author: Pitney, V. C.

text:
    William D. Daly v. Addison Ely. Ex parte Lehlbach, sheriff of Essex county. Grobatto Gnecco v. Mary Gentelle. Ex parte Skinner, special master.
    1. The act of April 14th, 1891 (P. L. of 1891 p. 416), does not have the ■effect of repealing the act of March 20th, 1857 (P. L. of 1857 p. 881; Rev. p. 41%), as amended by act of March 6th, 1863 (P. L. of 1863 p. 180; Rev. p. 413), or of altering the rate of charges for publication of legal notices establishd by that act, unless a special contract be made in that behalf.

      2. A special master of this court is not one of the persons designated in the ■act of April 14th, 1891, and is not thereby authorized to pay the rates of •charges for advertisements therein named.
    3. Query — Is a sheriff authorized by that act to agree to pay those rates on ■an execution issued out of this court ?
    4. A sheriff who in good faith makes an advertisement of property under •execution, and is prevented from attending the sale thereunder by the payment of the debt before the day of sale, is nevertheless entitled to the fee ■allowed by the statute for advertising the property for sale.
    On motion to fix certain fees.

      Mr. Ely, pro se.

      Mr. John C. Besson, for the special master.

      Mr. Cortlandt Parher, contra.

   Pitney, V. C.

The dispute common to both cases is as to the amount of fees for publishing advertisements of sale to be allowed to the newspaper publishing the same. Another dispute, in the one case, is as to the amount of execution fees a sheriff is entitled to -charge upon an ordinary fieri facias de bonis el tenis issued out of this court.

First, with regard to the fees for advertising. Thé statute of March 20th, 1857 (P. L. of 1857 p. 381; Rev. p. Jf-lJ), entitled '“An act to regulate and establish a uniform rate of charge for legal advertising in New Jersey,” fixed the lawful charge as follows:

“ The price for publishing any legal notice, sheriff’s sale or any order, citation, summons or any other proceeding or advertisement required by law to be published in any newspaper, shall be forty cents per folio (one hundred words) for the first insertion and twenty cents per folio for each subsequent insertion after the first.”

By a supplement to this act, passed March 6tb, 1863 (P. L. of 1863 p. 180; Rev. p. 4-13), this rate was increased to sixty cents per folio for the first insertion and thirty cents per folio-for each subsequent insertion. And so the law stands at this-time.

By the act of April 9th, 1875 (P. L. of 1875 p. 89; Rev. p-. 104-9), one of the two newspapers in which sales of land are advertised is required to be printed and published at the county seat.

By act of April 14th, 1891 (P. L. of 1891 p. 415), entitled' “An act to regulate the price of legal advertising,” it was-enacted—

That it shall he lawful for all officers and boards of any county or municipality of this state to pay for official advertising in the daily newspapers published in cities of the first and second class at the rate of ten cents per line for the first insertion and five cents per line for each subsequent insertion, and no more.”

The second section contains a repealer of all previous conflicting acts.

The advertising by the sheriff and special master in these cases was made in newspapers of the character designated by this act of 1891; and the question is whether these newspapers are-entitled of right, and in the absence of special contract, to charge the rates named in the act of April 14th, 1891, or are confined to those fixed by the act of March, 1857, as amended by the act of 1863. Rev. pp. 41®, 415.

It is to be observed that this act of 1891 does not purport to-be a supplement to the .original act upon this subject above cited, which contains a general, comprehensive and peremptory regulation of the whole field of legal advertising; and yet it is entitled “An act to regulate the price of legal advertising;” and. from this title one would expect an equally comprehensive treatment of the subject. But when we come to the actual enactment we find, in the first place, that it deals with a limited class-of advertisers, and not with all legal advertisements; and, in the second place, it deals only with a limited class of newspapers, viz., daily newspapers published in cities of the first and second class, leaving the wider field of publication quite-untouched.

It seems to me that such an act can in no sense be termed “An act to regulate the price of legal advertising.”

In the next place, it is to be observed that it does not fix the rate which the newspaper is entitled to charge in the sense in which that is done by the general act above cited, but fixes a limit beyond which the particular officer or board procuring the advertisement may not go in making payment. It does not say that such public officer or board shall pay so much and no more, or that such newspaper shall be entitled to charge so much and no more, but simply that it shall be lawful to pay so much and no more. The natural force of this language is to confine and limit the power to contract of the persons named, and not to fix the amount which the newspaper may charge in the absence of contract. I am unable to construe it as interfering with or repealing the act of 1863 except to the extent just stated. The original act, in my judgment, stands as prima facie measure of price and payment in the absence of contract.

But the further point was taken that neither the sheriff nor the special master are within the class to whom the power of increased payment is given, and that if the sheriff be properly classed as an officer of the county, still, in procuring this advertisement, he was not acting as such, but was acting as the special officer of the court of chancery, and that the true construction off the act of 1891 is that the advertisement for which the officer is-authorized to pay the price therein named must be an advertisement by or on behalf of the county or municipality of which he-is an officer, and does not apply to an advertisement made by the sheriff when acting as the officer of the court of chancery.

I am inclined to think that this point is well taken. The court of chancery is not obliged by law to send its process to any particular officer. It may send it to one of its own officers, as a special master, or to a person specially appointed, and when a process is sent to a sheriff he does not execute it by virtue of his office as sheriff of the county, but as an officer of the court of chancery. The advertisement is not made by or on behalf of the county or any municipality. The result of adopting this view would be that advertisements of sale ordered by the court of chancery, or of land taken by process issued out of the court of chancery, are not such advertisements as are referred to and covered by the act of 1891.

The point just dealt with is undoubtedly good so far as relates to the special master. He is not an officer of any county or municipality of this state.

But whether I am right or not with regard to the view above suggested as to the relation of the sheriff to this court, the result is the same for another reason.

There is in this case no proof of any express contract between either of the parties and the proprietor of the newspaper. In the case of the special master he had no right or power to make any such contract, and his limit in that respect was presumably known to the proprietor of the newspaper who published his advertisement. If, therefore, the proprietor expected to charge at a higher rate than that fixed by the act of 1863, he should have s.o stated to the master before inserting the advertisement, and have stipulated for such payment. In the absence of such ■stipulation he must be presumed to have been satisfied with compensation at the rate fixed in the act of 1863 and can be allowed and paid no more by the master.

I am of the opinion that the same consideration applies to the case of the sheriff. There is no proof before me that anything was said between the sheriff and the proprietor of the newspaper in Essex county as to the price w'hich should be charged in this case, and in the absence of such stipulation, the presumption is that the rate fixed by the act of 1863 applies, and the charge for advertising in the sheriff's case must be reduced accordingly.

The other question raised is as to certain execution fees charged by the sheriff, viz., advertising the property for sale, $3.50. This item is based upon the provision of the statute regulating fees (Rev. p. as follows: “Advertising the property for sale, providing the sheriff or deputy sheriff attend in pursuance of the advertisement, $3.50.”

The property in this case was duly and fully advertised for sale; but as soon as the defendant heard of the advertisement he .appeared at the sheriff's office and paid the execution, thereby ■stopping the sale; and he now contends that although the sheriff has done all the work required by the statute to be done in the way of advertising in order to earn the fee of $3.50, he is yet not entitled to receive it unless, in point of fact, he does actually -■attend in person or by deputy in pursuance of the advertisement.

I do not think that construction is the proper and fair one. 'The proviso was intended to prevent the sheriff from charging the fee where he advertises and then of his own accord voluntarily abandons the sale and pays no attention to it. It ought not to be construed as giving the defendant the power to permit the sheriff to incur the labor and trouble of advertising, and then come in and pay the debt and thereby prevent the sheriff from receiving the fee given by the statute. Such construction ■•ought not to be adopted unless it is unavoidable.

I think the sheriff is entitled to that fee.

The result is that the charge for advertisement in each case must be cut down to sixty cents per folio for the first insertion -and thirty cents per folio for each subsequent insertion.


source: Caselaw Access Project

license: Public Domain

text:
    John F. Leslie et al. v. Hugh Leslie et ux.
    1. If a husband purchases land with his own money, and voluntarily pro- • cures the title to be conveyed to his wife, the presumption is that he intended it as a gift to her, and no trust for him will result.
    2. A writing intended to operate as a will, but which fails as such by reason of imperfect execution, cannot operate as a declaration of trust unless it contains on its face a clear and distinct declaration that the title to the land has been, as a matter of fact from the beginning, held in trust by the would-be testator for the benefit of the devisee named.
    On final hearing on pleadings and proofs.

      Mr. Gilbert Collins, for the complainant.

      Mr. J. Flavel MeGee and Mr. John Garrick, for the defendants.
   Pitney, V. C.

The complainants are the surviving children of Ann Teresa Leslie, late of the county of Hudson, deceased, and the defendants are Hugh Leslie, the father of the complainants and once-husband of Aim Teresa, and his present wife. The subject of the controversy is a parcel of land in Jersey City, near the station of the Pennsylvania railway, fifty feet front on the street by one hundred feet rear, comprised, in fact, of two twenty-five by one hundred feet city lots. These lots were conveyed to Anm Teresa Leslie on the 1st of May, 1875, by the Kingsland heirs, of New York city, in consideration of $6,900, and, as part consideration, the defendant Hugh and his then wife, Ann Teresa, gave back two separate mortgages, each on one of the two lots-comprising the whole plot, for $2,415 each, to two different-persons interested in the Kingsland estate. Those mortgages-were afterwards, on the 5th and 6th of April, 1889, assigned to the executors of Jacob R. Wortendyke, deceased, and on the-27th of April and the 3d of May, respectively, separate bills for ■ foreclosure founded upon them were filed against the defendant Leslie and wife and all the complainants, and such proceedings • were had thereunder that the property was afterwards sold at sheriff’s sale for the amount of the several decrees, and purchased. —one of the lots directly by the defendant Hugh Leslie and the other indirectly through a friend.

The object of the bill is to have those sales declared not binding on the complainants and to declare the title of Hugh Leslie-thereunder to be no more than that of a mortgagee of the complainants’ title therein, and to confine him to his estate in the premises as tenant by the curtesy of England.

Aun Teresa Leslie died- in August, 1882, leaving seven children, viz., John E., William J., Jerome H. (since deceased),. Mary A. (since deceased), Thomas F., Parthenia and Annie. Jerome died without heirs. Mary married and died, leaving a husband and child surviving her, and the child afterwards died. So that, but for the sheriff’s sales complained of, the title to the premises would be vested in the five complainants, subject to-their father’s right as tenant by the curtesy of England, andi subject to the right of the surviving husband of Mary A. Leslie •as tenant for life in the one-seventh share of Mary.

As to one of the sales by the sheriff, it appeared at the hearing that it had not been completed and that the premises had been ordered to be resold, so that the complainants may protect themselves therein without the aid of this court; but the circumstances attending the foreclosure and sale of that lot throw light upon the case of the foreclosure and sale of the other lot, •and will be referred to as I proceed.

Upon one of the mortgages, $415 of principal appears to have been paid by Hugh Leslie, and the interest on both was paid by him up to the 1st of November, 1888. They were both held 'by some one or other of the trustees of the Kingsland estate, in New York city.

At that time there was a considerable sum of taxes and assessments in arrear upon the premises, and pressure was made for their payment. Some time about the 1st of January, 1889, or 'shortly thereafter, Hugh Leslie made an effort to raise a loan of $6,500 on the premises for th.e purpose of paying and discharging the two mortgages, then amounting to less than $4,500, principal and interest, and also of paying the arrears of assessments and taxes; and for that purpose, through a Mr. John Halyard, a loan and real estate broker in Jersey City, since ■deceased, applied to the executors of Jacob R. "Wortendyke. "The executors had the money to loan, were well satisfied with the security, and agreed to advance the money. But it had been represented to them that the title of the property was in Mr. Leslie, the defendant. On investigation they found that the title had been in his deceased wife, and at present was in his ■seven children by his first wife, four of whom were infants. To meet this difficulty, Mr. Leslie produced a paper in the nature -of a testamentary disposition made by his first wife, giving all ■her property to him ; but it was not executed with the formalities necessary to give it testamentary force, and young Mr. Wortendyke, the solicitor and counsel of the executors, so informed Mr. Leslie. He also, in the course of his examination, ■discovered the existence of the two mortgages — in fact, probably was told of them by Mr. Leslie, who seems to have been an intelligent man-: — and having the money lying idle, and, as I infer from a close examination of his evidence and that of Mr. Leslie,, having in mind that Mr. Leslie would be very glad to have those-mortgages foreclosed and the title cleared and his title perfected,, as against the children of his first wife, by a sale under them,, applied to the present holders of the mortgages and took assignments of them, one on the 5th and the other on the 6th of April-He applied for information either to Mr. Leslie, or, as I think more likely, to Mr. Halyard, and obtained the names and ages-of Mr. Leslie’s children, and their residences. He also procured from Mr. Leslie written authority from himself and two of his-three adult children to his (Leslie’s) stated counsel, Messrs. Bedle, Muirkeid & McGee, to enter an appearance for him in. a suit for foreclosure of those mortgages. He first prepared his-bill on the mortgage upon which only $2,000 was due, and filed it on the 27th of April. Upon the mortgage on which $2,415-was due, he filed his bill on the 3d of May. He issued subpoenas in both cases on one day, ,but before handing them to the-sheriff, he took the authority to appear, which had been signed by two of the children and by Hugh Leslie, to Bedle, Muirheidi & McGee, and they acknowledged upon its back service for-those parties, viz., Hugh Leslie, John E. Leslie and his wife, and Jerome H. Leslie. That acknowledgment of service by Bedle, Muirheid & McGee is dated the 7th day of May, and. on the 10th of May the sheriff served, as he certifies, the subpoenas, personally, on William J. Leslie and his wife, and on Mary, Thomas, Parthenia and Annie, the four infants. The-deputy who served the process was not produced. William and his wife both swear that no subpoena -was served upon either of' them. There is some evidence tending to show that Hugh Leslie induced the deputy sheriff to leave William’s subpoena at his (Hugh’s) house. The service on the infants, according to. the account of it, was made in the presence of their father, and-while the subpoenas were handed to them they were, in each case,, except that of Mary, the eldest of the infants, at once taken from, them by their father and kept by him, and were, in fact, produeed by him at the hearing. Mr. Wortendyke, the solicitor, swears that he himself, personally, served the notices of appointment of a guardian upon the infant children at their father’s house in the father’s absence. The surviving children deny ever having received any such notices. All of these notices, as well as the copies of all the subpoenas served upon the infants except that of Mary, were found in the father’s possession and produced at the hearing.

I am satisfied that the children intended to swear to the truth, and that they do, substantially, swear to the truth, but that there is some confusion in their minds between the call which they received from the deputy sheriff and that which they received from Mr. Wortendyke, the solicitor. But the fact remains that their father told them it was a matter of no consequence; that they need pay no attention to the papers so served, and that he took charge of all of them.

The clear effect of Mr. Wortendyke’s evidence is to establish the fact that the foreclosure was collusive and done to assist the father in getting title. The father denies this. But there is a circumstance in the case which seems to me to be conclusive against him on this point. One of the mortgages was given to Ambrose C. Kingsland, trustee, his successors and assigns, without the use of the word heirs.” Mr. Wortendyke, in preparing the foreclosure bill, discovered this, and alleged in the bill that it was a mistake, and that the intention was to give a mortgage in fee, and prayed that the mortgage might be reformed in that respect. Hugh Leslie, on the trial of this cause, swore that he was aware of that defect and always meant to set it up as a defence, but through negotiations for time &c., it was omitted, and decree went against him by default. In point of fact, an examination of the master’s report, in the foreclosure suit, shows that he was sworn as a witness for the complainant, to prove the allegation of the bill in that behalf, and did prove that the intention was to give a mortgage in fee.

Decrees were made in both cases in June, 1890, but execution was delivered to the sheriff in only one. In that case the property was brought to a sale on the 28th of August, and was sold >to a Mr. Steele for $1,500. The deed was made to Steele, and Steele afterwards conveyed it to the defendant Hugh. It was proved and admitted that, before the sale took place, Steele, at the request of Hugh Leslie and as a favor to him, advanced the money temporarily to the Wortendyke executors, and they assigned the decree to him, and after that he managed the sale. Afterwards Hugh Leslie repaid him his money and he conveyed the lot to Leslie. Leslie afterwards mortgaged it to a third party for $2,000. He also paid up all the árrears of taxes and assessments, and the interest and costs on the other decree. Finally, in the fall of 1893, falling in arrears on his payment of interest on the remaining decree, the complainants issued an alias execution, and upon that, on December 21st, 1893, the premises were struck off to Hugh Leslie for $2,727, which was the amount due with interest and sheriff’s execution fees, and he paid $300 on account of his bid. This sale was confirmed on the 2d of January, 1894. He failed to pay the balance, and the matter rested, waiting his action in that behalf, until after this bill was filed, and then the complainants in that foreclosure applied for and obtained an order setting aside the decree of confirmation of the sale of December, 1893, and the premises are now subject to sale.

I am entirely satisfied that neither of these foreclosures or sales need have taken place if Hugh Leslie had paid the interest on the mortgages and kept the taxes and assessments down, and that the real object of both was to perfect the title of the premises in himself as against his children.

Hugh Leslie was in possession of these premises, which were used for a boiler factory, and always has been since they were purchased.. There is no pretence that the rental value was not sufficient to keep down the interest and taxes and assessments. There has been no surrender by him to the complainants, the children of his first wife; no call upon them to take the premises and protect themselves against the interest on these mortgages and the taxes and assessments. As long as he was in possession of the premises, and until some such action was taken on his behalf, it was his duty to keep down the taxes and interest; and If they had been kept down, the mortgages were so desirable an investment as that he would have had no difficulty in being protected against the effect and expense of á foreclosure.

The real defence of Hugh Leslie, and the only one seriously insisted upon, was that these premises, so far as they were paid for, were paid for by his own money; that he, with his own money, paid the difference between the amount of the mortgages and the original purchase-money, besides which, before the purchase from the heirs of Kingsland, he had invested $2,000 or $3,000 in a building on them. He claims that, under these circumstances, the testamentary disposition of his first wife, although insufficient as such, still should be held to amount to a declaration of trust.

This position is untenable. It is well settled that if a husband purchases lands with his own money, and voluntarily procures the title to be conveyed to his wife, the presumption is that he intended it as a gift to her, and jno trust for him will result. Reed v. Huff, 13 Stew. Eq. 229; Whitley v. Ogle, 2 Dick. Ch. Rep. 67. It is equally well settled that a writing intended to operate as a will, but which fails as such by reason of imperfect execution, cannot operate as a declaration of trust. To hold otherwise would be to repeal the statute of wills. Boyes v. Carritt, L. R. 26 Ch. Div. 521 (1884); Lew. Trusts (Flint ed.) *58; Perry Trusts §§ 91—94. If the testamentary writing contains on its face a clear and distinct declaration that the title has been, in fact, all the time held' in trust by the wife for the husband, then, as pointed out by Mr. Perry (at § 91), it might be construed as a declaration of trust.

The writing produced in this case does not contain such a declaration. It does not mention any particular property, but states, in effect, that any and all property, real and personal, standing in the wife’s name, was given to her by her husband, .and was paid for by him with his money, and closes with this language: “ In case I should die, I want my husband to be sole •owner of every article that I ever was and am now owner.” This is an assertion of a gift, and cannot be construed as a declaration of trust.

The ease cannot be brought within the authorities cited by counsel for defendant. In Gogherty v. Bennett, 10 Stew. Eq. 87,. the conveyance was made to the wife without the knowledge or-consent of the husband. Irick v. Clement, 4 Dick. Ch. Rep. 590, is only partially reported. There was no proof in the case which would warrant the inference that the wife, whose moufey in part paid for the property, was at all responsible for .the vesting of the title in her husband’s name, or that she ever intended to give it to him. The children, whose money made up the balance of the purchase-money,-were infants at the time of the transaction.

The defendant’s case therefore fails, and his title must be declared to be that of a mortgagee to secure whatever of principal-money he may have paid on account of the two purchase-money mortgages; and also, as I now think, for any assessments for benefits to the property which he may have paid, but not for any interest thereon which may have accumulated before payment. If the amount due upon the mortgage upon which sale has not been had exceeds the original principal-money, such .excess must be charged against payments on account of principal-upon the other mortgage.

To prevent misapprehension, I think it worth while to remark that the testamentary paper was proven wholly by the evidence of Hugh Leslie. No objection to this evidence was made on the-ground that complainants were suing in a representative capacity.


text:
    The Merchants’ and Miners’ Transportation Company v. Louisa Borland et al.
    1. Payments made by a debtor as premiums upon a policy of life insurance upon his own life for the benefit of a wife and child, are essentially gifts to-the beneficiary, and conclusively fraudulent and void as against creditors existing at the time of such payments.

      2. The contrary doctrine advanced by the supreme court of the United States, in Central Sank v. Hume, 128 U. ¿3. 195, is not binding on the courts. of this state.
    3. The act of February 19th, 1851, as amended by the act of March 8th, 1871 {Ser. p. 640), does not authorize a husband who is indebted to pay premiums upon a policy upon his life for the benefit of his wife, and enable her to hold the proceeds of the policy as against a creditor of the husband existing at the time of such payments.

      4. A creditor of a decedent by judgment recovered against him in another-state, the existence of which is admitted by the personal representative, is. entitled to maintain a suit in this court to reach equitable assets, viz., moneys-given by the debtor to his wife and children in fraud of the judgment creditor-
    On demurrer to bill.
    The defendants are the widow and four children of Robert B. Borland, late a resident of this state, who died insolvent July 15th, 1893. The complainant is a creditor of the deceased by judgment recovered in the State of New York, and the object of the bill is to compel the defendants to pay complainant’s judgment out of certain moneys received by them from certain life-insurance companies, in payment of certain policies of insurance taken out by the deceased upon his life for the benefit of his-wife and children, the annual premiums upon which were paid by him out of his own moneys mostly after the recovery of complainant’s judgment.
    The principal question raised by the demurrer is the general one as to the merits of complainant’s claim.
    More specifically stated, the. facts set out in the bill and' admitted by the demurrer are as follows:
    On November 11th, 1886, complainant recovered in the-supreme court of New York a judgment against Borland, then a resident of New Jersey, for $6,309.54, for which amount Borland was then indebted to complainant. No part of this indebtedness has ever been paid, and the whole, with interest, still remains due. Btifand died July, 1893, insolvent to the extent, of ninety-seven per cent, of his indebtedness.
    1. In December, 1886, after the recovery of complainant’s-, judgment, Borland procured from the Mutual Benefit Life Asso«iation of New York a policy upon his life for $5,000, in favor ■of his four children, defendants.
    2. On the same day he procured from the same company a like policy for $5,000, in favor of his wife, Louisa, defendant.
    3. In 1886, and after incurring the indebtedness to complainant merged in the judgment, exact date not given, Borland took ■out a like policy from the Mutual Life Insurance Company of New York for $30,000, in favor of his wife, Louisa, defendant.
    These several policies were subject to the payment of certain annual premiums, the amount of which is not stated in the bill, but it is there alleged that they amount to over $1,400 a year, and were paid by Borland out of his own means and money up to his death.
    4. In the year 1890, exact date not given, Borland took out another policy of insurance upon his life from the Mutual Life Insurance Company of New York for $5,000, in favor of his wife, Louisa, the annual premium upon which was $293, which was paid by him each year, until he died, out of his own money ■and means.
    5. In the year 1891, exact date not stated, Borland took out" another policy upon his life from the Mutual Life Insurance Company of New York for $5,000, in favor of his wife, the •annual premium upon which was $308, which was paid by him to the company out of his own money and means each year until' he died.
    In addition to the foregoing five policies, Borland had taken ■out, in 1876, from the Mutual Life Insurance Company of New York, a policy upon his life for $5,000, in favor of his four children above named, the annual premium upon which was $161, which was paid by him each year up to his death, as well before as after the recovery of complainant’s judgment, out of his own means and money.
    At his death two of his children were minors, and letters of .guardianship of them were granted by the surrogate of Hudson ■county to his widow, the defendant Louisa.
    The bill charges that these annual payments of premiums were «o paid by Borland for the purpose of placing so much of his means beyond the reach of his creditors, and for the purpose of defrauding the complainant, and that he during the whole period was insolvent.
    The bill further alleges that all these policies have been paid in full — those in favor of Mrs. Borland to her in her own right, those in favor of the children in part to her as guardian and in. part to those who were of age.
    It further alleges that Borland died testate of a will by -which he gave his wife his whole estate and appointed her executrix y that she proved such will before the surrogate of Hudson county, and undertook the burthen of its execution; that he left no real estate whatever, and personal estate to the value of $1,350 only; that preferred claims against the estate, amounting to $878, were presented to the executrix, and other claims (whether including complainant’s or not is not distinctly stated), amounting to $13,457.72, have been duly presented, under oath, to the executrix, so that the estate will not pay above three per cent, of the general indebtedness, including complainant’s claim.
    Mrs. Borland is made a party defendant as executrix as well as individually, but no decree is prayed against her as executrix.

      Mr. William B. Gillmore, for the complainant.

      Mr. Isaac S. Taylor, for the defendants.
   Pitney, V. C.

There is no mystery or charm about life insurance. It is not a means of creating wealth, nor yet a contract of mere indemnity, as is that of fire and marine insurance. It is, in its most usual form, simply a mode of putting by money for savings. A sum of money is paid half-yearly or yearly, as the case may be, to a corporation, which receives and invests it carefully, and adds to it its yearly earnings, and, in consideration of such payments, agrees to pay the party insured, or such other person as may be named, a sum certain upon his death. The amount so agreed to be paid is arrived at by taking the age and state of health of the party at whose death the money is to be paid, and estimating how many years he will probably live. This is arrived at by consulting what are called the “Tables of Mortality,” viz., an account kept for a great number of consecutive years of the ages at which men and women die, and taking the average of all ’ such ages. By this means, the probable number of years any man or woman of a given age and of ■ordinary health will live may be arrived at with reasonable certainty. Having ascertained this chance of life, thq company fixes such an annual rate as will, with accretions, at the time of the death of the party insured, amount to the sum agreed to be paid, together with the cost of investment, care and so forth. Some of those so insured will live longer and some not so long as the tables indicate they ought to live. The real business of the insurance company, as distinguished from that of any other investment company or ordinary savings bank, is to collect over-payments from those who live beyond the average period — the long-livers — and to pay their proceeds to those who do not live the average period — the short-livers. This distinction, however, ■does not alter, in legal contemplation, the intrinsic character of the transaction between the insurer and assured, which is that of paying money to-day in expectation of its repayment at a future day, either to the party paying it or to such other person as he or she may name. There is, and can be in law, no difference between the payment by a husband of a stated sum of money at slated periods to an insurance company, upon promise to pay a certain sum at the death of the payer, to his wife, and the deposit by the husband of a like stated sum, at like 'stated periods, in a savings bank, to the credit of the wife. Both are gifts to the wife, and the money afterwards paid by the savings bank or insurance company, as the case may be, to the wife or her personal representatives, is nothing more than a payment to her of the money previously paid to it by the husband, with its earnings and increase.

The illustration I have used is that of the form of life insurance, so called, in most common use, and it is the one here in question. But the same reasoning applies to the other forms of life insurance. For instance, if the premium — by which is meant the cash consideration paid to the insurer — is paid, as'it may be, all at once, in a single down-jiayment, and the insurer •agrees to pay a greater sum at the death of the assured, it is a mere mode of placing a certain sum of money at interest, to be repaid at death, the amount of interest being fixed by the probability of life of the assured.

The case presented, then, is this: A debtor owing a large sum of money upon a judgment, and plainly insolvent, is in receipt from some source, each year, of money and means belonging to himself, over and above what he finds necessary or proper to expend for current expenses, to the amount of about $1,500, and instead of devoting it to the payment, pro tanto, of his debt, he makes a present of it'to his wife and children by the machinery of divers policies of life insurance, with the result that, at his death, he has given his wife in premiums enough to pay his •debt, and she has become practically rich at the creditor’s •expense.

This statement of the case seems to me to decide it. The old maxim that a man must be just before he is generous, applies.

I am unable to discover any principle or well-considered authority upon which such a transaction can be sustained against creditors. To do so would, as it seems to me, be to run counter to principles so well settled and familiar as hardly to require recital. A husband cannot settle money or property in any shape upon his wife while he is indebted. If he attempts it the creditors are entitled to the aid of this court to reach the property so settled, in whatever form it may be found.

The great weight of authority holds that payments on account of life policies for the benefit of another must be considered as made in fraud of creditors. Davis v. Wace, 1 Campb. 487; Skarf v. Soulby, 1 McN. & G. 360; Jenkyn v. Vaughan, 3 Drew. 419; 2 Jur. N. S. 109; 25 L. J. Ch. 338; Stokoe v. Cowan, 29 Beav. 637; 7 Jur. N. S. 901; 30 L. J. Ch. 882; Freeman v. Pope, L. R. 9 Eq. Cas. 206; 5 Ch. App. 536; Taylor v. Coenen, L. R. 1 Ch. Div. 636.

The foregoing were all cases of policies taken out in the name and for the benefit of the party whoáe life was assured, and by him assigned to a beneficiary. But I am unable to perceive any difference between such a case and that of a policy taken out im the first instance in the name and for the benefit of a third party. Take the case of a policy issued in consideration of a single-down-payment. If a debtor invests a sum of money in a policy for a certain sum payable to his personal representatives at his-death, and then assigns that policy to his wife, that is an indirect mode of making a settlement upon her. If instead of taking the policy payable to his personal representative, he should have it made payable directly to his wife, that seems to me to be-making a direct settlement upon his wife. It is, in effect, loaning a sum of money to the insurance company, and taking the contract of the company to repay it with a fixed interest to his wife at his death.

Holt v. Everall, L. R. 2 Ch. Div. 266 (1876), was the case of a policy taken out by a husband in favor of his wife under the new English Married Women’s acts, which validate such policy unless the creditor shall prove that the policy was taken and premiums paid by the husband with intent to defraud his creditors. Vice-Chancellor Hall found, as a fact, that the husband had paid the premiums for the purpose of defrauding his-creditors. The court of appeals differed with him on the question of fact and found the premiums had been, in fact, paid by the wife, and upheld the transaction; but Lord-Justice James (at p. £74) says: “ But it would be a very different thing as regards this transaction if the premiums were paid out of the husband’s money. That might affect the main question itself, and certainly the payment of the premiums out of the husband’s money becomes important, because, under the Married Women’s Property act, if any premiums are paid by the husband with intent to defraud the creditors, those premiums ought to be repaid to the husband’s creditors, and one part of the bill is addressed to that particular relief.” And to the same effect is what was said by Lord-Justice Mellish.

The view above set forth is so well supported by the opinion of the supreme court of Alabama, in the case of Fearn v. Ward, 80 Ala. 555 (at p. 560) that I transcribe it here:

“ The procurement of the policy of insurance by Robert Fearn in favor of his child, and the payment of the premium with 1ns funds, constitute a gift to her, a voluntary conveyance based on parental affection, which is void as to his existing creditors, though no fraud may have been intended. It is a voluntary provision effected by converting to her benefit money which in equity and good conscience should have been paid to his creditors. Though the law regards the parental duty of maintenance and the consequent duty of making provision for the future when the father may no longer exercise protecting care, it subordinates the discharge of those duties to obligations to his creditors, and declares void as to them any voluntary appropriation of property not authorized by legally-expressed exemptions or privileges. If money belonging to a debtor, which should be paid to his creditors, is used in the purchase of property for the benefit of another merely on good consideration, the property purchased becomes the property of the debtor, as to his creditors. A father who procures a policy of insurance to be issued on his life, payable to his child, and pays the premiums with his own money, makes a voluntary gift or assignment of a portion of his estate, which constitutes an investment for the benefit of the person for whose benefit the policy was issued. There can be no difference between a policy thus procured and the assignment of a policy originally issued in his own name. The insurance constitutes- the property purchased, and is the-subject-matter of the investment. If the father be in debt, such voluntary investment is fraudulent in law, as to his existing creditors, without regard to his intent or to his circumstances and condition as to his ability to pay. * * * "Without the statutory intervention, the whole of the insurance would be subject to the debts of the insured.”

It is hardly necessary to state that it is settled law in New Jersey that all voluntary gifts are conclusively fraudulent and absolutely void as against all existing creditors without regard to the actual intention of the donor. Haston v. Castner, 4 Stew. Eq. 697, 701 et seq.; Arnold v. Hagerman, 18 Stew. Eq. 186; Gardner v. Kleinke, 1 Dick. Ch. Rep. 90.

In looking at the American authorities it must be borne in mind that in many of the states the statutory law provides, as in England the act just referred to, that husbands may insure their lives for the benefit of their wives or children, or both, and that the wife or child in such case shall be entitled to receive the proceeds of the policy against the creditors of the husband ■and father. In a few states no limit is placed upon the amount which a husband and father may, in this mode, abstract from his business or earnings and settle on his family. In most of •the states, however, the amount is limited, as, indeed, common justice requires it should be, to a sum certain in each year.

In New York — the only state except our own in which, for present purposes, we are interested — it is fixed at $500 a year.

The only statute in New Jersey.is that of February 19th, 1851 (Nix. Dig. 1868 p. 548), as amended by the act of 1871 (P. L. of 1871 p. 25; Rev. p. 640). That act before being amended provided :

“1. It shall be lawful for any married woman, by herself and in her name, or in the name of any third person, with his assent, as her trustee, to cause to be insured for her sole use the life of her husband, for any definite period, or for the term of his natural life; and in case of her surviving her husband, the sum or net amount of the insurance becoming due and payable by the terms of the insurance, shall be payable to her, to and for her own use, free from the claims of the representatives of her husband or his creditors; but such exemption shall not apply where the amount of premium annually paid shall exceed §100.
“2. In case of the death of the wife before the decease of her husband, the amount of the insurance may be made payable, after the death, to her children for their use, and to their guardian, if under age.”

As amended, the last clause of section 1 was omitted.

This act is in marked contrast with most of those of other states. That of Massachusetts (Gen. Stat., ch. 58, 62, cited in 99 Mass. 155), provides that “ the policy shall be good whether procured by herself, her husband, or any other person.” That of Connecticut provides that any policy of life insurance expressed to be for the benefit of a married woman shall inure to her separate estate, but if the annual premiums exceed $300, the amount of such excess shall go to the creditors of the person paying the premium.

The New York act more nearly resembles ours. In fact, it is precisely like ours until you come to the last clause of the first -section of our act as originally enacted. That clause, as above quoted, is: But such exemption shall not apply where the «mount of premium annually paid shall exceed $100.” The New York act, as it now stands, reads:

“ But when the premium paid in any year out of the property or funds of the 'husband shall exceed $500, such exemption from such claims shall not apply to so much of said premium so paid as shall be in excess of $500, but such excess, with the interest thereon, shall inure to the benefit of his creditors.” P. L. of N. Y. 1870 ch. 277, cited in Stokes v. Ammerman, 121 N. Y. 341, 342.

•This statute has been held in New York to warrant the setting «side by a husband of $500 a year for the benefit of his wife. Barry v. Equitable Life Assurance Society, 59 N. Y. 587, 593. And in Stokes v. Ammerman, supra, it was held that all beyond ‘$500 a year must go to the creditors.

Acts of this character are, properly enough, called “ exemption laws,” and unless some limit is placed upon the amount by them permitted to be annually settled on the wife, they furnish a ready means by which a husband, no matter how. much he may owe, may settle all his property upon his wife, to the complete discomfiture of his creditors, and they may well be called statutes whereby fraud is encouraged and ratified. For this reason they should be carefully examined, and when without limit should be strictly construed.

But to return to the case in hand. The case does not show within what jurisdiction the several contracts were entered into, or in what state the several insurance companies are domiciled, ■except as it may be inferred from their names that they are New York corporations. If the case is to be adjudged by the law of New York there is an end of the’defence, since it appears that the annual payments were largely in excess of $500, and as to the premiums upon the policy for the benefit of the children there is no statutory protection whatever.

Let us now consider the true construction and effect of our own statute. That had its origin in our state in the fourth and fifth sections of the charter of the Mutual Benefit Life Insurance, Company (P. L. of 1845 p. 27), from which the act of February 19th, 1851 (P. L. of 1851 p. 84; Nix Dig. 1868 p. 548), was copied, the only change being that the limit of annual payments-was reduced from $300 to $100. The fourth and fifth sections.of the charter of the Mutual Benefit Life Insurance Companyv are an exact rescript of the New York act of 1840. P. L. of 1840 oh. 80 §§ 1, 2. That act, which was the first of the kind' in New York, was amended in 1858 (P. L. of 1858 ch. 187 § !) by adding the words “out of the funds or property of the hus-. band,” so that it read, “ but such exemption shall not apply where the amount of premiums annually paid out of the funds or property of the husband shall exceed three hundred dollars.” These words, or any equivalent, have never been introduced into our statute. A question having arisen in New York whether the amendment of the New York statute just referred to had the effect of giving the creditor the whole proceeds of the insurance where there had been an excessive payment by the husband, the act was further amended in 1870, so as to read as it now stands and as it is above quoted.

The object and purpose of the New York statute of 1840 seems to me to be readily ascertained. In the first place, it was doubtful, to say the least, whether, by the common law as declared by the courts of that state and under their statutes against wagers, a policy taken out by a wife upon her husband’s life was not void as a wager (see Ruse v. Mutual Benefit Life Insurance Co., 28 N. Y. 516), and, as life insurance was then in its infancy, it was prudent, to say the least, to provide against any such result. In the second place, all the wife’s personal property and the income of her real estate belonged, at that time, absolutely to the husband. This marital right included her earnings. Schoul. Dom. Rel. § 81; 1 Bish. Mar. W. tit. “Marriage and Divorce” §§ 21, 212. Hence, a policy of insurance upon the husband’s life for the benefit of the wife, the premiums being paid by her (with money which, but for her coverture, would belong to her), would belong to the husband. Thus it was held in Moehring v. Mitchell, 1 Barb. Ch. 264, where a wife had insured her husband’s life for her own benefit, immediately after the above-recited enactment of 1840, and had, with his' consent, •endorsed upon the policy a well-executed testamentary disposition, and husband, wife and only child had sailed upon and were •lost with the steamer “ President,” the testamentary disposition was held to be of no avail and the case not within the provisions of the act of 1840, and the proceeds of the policy given do the husband’s representatives.

If the policy in such a ease would belong to the husband, ■then, of course, his creditors could take it.

This view of the object of the act is strengthened by the fifth section of the Mutual Benefit company’s charter, which was the second section of the New York act and is the second section of our act as above quoted. The object of that section was, and is, to prevent the policy from going to the husband under his marital rights.

These considerations show that some legislation was proper, if not necessary, in order to insure the validity of a contract of insurance in favor of the wife and to protect it from the husband’s creditors, even where the premiums were paid by her out •of what would be called, in common parlance, her own moneys.

The general right, at common law, of the husband to his wife’s property and income was always subject to the limitation of a reduction thereof to possession by him (Stall v. Fulton, 1 Vroom 430), and a husband was at liberty to permit his wife to collect and retain her own earnings and income. Here we find at once a source from which a wife might, at the common law, have a fund out of which to pay the premiums upon a policy of insurance upon her husband’s life for her own benefit, and take advantage of the provisions of the statute in her favor.

In this state of the law, and it not having yet been decided in this state that life insurance policies were not void as wagers (Trenton Mutual Life and Fire Insurance Co. v. Johnson, 4 Zab. 576, decided in 1854), the object and purpose of the legislation in question in this state was precisely the same as in New York. Thus, the introduction of the sections in question into the charter of the Mutual Benefit Life Insurance Company'is accounted for, and also its subsequent introduction into the general statutory system of the state in 1851, a year before the Married Woman’s act was passed.

There is nothing in the language of the enactment which indicates an intention to enable the husband to set aside a portion of' his property or income to the use of his wife as against his-creditors. The language used indicates that the authority is to-the wife to procure the policy and to pay the premiums on it.. Eurther, it is to be observed that the legislature in 1871, after the passage of the Married Woman’s act securing her separate-estate to her own use (P. L. of 1871 p. 25), deliberately struck out of the act the clause limiting the amount which a wife might so-invest in a policy. This I cannot believe would have been done-if the legislature had understood that by the true construction, of the act a husband was thereby empowered to invest his own. moneys in a policy for his wife which she might hold as against his creditors. The result of such construction, after the limit was removed, would be to enable a husband to settle all his; property in a lump on his wife at the expense of his creditors.

It follows that our act does not authorize such investment by the husband. A contrary result under the New York statute is-due to the interpolation therein, in 1858, of the words “out of the funds or property of the husband,” as above shown. The-introduction of these words raised an implication that the husband was so empowered as against his creditors.

I should have deemed it not worth while to spend so much-time and space upon the general question of the right of a husband or father to settle property upon his family by the-machinery of life insurance, but for a recent decision of the supreme court of the United States which is supposed to militate against the views I have taken. I refer to Central Bank v. Hume, 128 U. S. 195. I do not propose to indulge in a general criticism of the doctrines there advanced. This has been done in an able and thorough manner by Mr. Williston in the-American Law Review, vol. 25, p. 185, and I refer particularly to and adopt his language found on page 196. It is enough to-say that there were in that case circumstances which rendered it exceptional and warranted the result arrived at without infringing upon the loug established and wholesome rules of law for the protection of creditors, and much of what was said by the learned chief-justice w'as obiter.

The only point, however, actually decided in that cause which can be invoked in defendants’ favor is this: “A married man may rightfully devote a moderate portion of his earnings to insure his life, and thus make reasonable provision for his family after his decease, without being thereby held to intend to hinder, delay or defraud his creditors; provided no such fraudulent intent is shown to exist or must be necessarily inferred from the surrounding circumstances.”

Now, if we should apply that test here, I’ should feel constrained to hold that the circumstances do, of necessity, show a fraudulent intent. A man who has just suffered a large judgment to be recovered against him, and at once procures a very large policy of insurance to be issued on his life for the benefit of his wife, aud keeps it up for years by payment of the annual premiums, and during all that time does not pay anything on his judgment indebtedness, does by such conduct at once induce the belief that he intended thereby to devote money to the enrichment of his wife which he ought in merchantile honesty to have applied to the payment of his debt, and such conduct is in law aud morals a hindering, delaying and defrauding his creditors. But whether I am right or not in this view, the law in this state is, as above shown, well settled that all such gifts and payments are conclusively fraudulent and void as against any existing creditor, such as the complainant here. Upon such questions I must be guided by the decisions of the highest court of our own state. While the utterances of the supreme court of the United States are binding throughout the union upon certain constitutional and statutory questions, and are entitled to great weight upon all questions, they cannot be considered as authoritative ou such as are here involved, outside of the District of Columbia, where, in fact, the case just cited arose.

The result is that whether the contracts here in question are to be construed by the law of the State of New York or by that of New Jersey, the complainant is entitled to relief. So much for the merits.

The further point was made by the defendants that complainant has no standing in this court because it did not show that it issued an execution upon its judgment, thereby exhausting its remedy at law, citing Roberts v. Hodges, 1 C. E. Gr. 299, and that line of cases; and further, that it does not appear that complainant has presented a claim upon its judgment against the personal representative of the deceased.

I think neither of the points are well taken. The object of requiring a judgment as a foundation of a right to a standing in this court in a case like this is that the debt should be conclusively established, and should be in a shape to reach any property the defendant may have, and the object of issuing an execution and having a return of nulla bona is to show the necessity for •coming to this court to reach equitable assets not liable to execution.

But, as shown in Haston v. Castner, 4 Stew. Eq. 697, neither of these prerequisites is required after the death of the debtor, provided the debt be admitted by the personal representative, and the deficit of assets in his hands appears.

Nor is it necessary that there should be a request to the personal representative to sue, and a refusal on his or her part so to do, before coming here for relief of the kind here asked. This is shown by the learned chief-justice in the course of his opinion in Haston v. Castner, supra, where he says: “ But, in the second place, it is obvious that, in many cases, perhaps in most, there would be serious difficulties in the way of a procedure of this nature being instituted in the name of the personal representative, because conveyances of this character depend very often for their effect on the relations of the debtor towards particular creditors, so that, while they may be void as to some of such creditors, they may be valid as to others. Suggesting, therefore, these embarrassments, but without concluding that the personal representative may not take proceedings of this kind, after having obtained, in the orphans court, an order for the sale of the lands of the debtor, it is sufficient now to say that it is a convenient practice, and is not open to legal objection, for the indi-vidual creditor, for his own benefit, and in behalf of others ■similarly situated, to institute these suits.”

Besides this consideration, it is obvious that it would be idle to ask the personal representative here to sue herself and children. If it be said that complainant may ask the orphans court to ■charge the executrix in her account with the amount of premiums received by her, the answer is two-fold — -first, non constat that ■all the creditors are entitled to share in the fund now being pursued ; and second, such proceeding would not reach the moneys ■received by the children.

The ease, then, stands thus: By the demurrer it is admitted by all the defendants, including the personal representative, that complainant is a creditor by judgment recovered in the sister State of New York, which is as conclusive here as if recovered here in our own courts; that the estate is largely insolvent; that there is no real estate or personal property upon which a levy could be made; and that the defendants hold moneys received indirectly from the judgment-debtor by an arrangement fraudulent and void as to the complainant. Upon such a case it seems to me there can be no question as to the right of complainant to some measure of relief. As remarked by the court in Stokes v. Ammerman, 121 N. Y. 341, it is not for present purposes necessary to define just what that measure of relief, in the absence of an answer, may be. If the complainant has not presented its claim under oath to the executrix, it may be, possibly, as against these defendants that it will be obliged to credit upon its debt ■the amount of such dividend as it would have received if the claim had been duly presented. If, on the other hand, such •claim has, in fact, been presented and no dividend as yet declared •and paid upon it, the defendants will probably be entitled to be subrogated to the rights of the complainant against the estate in ■the hands of the executrix. These are matters to be worked out according to equitable principles in the further progress of the suit.

The demurrer must be overruled, with the usual consequences.


text:
    Peter Lang et al v. Louis Belloff et al.
    1. An infant party to a suit cannot appoint an attorney or solicitor to appear- and represent him therein. He can only appear by next friend when plaintiff, or guardian ad litem when defendant.
    2. The authority of a solicitor, or a guardian ad litem, or next friend of an-infant defendant, to represent the infant in the conduct of the cause, expires with the minority of the infant; and an agreement by such a solicitor with-the solicitor of the opposite party to let the suit sleep, made after the majority of the former infant and without his authority, will not bind him.
    3. A suit in which complainant has taken no steps in six years, during which time all the defendants and their witnesses have died, will be dismissed' for want of prosecution.
    On motion to dismiss bill for want of prosecution, under the-thirtieth rule.

      Mr. James A. Gordon, for the motion.

      Mr. Williard P. Voorhees, contra.

   Pitney, V. C.

The bill was filed on the 27th of February, 1888, and calls-for answers under oath. Those answers were filed on the 24th. of May, 1888.

The bill was founded on a judgment recovered by complainant against the defendant Louis Belloff, on the 26th day of December, 1874, and the object of it was to procure a declaration and- decree of this court that certain real estate situate in. Middlesex county, the title whereof was in the defendant WilliamBelloff, a son of Louis Belloff, was purchased with the funds of said Louis and held in trust for him, and that the same be-devoted to the payment of the complainants’judgment.

William Belloff was an infant a little short of twenty-one-years old at that time. The premises had been conveyed to-William Belloff by Louis Bellof, a brother of the judgment-debtor, John Belloff, and he was made a party on that account,, and discovery was asked of him.

Louis Belloff and John Belloff, and Louis Belloff as guardian ad litem of the infant William Belloff, answered fully, under oath, setting out that the moneys with which the property was purchased were the moneys of the wife of Louis Belloff, oneCatharine Belloff, the mother of William, which moneys said Catharine received from her father, one Conrad Munch, and that, the conveyance was intended by her as a gift to her sou William.. The answer further showed that the title passed through John Belloff for the purpose of convenience in securing part of the-purchase-money by mortgage.

William Belloff attained majority on the 28th of August,. 1888, a few months after the filing of the answer, and he died in May, 1894. His mother, Catharine, died in April, 1893. Louis Belloff died in January, 1894.

When the title passed to William Belloff the premises were-subject to a mortgage for $1,000, which finally came to be held by Rutgers College, and, later on, William placed a second mortgage for $1,200 upon them to one Ackerman, and then made a. conveyance of a one-half interest in them to his sister, Mrs. Clickuer, subject to the two mortgages, and by his will devised the other one-half to his wife.

Ho’proceedings whatever were had under the bill filed by the complainants until a short time ago, when they attempted to-revive the suit by bringing in the parties upon whom the title-devolved by the conveyances and death already stated, and also-by bringing in the administrator of Louis Belloff. The immediate occasion of this action on the part of the complainants was the fact that foreclosure proceedings had been commenced by the holder of the first mortgage, and that the property was about to be sold thereunder, and that there was a prospect of some surplus-money. This movement on the part of the complainants was met by a movement on the part of Ackerman, the second mortgagee, and of Mrs. Clickner and the widow of William Belloff,. to be made parties, and to dismiss the bill for want of prosecution-

•- The.ground relied upon by the complainants, in answer to this motion, was that the cause had slept in pursuance of a verbal arrangement between counsel. In support of that position they bring the affidavit of the solicitor who appeared for the defendants, in which he swears that he was retained by Louis Belloff, John Belloff, and also in behalf of William Belloff, to make defence, and accordingly filed the answer; and he says that he had many conversations with complainants’ counsel from time to time regarding the suit, and that the time for taking the testimony was many times, by mutual parol agreements between them, deferred, partly because there apjreared to be a prospect ■of a settlement of all the matters in litigation, and partly because neither party was ready to proceed; and that, owing to the minority of William Belloff, money could not be raised on the property by way of mortgage, and it was therefore impossible to arrange •any settlement of the suit even if the parties had agreed to do so and had agreed upon the terms of compromise; that, as a matter •of fact, no compromise was ever agreed to; that the matter, by mutual consent and understanding, was allowed to sleep during the minority of the infant William Belloff, and that it was distinctly understood that no advantage should be taken by either party as against the other by reason of the delay in pressing the suit, or motion made on either side on account thereof.

It will be seen that this affidavit, which may be dealt-with as an admission by the defendants’ solicitor, is confined to negotiations pending the minority of William Belloff, which minority •expired in the fall of 1888. The solicitor for the defendants was retained by the father and uncle, and not by the infant, as indeed he could not be, the well-settled rule being that an infant cannot appoint an attorney or a solicitor, and there is no proof offered before me that he ever was retained or appointed by the infant, and he does not admit any negotiations or agreement for delay after the maturity of the infant.

The complainants’ solicitor, in his affidavit, goes further and swears that he was visited by the defendant Louis Belloff, and that talks were had of a settlement, and that a loan should be obtained upon the premises for that purpose, but that no loan could be made on account of tbe minority of William. He says-that there were frequent conferences and meetings between him and the defendants’ solicitor up to the time of the death of Louis Belloff, and that it was agreed by the said solicitors that no advantage should be taken one of the other on account of any delay.

Waiving for the present the rule of this court that verbal agreements made by counsel, not in the presence of the court, are not to be considered by the court, and taking the affidavit of the solicitor of the defendants as an admission, and the affidavit of the solicitor of the complainants as true, and the verbal agreement therein stated to be binding, the question remains, Upon whom is it binding? There is no pretence of any interviews between the complainants’ solicitor and William Belloff; nor is-there any pretence that William Belloff, after he became of age,, ever employed and retained the original solicitor of the defendants, or that such solicitor had any authority whatever to represent William Belloff except what he obtained upon his original retainer by the father and guardian. That retainer expired with the majority of William Belloff, and after that he had no further authority to represent him.

It is well settled, as before observed, that an infant cannot appoint an attorney or a solicitor, and a retainer by his guardian ad litem expires with his majority. There must be an appointment and retainer after the infant became of age. This leaves the case bare of any consent on the part of William Belloff to-the delay of the complainants in prosecuting their suit.

In the absence of the thirtieth rule, I should say, agreeing in that regard with what Vice-Chancellor Van Fleet said in Sebring v. Sebring, 16 Stew. Eq. 59, that the court would “be bound, in the absence of any express regulation on this subject, and simply in the enforcement of a general principle of justice, to dismiss the complainants’ bill in any case where it appeared he had been guilty of such extraordinary negligence as has occurred in this case.”

They have allowed the suit to rest until every witness who knew anything about the facts and circumstances of the case is ■dead. This is the principal reason why this court declines to •aid a party who has been guilty of laches in cases where the •statute of limitations does not apply. Besides, in this case, the ■rights of other parties have intervened, to wit, the mortgage of •Ackerman.

The neglect of the defendants to take advantage of the complainants’ delay by moving sooner to dismiss the bill furnishes no excuse to the complainants. That aspect of the case was considered and disposed of by Vice-Chancellor Van Fleet in Sebring v. Sebring, supra.

Nor was the movement on the part of the complainants to bring in the administrator of Louis Belloff, and the application by the new defendants to be made parties, which was coincident in time with their motion to dismiss, any such proceeding in the cause as would bring the case within the exception mentioned by Chancellor Runyon in Howell v. The Insurance Co., 9 C. E. Gr. 238. There the defendant had appeared without protest at the examination of witnesses on the part of complainant. Evidence was taken on the part of the complainant without protest from •defendant long after the delay provided for by the rule, and the case was brought on for final hearing, without objection.

I think the complainants’ bill must be dismissed, with costs.


author: Pithey, V. C.

text:
    Gottlieb Gennert v. Edmund Wuestner.
    An executory contract made on Sunday is absolutely void and incapable of ratification, and any dealings between the parties upon the basis of it will, so far as completed, be treated as the voluntary acts of the parties which cannot be disturbed, and so far as not completed must be dealt with as if no such contract had been ever made.

      On final hearing on pleadings and proofs.

      Mr. William P. Douglass and Mr. Joseph A. Beecher, for the •complainant.

      Messrs. Garrick & Wortendyke, for the defendant.
   Pithey, V. C.

This is a bill for an account of, among other things, certain commissions on goods manufactured by the defendant and by him sold to various parties, the right to which depends upon a written agreement entered into between the parties, and bearing •date the 1st of April, 1890. There were other large transactions between the parties in the way of goods sold and delivered by each to the other. As to those the dispute is wholly one of prices.

In answer to the demand for commissions upon sales of the defendant’s own goods, the defendant set up in his answer that on or about the 1st of January, 1891, after the agreement had been in practical operation between the parties for nine months, the defendant repudiated and rescinded it on the ground that the complainant had persistently broken it on his part, and that the complainant acquiesced in this rescission, and from thenceforth the agreement, except as to a lease embodied in it of certain lands, was treated by both parties as of no further binding force Between them.

There was a cross-bill combined with the answer, and a reply by the complainant to the cross-bill, which need not now be stated at length.

At the hearing of the cause the defendant offered evidence tending to show that the agreement in question, although dated on the 1st day of April, which occurred on Tuesday, was, in fact, executed and delivered on the previous Sunday, and was therefore void. He stated as an excuse why this defence was not set up in his answer that he was not then aware that the agreement was thereby rendered unlawful. The evidence of execution on -Sunday was excluded at that time because there was no allegation in the answer to support it, and the complainant had not come-prepared to meet it, and I was not satisfied that it was proper to-allow such an amendment under the circumstances. Leave was-granted to the parties to be heard upon'the question of the propriety of the amendment, and briefs were submitted on that point, upon which I concluded that the amendment should be-allowed, and I so announced to the respective counsel. In point of fact it never was made, but the parties went to hearing outlie question of the date of the execution and delivery of the agreement as if the amendment had been made, and testimony was taken on both sides upon that point.

The agreement was prepared in duplicate, from previous-instructions therefor, by Mr. H. W. W., of the Jersey City bar, and was executed in his presence. He at the time lived with his father, in the immediate vicinity of the residences of the two parties. All agree that the actual execution of the-duplicates took place in the father’s house, both parties signing them at one time, and that they were then and there mutually delivered. The question is whether this occurred on Sunday, March 30th, or Tuesday, April 1st.

[Here follows a discussion of the evidence.]

Taking all this evidence together, I come to the conclusion that the agreement was executed on Sunday, the 30tli of March, and delivered on that day.

It remains to consider the effect of this fact upon the rights of the parties herein involved. The contract in question contained alease from Gennert to Wuestner of certain premises in Hudson county at a monthly rent of $45, the same to be used for the-manufacture of photographic gelatine dry plates and films. It further provided for the sale by Gennert to Wuestner, at prices-to be agreed upon, of all goods necessary for the manufacture of said plates and films, Gennert to take pay for the same in dry plates. Further, that Wuestner should give Gennert the exclusive wholesale agency for the sale of the goods so to be manufactured by him, and the retail agency for New York and Connecticut. Further, Wuestner agreed to sell Gennert prepared' dry plates in sizes and qualities to suit Gennert, at a discount of' forty-five per cent, from the list price then in common use. Wuestner further agreed to purchase all his materials from Gennert and to pay balances on the first day of each month, and to pay Mr. Gennert a fixed commission on all sales made by Wuestner of his product to other parties during the term of the lease and agreement, viz., five years.

The law governing this case seems to me to be entirely settled in this state by the cases of Reeves v. Butcher, 2 Vr. 224, and Cannon v. Ryan, 20 Vr. 314, in the supreme court, and Ryna v. Darby, 5 C. E. Gr. 314, and Nibert v. Baghurst, 2 Dick. Ch. Rep. 201, in this court. The contract is wholly void and incapable of ratification, and must be entirely ignored in dealing; with the business transactions between the parties, precisely as-though no such writing had ever existed. The case is not complicated by any circumstance of payment of money, delivery of goods or possession of the demised premises having been made-on Sunday. I infer from the evidence that the defendant was-already in possession of the demised premises under a former-arrangement. If this be so the case falls directly within the-ruling of the supreme court in Cannon v. Ryan, supra, where it was held that if a tenant already in possession under a lease at a fixed rent remains in possession after the end of his term? and after notice served upon him on Sunday that after the expiration of his term his rent would be increased, he does not thereby become liable to pay the increased rent. In this case, if' the defendant was in possession under a fixed rent, such rate of rent will continue, except so far as it has been changed by the? voluntary action of the parties. So, with regard to goods soldi by defendant to complainant, the prices fixed therefor by the-agreement must be wholly ignored. If any settlements have-been made of either rents or goods sold upon accounts stated,, such settlements will not be disturbed by the finding of this: court that the contract is void, but will stand as the voluntary-act of the parties. Neither party will be entitled to call upon the other for any accounting under the contract in question. Complainant cannot have commissions on sales by defendant of his own wares to other parties, and defendant cannot have am account of sales made at retail by complainant- in places prohibited by the contract.

The main object of the bill was to reach commissions on sales made by defendant of his own product provided for under the •contract. If the illegality of the contract had been set up in the answer in the first instance, and that issue had been, as it ■should have been, tried at the start, I am inclined to think that the bill should have been dismissed on the ground that there was no occasion to come to this court. The defendant, however, put himself in his answer on different grounds, and added a cross-bill calling on complainant to discover sales made in violation of the contract, which he has done; and it was not until after all of this proceeding had taken place, and the parties had gone to trial, that the defence now established was set up.

Under these circumstances, as there are unsettled mutual mercantile accounts between the parties, which, if sufficiently complicated, give this court jurisdiction, I think the bill should be retained and a reference made to take and settle the account. The evidence already taken on that part of the case will be used before the master.


text:
    John Bradbury v. Mutual Reserve Fund Life Association.
    Where a policy in a mutual life insurance company has been forfeited by failure to pay the premiums upon the day fixed and the holder has the right upon certain terms, which he is able and willing to fulfill, to be relieved from his default, his remedy against the company is not by mandamus, but in a court of equity, for relief in the nature of specific performance.
    On demurrer to bill.'

      Mr. J. Frank Fort, for the demurrant.

      Mr. John Griffin, contra.

   Pitney, V. C.

The object of the bill is to restore complainant to his standing •and pecuniary rights in the defendant association, which he says he has temporarily lost by failing to pay his bi-monthly dues on the precise day upon which they came due.

Two points are made against the bill:

First. That it fails to show facts entitling complainant .to .relief.

Second. That complainant’s remedy is by mandamus.

The bill is somewhat meagre in its statements, so much so that -complainant’s counsel suggested an amendment. Without determining whether it is sufficient in its present shape, I will con- • sider it as if amended as suggested.

Read in that way it sets out that defendant is a mutual assessment life association, duly incorporated under the laws of New York, in which certificates of membership are given in particular ■sums which entitle the holder or his personal representatives to the payment of that sum upon his death. The statement, in •effect, is that the certificate does not — like an ordinary life insurance policy — contain the terms of the contract between the assoeiation and the complainant, but is a mere certificate of his membership, including the extent of his interest, resembling, in that respect, a certificate of stock in an ordinary corporation. 'The contract proper is found in the constitution and rules of the •association, which require the member to make certain annual payments for the purpose of meeting the expense of operation, ■ and, in addition, certain bi-monthly payments or assessments called mortuary calls, which last constitute the fund proper from which death payments are made.

The bill states that, as an inducement to complainant to become a member, it was represented to him by the officers of the association, in such a manner as to become a part of the terms of the contract of membership:

“A member who lapses his certificate may reinstate the same at any time within one year for £;ood cause shown and upon satisfactory evidence of good .health, and upon payment of all delinquent dues and assessments; ”

and that

■•“the mortuary premiums, unless paid half-yearly or yearly, in advance, are-due and payable every two months, viz., February, April, June, August, October and December, and if not paid within thirty days from the first weekdays of said months, the policy will lapse; but may be revived at any time-within twelve months from date of lapse, on presentation of a health certificate-satisfactory to the association and payment of all arrears of premium; ”

and the constitution provides that

“ the executive committee shall have power to reinstate a delinquent member, at any time, within a year, for good cause shown, and upon satisfactory evidence of good health, and upon payment of all delinquent dues and assessments.”

Complainant purchased a certificate of membership in 1883 to-the extent of $1,000, and paid all his dues thereon up to and including August, 1893. On October 1st, 1893, a mortuary hall of $2.57 was made by the association upon him, payable-.November 1st, 1893, which he was unable to pay for a cause which is not set out with particularity, but which I shall assume-will, upon actual amendment, appear to be a good cause, and that he made default, but that three days afterwards he procured the necessary sum, and on November 4th, 1893, duly called at the office of the association and applied for reinstatement and offered to pay the August dues, and that he subjected himself to-examination as to the state of his health, and was examined by a medical examiner of the association, and that the defendant declined to reinstate him on the ground, as I infer (though it is not so stated), that he was not in a proper state of health. ' Then, follows this statement: ,

“And your orator further shows unto your -honor, that he is in good health and has been examined by prominent physicians'in the city of Jersey City, who have made a thorough examination of him and pronounce him in good health and a first-class insurable risk, and he has tendered himself ready and willing to submit to a medical examination of competent physicians as to whether or not he is in gffod health and forms a good insurable risk, and the-said defendants have refused to comply with such reasonable request, and decline to take as satisfactory evidence of good health the certificate of any physician, excepting such as are employed by them, and fraudulently refuse to-reinstate your orator, well knowing that your orator is in good health and-forms a proper subject of insurance according to their rules and regulations.”

And then this allegation :

“And your orator tenders himself ready and willing to pay the dues and ••assessments accrued, and to submit to the examination of physicians, to give satisfactory evidence to said association that he is in good health and forms a ¡proper insurable risk according to their rules and regulations, under the direction of this honorable court.”

The prayer is that defendant may be decreed to reinstate complainant to membership.

Upon this allegation I must assume that complainant at the date of his failure, November 1st, 1893, and subsequent tender,, November 4th, 1893, was, in fact, in good health and a fit person to be insured, and that- he fully met the requisitions of the •contract above set out. If so, I can see no ground for the refusal to restore him. It is well settled, as I suppose, that no person has a right to refuse; arbitrarily, to be satisfied with that which, in justice, he ought to be satisfied with because it is intrinsically satisfactory. If A,, contract to construct, for B a carriage of a particular quality and description to the satisfaction of B, and does, in point of fact, construct such a carriage of the particular quality and description provided for in the contract, B •cannot escape payment by simply declaring ‘that he • is not satis-. fied with it. He is bound to be satisfied with it.

I think, therefore, the complainant has shown a right to be reinstated, upon terms, of course, of proving that he was in such -state of health, and of paying the arrears of dues. ■

Next as to his remedy by mandamus.

It is well settled that mandamus is an extraordinary writ and . 'does not lie .where there is another legal remedy. Mr. High properly defines it as a command directed to some corporation, officer or inferior court, requiring the performance of a particular •duty which results from the official station of the party to whom the writ is directed, or from operation of law. And see Bacon’s Abridgment, tit. “ Mandamus; ” Bailey v. Oviatt, 46 Vt. 627. Originally it was resorted to for the purpose of reinstatement of membership only in public or municipal corporations, but has of late been extended to membership in certain classes of private corporations. High Extr. Rem. § 294; Sibley v. Carteret Club, 11 Vr. 295. That was a case where the prosecutor had been unlawfully removed from membership in an ordinary social club,, of which the membership, like that in an ordinary medical society, or a chamber of commerce, or a religious corporation,, has no intrinsic money value, but its value depends upon the-personal use of the privileges of membership.

No case was cited to me, nor have I found any, where it was ever resorted to for the purpose of restoring a party to membership in an incorporated association like that here in question (which, as I view it, does not differ materially from an ordinary mutual life insurance company), nor where the prosecutor had not been removed, but had lost his right by a simple failure to-perform something on his part, and where something was to be-done as a condition precedent to his restoration.

The real question is as to the intrinsic character of the right which has here been infringed. Is it one resting in private contract, for whose breach the party lias his remedy either by action at law for damages, or in equity for specific performance? If such be its character, and the matter ultimately involved is money merely, then the party has no standing to ask for the prerogative-writ of mandamus.

This seems to be the acknowledged rule.

The Common Law Procedure act of 1854, section 63, enlarged' the use of the writ of mandamus in England by declaring that the plaintiff should be entitled to that writ commanding the-defendant to fulfill any duty in the fulfillment of which the-plaintiff is personally interested.” Under that act distinguished counsel applied to the court of queen’s bench for a writ to be directed to a landlord commanding him to execute a lease of lands pursuant to a written contract. Benson v. Paull, 6 El. & B. 273. Lord Campbell in denying the writ said that the statute-did not extend to the fulfillment of duties arising merely from personal contract. To the same effect were the judgments-of the other judges who sat with him.

The authorities in this country are to the same effect. In Parrott v. Bridgeport, 44 Conn. 180, the application was for at mandamus to compel the city to construct part of a certain street in a particular and special manner for the especial benefit of the applicant, whose right to have it so constructed depended upon a special contract entered into by the city with the applicant. The court says (atp. 188): “ The duty, therefore, if any, which rests upon the city in this regard, is one which it owes to the petitioner as an individual, not to the public, and the special contract is the foundation upon which it rests. But the writ of mandamus has never been considered as an appropriate remedy for the enforcement of contract rights of a private and personal nature, and obligations which rest wholly upon contract, and which involve no questions of public trust or official duty. Indeed, strictly speaking, it never lies where the party aggrieved has adequate remedy at law, and its aid is only to be invoked to prevent an absolute failure of justice in cases where ordinary legal processes furnish no relief.” The learned judge cites Commissioners v. Zanesville Turnpike Co., 16 Ohio St. 308, and Bohannon v. Howard Co., 39 Mo. 375. In the latter case, the supreme court of Missouri refused a mandamus asked for by a military recruit, who was entitled to a bounty offered by the county for volunteers, on the ground that his right rested entirely in contract.

In Baily v. Oviatt, supra, a writ of mandamus was refused, which was asked for by a legislative investigating committee, to be directed to the stenographer employed by the committee commanding him to write up his notes of the evidence given to the committee in the course of its duties. In the course of its opinion the court says : “ The writ can be used only to compel the discharge of duties imposed by law as distinguished from duties imposed by contract merely.” And see High Extr. Bern. §§ 25, 28; 2 Spell. Extr. Rel. § 1379. Apgar v. Trustees, 5 Vr. 308, is not discordant with this rule. There the mandamus was directed to the trustees of a school district, commanding them to perform an official and ministerial duty imposed upon them by statute, viz., to give the applicant an order on the township collector for the amount of her salary duly earned as a teacher in the public school, the order to be paid out of public moneys in •■the collector’s hands devoted to that particular purpose. In the ■course of his opinion the learned judge says: The true test by which to determine the right of a party suing for a mandamus is —-first, whether he has a clear legal right; and secondly, whether there is any other appropriate specific remedy to enforce that .right. This writ can be invoked only where no other adequate .remedy exists, to prevent the failure of justice. It cannot be ¡appealed to where the end sought to be attained can be otherwise accomplished, and was never designed to be applied to the ■mere collection of debts.”

Turning now to the case in hand, I find nothing in it other than the contractual relations between an ordinary mutual life insurance company and the special individual members of which it is composed. The incorporated association agrees in consideration of certain periodical payments to pay the personal representative or nominee of the member a certain sum of money at his death. There is here no present current, social or professional benefit to the member attached to his membership, nor is he subject to any continuing conditions of personal behavior, conduct or qualification, such as we find in memberships in religious, benevolent or other social organizations, or in medical or other ■scientific societies. The right to the prospective benefit of his membership has been lost, not by any breach of the rules of personal conduct, but by failure in a-matter of contractual duty to pay money on the day fixed by the contract, and his right to be restored to his contractual rights depends upon a clause or .clauses in the contract which entitle him to such restoration upon ■certain conditions which I have found he either performed' or is ready to perform.

This view shows clearly enough that the case is not a proper one for mandamus, but is one for specific performance in this .court.

This result is sustained by the adjudged cases.

In Cohen v. New York Mutual Life Insurance Co., 50 N. Y. 610, relief was prayed in equity and was resisted, inter alia, on the ground that mandamus was the proper, remedy, but, the contrary was adjudged. This ruling was. followed in Meyer v. Knickerbocker Life Insurance Co., 73 N. Y. 516. To the same effect is Day v. Connecticut General Life Insurance Co., 45 Conn. 480, and Union &c. Insurance Co. v. Pottker, 33 Ohio St. 459, 464, 465.

The demurrer should be overruled, but, as amendment was .asked, without costs.