew the lease, &c. Taylor v. Stibbert, 2 Ves. Jr. 437; Daniels v. Davison, 16 Ves. 249; Allen v. Anthony, 1 Mer. 282; Barnhart v. Greenshields, 9 Moo. P. C. C. 18; Le Neve v. Le Neve, 2 Lead. Cas. Eq. 187.

In the court of chancery, Chancellor Runyon, in Havens v. Bliss, 26 N. J. Eq. (11 C. E. Gr.) 363, says: “If a tenant has even changed his character by having agreed to purchase the estate, his possession amounts to notice of his equitable title as purchaser.”

Now, it is the duty of a purchaser to inquire of the person in possession of the premises and ascertain the rights under which he holds, and if this duty of inquiry be disregarded, the purchaser is chargeable with notice of such facts as the inquiry, if it had been in fact made, would have revealed. 2 Lead. Cas. Eq. 188; Holmes v. Stout, 10 N. J. Eq. (2 Stock.) 419, 426; Havens v. Bliss, supra; Essex County National Bank v. Harrison, 57 N. J. Eq. (12 Dick.) 91.

Where the possession is that of a tenant, the authorities are conflicting as to the extent of the notice flowing from such occupancy.

The English rule is that “the occupation of land by a tenant affects a purchaser of the land with constructive notice of all that tenant’s rights, but not with notice of his lessor’s title or rights.” Hunt v. Luck (1902), 1 Ch. 428, where the English cases are reviewed. Under this authority, a purchaser is charged with notice of those rights which a tenant might enforce, but not with constructive notice of the rights of some other person to whom the tenant pays rent.

This rule, in some of the American states, has been followed, but Professor Pomeroy, in his Equity Jurisprudence, says:

“Another and more numerous group of decisions by the courts of various states, hold that q purchaser, by means of a lessee’s possession, is put upon inquiry respecting all the rights and interests under which the tenant holds, and which, affect the property, and is therefore charged with constructive notice of the lessor’s title and estate.”

He concludes that the latter rule may be regarded as the American doctrine. Section 6.25, where the author has collected the cases. See, also, sections 615, 616, 618.

This subject does not seem to have been passed upon by this court. There are, however, in the court of chancery cases which approach the question.

In Havens v. Bliss, 26 N. J. Eq. (11 C. E. Gr.) 363, Chancellor Runyon, writing the opinion, says:

“It is true there are to be found cases in this country in which the notice which possession gives is confined to a known title under which the possessor holds, but the rule is, and I see nothing to take this case out of its operation, that the occupancy of land is equivalent to notice, to all persons dealing with the title of the claim of the occupant. If a tenant has even changed his character by having agreed to purchase the estate, his possession amounts to notice of his equitable title as purchaser. 2 Sugd. Vend. & P. (11th Am. ed.) 543; Daniels v. Davison, 16 Ves. 254. In Baldwin v. Johnson, Saxt. 441, the language of Lord Rosslyn, in Taylor v. Stibbert, 2 Ves. Jr. 440, is quoted with approbation, and applied to a case where a mortgagee had taken her mortgage on land, the legal title to which was in the mortgagor, but was subject to a trust in favor of another person, of which the mortgagee had no knowledge or information. The tenants of the mortgagor were in actual possession of the property. The court held her bound to inquire of them as to the title. The language of Lord Rosslyn, above referred to, is: Tt was sufficient to put the purchaser upon inquiry, that he was informed the estate was not in the actual possession of the person with whom he contracted; that he could not transfer the ownership and possession at the same time that there were interests as to the extent and terms of which it was his duty to inquire.’ ”

The same learned chancellor, in Wanner v. Sisson, 29 N. J. Eq. (2 Stew.) 141, denies the character of a bona fide purchaser to one who had notice of the claim of persons in possession, and says: “If they were tenants or had notice of the claims of those under whom they claim, th'e rule is that the occupancy of land is equivalent to notice to all persons dealing with the title of the claim of the occupant. If a tenant has even changed his character by having agreed to purchase the estate, his possession amounts to notice of his equitable title.”

In Essex County National Bank v. Harrison, 57 N. J. Eq. (12 Dick.) 91, Vice-Chancellor Pitney declared “that the effect of the constructive notice due to possession is a notice of everything which a party interested in the premises would get by inquiring of the party in possession. In other words, the actual possession of the premises puts any person having a claim or seeking to acquire title thereto, to an inquiry of such person as to what his title actually is.”

It seems that to give to a tenant’s possession the effect of notice of his landlord’s title is the more reasonable conclusion. The possession of a tenant is the possession of the landlord. The origin and reason for the contrary doctrine are not made clear in the English cases, and although the learned judge who delivered the opinion in Barnhart v. Greenshields, supra, reviews the cases, not one of them referred to, discusses this exact question, and his examination of them concludes:

“There is no authority in these cases for the proposition that notice of a tenancy is notice of the title of the lessor; or that a purchaser neglecting to inquire into the title of the occupier is affected by any other equities than those which such occupier may insist on. Whatever authority there is upon the subject is the other way.”

Now, an inquiry of a tenant of necessity would result in being informed of the landlord under whom the tenant occupied, and whose possession it was that the tenant held, and through whom the latter must assert whatever right he claims to retain the premises.

To limit, therefore, the effectiveness of the inquiry merely to the rights of the tenant, is to deprive the notice of practical and beneficial usefulness to a purchaser, a result which must have been originally intended in the beneficent design for his protection, at the foundation of the doctrine.

As Chief-Justice Field of California says, in the well-considered ease of Dutton v. Warschauer, 21 Cal. 609, in discussing the subject: “It is not easy to give to the fact of possession any influence as notice without making it notice of all such matters as a prudent man, desirous of purchasing tbe property, would naturally inquire about respecting the title. Ascertaining that the possession of the occupant is that of a tenant, he would, in the ordinary course of things, proceed to inquire as to the title of the landlord.”

Dickey v. Lyon, 19 Iowa 544, contains an instructive examination of the question, and concludes: “It seems to follow therefore that if the possession of a tenant is notice of his lease and its contents, as the authorities uniformly concede, it must necessarily become notice of the fact that the landlord claims title and holds possession adverse to the proposed purchaser’s vendor, and having notice of such fact, he cannot become a good-faith purchaser of the estate.”

Another case which deals with the subject, exhaustively and satisfactorily, is Randall v. Lingwall, 43 Ore. 383, in which the same result is attained.

The text-books generally also regard this as the more logical and generally-accepted conclusion. Wade Not. (2d. ed.) § 286; Fett. Eq. 85; Eat. Eq. 141, and it is so held in the greater number of the states of the union. They have been collected in 23 Am. & Eng. Encycl. L. 501, and also in the notes to Crooks v. Jenkins, 124 Iowa 317, as reprinted in 104 Am. St. Rep. (at p. 348).

We conclude, therefore, that the possession of premises by a tenant is constructive notice, not only of such tenant’s rights and equities, but as well notice of those of the landlord.

From an examination of the case, it appears that Guerin, the tenant, originally had a lease made in February, 1904, and duly recorded, for a term of two years, with a privilege of renewal for three additional years, and an option to purchase at any time during the demised term, and that he was in the open and actual possession of the premises.

The fact that the term had expired at the time of the transfer to Jacob C. Price takes the case out of the rule that there is no obligation to inquire when the possession is not inconsistent with the record title, a question alluded to in Gardom v. Chester, 60 N. J. Eq. (15 Dick.) 238, 245.

The tenant’s occupation was not then necessarily under this lease as disclosed by the record. It was, at the best, uncertain. Besides, the character of the tenant’s occupation had changed, for he had before the transfer of title attorned to the sheriff under the writ of sequestration, and of such change, as we have before pointed out, the purchaser had constructive notice.

In executing the writ, Guerin was notified by the sheriff, in writing, dated August 5th, 1908, to attorn and pay to the sheriff arrears of rents and rents growing due for the property, so that the tenant, for he paid the sheriff afterwards on the 24th of August, $156.50 as rent, became a tenant of the sheriff by virtue of the command of the writ.

The books say that a sequestration out of chancery is more' effectual than an, execution at law, and binds from the time of awarding the commission and not from the time of executing it. 1 Vern. 58. Here execution of the writ antedated the deed. It is therefore unnecessary for us to hold that sequestration binds before its execution.

The sequestrators, formerly seven in number, were officers of the court, and to act from time to time as the court should direct and account to the court for moneys received. Motion might be made and an order obtained for tenants to attorn and pay their rents to the sequestrators or for a sale and disposition of the-goods of the party, and when the sequestrator is in possession, he-cannot be disturbed without leave of the court. 9 Ves. 336.

Under the authority of the writ, the sequestrators may enter into possession .of real estate in the occupation of the disobedient person, and may also enter into the receipt of the rents of such estates as are in occupation of tenants. Upon entering into the real estate, they should serve the tenants in possession with a notice to attorn to pay their rents to them. 3 Ves. 22, 24. If the tenants refuse to attorn, the proper course is to obtain upon notice to the tenants an order to attorn and pay the rents. 6 Jac. Dict., tit. "Sequestration;" 8 Bac. Abr., tit. “Sequestration;" 2 Dan. Ch. Pr. 1054 et seq.

The petitioner’s duty was to make inquiry of the tenant, and therein he failed. He is, therefore, chargeable with notice of the facts which he would have learned had he pursued such inquiry, not only as to the tenant’s title, but as to all the facts and circumstances which the tenant knew concerning the title, and especially concerning the right in which the person in possession was occupying the premises, and that would have led to notice of the execution of the writ, the attornment of the tenant to the sheriff, and that the property was then in custodia legis.

It is argued that the appeal book does not show that the writ _was endorsed according to the statute. To make this available, it should clearly appear that such was the fact.

The point does not seem to have been raised in the court below and is not mentioned in the opinion of the chancellor. If, however, it be conceded that the writ lack such endorsement, yet it will be noted that no application was made by Robert A. Price, against whom it issued, to set it aside for that reason, and it may be that, if such application had been made by him, under the rule laid down in Jernee v. Jernee, 54 N. J. Eq. (9 Dick.) 657, the relief would have been granted, but until such application was made, the writ was not wholly void against him, but, at the most, merely voidable.

The provision for the endorsement was intended to operate for the benefit of the person against whom the writ was directed. The process did not deprive the defendant of his liberty, as was the fact in the case just cited. The defendant, instead of appearing to the suit, has rather defied the process of the court, has not appeared, has not claimed the benefit that the endorsement of the writ would have given him, and cannot therefore claim that he has been harmed.

If the writ was voidable in his favor, it is not perceived how Jacob C. Price, the petitioner, can reap any benefit from that fact, until it has been vacated.

The decree of the chancellor will be affirmed.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Bergen, Voorhees, Bogert, Vroom, Congdon—9.

For reversal—None.


source: Caselaw Access Project

author: Kalisch, J.

license: Public Domain

text:
    John H. Letts, petitioner and respondent, v. Mary E. Newbrand Letts, defendant and appellant.
    [Submitted July 10th, 1911.
    Decided March 4th, 1912.]
    1. The testimony required to bar a petitioner’s right to relief in a suit for divorce must attain that degree of proof which is required to establish a matrimonial offence and which would have entitled a defehdant to affirmative relief, if it had been asked for.
    2. A divorce should not be granted upon the uncorroborated testimony of an alleged paramour, unless he be credible and his testimony worthy of belief.
    3. The rule of practice applicable to the testimony of a particeps crimmis in criminal cases is equally applicable to suits for divorce.
    4. Where the testimony of an alleged paramour requires corroboration, that corroboration should be of material facts tending to establish the main fact charged—the act of adultery.
    5. A husband is a competent witness to give such corroborative testimony, but he being a vitally interested party, his testimony should be strictly scrutinized and accepted with great caution.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported ante p. 518.

      Messrs. Woodbridge & March, for the appellant.

      Mr. William E. Florence, for the petitioner.
   The opinion of the court was delivered by

Kalisch, J.

This is an appeal from a decree of divorce nisi, wherein it was adjudged and decreed by the court of chancery upon a petition for divorce, filed by John H. Letts, the petitioner, that the appellant, Mary E. Newbrand Letts, on the 17th day of March, 1908, had committed adultery with one George Connett, the co-respondent named therein, at Sayresville, in this state; and that the cross-petition filed in the suit by the appellant praying for a divorce from bed and board for extreme cruelty be dismissed.

The parties were married on the 19th day of September, 1898, at South River, Middlesex county, in this state. At the time of the marriage the petitioner was twenty jrears of age and the appellant not quite eighteen. An engagement to marry existed between the parties for some time prior to its taking place. It appears from the testimony that pending the engagement to marry, and about six months before that event happened, the petitioner seduced the appellant, and that three months after their marriage a female child was born to them, the only issue of the pair. The petitioner admits that the appellant was enceinte by him when he married her, and he supplements it with the 'statement that he married her because he had to. Thus, at the very threshold of the petitioner’s entering into the matrimonial state with the woman he had wronged and who was soon to become the mother of their child, a glimpse is obtained of his utter lack of moral sense and obligation, and of his state of mind and feeling toward the appellant. And the statement of the petitioner that he married the appellant because he had to becomes an intelligible key to the proceedings instituted by him against his wife.

From the testimony, it appears that immediately after their marriage the couple returned to Sayreville and lived with the wife’s parents for nearly two years, when they went to housekeeping in Sayreville on their own account, and where they lived together as husband and wife until the 17th day of March, 1908; and they continued to live together after that date, under the same roof, until the 30th day of March, 1908, when, according to the husband’s story, his wife, of her own volition, although he was willing that she should remain, left her home. The wife denies this. Her story is, in substance, that her husband had treated her ever since their marriage in a cruel manner, oftentimes reviling and beating her, and that on the 30th day of March he told her to get out and threatened to inflict bodily injury upon her unless she went, and that he opened the door and said: “Now you get or I will hurt you,” and that he told her to go home to her mother and stay there.

There is a strong probability of the truth of the appellant’s version of what she suffered at the hands of her husband during her cohabitation with him, and that it was upon his order and threat of injury that she left her home, but it lacks that corroboration which the law requires upon which to base the affirmative relief prayed for in appellant’s cross-petition; neither was it sufficient in law to constitute a bar to the petitioner’s suit for divorce.

The testimony required to bar a petitioner’s right to relief in a suit for divorce must reach that degree of proof which is required to establish a matrimonial offence which would have entitled a defendant to affirmative relief, if it had been asked for. To that degree of required proof the testimony, on the part of the appellant, failed to attain.

But there is an aspect of the case in which the testimony, just adverted to, becomes all important and influential, and that is, in so far as it sheds light upon the springs of the husband’s conduct and in a measure supports the appellant’s contention that there lurked in the petitioner’s bosom ever since his forced marriage to the appellant, a settled and determined design to get rid of her.

The decree in favor of the husband against his 'wife is founded upon the testimony of an alleged paramour and whose testimony it is claimed has been corroborated by the husband. Vice-Chancellor Howell, in his opinion, says: “I have hesitated, and feel a hesitation now, about advising a decree for a divorce on the testimony of those two people,” but the vice-chancellor thought there were matters of corroboration in two particular instances: one in a letter termed the “Dear Danny” letter, and which was supposed to be addressed to a man named “Daniel Keegan,” but which was unsigned and undelivered and which the husband claimed to have found December 12th, 1907, about three months before the alleged adultery, upon the top of a wardrobe, five feet in height, in the bedroom. The husband’s story regarding the finding of the note is told by him with circumstantial particularity, and what seems remarkable is that he had an abiding faith that he Avould find such a note, although he discloses no circumstances which could have led him to this belief; and furthermore, by some occult poAArer, be seemed to know just the place where the note was so that he was enabled to put his hand upon it as soon as he entered the .bedroom. It also appeared that he never told his Avife anything about his finding the note. But even if it be assumed that the Avife Avrote the note, which she most emphatically denied, it was never sent; it was not addressed to anybody in particular; it was not concealed, the husband had no difficulty in finding it; and further, Dan is not the man who is charged in the petition with having had adulterous intercourse with the appellant. And besides there was nothing in the contents of the note which in the slightest indicated that the appellant was of a depraved nature and lewdly inclined or from which it might have been inferred that she had the Avillingness and desire to commit adultery with Connett, the co-respondent.

It does not follow, because a letterj written by a woman, designed for a particular man, contains ardent expressions, that the inference should be draAvn that she would be ready to fall into the arms of the first man who would present himself to her. The law requires an act more flagrant than that before a wife can be robbed of her reputation for chastity and virtue.

From the testimony in the case, it clearly appears that ever since her marriage the appellant has been a chaste, patient and suffering wife. There is not a spark of testimony to indicate that she has ever conducted herself improperly or immodestly, or that she ever was neglectful of her wifely duties, or that she- ever kept company with any stranger, or that she was lewd or lascivious. The only other circumstance to which the vice-chancellor attached great weight as being corroborative that the appellant committed adultery with Connett was the finding of ten or a dozen pictorial postal cards in the petitioner’s house and which were brought there by the appellant’s sister, a Mrs. Fox, who was a witness for the defence. Those postal cards the vice-chancellor found to be indecent. And from that fact the vice-chancellor concluded that it showed a condition of mind which is favorable to the commission of the crime which was charged against the appellant. The possession of the postal cards was equally consistent with curiosity and inquisitiveness, a desire to peep at forbidden things, without the remotest idea of doing anything wrong or immoral. The inference therefore drawn by the vice-chancellor from their possession by the appellant was not justified.

The decree of the court of chancery therefore must rest for its support upon the testimony of the alleged paramour and the petitioner.

A single act of adultery is charged against the wife. It is alleged to have been committed with George Connett in the petitioner’s home, between eight and nine o’clock, on the evening of the 17th of March, 1908. Connett drove a grocery wagon and delivered orders. He delivered groceries at the petitioner’s house almost daily for a period of thirteen months. He was eighteen and a half years old at the time his alleged adulterous intercourse with the appellant took place, and he tells with rather a boastful glee that at that time hé had already much experience with women. And it is from the lips of this self-confessed youthful libertine that proceeds the confession, in court, that he had committed a single act of adultery with the appellant on the night stated and upon which the proof of adultery in this case rests. His story, in substance, is that “somewheres around” the 16th of March, 1908, the appellant told him, “My husband is going up to the blow-out of the O. TJ. A. M.” “He won’t be home that night, come up to the house.” “I said, ‘All right,’ so I went.” That he went to the house about half-past eight; that there were two children there, one ten and the other about thirteen years old. The witness referred to the daughter of Mrs. Letts, who was then ten years of age and an adopted child, a niece of Mr. Letts, thirteen years of age. That Mrs. Letts invited him into the parlor where she told him to remain until she put the children to bed, and that she went out with the children; that he remained downstairs, that nothing was said between him and Mrs. Letts upon her return, and that they went into the middle room where there was a lounge and upon it he had connection with Mrs. Letts; that they were sitting on the lounge when there came a knock at the back door, whereupon he started to go out of the front door and Mr. Letts was there and then he states: “When I went back, in the kitchen I told her;” thereupon Mrs. Letts told him “Go in this door;” so he went the way he was directed, which led to the cellar, and that while he was down there Mrs. Letts got a pail of coal and went upstairs with it, and Mr. Letts came down and lit a. light, took him by the collar up the stairs and asked him what he was doing in the house, to which he replied that he didn’t know, and then Mr. Letts took him next door to the Sanderson’s daughters and said, “I caught this fellow in my house,” and that he, the witness, then said, “Hello, Emma;” “Hello, Celia,” and that Letts then released him. Neither of the Misses Sanderson was called as a witness at the trial. Connett remained in Sayreville two days and then he says he ran away and went to New Brunswick, which is in the close neighborhood of Sayreville. The witness admitted that there had never been before this night any familiarity between Mrs. Letts and himself; that he had never called upon her before; that Mrs. Letts never made any advances to him nor he to her at any time, and that it was at his suggestion that she went with him upon the lounge. And, according to Connett’s story, the act was committed, as it appears, without previously any words or acts of familiarity passing between them, without a word of love or passion spoken, and without the least token of affection or caress given.

The story told by Connett is so contrary to the natural order of things and so contrary to the natural operation and manifestations of the human passions and feelings upon such an occasion, in which Connett claims to have been an actor, that it may be regarded as a highly improbable one. To entitle it to belief it should receive convincing corroboration.

I doubt if there can be found in the history of the divorce court anywhere such a rara avis, a male co-respondent, who had voluntarily come forward in aid of an injured husband suing for a divorce; who had sunk his manhood, his morals and his honor so low as to go voluntarily upon the witness stand and with brazen impunity proclaimed his triumph over his victim, to irretrievably disgrace and ruin her. The experience of mankind has been to the contrary, and, therefore, when a case arises which is contrary to this experience, it is such an aberration from the normal trend of human action that it requires convincing proof to confirm it.

Connett’s story is contradicted in some of its essential features. It is evident that he desired to make it appear that when he arrived at Letts’s house that evening the two girls were there and that Mrs. Letts desired to get them out of the way by putting them to bed. Both girls testified that they did not see Connett on that night, which contradicts Connett’s story that Mrs. Letts put them, to bed when he came in, whereas the testimony of Mrs. Letts is to the effect that the girls had been put to bed before Connett came. Connett admitted that he told Louis Zach that he never had anything to do with Mrs. Letts. Several witnesses for the defence testified that Connett told them that he never had anything to do with Mrs. Letts. Connett says that he left the middle room to go to the front door and found Letts there and went back into the kitchen and told Mrs. Letts. This statement is important since it confirms Mrs. Letts in her statement that she was ironing in the kitchen when her husband came and had been there during the entire evening.

Mrs. Letts denied most emphatically the charge made against her.- She admits that Connett was in. the kitchen when Letts came there, and not in the cellar, and accounts for Connett’s presence by his coming to the house stating that he was sent to get Mr. Letts to come to the school election, which was being held that evening. Now, it appears that Letts was at the school election that evening. Mrs. Letts says that Connett had been in the kitchen not more than five minutes, where she was standing ironing some clothes, before Letts came, and that she let him in by the kitchen door which was locked, and that as soon as he entered he seized Connett, who was sitting in the kitchen, and threw him out of the door.

Mrs. Letts denies the story told by Connett in every particular, and stoutly maintained that Connett was admitted to the kitchen and there remained until Letts came and put him out. The only corroboration of Connett’s story that he was concealed in the cellar comes from Mr. Letts. Letts’s description of his own conduct after he found the door locked and saw the disordered condition of his wife and suspected that there was a man- concealed in the house gives rise to grave suspicion as to the truth of his story. He says, he suspected the man was concealed in the cellar and yet he refrained from following his wife to the cellar when she went there with a scuttle for coal, believing, as he says he did at the time, that “she went down to place him some way or another.” Is this consistent with the natural conduct of an injured husband whose home was invaded by an adulterer fresh from his conquest and who was being sheltered by the wife of his bosom, under the roof which he had dishonored? Not only did the husband refrain from following his wife so that he might seize the destroyer of his domestic peace and happiness, but, according to his own narrative, he went upstairs to hang up his clothes and where he remained about five minutes, then leisurely proceeded to the cellar where he found Connett, seized him by the collar, and from that point the husband relates the same story as told by Connett. Why Connett should have remained in the cellar for five minutes when he could have easily escaped is not attempted to be explained. Why the injured husband withdrew himself for a time sufficiently long enough to have afforded the intruder time to get away has not been explained.

Mrs. Letts denies the story told by Connett as to any previous-arranged appointment with her. It also appeared in the case that Mr. Letts had said on one occasion that he would pay anybody $5 who would catch his wife with a man. He had expressed on several occasions a desire to get rid of his wife. All this is evidently a consistent- outcome of the forced marriage into which Letts says he entered with Mrs. Letts, and it seems that the husband has, in a narrow view, treasured it up as a wrong. There is also testimony in the case that Connett told one Zaeh, a witness for t-he defence, that he had been sent by someone to Mrs. Letts’s house which accounted for his presence there that night. While there is no testimony from which it may be inferred with any degree of certainty that there was any collusion between the husband and Connett that Connett should be where he was found, yet it is quite manifest that there was a determined, desire on the part of the husband to get rid of his wife, and as he is the corroborating witness relied on to support Connett’s testimony, it is not only weak because it is the testimony of a husband seeking to sunder the marriage relation, but it is absolutely unworthy of credence, coming, as it does, from a husband who was discontented from the very outset of his marriage relation with the appellant and who was seeking for a cause to sever it. His conduct and his testimony leave the decided impression that he was willing and ready to connive at his wife’s dishonor rather than to shield and protect her from wrong doing.

The vice-chancellor seemed to be of the opinion that if Connett was at the petitioner’s home by an arrangement with the husband, that the husband would have undoubtedly taken with him disinterested persons to be used as witnesses and since he did not do so, it convinced him that the event was not the result of connivance between the husband and Connett, but a genuine surprise to him.

But, on the other hand, it is equally, if not more probable, that the husband would not take witnesses with him unless he had anticipated to catch his wife flagrante delicto.

It would not have furthered the scheme of the husband to have witnesses find his wife and Connett in the kitchen, she pursuing her domestic duties and he sitting on a chair as she testified, but an unscrupulous husband would rather depend upon a story told by himself which would tend to corroborate that of Ms confederate.

The burden of proof was clearly not sustained by the husband. The wife absolutely denied the charge. In support of the truth of her denial she testified that before and at the time of the alleged adultery, she had been and was suffering from an ailment affecting her genital organs which made the act of coition extremely painful to her. In this she was corroborated by a reputable physician and no attempt was made by the husband to contradict it. If such a physical condition existed, as testified to by Mrs. Letts and the physician who examined her, it most effectually subverted the conclusion drawn by the vice-chancellor that she was likely to have committed the alleged act. And it is a circumstance which positively shakes Connett’s story that he had sexual intercourse with her and that she seemed to enjoy it.

There seems to be no conclusive reason why a decree for divorce may not be granted upon the uncorroborated testimony of a paramour, provided he is a credible witness and his story worthy of belief.

There appears <to be no valid reason why a different rule of law should exist governing the testimony of a paramour in a divorce case than the one relating to the testimony of a particeps criminis in a criminal prosecution.

Mr. Justice Knapp, in State v. Hyer, 39 N. J. Law (10 Vr.) 602, in discussing this class of testimony, says: “There has grown up in the courts a settled practice quite universal and entitled to its observance almost to the reverence of law, to advise jurors, in the strongest cautionary terms, not to convict defendants on such testimony, unless they can find corroboration in the testimony of other and unsuspected witnesses, upon such material circumstances as tend directly to establish the guilt of the accused.”

And for this rule of precaution the learned judge, on page 601, gives the following basis: “It was reasonable that courts should regard their testimony with suspicion, and look carefully into the secret motives that might actuate bad minds to draw in and victimize the innocent.”

The learned judge, after citing numerous cases, reaches the conclusion that a valid conviction may b.e founded upon the uncorroborated testimony of an accomplice.

An exposition of the true rule of law, with the rule of practice engrafted upon it, as generally adopted by the courts governing the testimony of a particeps criminis, in suits for divorce, is tersely stated in 14 Cyc. 697, as follows:

“While the testimony of the alleged paramour may be considered in determining the fact of the adultery, it is liable to grave suspicion and should be acted upon with extreme caution; and, ordinarily, unless it is corroborated, it is not sufficient to establish guilt.”

The learned vice-chancellor, in this case, discharging the functions of both judge and jury, seemed to have overlooked the precautionary rule applicable to Connett’s-testimony, by accepting it as credible and worthy of belief, with which conclusion we cannot agree for the reasons already fully stated. Even though the husband was a competent witness, he was not, as appears from the testimony in the cause, a credible one. Even if he had been a credible witness his testimony falls short of corroborating Con-nett as to the material facts tending to prove the commission of the act of adultery charged against Mrs. Letts. That part of the decree of the court of chancery dismissing the defendant’s cross-petition is affirmed, and that part of the decree adjudging that the defendant committed adultery with George Connett is reversed, and the record will be remitted, with directions to enter a decree dismissing the petition of the husband and affirming the decree denying the prayer of the wife’s cross-petition.

For affirmance—None.

For reversal—The Chief-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Voorhees, Minturn, Kalisob, Bogbrt, Vredenburgh, Congdon, White—13.


author: Per Curiam.

text:
    Gideon Lee Stout, surviving executor, &c., respondent, v. Margaret S. Cook et al., appellants.
    [Submitted December 5th, 1910.
    Decided November 21st, 1911.]
    On appeal of Audrey Osborn, adopted daughter of Jacob Stout, deceased, from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in '77 N. J. Fq. (7 Buch.) IBS.

      Mr. Marie A. Sullivan and Mr. Robert H. Griffin (of the New York bar), for the appellants.

      Mr. Halsey M. Barrett, Mr. William J. Magie, Mr. John R. Hardin and Mr. Joseph D. Lee (of the New York bar), for the respondent.
   Per Curiam.

Eor the reasons set forth in the opinion of this court in deciding the appeal of certain others of the parties to this cause, so much of the decree as is appealed from by Audrey Osborn will be affirmed.

For reversal—None.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Bogert, Vredenburgh, Vroom —9.


author: Pee .Curiam.

text:
    Michael Allman et al., appellants, v. United Brotherhood of Carpenters and Joiners, &c., respondents.
    [Argued November 22d, 1911.
    Decided March 4th, 1912.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported ante p. 150.

      Mr. Samuel F. Leber, for the appellants.

      Mr. Henry Oarles-s, for the respondents.
   Pee .Curiam.

The order appealed from will be affirmed for the reasons stated in the opinion filed in the court below by Vice-Chancellor Walker.

For affirmance—The Chiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Kalisch, Bogert, Vredenburgh, Vroom, Congdon, White—13.

For reversal—None.


text:
    William M. Clevenger, appellant, v. James A. Quinn, respondent.
    [Argued November 22d, 1911.
    Decided March 4th, 1912.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. h85.

      Mr. William M. Clevenger j pro se, for the appellant.

      Messrs. Bourgeois & Coulomb, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed for the reasons stated in the opinion filed in the' court below by Vice-Chancellor Learning.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchabd, Parker, Bergen, Voorhees, Kalisch, Bogert, Vredenburgh, Vroom, Congdon, White—13.

For reversal—None.


text:
    Anna P. Coffin, appellant, v. William W. Watson et al., executors, respondents.
    [Argued November 27th, 1911.
    Decided March 4th, 1912.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 78 N. J. Fq. (8 Buch.) 807.

      Mr. Ralph F. TAim¿ for the appellant.

      Mr. Spaulding Frazer, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed for the reasons stated in the opinion filed in the court below by Vice-Chancellor Emery.

For affirmance—The Chief-Justice, Garrison, Swayze, Parker, Bergen, Voorhees, Kalisch, Bogert, Vredenburgh, Vroom, Congdon, White—IS.

For reversal—None.


text:
    James P. Kelly, trustee in bankruptcy, respondent, v. Adam Masionis, appellant.
    [Argued November 27th, 1911.
    Decided November 28th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson.

      Mr. William Greenfield, for the appellant.

      Mr. Martin P. O’Connor, for the respondent.
   Per Curiam.

The bill in this case was filed bj^ Kelly, who was appointed trustee of the defendant by the United States district court in bankruptcy proceedings therein had, to have decreed as fraudulent and void against creditors a conveyance made by the defendant to Ms wife. The bill sets out, among other things, the bankruptcy proceeding, and it appears from1 the statements therein that the defendant was adjudicated a bankrupt, and was duly discharged in bankruptcy by the United States district court some months before the bill itself was filed. To the bill of complaint the defendant filed a plea reciting the bankruptcy proceedings, and averring that by virtue of the granting to the defendant at the close of those proceedings his discharge as a bankrupt, he was relieved from any and all obligations mentioned and set forth in the bill of complaint, and for this reason prayed to be dismissed with his costs and charges. The parties went to hearing on the bill and plea. The vice-chancellor, concluding that the plea was bad, advised an order overruling it, and from this order the appeal is taken.

The matters recited in the plea, and upon which the defendant relies as entitling him to be dismissed from the court, are all of them set forth in the bill of complaint. It is an essential requisite of a plea in chancery that it shall be founded upon new matter not apparent in the bill. If the facts upon which the defendant relies as entitling him to be dismissed from the court appear on the face of the bill, the proper mode of defence is by demurrer to the bill, and not by plea thereto. Story Eq. Pl. 660; Davis v. Davis, 57 N. J. Eq. (12 Dick.) 255.

The order appealed from will be affirmed.

For affirmance—The Chief-Justice, Swayze, Parker, Bergen, Voorhees, Kalisch, Bogert, Yredenburgh, Yroom, Cgngdon—10.

For reversal—None.


text:
    Annie D. Roe, appellant, v. Mayor and Aldermen of Jersey City, respondent.
    [Argued December 1st, 1911.
    Decided March 4th, 1912.]
    On appeal from a decree of the court of chancery.

      Annie D. Roe, pro se, for the appellant.

      Mr. James J. Murphy, for the respondent.
   Per Curiam.

In 1892 commissioners appointed under the Martin act for the city of Jersey City made a report adjusting the taxes upon certain property in that municipality, including the property of the complainant. The complainant’s property was sold by Jersey City, in 1895, for the non-payment of tlie taxes against it thus adjusted, and was bid in by the city. Eleven years thereafter, and in 1906, the complainant filed her bill of complaint in this cause, attacking the legality of the proceedings had by the commissioners under the Martin act and the sale of her property for the taxes adjusted by them, and sought to have the municipality restrained from attempting to take possession of her lands and premises by virtue of the sale had in 1895, or from the collection of the taxes which were adjusted by the Martin act commissioners, or from selling, assigning or transferring the certificate of sale, or any declaration of sale, or any deed or deeds which the municipality might have for her lands and premises. Dpon final hearing her bill was dismissed, and this appeal is from the decree of dismissal.

The decree appealed from must be affirmed. The relief sought by the complainant is not one which a court of equity can grant. Assuming it to be true that the proceedings which she attacks were invalid, her sole remedy was to apply for a certiorari to the supreme court. This was the decision of this court in Jersey City v. Lembeck, 31 N. J. Eq. (4 Stew.) 255, and the soundness of that decision has never been questioned since its rendition in 1879.

The fact that the complainant waited so long before applying to the courts as to be barred from relief by certiorari cannot operate to vest the court of chancery with jurisdiction to grant her the' relief which she seeks. Goodwin v. Millville, 75 N. J. Eq. (5 Buch.) 270.

For affirmance—The Chiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Kalisch, Bogbrt, Vredenburgh, Vroom, Congdon, White—13.

For rever'sal—None.


text:
    Benjamin M. Price et al., respondents, v. Nina P. Patterson et al., appellants.
    [Argued December 5th, 1911.
    Decided March 4th, 1912.]
    On appeal from "a decree of the court of chancery advised- by Vice-Chancellor Garrison, whose opinion is reported ante p. W.

      Messrs. Hartshorne, Insley & LeaTce, for the appellants.

      Messrs. Tennant & Haight, for the respondents.
   Per Curiam.

The decree appealed from will be. affirmed for the reasons stated in the opinion filed in the court below by Vice-Chancellor Garrison.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bercen, Voorhees, Kalisch, Bogert, Vredenburgi-t, Vroom, Congdon; White—13.

For reversal—None.


text:
    Alexander Murray et al. v. Beattie Manufacturing Company et al.
    [Argued December 6th, 1911.
    Decided March 4th, 1912.]
    On appeal of Alexander Murray from a decree of the court of ^hancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. 322.

      Mr. John B. Humphreys and Mr. John W. Harding, for the appellants.

      Mr. Gilbert Collins, for the respondents.
   Per Curiam.

This is an appeal from that part of the decree which adjudges that the complainants are not entitled to the relief prayed for in respect of the salaries paid to the officers of the corporation. We think the vice-chancellor was right in this portion of the decree, and, upon the appeal of Murray and others, there must be an affirmance for the reason stated by the vice-chancellor.

For affirmance—The Chief-Justice, Garrison, Swayze, Parker, Bergen, Voorhees, Kalisoh, Bogert, Vredenburgh, Vroom, Congdon, White—12.

For reversal—None.


text:
    Charles S. Ross et al., appellants, v. Amelia E. Sparks et al., respondents.
    [Argued December 7th, 1911.
    Decided March 4th, 1912.]
    On appeal from an order of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. 99.

      Mr. TimotKy J. Middleton and Mr. John J. Crandall, for the appellants.

      Mr. Thomas E. French, for the respondents.
   Per Curiam.

The order appealed from will be affirmed for the reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance—The Chief-Justice, Garrison, Swayze, Parker, Bergen, Voorhees, Kalisch, Bogert, Vredenburgh, Vroom, Congdon, White—12.

For reversal-—None.


text:
    Louisa Camman, respondent, v. Joshua Doughty, Jr., executor, &c., appellant.
    [Submitted December 11th, 1911.
    Decided March 4th, 1912.]
    • On appeal from a decree of the prerogative court advised by the Viee-Ordinarv.

      Mr. John F. Reger, for the appeñant.

      Mr. Alvah A. Clark, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed for the reasons-stated in the opinion filed in the court below by Vice-Ordinary Walker.

For affirmance—The Ci-iiee-Justice, Swayze, Trenchard; Parker, Voorhees, Minturn, Kalisch, Bogert, VrbdenBURGH, CONGDON, WHITE, TREACY—12.

For reversal—Bergen, Vroom—2.


text:
    Stephen Keupler et al., respondents, v. Andrew Eisele et al., appellants.
    [Submitted December 11th, 1911.
    Decided March 4th, 1912.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. 480.

      Messrs. French & Bicharás, for the appellants.

      Mr. George J. Be,rgen, for the respondents.
   Per Curiam.

The order appealed from will be affirmed for the reasons stated in the opinion filed in the court belotv by Vice-Chancellor Learning.

For affirmance—The Chiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Minturn, Kalisch, Bogert, Vredenburgh, Vroom, Congdon, White, Treacy —15.

For reversal—None.


text:
    Henry V. Massey, complainant, v. Camden and Trenton Railway Company, defendant, and Public Service Corporation of New Jersey, appellant.
    [Submitted December 11th, 1911.
    Decided March 4th, 1912.]
    On appeal from a decree of the court of chancery made by the Chancellor.

      Mr. L. D. Howard Qümowr, for the appellant.

      Mr. John D. McMullin and Messrs. Vroorn, Dicldnson & Scammell, for the respondent.
   Per Curiam.

The Camden and Trenton Railway Company, a street railway corporation, was adjudged insolvent by the court of chancery upon a creditor’s bill under the .“Act concerning corporations (Revision of 1896),” and a receiver was appointed for it February 18th, 1908.

This insolvent company was subject to two mortgages, which covered all the assets of the railway company, including daily receipts. The mortgagee was not a party to the chancery proceedings.

In November, 1908, the -mortgagee began foreclosure proceedings in the United States circuit court for the district of New Jersey. The mortgaged premises were subsequently sold by a decree of that court, and were bought by the bondholders’ committee for much less than the mortgage debt. No receiver was appointed in the United States court proceedings.

From February 18th, 1908, until April, 1910, the railway was operated by the chancery receiver, and upon his final report, it appeared that the earnings of the road during his receivership were not sufficient to pay any dividend to the creditors.

When the receiver first took charge, he found a transportation agreement between the Camden and Trenton Eailway Company and the public service corporation in effect, and a balance due for the services thereunder to the public service corporation.

We are concerned on this appeal with the claim of the public service corporation for the sum of $1,454.08, the amount of such balance thus due, and presented to the receiver, as appears by the chancellor’s decree. The chancellor decreed that as to such sum the public service corporation was a general creditor. From that decree the company appeals, contending it should be paid in full.

The first ground of appeal is that under the agreement between the roads, the Camden and Trenton Eailway Company collected fares as trustee for the public service corporation. But there is no merit in this contention. There is no language in the agreement which can be construed as creating such a trust.

The second ground seems to be that the receiver, by merely continuing the operation of the road, assumed such prior indebtedness and it thereby became entitled to preference. We see no merit in this contention.

The third ground is that under the doctrine of the United States courts, as exemplified by Fosdick v. Schall, 99 U. S. 235, in foreclosure cases, claims for traffic exchange and for maintenance incurred prior to receivership, are preferred claims. This is the same contention made by the General Electric Company in its appeal from this same decree here appealed from, and was decided by this court in Massey v. Camden and Trenton Railway Co., 78 N. J. Eg. (8 Buch.) 539, adversely to the contention of the appellant.

The decree of the court of chancery under review will be affirmed:

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Minturn, Kalisch, Bogert, Vredenburgh, Congdon, White, Treacy—14.

For reversal—None.


text:
    Charles E. Rennebaum et al., respondents, v. Catharine N. Rennebaum, appellant.
    [Submitted December 11th, 1911.
    Decided March 4th, 1912.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 78 N. J. Fq. (8 Buck.) 4-S7. . . ,

      Messi's. Garrow & Kraft, for the appellant.

      Mr. John Boyd Avis, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed for the reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenohard, Parker, Bergen, Voorhees, Minturn, Kalisch, Bogert, Vredenburgh, Vroom, Congdon, White—14.

For reversal—None.


text:
    Warren E. Sammis, trustee, &c., et al., respondents, v. John E. Shaw et al., appellants.
    [Submitted December 11th, 1911.
    Decided February 9th, 1912.]
    On appeal from an order of the court of chancery advised by Vice-Chancellor Stevens overruling a demurrer.

      Mr. Charles E. Hill, for the complainants.

      Mr. Frederick A. Pope and John C. Shaw (of the New York bar), for the defendants.
   Per Curiam.

The bill of complaint was filed by Warren E. Sammis, trustee for Cathérine Mahling and Solomon Mayer and by Catherine Mahling and Solomon Mayer, to foreclose a mortgage given to secure a bond. It sets out that the bond and mortgage were assigned by deed in writing to Warren E. Sammis, trustee for Catherine Mahling and Solomon Mayer.

The ground of demurrer is that the bili fails to show the creation and nature of the trust.

We think it was properly overruled.

Where the title is vested by deed in a person named as trustee, the title vests in the person named. He may file a bill to foreclose, and may, in the bill, as in this case, declare that he is trustee for persons named, and join them as co-complainants. In such case a demurrer is frivolous.

The order of the court below will be affirmed.

For affirmance—The Chiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Minturn, Kalisch, Bogert, Vredenburgh, Vroom, Congdon, White, Treaoy —15.

For reversal—None.