text:
    In the matter of the estate of Nathaniel W. Morris, deceased.
    [Filed October 30th, 1903.]
    Persons interested in an estate presented a petition to an orphans court lo open several accounts filed by executors and allowed by the court, on the ground that the executors had not charged themselves with specified items of money or property of the deceased for which they should have accounted, and an order requiring the executors to show cause why the accounts should not be opened was made. The executors answered the petition and thereby admitted that they had omitted from the accounts, by inadvertence, certain of the items specified in'the petition, but set up, by way of cross-petition, that they had omitted, by like inadvertence, certain disbursements and expenses for which they should have been allowed. An order to show cause was issued on the cross-petition, and both orders came to hearing together. The court found that the charges admitted, or proved to have been omitted, were at least equaled by the disbursements proved to have been omitted, and refused to open the accounts. On appeal from the order refusing — Held, (1) although the executors admitted mistakes which would be ground for the opening of the accounts under section 127 of the Orphans Court act of 1898, yet that on the cross-petition it was proper practice to proceed to investigate whether the mistakes as to charges admitted or proved exceeded the mistakes as to allowances for' disbursements; (2) on such an appeal this court is required to review not only questions of law but questions of fact; (3) in this case, upon such a review, the decree of the orphans court is not found to be erroneous.
    On appeal from the orphans court of Monmouth county.

      Mr. Acton G. Hartshorns, for the appellants.

      Mr. Samuel G. Gowari, for the respondents.
   Magie, Ordinary.

This appeal seeks a reversal of a decree of the orphans court of Monmouth county, made December 17th, 1900, refusing to open five separate accounts of the executors of Nathaniel W. Morris, deceased.

The cause in the orphans court was initiated by a petition filed February 26th, 1900, by appellants, as persons interested under the will of Nathaniel W. Morris, deceased, which will was proved in Monmouth county, July 17th, 1882. The petition sought to open and resettle several accounts filed by the executors of said Morris, who were Thomas E. Morris, John W. Morris and Peter Forman, or by Thomas E. Morris and Peter Forman, who were the survivors of said executors. One of these accounts had been passed and allowed November 15th, 1883 ; the second had been passed and allowed May 26th, 1886; the third had been passed and allowed October 27th, 1887; the fourth had been passed and allowed April 4th, 1889, and the last had been passed and allowed December 6th, 1897.

The sole ground for opening these accounts stated in the petition was that the executors had not charged themselves with certain items of money or property of the testator received by them, which, it was alleged, ought to have been included in their accounts, and if included would have enlarged the amount to be accounted for by them. The items charged to have been omitted from the accounts were specifically set forth in the petition. But the petition made no charge of fraud against the executors.

Upon this petition the orphans court, on February 26th, 1900, allowed a rule to show cause upon the surviving executors, Thomas E. Morris and Peter Forman, which rule was returnable March 15th, 1900.

On May 24th, 1900, the respondents, who are the surviving executors, filed an answer to appellants’ petition, denying some, but admitting others, of the omissions from their accounts, specifically charged and set out in the petition. They expressly declared, however, that such admitted omissions had occurred by mere inadvertence and mistake. They further alleged that, by like inadvertence and mistake, they had not prayed allowance, or been allowed in said accounts, for certain specified disbursements and payments made by them, and which if prayed and allowed would have discharged them from accounting for so much of testator’s estate, and they petitioned that the previous accounts should be opened to allow such disbursements and payments, or be resettled as to the particular items omitted, if necessary for the correction of said accounts, or that they should be corrected in a sixth account, which the acting executor declared himself willing to make.

On May 25th, 1900, upon respondents’ petition, the court allowed a rule to show cause upon the original petitioners, returnable June 12 th, 1900.

The original petition was, on August 16th, 1900, permitted to be amended by adding other items charged to have been omitted by the executors from the previous accounts. No charge, of fraud was made in the amended petition. On the same day respondents were permitted to amend their cross-petition by adding other items of disbursements and payments claimed to have been omitted from the previous accounts.

The transcript discloses that on August 2d, 1900, the same court had made an order requiring Thomas E. Morris, as the acting executor of testator, to show cause why he should not be required to give bonds to secure the funds of the estate in his hands, and that proofs had been taken, commencing January 12th, 1901.

Under the petition of appellants in this cause, and the cross-petition of respondents, voluminous proofs were taken, commencing June 12th, 1900, and the proofs taken under the order to show cause why the acting executor should not give bonds were, by stipulation, admitted to be considered in this cause. In the course of said proofs, which were taken before the court, an additional amendment of the petition of the appellants seems to have been permitted. It was confined to a single item in one of the previous accounts, whereby executors claimed an allowance for services rendered, other than those performed as executors. The amendment was not formulated in writing, and counsel, in presenting it to the court, did not expressly charge fraud or indicate the nature of the mistake claimed in relation thereto.

On October 17th, 1900, the judge of the orphans court filed his conclusions, to the effect that fraud or mistake had not been proved to such a degree as to warrant the court in opening the accounts.

On December 17th, 1900, the court made the decree appealed from, refusing to open the accounts, and it was therein recited, as the basis of the action of the court, (1) that no fraud had been proved in the settlements of the accounts, and (3) that while errors had been proved, they were not established to such an extent as to make any difference in the said accounts.

This appeal was taken March 15th, 1901, but the transcript of the proceedings was not certified until January 1st, 1903. It was filed January 34th, 1903.

After the transcript was filed respondents gave notice of a motion, for March 18th, 1903, to dismiss the appeal on various grounds. Appellants gave a counter-notice, for the same day, for an order permitting them to take the testimony of one Ely, who had been examined before the orphans court, but whose testimony had not been reduced to writing or included in the transcript.

Upon the hearing of these counter-motions, they were thus disposed of: The motion to dismiss the appeal was denied, upon the ground that the case presented some questions which ought not to be disposed of upon such a motion, but only upon a final hearing of the appeal. The motion for leave to take the. testimony of Ely was allowed, the relevancy and effect of said testimony being deemed to be open to consideration oar the final hearing. Respondents, oar February 3d, 1903, petitioned for a rehearing of the anotiooa to dismiss the appeal, which petition was denied.

The cause then came on for hearing on September 22d, 1903, and is now to be disposed of.

It is to be noted that neither the original petition of appellants nor the amendments made, or presumed to be made, expressly charge any fraud committed by the executors in respect to the accounts, the opening of which is sought. Yet the court below evidently considered that the case involved such a charge, and evidence, otherwise inadmissible, was permitted to be taken. The action of the court, I apprehend, was in accord with the contention of appellants’ counsel that the attack upon the allowance to the executors in one of these accounts, made by the proposed amendment last mentioned, might be successful, if fraud in the management of the estate had been established. The conclusion of the court below was that no fraud had been made out in proof.

Under these circumstances, I have thought it proper to consider the matter in this aspect. The result of my consideration has been to approve the result reached.

Fraud or misconduct of an executor will justify a court before which he makes his accounting in depriving him, in whole or in part, of his executor’s commissions, the matter being within the discretion of the court. Jacobus v. Munn, 11 Stew. Eq. 622.

But the objection made by appellants was not pointed at the commissions allowed to the executors in the several accounts for their services in that capacity, but to an allowance made for services rendered to the estate, outside of the duties required of them as executors. Such services, we must assume, the court was satisfied had been rendered, and should be paid for. There is no necessity to infer that the charge was fraudulent.

But if the objection had been directed to the allowance of the executors’ commission, a like result must follow. There was proof that one of the executors had used some of the funds of the estate in his own concerns. This was plain misconduct, but as it appeared that he had accounted for all the interest on the moneys so used the court might not have deemed it necessary to deprive the executor of his commissions. But there was proof that the executor concealed his use of the funds from his c'o- executor and from those interested in the estate. It also appeared, however, that the executor in question had turned over' the funds of the estate, satisfactorily’ secured, to a substituted trustee, so that no loss whatever had occurred to the estate by his misconduct. Under such circumstances it would be a matter for the exercise of the discretion of the court whether to allow him any or all the commissions which have been already awarded to him in the orphans court. It seems to me that it is not a case for an alteration of these accounts in that respect at this late day. In Jacobus v. Munn, ubi supra, there was a case of much more flagrant misconduct of an executor, and the court of errors permitted him to retain the commissions allowed by the orphans court.

The other phase of the attack upon these accounts raises questions which seemed to me to be novel. The application is to open accounts, the earliest of which had been allowed nearly seventeen years, and the latest of which had been allowed nearly three years, before the application was made. The transcript shows, and it is admitted, that no exceptions were presented to any of these accounts when allowance of them was prayed for by the executors, except to the fourth account, which was allowed April 4th, 1889, and that the vague exception which was then presented was withdrawn by the exceptants. The application to open these accounts which were so settled without objection has been put, in this aspect of the case, upon the ground of mistake therein. Such ground, when established by competent and sufficient proof to the satisfaction of the orphans court, justifies that court in opening any account passed and allowed by it, for resettlement, under the provisions of the last clause of section 127 of the Orphans Court act of 1898. P. L. of 1898 p. 761.

These provisions are in the identical language of section 32 of the “Act to ascertain the power and authority of the ordinary and his surrogates, to regulate the jurisdiction of the prerogative court and to establish an orphans court in the several counties of this state,” passed June 13th, 1820 (Rev. L. p. 87), which was re-enacted in section 27 of the “Act respecting the orphans court and the power and authority of the surrogates,” approved April 16th, 1846 (Gen. Stai.'p. and again enacted in section 108 of the "Act respecting the orphans court and relating to the powers and duties of the ordinary and the orphans court and surrogates,” approved March 27th, 1874. Gen. Stai. p. 2SS0.

The case in hand, however, presents this unusual feature. Appellants, by-Their petition for the opening of these accounts, charged that the executors had made material mistakes in the accounts, by the omission therefrom of specified items, with which they claim the executors should have charged themselves. The executors, by their answer, admitted the omission from the account of certain of the items specified in appellants’ petition, but assert that the admitted omissions were the result of mere inadvertence and mistake. Upon such charge and such admission the case provided for by the statute manifestly was established. But the executors presented a counter-claim, asserting that while they admitted such omissions of items properly chargeable to them, they had also omitted items of payments and disbursements made by them which should have been charged to the estate and would have diminished the amount in their hands.

In dealing with the motion to dismiss this appeal, I adopted the view that there were two questions presented, too important to be decided upon such 'a motion. The first question was whether, upon such admissions, proper practice would not have required the orphans court to immediately open the accounts and put them in a state fox re-examination and resettlement. The other question was whether, in the review of what was done in the orphans court upon such proceedings, this court is confined to a review of the questions of law presented in the court below, or.may be required to consider and review the action of the orphans court on questions of fact.

While certain of the 'decrees of the orphans court were subject to review in the supreme court by certiorari, the extent of the reviewing power 'of that eorirt upon the action of the orphans court in. allowing of refusing to restate an account for fraud or mistake was considered in the supreme court, in Johnson v. Eicke, 7 Halst. 316, and Crombie v. Engle, 4 Harr. 82, and it was held that the supreme court might review the action of the orphans court as well on questions of fact as on questions of law. The case last cited went to the court of errors and the judgment of the supreme court was reversed. Judge Carpenter, speaking for the whole court, declared the true doctrine to be that where the action of the orphans court upon a motion to open and restate an account for fraud or mistake does not involve a question of law but only of fact, the decision of the -orphans court was not subject to review by the supreme court. Engle v. Crombie, 1 Zab. 614. By the amendments to the constitution adopted in 1874, all decrees of the orphans courts in matters within their jurisdiction are now reviewable by appeal to this court. This change in the mode in which the orphans •court decrees may be reviewed was deemed by me to raise an important question, for the change gave jurisdiction to review •all such decrees, to a court which had previously exercised jurisdiction, under statute, to review certain decrees of the orphans •courts, and in exercising such jurisdiction had been accustomed to review not only questions of law but also questions of fact.

Upon the first of these questions I have reached the conclusion that the course adopted in the court below was a proper •one. It is well established that when an account, once settled, is opened upon proof of fraud or mistake, it is not opened generally, but only in respect to the items proved to have been omitted by fraud or mistake. • Trimmer's Executors v. Adams, 3 C. E. Gr. 505; Hyer, Administratrix, v. Morehouse, Spenc. 125. Yet it is manifest that if these accounts should have been opened for the purpose of adding to the charges against the executors those items which they admitted were omitted by mistake, the court would have been obliged to proceed to consider whether or not other omissions of charges against the executors were satisfactorily proved, and also whether or not the executors had made out, by satisfactory proof, the omission by mistake of. items of discharge set forth in their cross-petition. This could be done better by the method adopted in the court below, and which, it is proper to say, was adopted without objection by either side, than by opening the accounts and proceeding with a settlement involving the same matter at additional expense. I think, therefore, that the practice adopted in the court below was proper, and is not open to objection.

Upon the other question I have reached the conclusion that when the people conferred jurisdiction to review all orphans court decrees upon this court they intended that the jurisdiction should be exercised in the mode previously in use in this court in dealing with appeals from such decrees, and therefore that I was bound to consider as well > questions of fact as of law involved in the action of the orphans court.

Upon this view I have read with care the mass of testimony ■ presented to the orphans court. I have also considered the testimony of Ely, although I have grave doubts whether it is competent upon this appeal. The result is that the conclusion o£ the orphans court was, in my judgment, clearly correct. The proofs satisfactorily show that the items omitted by the executors from their accounts, which would have increased the amounts to be charged to them, which were either admitted by them or proved, were less than the amounts of disbursements and payments also omitted, which were proved by the executors, and were not included in their accounts.

It was therefore proper to deny the petition for an opening of the accounts.

The decree must therefore be affirmed. Before signing a decree I will hear counsel, if they desire, in respect to the costs of the appeal.


source: Caselaw Access Project

author: Gummere, Chiee-Justice.

license: Public Domain

text:
    Howard L. Hall, respondent, Mary M. Hall, appellant.
    [Filed June 15th, 1903.]
    Where the circumstances under which a wife deserts her husband are such as to impose upon the latter the duty of using active effort'to terminate it, he is only excused from making such effort when it is manifest, from the facts in the case, that to do so would be unavailing.
    On appeal from a decree advised by Yice-Chaneellor Pitney, whose opinion is reported in 53 Atl. Rep. 455.

      Mr. James F. Minium, for the appellant.

      Mr. John I. Weller, for the respondent.
   The opinion of the court was- delivered by

Gummere, Chiee-Justice.

The appeal in this case is from a decree of divorce granted upon a petition filed b3r a husband against his wife for desertion. The facts are fully set forth in the opinion of the vice-chancellor (53 Atl. Rep. 455), and entirely justify the conclusion that there was a willful, continued and obstinate desertion of the respondent by the appellant, within the meaning of the statute. We concur not only in the conclusion reached by the vice-chancellor, but in the opinion rendered by him,, except that we find therein a somewhat inaccurate statement of a rule of divorce law which we think should not be passed without notice. That statement, in effect, is that when the facts show that the action of a wife, in leaving her husband, is the result of a settled determination on her part to separate from him, the husband is not bound to seek her out and endeavor to induce her to return to him; that it is only when the wife leaves her husband on the impulse of the moment, without premeditation, that this duty rests on the latter. In the case of Hall v. Hall, 15 Dick. Ch. Rep. 469, the rule was stated by this court to be that when the circumstances under which the wife’s desertion took place were such as to impose- upon the husband the duty of using active effort to terminate it by making such advances or concessions as might reasonably be expected to induce her to return to him, he was only excused -from making such effort when it was manifest, from the facts in the case, that to do so would bo unavailing.

The decree appealed from should be affirmed.

For affirmance — The Chiee-Justice, Van Syckel, Garrison, Fort, Garretson, Hendrickson, Swayze, Bogert, Vre-DENBURGH, VOORHEES-10.

For reversal — Dixon, Vroom — 2.


author: G-UMMERE, Cl-IIEE-JUSTICE.

text:
    Henry W. Doremus et al., respondents, v. The Mayor and Aldermen of the City of Paterson, appellants.
    [Filed June 15th, 1903.]
    A riparian proprietor, upon a non-tidal stream, may grant to third persons, who are not riparian owners, rights in the waters; he may permanently abstract the waters for their use, or he may permit them to do so, without the consent of the proprietors above him; but he cannot, by such action, impose an additional burden upon, or create a new liability against, such proprietors.
    On appeal from an order advised by Vice-Chancellor Stevens, whose opinion is reported in 18 Dick. Ch. Rep. 605.

      Mr. Michael Dunn .and Mr. George 8. Hilton, for the appellants.

      Messrs. IÁndabury, Depue & Faulks, for the respondents.
   The opinion of the court was delivered by

G-UMMERE, Cl-IIEE-JUSTICE.

The appeal in this case is from an order overruling a demurrer to the bill of complaint filed by the respondents. The object of the bill is to restrain the appellant from polluting the Passaic river with its sewage, unless and until it makes compensation to the respondents for the injury resulting therefrom to their respective property rights. The respondents are forty-three in number. Some of them are the owners of lands bordering upon the river above the ebb and flow of the tide therein. Others are the owners of lands bordering, not upon the river but upon an artificial canal which opens out of, and draws ita waters from, the river at a point above tidewater, and returns then into it again at a point some distance below. Others still do not own property bordering either on the river or the canal, but take water from the latter, under leases, for the purpose of supplying power to mills operated by them. The demurrer attacks the right of the respondents, or any of them, to tire relief sought by the bill.

The right of a riparian owner, above tidewater, to an injunction restraining the pollution of the river by the appellants, unless the latter make just compensation to him for the diminution in the value of his property occasioned therebjq has already been affirmed in this court. Simmons v. Paterson, 15 Dick. Ch. Rep. 385. The conclusion reached by the vice-chancellor in the court below was that the respondents, who own land bordering on the canal referred to, and those who lease water-power supplied by it, were also entitled to the same relief.

This conclusion, in our opinion, is not well founded. The bed of the Passaic river, above tide, is private property, the proprietorship of which is in those who own the lands bordering on the stream. Attorney-General v. Delaware and Bound Brook Railroad Co., 12 C. E. Gr. 631. And not only the bed of the river, but the waters flowing over it until they reach tide, are the private property of such owners. Cobb v. Davenport, 3 Vr. 369, 378; Simmons v. Paterson, 15 Dick. Ch. Rep. 389. And this is so because the waters are part and parcel of the.land itself. The bed of the stream belongs to the riparian owners in severalty, each owner owning the land under water in front of his ripa'to the middle of the stream. Each owner is entitled to have the waters flow past his lands undiminished in quantity and unimpaired in quality bjr the act of any of the other of the owners thereof. Each owner is entitled, as against the others, to use the passing water in a reasonable manner for domestic uses and •for the irrigation of Ids lands. He may also divert the flow thereof for Ms own purpose, provided he returns the waters again to the stream, unpolluted and in the same volume, at a point above the lands of lower owners. More than this, he is entitled to abstract them permanently as against all his co-owners except those whose lands lie further down the stream. Higgins v. Flemington Water Co., 9 Stew. Eq. 533. Generally speaking, each riparian owner has a right to devote the waters to any use which he may see ht, provided that, in doing so, he does not injuriously affect the rights of any of the other proprietors therein. Miner v. Gilmour, 12 Moo. P. C. C. 156. And this right cannot be restricted by the act of any other of the proprietors. A proprietor may grant to third persons, who are. not riparian owners, rights in the waters; he may permanently abstract the waters for their use, or he may permit them to do so, without the consent of the owners above him; but he cannot, by such action, impose an additional burden upon, or create a new liability against, such owners. It was upon this ground that the court of exchequer, in the case of Stockport Water Co. v. Potter, 3 H. & C. 300, decided that an action would not lie in favor of the water company (which was taking water from the river Mersey under a grant from a riparian owner) against the defendant, Potter, who owned lands bordering upon the river above the intake of the plaintiff company, for polluting the stream to its detriment. The case of Butler Rubber Co. v. Newark, 32 Vr. 32, referred to in the opinion of the vice-chancellor and relied upon in the brief of the respondents, is not opposed to the principle underlying the decision of Stockport Water Co. v. Potter. In that case the city of Newark, conceding that the rubber company had a property right in the use of the water, sought to. condemn that right, and the matter came before the court on an appeal from the award of commissioners. The only question presented was what sum. of money the city should pay to the company as compensation for the deprivation of that right. Mr. Justice Depue, who delivered the opinion, points out that the case is to be .distinguished from the Stockport Water Company Case by reason of tlie fact that “the defendants (the city of Newark) are not asserting rights as riparian owners, but are taking property under the power of eminent domain.” In the case now under consideration, the city of Paterson is not seeking to acquire any right of the lessees or grantees of a lower riparian owner. They concede that such lessees and grantees have rights and do not deny that they are property rights, but they contend that those rights are subordinate to the city’s right to vent its sewage into the stream. This contention, in our opinion, is sound. There being a misjoinder of complainants, and this having been specified as a ground of demurrer, the order overruling the demurrer should be reversed.

For reversad — The Chief-Justice, Van Syckel, Dixon, Fort, Garretson Vredenburgi-i, Voori-iees, Vroom — 8.

For affirmance — Hendrickson, Pitney — 2.


author: Yan Syokicl, J.

text:
    Lela A. Sibell, complainant and appellant, v. Caroline C. Weeks and John H. Weeks, defendants and respondents.
    [Filed June 17th, 1903.]
    1. The holder, of a mortgage not recorded when a bill is filed to foreclose another mortgage upon the premises, is bound by the decree in such foreclosure suit as if he was a party and had appeared to the suit.
    2. He cannot file an original bill upon the unrecorded mortgage, but must seek his rights by applying to intervene in the first suit in accordance with the provisions of section 78 of the Chancery act (Rev. p. 118). now section. 58 of the Chancery act of 1902.
    On appeal from a decree in foreclosure.

      Mr. Edward Q. Keasbey, for the appellant.
    No one appearing for the respondents.
   The opinion of the court was delivered by

Yan Syokicl, J.

This bill was filed to foreclose a mortgage given by Carlton Betts and wife to Hiram Betts and by him assigned to complainant, Mrs. Sibell. The title to the property at the time this mortgage was given was in the wife of Carlton Betts.

There was a prior mortgage upon 'the premises, given by Ruth Dean, then owner of the mortgaged premises, to the Mutual Life Insurance Company.

In June, 1892, the Mutual Life Insurance Company filed a bill to foreclose its mortgage, to which only'Carlton Betts and his wife were made parties.

The mortgage now held by the complainant had not at that time been recorded.

The Mutual Life obtained a final decree in November, 1892, and caused a fieri facias tó be issued thereupon the same month.

Shortly after the decree was made the dwelling-house upon the property was destro3ed by fire. It was insured by the' Royal Insurance Company, of Liverpool, and tire policy was held by the Mutual Life as collateral security for the mortgage debt.

In February, 1893, the insurance company paid the Mutual Life as much of the insurance money as was necessary to pay the full amount of the decree and costs, exclusive of • sheriff’s fees, and took an assignment of it.

The sheriff continued to adjourn the sale of the property under the fieri facias until the 7th day of the following June, when it was sold to Carlton Betts, who acted as agent for his wife, for the sum of $100. The deed was not delivered until February, 1894, at which time Carlton and his wife executed a deed for the same premises to Caroline C. Weeks, the defendant, for the consideration of $1,225, which was actually paid.

After taking title Mrs. Weeks built a house upon the foundation of the one destroyed by fire, at a cost of over $2,000, and otherwise expended upon the property an additional sum of over $2,000.

The present foreclosure suit was commenced by Mrs. Sibell on the 28th of August, 1895, a year and seven months after the sale to Mrs. Weeks, during which time she made the expenditure above stated.

At the sale under the fieri facias, issued on the decree of the Mutual Life, the property was struck off by the sheriff to Carlton Betts in June, 1893. Carlton then gave to the sheriff a cheek for the purchase-price, payment of which check was refused.

In November of the same year the sheriff applied for a resale, and an order was made to resell on a sworn petition, which stated that the decree had been assigned, not paid.

In January, 1894, upon the application of Mrs. Betts, who had then secured a purchaser in Mrs. Weeks, the order to resell was rescinded and a new order, dated February 2d, 1894, was made by the chancellor: “That the said sale be and the same is hereby ratified and confirmed as valid and effectual in the law, and the said sheriff is hereby directed to execute a good and sufficient conveyance to the said purchaser, Carlton IT. Betts.”

In pursuance of this order a deed was made by the sheriff to Carlton IT. Betts and a deed by Carlton and his wife to Mrs. Weeks, before set forth.

■ Section 78 of the Chancery act (Ilev. p. 118) provides:

“That in any suit for the foreclosure of a mortgage upon, or which may relate to real or personal property in this state, all persons claiming an interest in, or an encumbrance or lien upon such property by or through any conveyance, mortgage, assignment, lien or any instrument, which, by any provision of law could be recorded, registered, entered or filed in any public office in this state and which shall not be so recorded, registered, entered or filed at the time of the filing of the bill in such suit, shall be bound by the proceedings in such suit so far as the said property is concerned in the same manner as if he had been made a party to and appeared in such suit, and the decree therein made against him as one of the defendants therein; but such person, upon causing such conveyance, mortgage, assignment, lien, claim or other instrument to be recorded, registered, entered or filed, may cause himself to be made a party to such suit by petition, in the same manner as is by this act provided in the case of persons acquiring an interest in the subject matter of a suit after its commencement; the petition in such case must set forth such instrument at length, and the title and interest of such party in such a manner as to show that he has an interest in the subject matter, and is a proper party in that suit.”

Mrs. Sibell’s mortgage being unrecorded when the bill for foreclosure was filed by the Mutual Life, she, as holder of the unrecorded mortgage, was subject to the express provisions of the said seventy-eighth section.

First. She was bound by the proceedings in the said foreclosure suit, so far as the property is concerned, in the same manner as if she had been made a party to and appeared in that suit and the decree had been made against her as one of the defendants therein

Second. By causing her mortgage to be recorded she could, upon petition, have procured an order making her a party to that foreclosure suit.

Mrs. Sibell is now seeking, by her bill of foreclosure, to establish her mortgage as a lien paramount to the title of Mrs.. Weeks ln imputing to Carlton Betts and his wife a fraudulent scheme to cut off her mortgage, and charging Mrs. Weeks with a knowledge of such facts as should have put her upon inquiry, which would have led to the discovery of it.

• But, upon the assumption of such a situation, she cannot maintain an original bill to foreclose her mortgage.

B.v force of the statute above recited, and under the order of the chancellor confirming the sale, the legal title to the mortgaged premises passed to the purchaser at the sheriff’s sale, clear of the mortgage of Mrs. Sibell until otherwise decreed in that suit.

In view of the force to be attributed to the adjudications of courts of general jurisdiction, her only remedy was to intervene in that suit by petition.

So far as the present litigation is concerned, she must be regarded as having been a party to the Mritual Life foreclosure, in which her rights as mortgagee were settled, without being subject to be reviewed in her subsequent foreclosure suit. She occupied the same position as if she had been actually a party to the prior suit and had appeared thereto and set up the claim she now makes in right of her mortgage.

If she had interposed.. with reasonable promptness in the prior suit, she could have secured such equitable relief as she was entitled to. By reason of her delay for nineteen months to prosecute her claim, during which Mrs. Weeks purchased the property and expended a large sum of money upon it, she is justly chargeable with laches.

The evidence chiefly relied upon to charge Mrs. Weeks with knowledge of the complainant’s rights is that her attorney, before she employed him in this transaction, had acquired such knowledge.

Whether the principal is affected only by such knowledge of Iris agent as the agent acquires in the business in which he is employed, or whether knowledge previously acquired by the agent can be imputed to the principal, has been the subject of discussion in two cases which are not in accord in this court. Sooy v. State, 12 Vr. 394; Willard v. Denise, 5 Dick. Ch. Rep. 483.

It is unnecessary, in the decision of this case, to express any opinion on this question.

The decree of the court of chancery should be affirmed, with costs.

For affirmance — The Chief-Justice, Van Syokel, Dixon, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Bogert, Vredenburgi-i, Voori-iees, VrooM' — 13.

For reversal — None.


author: Per Curiam.

text:
    Marco Bulat et al., respondents, v. Eliza Londrigan et al., appellants.
    [Filed June 19th, 1903.]

      Mr. Horace L. Allen, for the appellants.

      Mr. James B. Yredenburgh, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion of Vice-Chancellor Pitney, delivered by him in the court of chancery, and reported in 18 Dick. Ch. Rep. 22.

For affirmance — The Ciiiee-Justice, Van Syckel, Dixon, Garrison, Fort, Garretson, Swayze, Bogert, Vredenburgh, Voori-iees, Vroom — 11.

For reversal — Hendrickson—1.


text:
    Joseph M. Perrine et al., respondents, v. William D. Perrine et al., appellants.
    [Filed June 19th, 1903.]

      Mr. Haward W. Ilayes,- for the appellant.

      Mr. John T. Rosell, for the respondent.
   Per Curiam.

The decree appealed from should be affirmed, for the reasons stated in the opinion of Vice-Chancellor Pitney, delivered in the court of chancery, and reported in 18 Dick. Ch. Rep. 483.

For affirmance — The Chiee-Justice, Van Syckel, Garrison, Garretson, Bogert, Voori-iees, Vroom — 7.

For reversal — Dixon, Fort, Hendrickson, Swayze, Vredenburgi-i — 5.


author: Gummere, Ciiiee-Justice.

text:
    Charles R. Stevenson, executor, appellant, v. Ellen V. Earl, respondent.
    [Filed October 3d, 1903.]
    E., a depositor in the savings fund of the Pennsylvania Railroad Company, at the time of opening his account therein, directed the company to pay to his wife, in the event of his death, all deposits which should then be standing to his credit in the fund. This the company agreed to-do. — Held, that the disposition thus made of the moneys remaining to E.’s credit at his death was testamentary in its character, and was invalid, because not made in the manner prescribed by the statute of wills.

      On appeal from a decree entered on bill of interpleader filed by the Pennsylvania Railroad Company against Charles R. Stevenson, executor of Walter Earl, Jr., deceased, and Ellen V. Earl, his wife, on the opinion of Vice-Chancellor Grey, reported in 18 Dick. Ch. Rep. 634

      Mr. Thomas E. French, for the appellant.

      Mr. William T. Boyle and Mr. John W. Wescottj. for the respondent.
   The opinion of the court was delivered by

Gummere, Ciiiee-Justice.

The Pennsylvania Railroad Company has established for its employes a depository known as “The Pennsylvania Railroad Employes’ Saving Fund,” in which any person in the employ of that company, or of certain other subsidiary companies controlled by it, may deposit his savings, subject to certain rules and regulations which have been formulated by the company for the management and control of this “fund.” Only such employes may-become depositors, and no employe may remain a depositor more than thirty days after his emplojunent with the company is terminated, but must close his account within that period. One of the rules requires that an employe who desires to become a depositor must make application in writing, and must state therein, among other things, “the name and residence of the person to whom, in the event of death, his deposits and the accrued interest thereon shall be paid.” Another rule provides that upon the presentation of satisfactory proof of the death of a depositor, “the money belonging to him shall be paid over to the person designated in his application to receive the same.” Still another rule authorizes any depositor to withdraw, at his pleasure, all or any portion of his deposits, with the accrued interest thereon, upon ten days’ notice to the superintendent of the fund.

In March, 1888, one Walter Earl, Jr., a locomotive engineer in the employ of the company, made written application for permission to become a depositor in the company’s saving fund, and in and by his application agreed to be bound by the rules and regulations under which it was managed, and particularly “that in the event of my death all deposits standing to my credit in said savings fund, and all interest due thereon, shall be paid to my wife.” His application having been favorably acted upon, he opened an account with the fund by a deposit of $500. The pass-book, delivered to him by the company as his voucher for the amounts deposited by him, he gave to his wife, stating to her that here was the money, and that if he died it should go to her, and that she could get it in ten days by giving notice to the company. Subsequent to the opening of the account he increased the amount of his credit, from time to time, by additional deposits, so that, on the 1st of January, 1896, it amounted to $2,956. Bjr the 12th of June of that year, however, he had drawn against it to such an extent that there remained to his credit only $56. By the 1st of November, 1900, the amount of his deposits, with interest, had so increased that there stood to his credit the sum of $2,286. By the 1st of February, 1901, he had drawn it down to $1,578. On the 21st of that month he died, leaving the last-named amount standing to his credit in the fund. About two months prior to his death he had made and executed a last will and testament, in and by which he gave all of his estate, except a small legacy, to his executor, upon certain trusts which were set forth in the instrument. Demand having been made upon the Pennsylvania. Eailroad Company, both by the wife and by the executor of the deceased, to be paid the balance standing to his credit on the books of the savings fund, that company filed its bill of interpleader against them, and deposited the fund in the court of chancery. The parties having interpleaded in that court, it was adjudged and decreed upon final hearing that the legal title to the fund was in the widow. The appeal now before us is taken by. the executor from that decree.

The learned vice-chancellor who heard the cause in the court below concluded, from the facts which have been recited, that there was a distinct donative purpose on the part of the husband towards the wife covering this fund, and that, as a matter of law, the effect of his agreement with the company was to impress the subject-matter of this donative purpose with a trust whose terms were defined by the printed regulations that constituted the agreement between the donor and the company,' including both the withdrawal of sums by the settlor of the trust during his lifetime and the payment to his widow of airy balance that might at his death stand to the credit of his account.

Although we concur in the view that, on the facts set forth, a clear donative purpose appears on the part of the deceased towards his wife, we cannot agree that it covered the whole amount of the deposits made by him. On the contrary, it seems to us to be so plain as to be beyond the shadow of a doubt that he intended to retain the absolute control and ownership of all moneys which were deposited by him and to deal with them on that basis, during his life; and that his donative purpose toward his wife was confined solely to such balance, if any, as should remain to his credit at his death., Nor can we accede to the proposition that the agreement between the husband and the company is, in effect, a declaration of trust by the former in favor of his wife. As was said by Vice-Chancellor Bacon, in Warriner v. Rogers, L. R. 16 Eq. Cas. 348, and repeated by Sir G-eorge Jessel, master of the rolls, in Richards v. Delbridge, L. R. 18 Eq. Cas. 13, “the one thing necessary to give validity to a declaration of trust — the indispensable thing— I take to be that the donor or grantor, or whatever he may be called, should have absolutely parted with that interest which had been his up to the time of the declaration; should have effectively changed his right in that respect, and put the property out of his power, at least in the way of interest.” Instead of the agreement showing that, by force of it, the husband had parted with his interest in the funds then deposited, and thereafter to be deposited, by him — that he had put them out of his power, so far as any interest of his own was concerned— it, in terms, preserves to him the absolute right of dealing with and disposing of them solely for his own benefit. And that he exercised this right to its fullest extent is shown by his dealings with the deposits, as set forth in the statement of facts above recited.

If the right of the wife to the fund in dispute is to be sustained at all, it must be because the donative purpose of the deceased toward her, with relation to such balance of his deposits as should remain to his credit at his death, was rendered effective by the agreement entered into between himself and the company, coupled with the delivery by him to her of the pass-book which lie had received from the company as a voucher; in other words, because that agreement, and the delivery of the pass-book, constituted a valid gift inter vivos. But, in order to legalize such a gift, there must be not only á donative intention, but also, in, conjunction with it, a complete stripping of the donor of all dominion or control over the thing given. Cook v. Lum, 26 Vr. 375, 376. As was said in the case cited, this is the crucial test, and if it be applied to the present case the gift is not to be sustained; for, neither by force of his contract with the company nor by the delivery of the pass-book, did he intend to, nor did he in fact, part with his complete dominion over any part of the moneys deposited by him.

The expressed intention of the deceased ivas only to bestow upon his wife so much of his deposit as should remain undrawn by him at his death. Such a gift, it seems to us, is purely testamentary in its character. If it is not, then it is a perfectly easy thing for a person to retain the absolute control and dominion over his moneys and personal securities during his life and transfer that dominion to another at his death, with total disregard of the requirements contained in the statute of wills, by the simple device of depositing such moneys and securities, under an agreement with the depositary that he shall have the right to use them or deal with them as he pleases during his life, and that at his death so much of them as may remain shall be delivered to such person as is named in the agreement, who shall then become the owner thereof, and then delivering the agreement to the beneficiary with a statement of the same purport as that made by the deceased to his wife when he gave the pass-book to her. To hold that such-a method of disposing of property by the owner at his death is valid, would be to practically repeal the statute of wills in its operation upon personal property, so far as its rpandatory provisions are concerned.

Our conclusion is that the moneys remaining to the credit of Earl, at his death, in the savings fund of the Pennsylvania Railroad Companjr, did not become the property of his wife, notwithstanding the provision in the agreement between Mm and the company that such moneys should be paid to her at his death, our reason for so concluding being that such agreement constituted a testamentary disposition of Ms property, wMeh was invalid because not made in the manner prescribed by the statute of wills. The necessary result of this conclusion is that such moneys passed to his executor, on his death, as part of his estate.

The decree appealed from should be reversed.

For reversal — The Chief-Justice, Yan Syokel, Dixon, Garrison, Fort, Hendrickson, Pitney, Bogert, YredenBURGH, YOORHEES, YrOOM-11.

For affirmance- — None.


author: Dixon, J.

text:
    Catharine Kinkead, respondent, v. Jerome Alfred Ryan and George T. Mathews, appellants.
    [Filed July 20th, 1903.]
    1. The will of Christopher Mathews devised as follows: “Third. I 'give, devise and bequeath unto my beloved wife Catharine Mathews all my estate, both real and personal, for and during the term of her natural life. Fourth. After the death of my said wife, I give, devise and bequeath all my estate, both real and personal, unto my beloved children, George Thomas, Christopher Alfred, Mary Ann, and Catharine, and any other child of mine that may be born hereafter, share and share alike, and to their heirs and assigns forever. Fifth. If any of my said children should die before my said wife, then it is my will that upon my wife’s death the share of my said estate which would have gone to such deceased child if living, shall go to the heirs of such deceased child.” — Held, that at his death his son George took a vested remainder in fee in his lands, which was capable of being sold during the lifetime of the widow under execution on a common law judgment against George.
    2. When one of several tenants in common pays off an encumbrance upon the common estate, a court of equity will consider the encumbrance as still existing in order to enforce contribution from the co-tenants, or as extinguished, according to the justice of the case and t'he actual intention of the party making the payment.

      3. Under the circumstances of this case, the party paying off the common encumbrance was considered to have intended its complete extinguishment, and therefore no right of subrogation remained.
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 1-9 Dick. Ch. Rep. 1/6J.

      Messrs. Black & -Drayton and Mr. Paul Eugene Jones, for the appellants.

      Mr. Charles L. Corbin, for the respondent.
   The opinion of the court was delivered by

Dixon, J.

We agree with the opinion of the learned vice-chancellor so far as it holds that, under the will of Christopher Mathews, his sons, George and Christopher A., took each a vested remainder in fee in an undivided fourth of his land; that on the death of' Christopher A., in the lifetime of his mother, the estate of George was increased to one-third, and that by the sheriff’s deed, in execution of the judgment against George, that third passed to his mother, and by her will was devised to the complainant. This disposes of the appeal by George T. Mathews.

As to the appeal of Jerome Alfred Eyan, the circumstances are as follows:

On March 1st, 1894, the lands of which Christopher Mathews had died seized in 1875 were held by his widow as tenant for life, and the remainder was owned equally by the widow, her daughter the complainant, and her grandson the appellant, •as tenants in common; -the entire estate in a part of the lands was subject to a mortgage securing a bond given by the said Christopher to the Equitable Life Assurance Society, in November, 1868, on which there remained due $2,500; on the day Erst above mentioned the widow, with her own money, paid off this bond, and caused both the bond and the mortgage to be ■canceled and an entry of satisfaction to be made on the record ■of the mortgage; from that time until her death, in November, 1901, she never asserted any right against her co-tenants or their estate because of that payment.

On these facts the vice-chancellor concluded that the widow had become entitled to stand in the place of the mortgagee for the purpose of securing contribution bjr her co-tenants; that this right passed to tire complainant as executrix and sole legatee of the widow, and could now be enforced by her against the estate of the appellant. From this determination the appeal is taken.

There can be no doubt that when the widow paid the amouni ■due upon the bond and mortgage she was entitled to acquire the right of an equitable holder of those instruments in order to compel the estate of her co-tenants to bear a just share of the encumbrance, but whether she would acquire such right depended upon her inieniion at the time of making the payment. A court of equity will keep an encumbrance alive or consider it extinguished, as. will best serve the purposes of justice and-the actual and just inieniion of the party. Starr v. Ellis, 6 Johns. Ch. 393, 395; Robinson v. Leavitt, 7 N. H. 73, 100; Duncan v. Smith, 2 Vr. 325; Sheld. Subr. 21; Bisp. Pr. Eq. § 337.

On paying the debt she was entitled to have the bond and mortgage delivered to her by the Assurance Society uncanceled, and that would constitute an equitable assignment thereof to her. Hamilton v. Dobbs, 4 C. E. Gr. 227; Bigelow v. Cassedy, 11 C. E. Gr. 557. Such a course would have made clear her purpose to preserve the right of subrogation, not only as to the specific lien of the mortgage, but also as to the more general obligation resting upon the devisees of the obligor. But, by canceling both of these instruments, she furnished substantial evidence of a design that the burdens which they created should be wholly extinguished. Although this evidence might not be deemed conclusive, incapable of rebuttal, yet, when we find that the burdens thus to be removed could rest only upon her daughter and infant grandson, and that during a period of more than seven years thereafter she gave no sign of a thought that the burdens remained, we are impelled to the belief that she intended their extinguishment. The suggestion that her cancellation of the mortgage may have been for the purpose of increasing her financial credit as an owner of the land, or of facilitating her transfer of the title, finds no support in the circumstances disclosed by the testimony, and, besides, leaves undisturbed the force due to the cancellation of the bond, her relationship to the persons concerned and the long period of her inaction and silence.

We think that when Mrs. Mathews paid off the bond and mortgage she intended a benefaction to her daughter and grandson, and not to be subrogated to any claims against them or their estate.

Let the decree, so far as it charges the estate of Jerome A. Eyan with a share of the sum paid by Mrs. Mathews in satisfaction of the bond and mortgage, be reversed, and in other respects be affirmed.

For reversal — The Chief-Justice, Van Syckel, Dixon, Garrison, Fort, Hendrickson, Swayze, Bogert, Vreden- . BURGH, VOORHEES, VROOM, GREEN-12.

For affirmance — None.


text:
    Wallace Wilson et al., respondents, v. American Palace Car Company of New Jersey et al., appellants.
    [Filed September 22d, 1903.]
    1. A defendant is entitled to raise by plea the question of the juris- ■ diction of a court of equity and to demand m limine the judgment of the court whether he should answer the bill.
    2. Such a plea, showing lack of jurisdiction over the defendant, need not in our practice designate another tribunal in which he may be sued.
    3. When the object of a bill in equity is to aifect the claims of the defendant to property which is not located within, the state, and the defendant is not a resident or citizen of the state, or is a foreign corporation which has not subjected itself to the jurisdiction of the state, the court can acquire jurisdiction over the defendant only by service of process- or notice within the state, or by the voluntary appearance of the defendant.
    ■ On appeal from an order advised by Vice-Chancellor Emery, whose opinion is reported in 18 Dick. Ch. Rep. 557.

      Mr. Edward Q. Keasbey, for the respondents.

      Mr. Robert II. McCarter, for the appellants.
   The opinion of the court was delivered by

Dixon, J.

The bill in this case was filed by several stockholders in the American Palace Car Company of Maine, on behalf of themselves and such other stockholders as should come in, to restrain the American Palace Car Company of New Jersey from disposing of the property and assets of the Maine eompan)', which, it alleged, had been transferred to the New Jersey company in August, 1897. By an. amendment 'of the bill, made in September, 1901, the Maine company was made a party defendant, and afterwards, by a supplemental bill, the American Palace Car Company of New York- and George A. Denham, one of its incorporators and directors, were named as defendants. For the purpose of objecting to the jurisdiction of the court these three defendants have filed a joint and several plea, averring that none of them has any property or claims any right to any property within this state; that the property, concerning which the suit is brought, is not located within the state; that Denham is a resident and citizen of the State of Massachusetts; that the corporations exist under and by virtue of the laws of the States of Maine and New York, respectively, and have never made application for the right or privilege of transacting business under the laws of New Jersey; that neither of them has or ever.had any office, agent, agency or place of business within this state, and that no process or notice of the suit has been served upon any of these three defendants within the state.

Not denying any of these averments, the complainants have procured an order overruling the plea and requiring the defendants to answer the bill, and from that order this appeal is taken.

The right of a defendant to raise the question of the jurisdiction of a court of equity and to demand in limine the judgment of the court whether he should answer the bill is clear. If the matter showing lack of jurisdiction appear on the face of the bill, the question is to be raised by demurrer; if not, a plea setting forth the matter is the proper course. Slory Ec{. PI. §§ 712, 71b. Commonly, in former times, such a plea in the English courts of general jurisdiction was required to name another court in which the complainant might lawfully seek the relief desired, but this practice sprang out of the fact that those courts regarded every person as subject to their jurisdiction, unless he could designate a particular tribunal wherein, as a special privilege, he was to be sued. But in this country that 'fact cannot be predicated of either the federal or the state courts, or even of the governments under which they exist. The judicial authority over persons belonging to the union is confined by the terms in which it has been delegated, and that belonging to each state is limited by the restrictions which the federal constitution imposes. Hence, when a plea to the jurisdiction of a federal court shows the defendant to be outside of the delegated authority, or such a plea in a state court shows him to be within the restricted class, it becomes unimportant whether any other tribunal can alford the relief sought. Moreover, no such special privilege as was required to oust the general jurisdictions in England exists among us. Accordingly, in the latest form-book, issued by a gentleman presumably skilled in practice, we find that the designation of another tribunal in such a plea is omitted. 1 Love. Forms Fed. Pr. 47.

The reason given in the court below for the order in question was that it was necessary or proper for the complainants to make these persons defendants in the bill, and that they ought to have an opportunity to defend the suit. This may be conceded, but it by no means follows that they can be obliged to submit to the jurisdiction, or that their presence is necessary to enable the court to deal with the rights of other parties in the suit. Mr. Daniel, in his excellent book on Chancery Practice, makes the following statements, which are supported by the cases to which he refers:

“It is the constant aim of a court of equity to cio complete justice by deciding upon and settling the rights of all persons interested in the subject of the suit, so as to make the performance of the order of the court perfectly safe to those who are compelled to obey it, and to prevent future litigation'. For this purpose all persons materially interested in the subject ought generally, either as plaintiffs or defendants, to be made parties to the suit, or ought, by service upon them of a copy of the bill or notice of the decree, to have an opportunity afforded of making themselves active parties in the cause, if they should think fit.” 1 Dan. Ch. Pr. (6th Am. ed.) 190.
“The strict application of this rule in many cases creates difficulties which have induced the courts to relax it.” 1 Dan. Ch. Pr. (6th. Am. ed.) 191.
“When a person who ought to be a party is out of the jurisdiction of the court, that fact, being stated in the bill and admitted by the defendant or proved at the hearing, is in most cases a sufficient reason for not bringing him before the court, and the court will proceed without him against tlie other parties, as lar as circumstances will permit.” 1 Dan. Ch. Pr. (6th Am. ed.) 150, 152.
“Where a suit affects the rights of persons out of the jurisdiction, the court will, in some cases where there are other parties concerned, proceed against those other parties; and, if the absent persons are merely passive objects of the judgment of the court, or their rights are incidental to those of the parties before the court, a complete determination may be obtained without them.” 1 Dan. Ch. Pr. (6th Am. ed.) 149.

In Smith v. Hibernian Mine Co., 1 Sch. & L. 238, Lord Eedcsdale said: “The ordinal practice of courts of equity in England, when one party is out of the jurisdiction and other parties within it, is to charge the fact in the bill that such a person is out of the jurisdiction, and then the court proceeds against the other parties, notwithstanding he is not before it.”

These citations sufficiently indicate that, in the system of equity jurisprudence which we have inherited, there may be cases wherein the court lacks jurisdiction over persons whom, if they were within the jurisdiction, it would be necessary to bring into the cause, and that, while it is proper to afford such persons an opportunit)'' to come in, yet, if they will not consent, the court does not require that they be included as apparent parties, and will proceed without them as far as justice dictates.

It remains, therefore, only to determine whether the matters stated in this plea show the defendants to be beyond the compulsory jurisdiction of the court, and, if they do, then formally to dismiss the defendants from the controversy in which they declare themselves unwilling to participate.

Although our statutes have long contained provisions, according to which the court of chancery may malee decrees against absent defendants with the same effect as if they were present, yet it must be remembered that, since the adoption of the fourteenth amendment of the federal constitution, in 1868, New Jersey has not possessed sovereign power in this regard. The clause in that amendment, declaring that no state should deprive any person of life, liberty or property without due process of law, annulled such of our statutes as authorized judicial proceedings not in harmony with that injunction. What that injunction requires, in order to render valid the judgments and decrees of courts affecting these rights of persons, has been already decided bjr the supreme court of the United States so far as our present purpose is concerned.

In Pennoyer v. Neff, 95 U. S. 714, it was held that the term “due process of law,” when applied to judicial proceedings which rvere not in the nature of a proceeding in rem, required that the defendant in a state court should be brought within the jurisdiction either by service of process within the state or by his voluntary appearance; and in St. Clair v. Cox, 106 U. S. 350, the same rule was declared as to foreign corporations.- The stringency of the rule was exemplified in Pennoyer v. Neff. There Neff, owning land in Oregon, but not residing in the state, was sued therein by Mitchell upon a money demand, and the court ordered that service of the summons should be made upon him by publication in a newspaper. After such publication and his failure to appear judgment was rendered against him, in execution of which his land was sold to Pennoyer. All these proceedings were in accordance with the statutes of Oregon, yet the federal supreme court decided that Neff’s title was undisturbed, because he had not been cited by due process of law. Thus even the title to land, which is peculiarly a subject of local regulation, is protected by this supreme law.

No doubt, when the object of a suit is to-enforce a specific lien upon property of the defendant within the state, or when the court obtains control over such property, or when the status of a citizen of the state is the subject for adjudication, a state court maj' bo authorized, after reasonable effort to notify the absent defendant, to enforce the claim of the plaintiff respecting such property or sialus. In such cases the court acquires a jurisdiction quasi in rem sufficient to- support the limited judgment; but the jurisdiction must precede the adjudication; the judgment cannot be made valid by the fact that steps might be taken to enforce it.

In the present case there is nothing on which such limited jurisdiction can be predicated. The suit is, as equity suits generally are, in personam, and according to tire uncontroverted averment of the plea even the propertjr, to which the bill alleges these defendants are inequitably making claim, is not within the state.

Nor have the corporate defendants, by transacting business within the state, or by availing themselves of any right or privilege conditionally granted by our laws, become subject to any special mode of acquiring jurisdiction over them. Fitzgerald Co. v. Fitzgerald, 137 U. S. 98.

On this record we are constrained to adjudge that these defendants have not been brought before the court by due process of law, that therefore they are not obliged to answer the bill, and should be dismissed.

For reversal — The Chibe-Justice, Van Syokel, Dixon, Garrison, Fort, Hendrickson, Pitney, Voorhbes — 8.

For affirmance — Swayze, Vredenburgh, Vroom, Green — 4.


author: Fort, J.

text:
    William Warwick, complainant and respondent, v. William D. Perrine et al., defendants and appellants.
    [Filed August 19th, 1903.]
    A bill to set aside, as fraudulent as to creditors, several deeds of land conveyed by the judgment debtor to distinct grantees, is not multifarious, when it does not appear how many of such deeds are to be set aside or in what order, and all the grantees are entitled to be heard on such questions.
    On appeal from a decree advised by Vice-Chancellor Pitney.

      Mr. Howard W. Hayes and Mr. George Biller, for the appellants.

      Mr. Adrian S. Appelget, for the respondent.
   The opinion of the court was delivered by

Fort, J.

The bill in this case is filed by a judgment creditor and prays for a discovery, and that the defendants, or some one of them, may pay the full amount of the complainant’s judgment, and that certain conveyances, affecting the lands out of which the complainant seeks to have the judgment paid, may be decreed to be fraudulent and set aside, and that the lands be decreed to be sold under the complainant’s execution to satisfy said judgment.

The allegations of the bill are that the defendant, William D. Perrine, has combed several pieces of land to Samuel E. Perrine, Sarah M. Perrine and Ellen E. Perrine, respectively, which conveyances are specifically set out in the bill. Two of the defendants file demurrers, and each allege as ground for demurrer that said bill

“is exhibited against this defendant, and the several other persons therein named as defendants 'thereto, for distinct matters and canses, in several whereof, as appears by said bill, this defendant is not in any manner interested or concerned, and that the said bill is altogether multifarious.”

The court of chancery of this state has long since held that such a bill, which brings in the alleged fraudulent transactions of the same character, occurring before the entry of the complainant’s judgment, and which makes all the grantees of the judgment debtor parties defendant, specifically stating the ground for the making of each of said grantees a defendant, is not multifarious. A bill thus drawn prevents multiplicity of actions and enables the court to determine by a decree, in one suit, the rights and equities of all the parties.

The decision of the learned vice-chancellor in the case before us was based upon the decisions of the court of chancery in Way v. Bragaw, 1 C. E. Gr. 213, and Randolph v. Daly, 1 C. E. Gr. 313.

In Way v. Bragaw, Chancellor Green stated the rule in this way: “Where there is one entire case stated as against the debtor, it is no objection that one or more of the defendants, to whom parts of the property have been fraudulently conveyed, had nothing to do with the other fraudulent transactions. * * * In such case neither defendant can demur for multifariousness."

The principle here stated has our approval.

The bill in this case is not multifarious for seeking to set aside, as fraudulent as to creditors, several deeds of land conveyed by the judgment debtor to distinct grantees. It does not appear from the bill how many of said deeds it may be necessary to set aside, or in what order. Dpon all these questions, as between the judgment debtor and each of his grantees, and the judgment debtor and the complainant and his rights under his judgment, each of the defendants is entitled to be heard.

The order of the court of chancery appealed from, overruling the demurrer, is affirmed.

For affirmance — Van Syckel, Dixon, Garrison, Fort, Hendrickson, Swayze, Bogert, Vredenburgh, Vroom, Green —10.

For reversal — None.


author: Garrison, J.

text:
    The State Mutual Building and Loan Association, respondent, v. Edward A. O’Callahan, appellant.
    [Filed September 9th, 1903.]
    Upon the foreclosure by a building and loan association of a mortgage made to it by the defendant to secure a principal sum, with interest, an interlocutory decree pro eonfesso was taken and an order of reference made to a master to report the amount of the principal and interest due. The master, in addition to these amounts, reported as also due to the complainant a sum of over $2,000 for “dues, fines and premiums in arrears,” for which a final decree was entered. The defendant thereupon petitioned the court of chancery to correct its decree before the sale of the mortgaged premises to satisfy it, which prayer was denied, “without prejudice to the defendant to renew the application after the sale of the premises.”. — Seld, that the merits of the defendant’s petition should have been passed upon before the execution of the decree by the sale of the mortgaged premises.
    On appeal from an order advised by Vice-Chancellor Pitney.

      Mr. Warren Dixon, for the appellant.

      Mr. Ddward A. Armstrong, for the respondent.
   The opinion of the court was delivered by

Garrison, J.

Upon a bill filed to foreclose a mortgage given by the defendant to the complainant, a decree pro eonfesso was entered against the defendant and an order of reference made to a master “to ascertain and report the amount due to the said complainant for principal and interest upon the mortgage held by it upon the premises mentioned and described in the said bill of complaint.”

Upon the coming in of the report of the master and the entry of a final decree for the amount therein reported’ to be due upon the mortgage, it became apparent that the master had gone beyond the direction of his order of reference in that, in addition to the amount of principal and interest due upon the complainant’s mortgage, he had -reported as likewise due thereon a sum in excess of $2,000 for “dues, fines and premiums in arrears,” for which it is claimed no warrant existed, either in the bill of complaint or the decree pro confesso, or in the order of reference or in the mortgage itself; the bond that accompanied the mortgage being apparently the only security taken by the complainant for the payment of these extra charges.

A final decree having been made for the amount so reported to be due, the defendant exhibited to the court of chancery his petition setting out the above facts, and praying that before the sale of the mortgaged premises to satisfy such decree it be opened and corrected so as to make it conform to the interlocutory decree and the order of reference that had been made in the cause.

An order to show cause, with the required stay, was in the first instance allowed, but this subsequently was discharged by the order of the court, “without prejudice to the defendant’s right to renew the application after the sale of the premises,” the proceedings under the writ of fieri facias to be no -longer stayed. •

From this order the defendant has appealed, upon the ground that the merits of his application for the correction of the final decree ought to be passed upon before its execution. ■

To this it is replied that the order is one that is not appeal-able; that the defendant, by permitting an interlocutory decree to be taken by confession, is bound by the order of reference -made thereunder; that his application is addressed solely to .the discretion of the chancellor and is, at most, a matter of grace, • to be granted only upon equitable terms as to redemption, which are not tendered'by the'petitioner.

We think that the order is- appealable. In effect,'it denied to the defendant the right to have an erroneous decree corrected until after Ms property had been sold to satisfy it. It possessed, therefore, in this respect, the character of finality, unless it be denied that the right in question was of a substantial nature. The right of a defendant to have the decree against his property judicially settled before its enforcement, is a substantial right of the most elemental character. Bragaw v. Point Breeze Ferry Co., 2 Dick. Ch. Rep. 298.

In the orderly course of a foreclosure suit, the right of the owner of the equity of redemption to have the debt for which the property is pledged definitely ascertained and declared before the mortgaged property is sold to satisfy it, is of the very essence of the proceeding. At no time is it a mere matter of grace, unless by Ms own conduct the debtor has made it so. In the present case the defendant had done nothing to vary or forfeit Ms rights in this respect. Pie had a right to assume that the decree that went against him by confession would follow the prayer of the bill and the terms of his mortgage, and if he be deemed to have consented to the order of reference that was in fact made, and to such final decree as might be based thereon, such consent would conclude him only to a report and to a decree that were within the four corners of such reference. He was not bound to anticipate that the master would report upon matters that had not been referred to him. The case stands, therefore, in effect, as if the proposition was to hold back the master’s report until after the sale of the mortgaged premises, and then, by final decree, to fix the amount for which the property had been pledged. This situation, which was brought to the attention of the court of chancery by the defendant’s petition, resulted in nowise from any wrongful conduct upon his part, but solely from the unwarranted act of the master in traveling outside of the plain terms of the reference that had been made to him. It was the defendant’s right to have this misconduct corrected and the cause restored as if it had never occurred. He was not obliged to tender terms, for he was asking for no favors; neither was he required to demonstrate to the court that it would be. beneficial to him to have his rights respected. Being free from fault, the merits of his application should have been passed upon before the execution of the final decree in its incorrected form.

The appeal from the final decree has, for obvious reasons, not been -considered. The defendant pursued the proper course in bringing the matter to the notice of the court in which the cause was pending. We are dealing now with the action of the court below upon such application, and not with the final decree, which it is still holding under advisement.

The order discharging the order to show cause must be set aside and the cause be remitted, to be proceeded with from that point in the court below, in accordance 'with the views herein expressed.

For reversal — The Chiee-Justice, Van Syckel, Dixon, Garrison, Fort, Hendrickson, Pitney, Swayze, Bogert,-Vredenburgi-i, Voorhbes, Vroom, Green — 13.

For affirmance — None.


author: Pitney, J.

text:
    Hope V. Stahl White, petitioner and respondent, v. Howard M. White, defendant and appellant.
    [Filed July 20th, 1903.]
    1. Under sections 23 and 24 of “An act concerning divorces,” approved March 27th, 1874 (Gen. 8tat. p. 1271), the court of chancery, in making a decree for the maintenance of children of divorced parents, after a divorce decreed in another state, may reserve in the decree the power to increase or decrease the amount of the allowance for such maintenance from time to time thereafter as circumstances may require.
    2. In proceedings under section 24, notice of the inception of such proceedings is jurisdictional and must be served within the state, unless the parent waives notice by appearing and submitting himself to the jurisdiction of the court.

      3. But where jurisdiction has once been acquired over his person, and a decree has been made establishing the parental duty of maintenance, and requiring payment of a weekly allowance, at the same time reserving for future determination the question of an increase in- the amount of the allowance, notice of further proceedings intended to be made the basis of such an increase may be given in such manner as the chancellor in his discretion sees fit. Where personal notice is prescribed, it is- immaterial whether it be served within or without this state.
    4. A decree establishing the parental duty and providing for stated weekly payments for a time,, reserving the question of the amount of future payments, does not dismiss the parent from the jurisdiction. It is not within his power to evade the full performance of the decree by absenting himself from the state-or changing his legal-domicile.
    5. • Proceedings taken to increase the amount of the allowance are merely a continuation o-f the proceedings in which the parental duty became fixed. Service outside of the confines of this state of notice of proceedings for an increase of the allowance is not an invasion of the provision contained in the fourteenth amendment of the constitution of the United States, that no person shall be deprived of property without due process of law. Such service of the notice is itself “due process of law.”
    On appeal from an order advised by VieeChancellor Reed.

      Mr. Edwin Robert Walker, for the appellant.

      Mr. Union Satierlhwaii, for the respondent.
   The opinion of the court was delivered by

Pitney, J.

The parties to this appeal were divorced by the decree of an Oklahoma court, made in the year 1896. There are two children of their marriage, both of whom are still minors, and for whose maintenance the decree of divorce made no provision. In the year 1897, the children being inhabitants of this state, the court of chancery entertained a petition, hied by the mother, under section 24 of the act concerning divorces, approved March 27th, 1874. Gen. Sial. ¶. 'Wll. The father appeared, and on December 16th, 1897, it was ordered and decreed by the chancellor that the petitioner (the .present respondent) should have and retain the custody and care of the two children, and that the father (now appellant) should pay to the mother, for the support and maintenance of the children, the sum of $3 per week, for the period of one month from the date of that order and until the further order of the court; and that the mother should be at liberty, at the expiration of the period of one month, to apply to the court for an increase in the amount to be paid by the father for the maintenance and support of the children.

Some time after the expiration of the month Mrs. White filed a petition asking that the amount allowed for the maintenance of the children should be increased. Mr. White having in the meantime become a resident of the State of Pennsylvania, notice of this application was served upon him there, without a special order of the court being first made in respect to the manner of service. The. learned vice-chancellor, conceiving that under section 24 of the Divorce act a previous direction of the court with respect to the manner of giving notice of an application to increase the allowance was jurisdictional, declined to hold Mr. White to answer the petition.

Thereupon, in the month of April, 1902, on application by the petitioner, the chancellor made an order directing that notice of the application be served personally upon the appellant, and such service was made upon him in the city of Philadelphia. He thereupon entered a special appearance for the purpose of objecting to the jurisdiction of the court, on the ground that his domicile and residence were outside of the State of New Jersey. Upon the hearing of that objection it was overruled, on the ground that the terms of section 24 of the act had been complied with by the giving of such notice as the court had directed, and an order was made requiring the appellant to answer the petition. From this order he now appeals.

The.pertinent sections of the Divorce act are as follows {Gen. Stai. ¶. 1271) :

“23. That upon a decree of nullity or divorce, the court may make such further decree or order as may be deemed expedient, concerning the care, custody and maintenance of the minor children of the parties, and determine with which of the parents the children, or any of them, shall remain ; and may also from time to time afterwards, on the petition of either of the parents, revise and alter such decree or order, and make a new decree or order, as the circumstances of the parents and the benefit of the children shall require.
“24. That after a divorce decreed in any other state or country, if minor children of the marriage are inhabitants of this state, the court of chancery, on the petition of either parent, or of a next friend in behalf of the children, such notice being given to both parents as the court shall direct, may make such decree concerning their care, custody, education and maintenance as if the divorce had been obtained in this state.”

The legislature of 1902, in revising the statutes, included the substance of the former section in section 19 of the act concerning divorces. P. L. of 1-902 p. €07. The provisions of section 24 were embodied as section 6 in the new act concerning minors, &c. P. L. of 1902 p. 263. The Divorce act of 1874 was at the same time repealed, but with a saving of existing rights and of pending suits and proceedings. P. L. of 1902 p. 268.

By the terms of section 24 the court is empowered to make the same decree concerning the care, custody, education and maintenance of minor children who are inhabitants of this state, where the parents have been divorced in another state, as the court could make if the divorce had been obtained in this state. This refers us to section 23 for the limits of the jurisdiction and the mode of exercising it. The provision there contained is that where a divorce is decreed the court may not only make, at the time of decreeing the divorce, an order respecting the care, &c., of the children, but may also, from time to time, after-wards revise and alter this decree or order, and make a new decree or order, as the circumstances of the parents and the benefit of the children shall require.

The act clearly recognizes the continuing duty of the parent to support the children during their minority, and provides for the enforcement of that duty by retaining the parent subject to the jurisdiction of the court so long as the duty continues, to the end that the money allowance may be increased or diminished, and the provisions respecting the care, custody, education and maintenance of the children may be varied from time to time, according as the changing circumstances of the parties, the growing or diminishing needs of the children and the increasing or decreasing ability of the parent, may require.

Sections 23 and 24 are in this respect quite analogous to section 19 of the Divorce act of 1874, concerning which this court said, in Lynde v. Lynde, 19 Dick. Ch. Rep. 736 (at p. 753) :

“The amount of the allowance, the method of its enforcement, the method of its application, and the security to be exacted of the husband for its payment, are all confided to the discretion of the chancellor, and he is left at liberty to increase or decrease the amount of the alimony from time to time, according to the circumstances of the case. It will be observed that the statutory scheme is modeled closely after the practice of the ecclesiastical courts of England with reference to alimony. The purpose is to require the husband to pay to the wife, periodically, such sums as, in view of his circumstances and the necessities of the wife, will be a reasonable fulfillment of his continuing duty to support her.”

Section 23 of the Divorce act makes no provision with respect to bringing the parent into court, because he is presumed to be already in court in the divorce proceedings, to which the proceedings for maintenance of the children are incidental. Section 24 requires notice to be given to the parent as the court shall direct, because until the parent is thus brought into court there is no proceeding pending. But in either event, where the parent is once lawfully subjected to the jurisdiction, the proceedings are not concluded for all purposes by the making of a decree, such as was made by the chancellor in the present case on December 16th, 1897. While that decree was final in so far as it fixed upon the appellant the duty of supporting the minor children, yet, by its own terms and by force of the statute, it was subject to revision and modification from time to time in the future, so far as concerned the periodical contributions of money required for the discharge of that duty, leave being expressly-reserved to the petitioner to apply to the court for an increase' of the stated amounts and leave being impliedly reserved to the appellant to apply to have them decreased. The cause was not thereby terminated, nor was the defendant dismissed from the jurisdiction of the court. Any subsequent application for a modification of the terms of the decree with respect to the manner in which the parental duty was to be discharged was ancillary to the main purpose and effect of the decree, which was to conclusively establish the parental duty and to require its performance.

In proceedings under section 24 the chancellor is authorized to prescribe what notice shall be given to the parent. Notice of the inception of such proceedings is jurisdictional, and, admittedly, must be given within the state, unless the parent waives notice by appearing and submitting himself to the jurisdiction of the court. But where jurisdiction has once Been acquired over his person, the question as to what measures ought to. be taken to notify him of an inquiry relative to the , amount of the allowance is necessarily left to the discretion of the court. On grounds of natural justice, and as a matter of fair practice, he is of course entitled to some notice, such as it may be practicable to give. But where personal notice is prescribed it is immaterial where it is served, if he be already subject to the court’s jurisdiction.

The objection of the appellant that at the time he was served with notice (in April, 1902) he was a resident of the State of Pennsylvania, and that he was served in that state, is thus shown to be untenable. Prior to the 16th of December, .1897, he had become personally subject to the jurisdiction of the court of chancery by virtue of his own appearance in the proceeding. From that jurisdiction he has never been dismissed. It was not within his power to evade the full performance of the decree that fixed upon him the parental duty by absenting himself from the state or changing his legal domicile. Whenever it became necessary, in orderly procedure, to give him notice of a judicial inquiry affecting the quantum of his contributions towards the support of his children, such notice might be served upon him wherever found. Service outside of the confines of this state was not an invasion of the provision contained in the fourteenth amendment of the constitution of the United States, that no person shall be deprived of property without due process of law. Such service of the notice was itself “due process of law.”

The supreme court of the United States has held that notice of an appellate proceeding is not such “process” as must necessarily be served within the jurisdiction of the court. Nations v. Johnson, 24 How. 195, 204. And, in Pennoyer v. Neff, 95 U. S. 714, where it was held that “due process of law” requires, in actions in personam, that the defendant shall be subjected to the jurisdiction of the court by service of process within the state, or by his voluntary appearance, Mr. Justice Field, who1 delivered the opinion of the court, was careful to say (at p. 73k) ■ “It is hardly necessary to observe that in all we have said we have had reference to proceedings in courts of first instance, and to their jurisdiction, and not to proceedings in an appellate tribunal to review the action of such courts. The latter may be taken upon such notice, personal or constructive, as the state creating the tribunal may provide. The3r are rather a continuation of the original litigation than the commencement of a new action” (citing Nations v. Johnson).

The same view is taken in a recent and well-considered case in Florida. State v. Canfield (1898), 40 Fla. 23 So. Rep. 594; 42 L. R. A. 76. There it was held that a statute providing for constructive notice of the institution and pendency of a writ of error does not violate that provision of the organic law that prohibits the deprivation of property without due process of law.

The same reasoning applies, a fortiori, to a proceeding for modification of a decree for alimony, where the decree itself, pursuant to statute, is made expressly subject to such modification.

The order appealed from should be affirmed.

For affirmance — The Ci-iiee-Justice, Yan Syckel, Dixon, Garrison, Hendrickson, Pitney, Swayze, Yredenburgi-i, Yooriiees, Yroom, Green — 11.

For reversal — None.