text:
    David N. Rappoport et al., complainant v. Frank Crawford et al., defendants.
    [Determined July 28th, 1926.]
    Where a contract for sale of land is properly executed, the land in equity belongs to the purchaser and the purchase-money to the seller, and if the land is condemned by a municipality before the contract is executed and the value thereof paid into court, the amount remaining due of the purchase-money belongs to the seller, and the balance to the purchaser.
    On bill for specific performance. On final hearing.

      Messrs. Harcourt & Steelman, for the complainants.

      Messrs. Cole & Cole, for the defendants Frank and Josephine Crawford.

      Mr. John S. Westcott, for the defendants Mary and Alfred Petrie.
   Ingersoll, V. C.

On the 33d of September, 1934, the defendants Frank Crawford and Mary C. Petrie entered into a contract with the complainants Dr. Eappoport and Bluma C. Eappoport, his wife, wherein they agree to convey to the vendees a certain property therein described .for the sum of $13,000, $1,000 of which was paid at the signing of the contract and the balance • of $13,000 was to be paid in cash at the time of the delivery of the deed, which was to be on or before the 31st day of November, 1934. The title was to be good and marketable and such as the Atlantic Guaranty and Title Insurance Company would insure, and settlement to be made at the office of said company.

This agreement was signed by Josephine Crawford, wife of Prank Crawford, and Alfred A. Petrie, the husband of Mary C. Petrie, as well as by the parties named therein.

On the day fixed for settlement the complainants appeared at the office of the title company, tendered the amount due and demanded a deed.

The, title company declined to insure the premises because of a recognizance in the United States federal court in the sum of $10,000 executed by Prank Crawford as surety for the appearance of one John Mack.

A plan was suggested by the title company that, if the money was deposited with them by the purchaser and a deed executed by the grantors, the recognizance would be canceled and a new one entered into, and, in the meantime, if this could be done, the deed could be recorded and the title be given clear of the lien of the recognizance. The title company would not at that time either insure the title or guarantee that it would at a later day.

The purchaser declined to deposit the money unless the title company would insure the title at that time.

Later, on December 8th, 1924, counsel for the purchaser wrote the title company as follows:

“Atlantic Guaranty and Title Insurance Company, Real Estate and Law Building,
Atlantic City, N. J.
Dear Sirs :
On Saturday, December 6, 1924, you called me by ’phone and suggested that Dr. D. N. Rappoport, the purchaser of lot 14 in block 42, Ventnor City, deposit with your company the amount necessary to complete the settlement, and at the same time you informed me that the recognizances affecting this title had not yet been canceled. Xour, position appears to be that upon the deposit of the purchase price with your company, that you could record the deed from the grantors to my clients, the purchasers, and that immediately thereafter the recognizances could be canceled and -re-entered. This course would result in my , clients taking title subject to the lien of a very large recognizance, which I cannot advise them to do.
As we informed you on November 22d, if your company is willing to assume the responsibility for insuring Dr. Rappoport against loss, and would also guarantee to insure all subsequent purchasers and mortgagees clear of any such lien, we might be willing to do this, but the sellers certainly cannot expect the purchaser to take title subject to these defects. You suggested by telephone to-day that this course was usual. I certainly must positively disagree with you in this respect. I have never known of a case where the purchaser would take such a risk, and the' fact that your company will not take the risk, nor will the grantors do it, is sufficient justification for my position in the matter. If Dr. Rappoport wishes to take such a 'risk, he, of course, is at liberty to do so, but no careful lawyer would ever advise any client to assume such a responsibility. Dr. Rappoport is prepared to make this settlement whenever the title is right for settlement.
Very truly yours,
(Signed) Carlton Godfrey.”

The ’ deed has not been tendered, nor has the title company insured the title to said premises to be a good and marketable title.

The complainant was entitled to a conveyance of the premises in question clear of the lien of said recognizance, which conveyance could have been made by the grantors upon Crawford complying with the terms of said recognizance by causing it to be canceled for that or any other reason.

' Since the filing of this bill the land in question has been condemned by the city of Ventnor, and the'amount of the award allowed as the value of said premises has been deposited in this court, and the complainants now insist that a decree should be made in their favor for the amount of such award.

Over fifty years ago the court, of errors and appeals in Haughwout & Pomeroy v. Murphy, 22 N. J. Eq. 531 (on p. 546), held-—

“In equity, upon an agreement for the sale of lands, the contract is regarded, for most purposes, as if specifically executed. The purchaser becomes the equitable owner of lands and the vendor of the purchase-money. After the contract the vendor is the trustee of the legal estate for the vendee. Crawford v. Berthol, Sax. 460; Hoagland v. Latourette, 1 Green Ch. 254; Huffman v. Hummer, 2 C. E. Gr. 264; King v. Ruckman, 6 C. E. Gr. 599. Before the contract is executed by conveyance the lands are devisable by the vendee and descendible to his heirs as "real estate, and the personal representatives of the vendor are entitled to the purchase-money. 1 Story Eq. § 789; 2 Ibid. § 1218. If the vendor should again sell the estate of which, by reason of the first contract, he is only seized in trust, he will be considered as selling it for the benefit of the person for whom, by the first contract, he became trustee, and, therefore, liable to account. 2 Spenc. Eq. Jur. 810. Or the second purchaser, if he have notice at the time of the purchase of the previous contract, will be compelled to convey the property to the first purchaser. Hoagland v. Latourette, supra; Downing v. Risley, 2 McCart. 94. A purchaser from a. trustee, with notice of the trust, stands in the place of his vendor, and is as such a trustee as he was. 1 Eq. Cas. Abr. 384; Story v. Lord Windsor, 2 Atk. 631. The cejstui que trust may follow the trust property in the hands of the purchaser, or may resort to the purchase-money as a substituted fund. Murray v. Ballou, 1 Johns. Ch. 566, 581. It is upon the principle of the transmission by the contract of an actual equitable estate, and the impressing of a trust upon the legal estate for the benefit of the vendee, that the doctrine of the specific performance of contracts for the sale and conveyance of lands mainly depends.”

This case has been cited innumerable times, and the principles therein stated are firmly established as the law of this state.

A reference will be made to a master for an accounting.


source: Caselaw Access Project

author: Ingersoll, V. C.

license: Public Domain

text:
    Henry J. Trainor et al., complainants, v. Rose LeBeck et al., defendants.
    [Filed August 31st, 1926.]
    Where the owner of a house permits persons to be guests therein, those guests paying proportionate share of the cost of their living, such use of the premises violates a covenant against any use of the premises except as a private dwelling-house.
    On bill for injunction. On final bearing.

      Messrs. Thompson & Hanstein, for the complainants.

      Mr. Emerson Richards, for the defendants.
   Ingersoll, V. C.

The bill is filed claiming that the defendants are tire owners, of the premises known as No. 109 South Dover avenue, in Atlantic City, New Jersey, are violating the terms and conditions of certain restrictions set forth in their chain of title. The restrictions read:

•‘1. That no building or buildings shall be erected upon the above-described premises except a single dwelling-house to be devoted exclusively to private dwelling-house purposes. A brick or stone private garage excepted.
“2. That no building or buildings shall be erected upon the above-described premises anywhere nearer to the front property line than twenty feet, nor within five feet of the side or rear lines; that no bay window or other similar structure shall extend more than two and one-half feet beyond the main building or part thereof of which it forms a part, and that no porch veranda shall have an elevation of more than six feet above the curb line of the avenue upon which the land herein described fronts, and shall not be more than twelve feet in width, or within six feet of said property lines, except on the ocean side of dwellings erected in the beach-front lots.
“3. That no buildings shall be erected upon the land herein described costing less than sixty-five hundred dollars [fj>6,500].
“4. That no 'building shall be erected upon a lot having a frontage less than fifty feet on said streets between and including Elberon and Annapolis avenue, and as said avenues are at present plotted, except a thirty-foot lot on the west side of Ridgeway avenue feet feet south of Atlantic avenue as now plotted.
“5. That no everhead telephone, telegraph or electric light or other electric wires or poles or supports for. the same shall be erected or maintained, on the land herein described, except such as may be erected thereon through legal proceedings.
“6. That no undertaker shall be permitted to conduct business on any part of the herein-described property.
“7. That no signs of any kind, excepting house numbers or physicians’ signs of the usual size, shall be placed or erected upon or within any part of the herein-described property.”

The contention of the complainants is, that the defendants! are conducting a boarding-house, and not occupying or using the premises for "private dwelling-house purposes.”

At the conclusion of the final hearing, I expressed myself as follows:

"The situation as I see it, to state the facts as I see them, is that these two sisters have purchased this property as a speculation. One of the sisters resides with her husband in Atlantic City. The other sister resides with her husband in the premises in question. The property is much too large for the use of this sister and her family, and she has from time to time, the testimony would seem to indicate, almost continuously had visitors at this house who were either relatives, close or intimate friends, who, according to her testimony, which is the testimony we are governed by in this case, have paid to her such amount of money as she figured out to be a fair proportion of the cost of operating the house, or, as the brother expressed it, such amount of money as it was necessary for her to pay that she would not have been called upon to pay if the guests had not been there. • -The other sister has likewise entertained friends there, for which entertainment she says she has given her sister the proportion of the cost. Mrs. Blum apparently has little knowledge of the cost of operating the house. I am now speaking of operating it, not from the financial end of ownership, but of the occupancy of the house.

“The carrying charges of the house, such as taxes, interest and items of that nature, are borne, share and share alike. Mrs. Blum intimates that if there is any money received from those friends, relatives or other persons at the house in excess of the actual cost, that that is used in the settlement of the overhead charges. Mrs. LeBeck, as I recall, testified that there never was any excess at all, that she never collected from any of her relatives, friends or other persons any more money than she actually paid out therefor.

“As a business I do not see that it is proven that the sisters were partners — if it was. a business. As an ownership of the property, without doubt, they are partners.

“Now, the question resolves itself to this one issue: Does the use of a house and the permitting of persons to be guests therein, those guests paying a proportionate share of the cost of their living, constitute that a boarding-house? That is the issue, as I take it, and it now is before the court to determine.

“The complainants, of course, have admittedly been in a position of having no proof to offer except such proof as they were able to obtain from the defendant, except two items of proof. One is the advertisement. Mrs. LeBeck will neither deny nor affirm that advertisement. The advertisement does speak of Vinter rates/ which would indicate that a house for convenience of guests or boarding-house was being conducted.

“The second item is the letter addressed to this man Cooper, which the complainants have proven to have been written by Mrs. Blum, who explains why she wrote it. I am not at all impressed with the character of Cooper as a guest, or Iris being there as indicating that this house was a boardinghouse. On the contrary, the testimony would seem to indicate to me that, so far as he was concerned, he was assured that it was not a boarding-house, that he could not have accommodations there, and that he was compelled to leave the very next morning. Of course, I have no knowledge why Mr. Cooper is not here to testify to what he found the facts to bo. He was complainants’ affiant, but is not here to-day, and, of course, the testimony as produced by the complainants concerning his presence does not, in my view, aid them at all.

“Therefore, it conies right down to the one point in my mind, Does the use of a house in the manner indicated by excerpts from the testimony and understanding of the testimony of Mrs. LeBeck and Mrs. Blum, and, of course, qualified and explained by the brother and Mr. Harris, constitute that house a boarding-house?

“I will, of course, take the opportunity to examine the cases which have been called to my attention. I am making this statement so it will be unnecessary for me to make another resumé of the facts as I find them. I will do that as quickly as possible.”

There seems to be no definition of “private dwelling” adopted by the court of this state.

The late Chancellor McGill, in Skillman v. Smatheurst, 57 N. J. Eq 1 (at p. 5), said:

“I think, also, that the flat cannot be deemed a private dwelling. It is really a community-house, designed for the accommodation of more than an individual and his household, which I consider to be the sense in which the word ‘private’ is to be taken.”

The late Vice-Chancellor Howell, in Koch v. Gorruflo, 77 N. J. Eq. 172 (at p. 174), said:

“There is a very broad distinction between a private residence and a flat or apartment-house. This distinction was very clearly made by Chancellor McGill in the case of Skillman v. Smatheurst, supra. There the covenant provided that the premises conveyed should not be used for any other purpose than a private dwelling or private dwellings. The defendants began the erection of a three-story frame flat-house with five rooms on a floor, suitable for three families. The chancellor held that the buildings, which were in course of erection, were not private dwellings, and were, therefore, violative of the covenant, which restricted the use of the' land to the erection of private dwellings. This was followed by Vice-Chancellor Garrison in the case of Lignoi v. Jaekle, 65 Atl. Rep. 221. It has been held in England that an effectual way of prohibiting every kind of business is to stipulate that buildings to be erected on the land shall not be used otherwise than as private dwelling-houses. A restriction of this character will prohibit a school (Johnstone v. Hall (1866), 2 K. & J. 414), or a charitable institution (German v. Chapman, 7 C. D. 271); or a boarding-house for scholars (Hobson v. Tulloch (1898), 1 Ch. 424), or a studio (Patman v. Harland, 17 C. D. 353). In Rogers v. Hose-good (1900), 2 Ch. 388; 69 L. J. Ch. 652, it was held that where the covenant was that every house to be erected should be adapted for and used as and for a private residence only, is broken by the erection of a block of residential flats. In Gannett v. Albree, 103 Mass. 372, it was held that where a lease provided that the premises should be used strictly as a private dwelling, the condition is violated by the use of the premises as a public boarding-house; and in New York, in Levy v. Schreyer, 27 App. Div. 282, it was held that a building constructed so that it can be occupied by three families living separate and apart is not a private dwelling within the provisions of a covenant not to erect any tenement-house or any houses except private dwellings, and whether it was intended to be used by more than one family was immaterial.

“The distinction between a private dwelling-house or a private residence on the one hand, and a house built or occupied as a residence for two or more families, is quite obvious.”

This appears to be in accordance with the opinions as annotated in 18 A. L. R. 460.

I find that the defendants are not operating an inn or tavern, nor are they conducting a boarding-house, but I am convinced that the use of the premises as made by them is a violation of the restrictive covenants.

A decree will be advised in accordance herewith.


text:
    Edward M. Sutton, complainant, v. Charles Nemcof et ux., defendants.
    [Determined August 26th, 1926.]
    Evidence examined, and held, that the defendant did not execute the general power of attorney, as claimed by the complainant, either by acquiescence therein, or otherwise, he having repudiated it immediately upon it being brought to his attention.
    On bill for specific performance. On final hearing.

      Messrs. Kreps & Bell, for the complainant.

      Messrs. Cassman & Gottlieb, for the defendants.
   Ingersoll, V. C.

The defendant Charles Nemeof is the owner of the tract of land described in the complainant’s bill.

On the 6th day of July, 1925, Nemeof and his wife were enroute to Europe. One Ben Jenkin, as agent for Charles Nemeof and Eannie Nemeof, entered into a contract with the complainant for the sale of said land. Two thousand dollars was paid on account of the purchase price, which money was deposited to the credit of Nemeof.

On July 21st, one Ash, the Philadelphia attorney of Nemeof, endeavored to return the sum of $2,000 to the complainant, who refused to accept the same.

On July 6th, one Imbesi, the real estate agent, cabled Nemeof in Germany of the sale, with request “cable approval.” This was received by Nemeof on July 10th, upon his arrival, who immediately cabled Imbesi to the effect that this agreement must include sale of automobile accessories and machinery to be paid for by the purchaser. Nemeof sent a second cable, “Will pay $700 commission for selling. Wire acceptance.” Imbesi cabled: “Commission of three per cent, was agreed upon before sailing. Accessories and equipment' agreed. Wire acceptance.”

Nemcof repudiates the contract, and claims that Ben Jenkin has never been authorized by him to enter into the contract.

The complainant in- his brief says:

“There are only two questions to be decided in this case, viz.: (1) Was Ben Jenkin the duly and properly authorized agent of the defendant Charles Nemcof, with power to bind said defendant to a contract for the sale of the property in question? (2) If he was not such an agent, did Nemcof ratify the sale made by Jenkin?”

He produces one George D. Richards, a member of the bar of this state, and who was formerly trust officer of the Eirst National Bank, who testified that the defendant employed him to prepare a general power of attorney by which Jenkin was appointed attorney, and which was executed by Nemcof. Richards is unable to give the terms of this appointment— simply states it to be a general power of attorney, and not the form usually used in the bank.

No such power of attorney can be found. Mr. Nemcof denies the execution of a general power of attorney, but admits having executed two powers of attorney, authorizing Jenkin to withdraw funds from two separate bank accounts. Only one power of attorney was found.

It is sufficient to say that there is no satisfactory proof that Nemcof ever gave Jenkin any authority to sell the land in question. No attempt has been made to assert that he was authorized to sign Mrs. Nemcof’s name.

There is no testimony that he by any specific act ratified the agreement, but it is insisted that, by not immediately repudiating this alleged sale, he did ratify it.

Did Nemcof ratify the agreement?

Paraphrasing the language of the late Mr. Justice Magie in delivering the opinion of the court of errors and appeals in Lindley v. Keim, 54 N. J. Eq. 418 (at p. 424):

Proof, which is said to tend in that direction, fails to establish ratification for one obvious reason. It does not make it appear that Femcof had knowledge, during his absence in Europe, of the act of Jenkin in signing this agreement. Knowledge of the act, which has been done without authority, is an essential element of the ratification of the act. If we may draw a reasonable inference that Femcof knew that Jenkin had sold this land to Sutton, and was satisfied with the sale, or that Femcof would have executed and delivered a deed therefor to Sutton upon receipt of the purchase price, those facts fall short of ratifying Jenkin’s act in executing for him a binding agreement of sale.

Femcof, immediately upon obtaining knowledge of Jenkin’s act, repudiated it, and in the absence of proof of such knowledge at the time of the acts, which are alleged as constituting ratification, a ratification could not be made out.

Einding no proof that Femcof authorized Jenkin to execute the contract in question, and that the contract has not been ratified, the bill must be dismissed.


text:
    David Friedlander, complainant, v. Gustave A. Lehr et al., defendants.
    [Submitted August 18th, 1926.
    Determined August 18th, 1926.]
    Where a real estate agent, acting under authority of the complainant, neglected to make payment to the defendant on a contract for sale of land, the principal was bound to see that the payment was made, and is not entitled to a decree for specific performance of the contract with the defendant.
    On bill for specific performance. On motion to dismiss.

      Mr. William S. Darnell (Messrs. Bourgeois & Coulomb, on tlie brief), for the complainant.

      Messrs. Cole & Cole, for the defendants.
   Ingersoll, V. C.

A bill was heretofore filed praying for a decree of specific performance against Gustave A. Lehr and Bertha P. C. Lehr, his wife, of an unrecorded contract in writing for the sale of real estate, which real estate, after the signing of the agreement, but prior to the signing of the bill, had been conveyed by the vendors to third parties, who, although complainant learned of the conveyance before filing his bill, were not made parties, and charged with such circumstances as would justify a decree against him.

The case was heard and conclusions filed advising a dismissal of the bill. Before the decree for dismissal had been actually entered, application after notice was made for permission to amend the bill by bringing in the omitted party defendants, and in the event of that application being denied, for permission to suffer a voluntary dismissal of the bill. Both of these applications were denied. Upon appeal, it was held that these applications were properly denied and the defendants were entitled to a decree in accordance with the decision in their favor. Friedlander v. Lehr, 98 N. J. Eq. 359.

The complainants now file a bill alleging the contract as before, and charging that said Gustave A. Lehr and Bertha P. C. Lehr, his wife, after the making of said contract, and on May 18th, 1922, conveyed said premises to their daughter, Rose Sehlichting, who on the same day executed a purchase-money mortgage upon said property to Gustav'e A. Lehr to secure the payment of a part of the consideration, which mortgage was duly recorded; that said Sehlichting, on May 23d, 1922, conveyed said premises to one Thomas Delaney, which deed was duly recorded on May 25th, 1922. After-wards, Delaney and wife reconveyed to Sehlichting. After due avorments, Rose Sehlichting was made a party defendant.

At the hearing,-application for a dismissal of the bill upon the grounds that the matter was res adjudicada was made. This was held under advisement, and the final hearing was held.

The testimony was very similar to that given at the hearing of the previous case.

Gustave A. Lehr was, in April, 1922, the owner of certain premises in Wildwood, New Jersey. One G. M.' Dare is a real estate agent in that city.

On April 4th, 1922, Lehr authorized the said Dare to act as his sole agent for the sale of the property for the sum of $6,500, agreeing to pay a commission for such sale of five per cent, on $5,000 and two and one-half per cent, on balance of purchase price.

Negotiations were entered into, which fina'ly resulted in the execution by Lehr and his wife on April 13th, 1922, of an agreement to convey said premises to one David Eriedlander for the sum of $6,000. The consideration to be paid, $500 upon the signing of the agreement, $2,500 cash at the time of settlement on or before June 1st, 1922, and the balance to be secured by a purchase-money mortgage of $3,000.

This agreement was given to Dare to secure the signature of Eriedlander, and the payment of $500.

Eriedlander was a client of Dare’s, and he, Dare, had in his safe a cheek of Eriedlander’s which had been given him to pay upon the purchase of another property, and which Eriedlander authorized Dare to use to make the payment called for by the agreement.

Dare made no payment to Lehr of the $500 until on May 25th, 1922, he mailed Lehr a “certified check for $225, representing the $500, * * * less commission.”

On May 25th, 1922, Lehr returned the cheek and wrote as follows:

“You bought this property more than six weeks ago and paid no deposit although you said you would pay me $500 down.
‘Wot having heard from you in all that time, and having received no deposit, I have decided not to sell this property and more.”

Friedlander, by his attorney and with Dare, on May 31st, 1922, tendered to Lehr $2,725 and a mortgage for $3,000, and presented a deed for signature, which Lehr refused. Dare made the same tender, which was also refused.

The testimony leaves no doubt that Dare was acting as Friedlanderis agent during the entire negotiations. Under these facts, and that no actual payment was made by Fried-lander, he was bound to see that his agent made the payment to Lehr, which he, Friedlander, says he authorized Dare to make.

While it is clear that under other circumstances Fried-lander would be under no obligation to see to the application of money paid on account of the consideration of an agreement of sale, his knowledge of the existing anomalous position of Dare, put him upon guard and imposed upon him that duty.

I am satisfied that the facts as proven do not entitle the complainant to a decree for specific performance of the contract.

Therefore it is unnecessary to determine the question raised upon the motion to dismiss.


author: Bentley, V. C.

text:
    Marion Beatrice Melos and Frank Melos, complainants, v. William C. Hagen and Martha Hagen, defendants.
    [Decided May 29th, 1926.]
    1. While it is possible for a ward to contract with his guardian, or, in fact, make him a voluntary donation either while the relation exists or shortly thereafter, however, when such a voluntary gift is attacked by the ward there is wisely thrown upon the party who is occupying, or has occupied, the dominant position, the burden of proving that the other fully comprehended what he was doing, that it was without any undue influence, that no fraud or deception was practiced, or that any other unconscionable advantage was taken by the one who is presumed to have been able to exercise some greater or less degree of influence by reason of the relation existing, or that had existed between them. Such a gift is regarded with the utmost suspicion, giving rise to a presumption that it is void, after the relationship is established', and that presumption continues until the defendant sustains the burden which the law casts upon him.
    2. Evidence examined, and held, that the deed in question was the product of undue influence, and should be canceled.
    Oil bill, &C.

      Mr. William F. Burke (Mr. John Milton, of counsel), for the complainants.

      Messrs. Lichtenstein & Lichtenstein (Mr. Julius Lichtenstein, of counsel), for the defendants.
   Bentley, V. C.

This is a bill to cancel a conveyance made by a ward to her guardian at the time of the settlement of his final account-shortly after her majority.

The ward in question will be-referred to as the complainant, and no mention will be made of her husband in his capacity as a purely formal party. The guardian is the sole defendant. In 1900 the complainant’s father died intestate, seized of a parcel of real estate which he had undertaken to devise to his widow. After his death the complainant was born, and the will was nullified by the twentieth section of “An act concerning wills” (4 Comp. Stat. p. 5860), and the complainant became seized of the land in fee, subject only to the widow’s dower. The widow intermarried with the defendant, and, erroneously believing herself to be the owner of the above real estate, executed a last will and testament, in which she attempted to devise one-third of the same to the defendant and the remaining two-thirds to the complainant. Thereafter, the complainant’s mother died, and the defendant, in 1906, was appointed the general guardian of the latter’s person and estate. During the period following this appointment he filed four or five intermediate accounts, and submitted to her when she became of age a final account, which was never filed in the office of the surrogate, but exhibited to* her in the office of his attorney, where she accepted the same after a brief examination of it and its accompanying vouchers. The reason for this perilous practice will presently be made apparent.

The complainant became twenty-one years of age on the 6th or 7th day of November, 1921, and the final account was exhibited to her a little more than two months thereafter, on January 23d, 1922. On the following day the deed, which is attacked in the bill, was drafted, and on January 25th, 1922, it was executed and acknowledged. It conveyed a little more than one-third of her entire estate, and the land conveyed was at that time worth $30,000. It was a voluntary donation, the complainant receiving nothing whatsoever in consideration thereof. After the deed had been signed by the complainant in the office of the defendant’s attorney, she was escorted to the office of another member of the bar who bears a very high reputation both for integrity and professional skill, before whom, as a master in chancery, she acknowledged the instrument. His testimony is that he has no recollection of the transaction, and it is perfectly clear that nothing more was done in his presence or by him than the usual perfunctory explanation to the grantor of the contents of the deed and the taking of her acknowledgment.

There is no denial that the complainant as a child was nervous and delicate. In fact, she gave unmistakable evidence on the witness-stand of being highly nervous, if not actually neurotic. She was constantly under the care of physicians and unable to continue her scholastic education be-3rond the grammar grades, although possessed of an income of some $6,000 or $7,000 a year. It is true that she attended two schools conducted for business training upon the advice of her guardian, but before completing the course her delicate health necessitated a break in this education, so substantial that, when she resumed, it was at another school.

Upon the death of her mother the defendant placed her in the home of one of his sisters named Mrs. Griffin, where she lived until the time of her marriage, and, in fact, for some time thereafter. While thus domiciled, there is no doubt that she was treated with kindness, care and attention, and that, so far as her health and moral training were concerned, she was well cared for. But it is also equally true that during all of' that period she paid her way, dollar for dollar. So great a mass of proofs was submitted that it is impracticable, within any reasonable limit, to completely present it in this opinion. But it was clearly demonstrated that the complainant utterly relied upon the defendant and his sister up to and including the time of the' conveyance under attack.

During the complainant’s minority exceptions were filed by a next friend to the last intermediate account ever filed in the office of the surrogate, and many, if not all of them, were sustained, whereby it was made evident that the defendant had prayed allowances for a very substantial sum of money, upwards of over a thousand dollars, which the orphans court disallowed and surcharged him with. In this connection it is not without interest to say that a counsel fee of $150 was allowed in that court to the next friend, and in his final account, which was not to bear the scrutiny of an impartial officer or to be filed as a public record, this man charged his ward with the payment of that counsel fee, which he had been directed to pay himself because of his official misconduct. Another striking instance of the effort of the defendant and those associated with him to profit by his relation *v£ trust was the purchase of a more or less expensive automobile, which was intended for their profit and convenience, rather than that of the ward. A letter was produced, written by some physician, recommending automobile driving for the complainant’s physical benefit, and there was also produced a petition addressed to the orphans court for permission to purchase the same. This, however, was never filed, and no such order was ever granted. Nevertheless, the car was purchased and used as a family vehicle, and the judgment of the physician proved entirely wrong, because the complainant was found to be of too nervous a disposition and temperament to operate an automobile. Counsel for the defendant, in answering the charges that full advantage had been taken of his opportunities by the guardian to profit at the expense of his ward, made the astounding argument that the legal allowances were not compensatory. If such a rule should be adopted by this court, it might as well submit and give up the struggle that it has made for centuries to compel fiduciaries to be faithful. So far as I remember, no attempt was made to explain the discrepancy in the testimony about the gift of $2,500 to Mrs. Griffin.

At the time the complainant executed the deed in question it will be recalled that she had, on the day before, examined her former guardian’s final account and assented to the items therein displayed. Among them appeared regular payments of rent for the premises conveyed by the deed just mentioned, up to and including the month of November, 1921, during which she became twenty-one years of age. Eor December of that year and January of the year following the defendant had not charged himself with any rent, although he still continued to occupy the premises as a tenant and his ward continued to be the owner of the fee. This is especially damaging, in view of the fact that the defendant testified he had had no idea that the complainant intended to make him a gift of these premises, not only at the time the deed was executed, but not until a long period thereafter, when the deed was returned by the register of Hudson county to his attorney after it had been recorded. The defendant had been in the office where the deed was drawn on the day before its date, admittedly, and I am convinced was there at the time it was executed, although this he denies. It is one of the weaknesses of human nature that only an exceptional' man can resist the temptation to be present personally and see the execution and fruition of a scheme long maturing and of great benefit to his fortunes. It is not difficult, when vitally interested, to remain quiescent even when things are running smoothly and all the auspices are good. I suppose it is the same infirmity that renders it so hard for an advocate to remain silent even when the court is arguing his case for him against his adversary. Of course, in line with his defense that there had been no undue influence, he felt obliged to say that any such scheme was so far from his mind that he had, not only never taken the subject up with her, but he was totally unaware of the impending stroke of good fortune. He was at a loss, however, to explain why he ceased paying rent for premises which he occupied only as a tenant and never contemplated enjoying as the owner.

My understanding is that it is within the realm of possibility for a ward to contract with his guardian, or, in fact, to make a voluntary donation, either while the relation exists or shortly thereafter, although to sustain such a transaction has been said to be almost impossible. Pom. Eq. Jur. § 961. However, when such 'a voluntary gift is attacked by the ward, there is wisely thrown upon the party occupying, or who has occupied, the dominant position, the burden of proving that the other fully comprehended what he was doing, that it was without any undue influence, that no fraud or deception was practiced, or that any other unconscionable advantage taken by the one who is presumed to have been able to exercise some greater or less degree of influence by reason of the relation existing or that had existed. Idem. In short, such a gift as the one under consideration is regarded with the utmost suspicion, giving rise to a presumption that it is void, after the relationship is established, and that presumption continues until the defendant sustains the burden which the law casts upon him. Hall v. Otterson, 52 N. J. Eq. 522, and cases cited. This the defendant has failed to do. When one considers the physical and mental condition of the complainant, her utter isolation from anyone interested in her by ties of blood, her absolute dependence through all the years of her weakness upon the defendant and his sister, the proved attempts of the defendant to improperly profit at her expense while he exercised dominion over her fortune, securing this donation so soon after she attained her majority, and his failure to pay any rent for the two months preceding the gift, and, in fact, from that time on, although he says that he did not know of her intended generosity or the accomplishment thereof until long after the gift was made, it is unescapable that her bounty was not the result of her own uninfluenced wishes, but came entirely, as she says, from the germ of the idea that had been carefully, systematically and skillfully implanted in her mind. This girl was growing into maturity, an orphan who had almost never seen the mother who brought her into the world. It is common knowledge that as a girl grows up into young womanhood there is created in her mind a romantic and reverential tenderness for her mother, as she herself begins to bloom into womanhood. She appreciates and realizes the maternal character as no man can ever hope to-. Under these circumstances, it seems to me that the instrument was at the defendant’s hand and ready for his use that would make easy the persuasion of this 3roung woman that the wishes of her dead mother with regard to the property in dispute should be carried out, and that there was a sacred duty upon her to effectuate them. I realize that in the case of a strong-minded and generous-hearted woman, under a debt of gratitude to a benefactor- — -this, in itself, would probably sufficiently impel her to make a gift such as the one under consideration. But, it cannot be said that she is either of a strong intellect or possessed of an unusually generous disposition, and there has been nothing to indicate that the treatment she received as an infant would have been strongly influential in arousing a feeling of such generosity. Not even the letter, written under peculiar circumstances to- her guardian’s lawyer in the first part of 1984, in which she says that Mrs. Griffin had been more than a mother to her for eighteen years, could be considered such proof, because there is strong reason to believe that at that time she was actuated far more by a desire to injure her husband than an3rthing else. Inasmuch as her husband and the defendant were then struggling for possession of her person, she naturally felt that anything she said or did which favored the latter and his sister would be injurious to the former. Her husband had at that time just secured a writ of habeas corpus out of the supreme court to take her away from the influence of the defendant.

In the defendant’s behalf much has been made of the base character of the complainant husband. There can be no doubt of his mean character, rapacity, that he deliberately set out to catch an heiress, and has lived upon her fortune. Hour after hour he sat through the final hearing listening to his character being unmercifully displayed in all its ugliness, and, while he attended to the end, he did not offer himself as a witness to deny a single fact. Erom this it is apparently desired that I shall dispose of the property in dispute in such a manner as to render it impossible for him to ever enjoy any benefit flowing from it. This, of course, I cannot do. It is a question between his wife and the defendant. If she is successful, it will become a part of her separate estate, over which the law gives her husband no dominion. If she chooses to bestow it upon him by a valid gift or permits him to use it, or the rents, issues or profits thereof, then the answer is, as was said by a learned judge and text-writer: “Equity does not undertake to act as the guardian of mankind. It does not aid people wlm make foolish bargains.” Nelson v. Betts’ App., 21 Mo. 219.

In an attempt to overcome the legal presumption in this case, counsel argues that the cross-examination of the complainant disclosed that she was a woman of unusual firmness. With that it is impossible to agree. It is my firm belief that she is of a pliable disposition, or, as was not inaptly said, of one like putty. In fact, I am quite as firmly convinced that if she should again be thrown under the influence of the defendant he could rapidly turn her present hostility to him against the husband to whom she now cleaves. Counsel loses sight of the fact that her conduct and demeanor upon the stand was influenced by ber knowledge that in the front row of witnesses’ seats there sat that husband whom she was obliged to face at the close of each session of the hearing, and with whom she was obliged to return each night to their home. Her whole attitude on the stand indicated that she had keyed herself to go through with the part that she had assumed. While she exhibited a childish animosity, at times directed against the cross-examiner, I think it is fair to say that there were hardly any admissions which he sought that she did not eventually make, and while I have great respect and admiration for his skill in that art of the advocate, I do not think he would have come off so well with a woman of ordinary intuition and mentality. He readily pierced her defenses, and, on many occasions, compelled her to discredit her own previous statements, but he did not break down the main elements of her testimony to the effect that her will had been influenced through her childhood days.

Another aspect of this case that has been stressed by complainant’s counsel is that when she made the conveyance she did not have the advantage and benefit of what has become known in this state as independent advice. Slack v. Rees, 66 N. J. Eq. The lawyer who represented her guardian, in the attack upon the latter’s fourth or fifth intermediate account, was the only person with whom she had an opportunity to discuss making the gift. He has testified that he, not only strongly advised her against the execution of the deed, but, in fact, compelled her to go home and deliberate on what he had said to her, and it was not until she had complied with this direction that he was eventually prevailed upon to prepare the indenture for her signature. I have great confidence in his word, and am without doubt that what he says is true, but I do not understand that this satisfies the doctrine in question. He was placed in a situation of great delicacy and embarrassment, and one that it would have been far wiser had he never assumed. He was dealing with a young woman whose mind had been worked upon with great artfulness, and who was pouring out to him what she conceived to be her own wishes instead of those that had been implanted in her mind by others for their gain. In addition to that, he must have been subconsciously influenced by reliance upon the integrity of the defendant, with whom he had associated for a long time in a relation of the highest confidence. Without in any way impugning his honesty of purpose, it can scarcely be said that conferring with him afforded her independent advice and "untrammeled consultation with some person competent under all the circumstanced’

(italics mine) to advise her. Guiditta v. Bonacci, 95 N. J. Eq. 147.

It may, perhaps, be said, and I think it was so advanced on the argument of this cause, that the rule expressed in Black y. Rees, supra, does not apply unless the donor, by the transaction, strips himself of all, or substantially all, of his substances. It is true that, in the very recent case of In re Fulper, 99 N. J. Eq. 293, it is said that if the subordinate retains property enough to preyent impoverishment the rule does not apply. Vice-Chancellor Green (in Hall v. Otterson, supra) said that it applied to all transactions “except in those involving mere trifling gifts.” But whether or not the law has been in a state of flux since that time is of no moment in the case at bar.. Having decided the main question, namely, undue influence, adversely to the defendant, it is of no moment whether the more refined rule is applicable or not.

The deed should be canceled and an account taken, and I will so advise.


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    Samuel Epstein, complainant, v. Ada Colyer and George Colyer, her husband, and Ernest Gillis, defendants.
    [Decided June 4th, 1926.]
    1. Where on a bill to foreclose a mortgage for $1,000 the answer admits the facts stated in the bill except the amount due on the mortgage, and alleges that the debt was only $800, this amounts to a defense of usury, and the one who charges it should be prepared to abundantly make proof thereof.
    2. Evidence examined, and held, that the defense of usury was not clearly and abundantly proven.
    On bill to foreclose.

      Mr. Filbert L. Bosenstevn (Mr. Meyer Lobsenz, of counsel), for the complainant.

      Mr. Leonard Van Lenten (Mr. Addison P. Bosenkrans, of counsel), for the defendants.
   Bentley, V. C.

On December 33d, 1934, the defendants husband and wife executed a mortgage to secure the payment, one year thereafter, of $1,000. On the 10th day of February, 1936, the principal sum not having been paid, and then almost two months overdue, this bill was filed. The answer admits the execution of the encumbrance and all of the other facts set forth in the bill except the statement therein that $1,000 was due, and alleges that the true debt intended to be secured was only $800, thus bringing the transaction within the penalty expressed in the second section of the “Act against usury.” 4 Comp. Siat. p. 5704-

The complainant has produced two checks dated, respectively, November 17th, 1934, and December 33d, 1934, each for the sum of $350, drawn by the complainant to the order of the defendant husband, and by him cashed. As to these payments, totalling $700, no dispute exists. In addition to this sum it is undisputed that the defendants were further indebted to the complainant in the sum of $105 for arrears of interest. The balance of the $1,000 consideration for the mortgage the complainants says was made up in this way: After the mortgage had been executed the defendants accompanied him to a clothing store conducted by him, where the husband selected a quantity of personal apparel, the value of which was added to the already-existing indebtedness of' $805, and the balance between that total and $1,000 was paid to the husband in cash. These facts were corroborated by the testimony of his wife and son, but are denied, so far as the purchase of clothing and payment of cash are concerned, by the defendants.

The defendants make it clear that there had been either .two or three previous mortgage transactions in which the complainant had played some part, and the defendant husband had in each instance been a borrower. Each time it appears that more was paid by the mortgagor than would account for the legal interest. But in all of these transactions the complainant seems to have acted as a broker in procuring the loans for the defendants and not the financial party to the various dealings. It is true that much was made of one mortgage in which the complainant borrowed from one of his relatives and took the mortgage in his own name, but I think it is clear that he considered the money to be, as it was equitably, that of the relative and not his own, and it is not contended that the act on usury or any other law prevents a broker from charging a fee for his services. It is not without significance that while the complainant stoutly denied the charge of usury in the encumbrance under consideration he very frankly admitted the compensation he had received in those transactions where, he secured another to come to the financial assistance of the defendants.

In the placing of the mortgages, other than the one which is the basis of this suit, the attempt was made to show that the complainant had received more in the way of a fee than five per cent, of the loan which he admitted. In each instance, however, he explained the apparently higher percentage by showing that the creditor had charged the borrower with the amount of interest the former lost by withdrawing funds from savings accounts before the then next interest payment day of the bank.

Two other matters of great importance were put in evidence : One was the fact that after the complainant’s solicitor wrote to Mrs. Colyer, the defendant who actually held title to the lands upon which the mortgage was a lien, demanding payment of the principal sum after’it became due, her solicitor applied to the former for additional' time, and not a word, apparently, was then said about usury. The other relates to the very acute state of the financial condition of the defendant — so precarious, indeed, that a check of one of them was admitted in evidence, having been returned to the complainant by his bank -with a small printed form pasted thereon by the latter and a check mark opposite the said item, “.Insufficient Funds.” These facts, of course, speak for themselves and require no argument, as neither does other proof showing financial embarrassment at and after the date of maturity of the mortgage.

One who charges usury against another should be prepared to abundantly make proof thereof. It was said by the court of errors and appeals, in Taylor v. Morris, 22 N. J. Eq, 606 (at p. 612), that not only is the burden of proof in a case such as this upon the defendant, but that it must be sustained “by such preponderance of evidence as establishes the truth of the allegations on which it depends, beyond a reasonable doubt.” Against all of the foregoing facts and circumstances the defendants ask the court to convict the complainant upon the single circumstance of the irregularity in the payment of a part of the consideration of the mortgage. Their counsel skillfully accentuated the fact that neither the complainant, his wife, nor his son could give any estimate as to the value of the clothing that entered into the transaction or the amount of cash necessary to complete it. It is true, at first blush, this might appear suspicious, but upon more mature deliberation it rather favors the complainant, because it is fair to assume that a shopkeeper, more than a year after a purchase in his store has been made, would be unable to remember the amount of the sale. During the intervening period hundreds if not thousands of such sales would have been consummated, and it would require a memory touched with genius to carry any clear recollection over such a long period of time unless it had been the sale of a single article and connected with some unusual circumstance affecting the sale itself. If this story was made out of whole cloth, it is more likely that, at the same time it was conceived, all of the accompanying trimmings would have been invented, rehearsed, and committed to memory.' Furthermore, it is admitted by the husband that after the execution of the mortgage he did go to the complainant’s store, and to this extent he corroborates the mortgagee, inasmuch as he makes no explanation of his reason for going there.

In giving his testimony, the complainant’s son became hopelessly involved when cross-examined as to the date of the purchases made by the defendant husband after the mortgage had been executed. It is clear that he confused the date upon which the first check for $350 was given with the date about a month thereafter, when the second check was delivered to the defendants and the security delivered to the complainant. The rest of his testimony, however, was credibly delivered, and I am not inclined to disregard it because of this slip which is so frequently made by honest witnesses who wish to impress others with the clarity of their memories on the subject of dates. It is also important in this respect to say that there was no conflict of any moment concerning the dates of these transactions.

I will advise a decree in conformity with the prayer of the bill.


text:
    Forstmann & Hoffman Company, a corporation, complainant, v. The United Front Committee of Textile Workers of Passaic and Vicinity, Albert Weisbrod et al., defendants.
    [Decided June 10th, 1926.]
    1. A party musb take out a subpoena on taking out an injunction, and a return made thereon within the time prescribed by the rules.
    2. Where a subpoena was prepared at a time anterior to the return of the order to show cause, and, therefore, before the injunction order was advised, sueh action is equivalent to the issuing of process, but where the complainant was stayed by service of a notice of a motion ■ to dissolve the restraint, further time will be allowed for service, to wit, one month from the date of the order, exclusive of the time between the service of the notice and the decision.

      @. A defendant can waive 'the service of process, and file his answer voluntarily, but if he does so, it must be done unequivocally, and a statement by.counsel at the argument on the return of an order to show cause that “all of the defendants are in court” is not sufficient to negative the necessity of the issuance and-service of process.
    On application to dissolve injunction.

      Messrs. McCarter & English (by Mr. George W. C. McCarter) , for the complainant.

      Mr. Sigmond Unger and Mr. Joseph A. Eeder, for the defendants.
   Bentley, V. C.

On May 11th, 1926, an injunctive order was allowed restraining the defendants from certain acts during the progress of a strike at the complainant’s mills. On May 27th, 1926, notice of this motion was served upon the complainant’s solicitors of record, by leaving a copy thereof with someone in charge of the office. There was some slight irregularity in the service, but no point has been made thereof, presumably for the reason that any such objection would be grossly technical. . Upon the day mentioned in the notice, to wit, June 1st, 1926, counsel for the proponents appeared in support of the motion, but no one appeared to represent the respondent. It now transpires that while complainant’s counsel was in communication, or attempted communication, with one of the pounsel (but not the solicitor of record) for the defendants for the purpose of securing a continuance, the solicitor for the defendants, together with another associate counsel having no knowledge of the attempt on the part of the complainant’s counsel .to secure a continuance, went on with the motion. Before the draft of order for which the defendants ask had been presented for signature, a representative of complainant’s counsel informed the court of the inadvertence which explained their absence, and the matter was then laid bv'er until the following motion day, whereupon argument was heard, as it would have been heard the week before except for the fact just explained.

The reason advanced by the proponents of the motion, is a failure upon the .part of the complainant to take out a subpoena ad respondendum and to cause the same to be served, as required by the practice adopted in this court. As early as Corey v. Voorhies, 2 N. J. Eq. 5, the chancellor pointed out that Chancellor Williamson, in the April term, 1829, said: “That a party must take out a subpoena on taking out an injunction, and that he would dissolve an injunction if that practice was not followed.” The same rule was laid down and followed in West v. Smith, 2 N. J. Eq. 309. In Lee v. Cargill, 10 N. J. Eq. 331, the rule was again enforced and the practice declared to be that the subpoena must be taken out with the injunction and a return made within the time prescribed by the rules. This rule has been reiterated and acted upon by this court down to at least the opinion of the present chancellor, in Allman v. United Brotherhood of Carpenters and Joiners of America, 79 N. J. Eq. 150, and very recently the court of errors and appeals, noticed the, rule and quoted from the last-mentioned case in Reliable Cloak Co. v. Sorbella, 98 N. J. Eq. 354. But in the last-named case the only question decided was that the penalty does not go so far as to work a dismissal of the bill, but only a dissolution of the interlocutory injunction. The purpose of the practice is, of course, obvious, and intended to prevent an unfair advantage being taken of a most drastic remedy, secured only upon ex parte proofs, and usually all that the complainant desires in the way of protection, whether he is entitled thereto or not. It would be a most unfair thing if he then might be permitted to remain quiescent after he had placed his adversary at a disadvantage or compel the latter to do something which the law does not require him to do, namely, file an answer (Allman Case, supra — at p. 154) or never be given an opportunity to effectually disprove the complainant’s case at final hearing. Fot only this form of delay but any lack of due diligence on the part of complainant is ground for nullifying the injunction. Schalk v. Schmidt, 14 N. J. Eq. 268. With these considerations in mind, it will be seen that the rule is not a harsh one, and while it is, of course, technical, it is a Very necessary practice to secure justice and fair treatment to defendants and should be insisted upon in all cases.

In the present motion it is necessary to consider both aspects of the rule of practice under consideration. It will have been observed that the rule requires two things — (1) that the subpoena be taken out with the injunction, and (3) that it be served and returned within the time required for a return of the injunction. With the first branch of the rule there is no difficulty, because the undisputed proofs disclose that the subpoena was prepared at a time anterior to the return of the order to show cause and, consequently, before the injunctive order was advised. Inasmuch as it is no longer necessary for application to be made to the chancellor for writs of subpoena, but they are supplied in quantities to members of the bar as officers of the court, it is fair to say that the filling in and signing of the form by the solicitor is the equivalent of the ancient issuing of the process, in analogy to the practice at law fixed in the case of Updike v. Ten Broeck, 32 N. J. Law 105. In short, the preparation of the writ satisfies the first condition of the rule, if it is still applicable at all. It is the provision to be examined next that is of prime importance, because if the service and return are timely, the date of the subpoena is of little or no consequence.

The second of the requirements of the rule of practice under consideration is not quite so simple. Originally, there was a practice permitting the issuance of the writ upon an ex parte application. 2 Dan. Ch. Pl. & Pr. *1666. That, of course, was later succeeded by bridging temporary emergencies through the instrumentality of an ad interim restraint contained in an order to show cause which, by its terms, fixed a day for the motion at which the respondent was given an opportunity to present his preliminary proofs. And still later the present practice was adopted of providing a still earlier opportunity for the defendant to be heard, if he so desires, by permitting an application to be made upon notice to the complainant, to dissolve the restraint. But since the decision of any of the cases herein mentioned, or any others with which I am familiar, section 10 of the act of 1915 was adopted (P. L. 1915 p. 186) declaring that no writ of injunction shall issue unless specially directed, the consequence, of course, is that the strict letter of the rule as to the second branch cannot be literally carried out, because, being no writ to be returned by the sheriff, there can be no “time required for the return” thereof. Fo longer is a formal writ issued out of the office of the clerk and served upon the enjoined part}, but the successful applicant serves upon the adversary party or parties a certified copy or certified copies of the injunctive order, and it instantly becomes operative.

In this state of the practice, light is thrown upon the subject under consideration by a reference to the two hundred and seventeenth rule of this court, which provides that writs of injunction shall be returnable one' month after their teste. In the very nature of things, some greater or lesser time would be required in any case, for the service and return of the injunction, or, in our modern practice, injunctivte order, whether the number of persons to be bound thereby were small or, as in the present case, very large, numbering over eighty. There is no rule or precedent of which I am aware that fixes the time within which this service must be effected; and, therefore, it would appear to be not unfair that the party securing the order should have at least as long a period of time in which to make service as would have been the case when the rule just quoted was adopted, if the' instrument to be served had been the formal writ instead of the simpler practice of having the order stand for the writ. Inasmuch as the complainant herein was stayed by the service of the notice of this motion on May 27th (of course, no service could have been effected until the determination of the motion), it will be allowed for service of the subpoena and its return, a like period of time to that which it had to make service at the time of the serving of the notice just mentioned. This additional period of time shall be computed from June 11th, upon which day this memorandum should .reach the attention of the respective counsel.

While unnecessary to notice one remaining point made on behalf of the respondent perhaps it should be noticed, in view of the length at which it was argued. Upon the argument of the motion on the return of the order to show cause why a preliminary injunction should not be allowed, the. experienced .counsel for the complainant asked that counsel for the defendants should be reqriired to disclose for whom he and his associates appeared. In reply, the latter said: “All of the defendants are in court.” From this, it is argued that there was a general appearance, obviating the necessity of statutory process. This, of course, cannot be so. A defendant can .waive the service of process and file his answer voluntarily, .but if he does so it must be done unequivocally. An appearance such as these is not general. It only subjects the respondent to the jurisdiction of the court for the purpose of the motion. To argue that an appearance, required by the terms of an order to show cause, to contest an interlocutory motion subjects the respondent to the jurisdiction generally without anything more, would completely disarrange the practice established by the legislature. Nowhere to my knowledge has any authority so declared or even discussed the proposition. In fact, for the purpose of final adjudication and award of relief, the suit is not even commenced until the service of the subpoena. Hermann v. Mexican Petroleum Corp., 85 N. J. Eq. 367. Counsel has confused the present situation with the rule to be applied where a defendant appears without preceding permission obtained, upon the conditions imposed, for the single purpose of attacking the jurisdiction of a court of equity. 1 Dan. Ch. Pl. & Pr. *536 et seq.; Groel v. United Electric Co., 69 N. J. Eq. 397.

There was a further point made that suits to enjoin strikes never, or almost never, go to final hearing and, therefore, there is no necessity, after the granting of the injunction, to serve process for^appearance. It is hardly to be conceived that the chancellor in the Allman Case, supra, would have devoted so much time to a discussion of the subject of this decision unless the regular practice obtains in labor cases. It is true that in a majority of them the strike is settled before final hearing can be reached and no further proceedings are taken, but this does no't alter the requirements in the orderly conduct of suits in equity.

In my opinion the motion should be denied, and I will so .advise the chancellor.


text:
    Uszer Zukman and Abraham Zukman, trading as American Upholstery and Slip Cover Company, complainants, v. Charles Ihle, defendant.
    [Decided June 23d, 1926.]
    Where there is no complete, certain and definite understanding between parties to a lease, either oral or written, this court will not compel the parties to perform.
    On bill, &c.

      Mr. David H. Sterner, for the complainants.

      Mr. Max A. Sturm (Mr. Julius Lichtenstein, of counsel), for the defendant.
   Bentley, V. C.

On bill for specific performance of a lease and to enjoin interference by the lessor of the lessees’ enjoyment of the land.

On April 6th, 1926, the complainants and the defendant conferred about the renting by the forrq^r of certain of the latter’s premises, and, as a result of their negotiations, the following receipt was prepared and signed by the defendant:

“April 6th, 1926.
Received of American Upholstery and Slip Co. twenty 00/100 dollars for rent or as a deposit for rent of factory 40 Milton ave.— not private office; lease to be made for two years at $125 per month with the privilege to renew for two more years at $125 rental. From May 1st, 1926, to May 1st, 1928.
Charles Ihle.”

In the proofs submitted on the return of the order to show cause a great deal of extraneous matter was included, and, in fact, my mind became so confused that I have been obliged to read the bill and affidavits to secure a clear view of the situation. There is no question in my mind but that the defendant agreed to demise the premises mentioned in the receipt to the complainant for a period of two years, with an option to renew for a like term. It also appears very probable that the change of mind has been occasioned by an ability to lease the premises to another for a larger rent. The difficulty with which I am faced, however, is the failure to complete the terms of the contract. Without reference to the statute of frauds and perjuries, it is the invariable rule that specific performance will not be decreed unless the contract is complete, certain and definite. Pom. Eq. Jur (4th ed.) § 2186. As recently as Tansey v. Suckoneck, 98 N. J. Eq. 669, the court of errors and appeals has reiterated this rule and declared that wherever it is apparent from the terms of the contract that it was preliminary and not final, and that features left unsettled are to be settled by further negotiations, specific performance will be denied. That this is the rule, counsel for complainants does not deny, but maintains that there is a complete lease to be spelled out of the terms of the above receipt, and that it is not a memorandum by which the defendant evidenced his willingness to enter into a lease. It is impossible for me to agree with this argument.

Eeliance is placed by the complainants upon the pronouncement of the court of errors and appeals in Wharton v. Stout enburgh, 35 N. J. Eq. 266. There is quoted in their opinion the following langjpfge of Lord Westbury in Chinnock v. Marchioness of Ely, DeG. J. & S. 645:

“I entirely accept the doctrine that if there had been a final agreement, and the terms of it are evidenced in a manner to satisfy the statute of frauds, the agreement shall be binding, although the parties may have declared that the writing is to serve only as instructions for a formal agreement. * * * - But, if to a proposal or offer an assent be given, subject to a provision as to a contract, then the stipulation as to the contract is a term of the assent, and there is no agreement independent of that stipulation.”

In the Wharton Case letters had passed between the parties for the leasing of land, and, later, there was a meeting at which all the terms of the lease were agreed upon and incorporated in a formal instrument, which, however, was never signed. A copy of this document was forwarded to the defendant and its receipt acknowledged by him, and he went into possession of the demised premises and retained them for a considerable period of time until a decline in prices of the iron he was taking from the complainant’s land caused him to attempt a repudiation of the lease by setting up the statute of frauds. Of course, it was determined that the part performance took the transaction out of the statute. The rationale of that opinion, so far as germane to the case at bar, is .that,-whether or not, theTe has been a complete meeting of the minds depends upon all the facts and circumstances entering into the case. The distinguishing features between the case in hand and the one at bar is, that in the former the preliminary negotiations were followed by a final lease and agreement, while in the latter no such complete understanding was ever reached. The informality of the Teeeipt copied above is of no moment, and the complainants would be entitled to the assistance of this court if it was complete in all its details.

In these days it is very unusual for the owner of a more or less valuable piece of real estate devoted to business purposes to simply say to a prospective tenant, “I will lease you these premises for two years at a rental of $125,” as is frequently done in ordinary dwelling-houses. The lease propér is always, or nearly always, accompanied in the same instrument by a formidable list of covenants, some binding upon the lessor, but most of them upon the lessee. Eor example, in this very case each of the parties prepared and submitted to the other forms of formal leases, differing utterly in their respective covenants. The one submitted by the defendant contained no less than twenty-two printed covenants, besides an acknowledgment of the broker’s commission, and three covenants in typewriting. Any attempt to comply with the prayer of the bill would not result in compelling the defendant to abide by his bargain, because he never completed one. It would be a demise by the court of his land for a considerable term upon conditions imposed by the court. This would be intolerable. Applying the reasoning of Wharton v. Stoutenburgh,. supra, the very preparation and submission of these leases brings the ease within the opinion of Tansey v. Suckoneck, supra. It is clear, from the incompleteness of the document upon which the complainants rely, the failure to stipulate any of the usual terms and conditions to be found in leases of such properties and the subsequent action of the complainants themselves, that there was in contemplation on April 6th further requirements to be decided upon by the parties, and, therefore, that there was no such complete certain and definite understanding between the parties, either written or oral, as it is the policy of this court to compel the parties to perform.

The order to show cause should be discharged.


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    Samuel B. Feld, complainant, v. Reuben B. Kantrowitz et al., defendants.
    [Decided July 23d, 1926.]
    The mere fact of possession and occupancy toy a tenant of offices in an office building does not put subsequent purchasers of the building on inquiry.
    On bill, &C.

      Mr. Edward A. Weiss (Mr. Veter J. McGinnis, of counsel)., for the complainant.

      Mr. Jacob L. Newman, for the defendant Rose Zucker.
   Bentley, V. C.

After the rendition of decision on the motion for a preliminary injunction herein and affirmance by the court of errors and appeals, the cause came on regularly for final hearing and was decided, so far as it relates to the defendant ¡Rose Zucker, by dismissing the bill. There is another aspect of the bill in which relief is sought against other defendants, and upon that the final hearing has not been concluded. The questions involved in the suit against Rose Zucker have been completely covered, so far as I am able to accomplish it, by the opinion in this cause reported in 98 N. J. Eq. 167 (not yet officially reported). It would appear that the convenience of the court of errors and appeals will be served by including that opinion as well as this memorandum in the printed case. The only additional authorities that were submitted on the final hearing were Caplan v. Palace, &c., Co., 110 Atl. Rep. 584; 2 Tiff. Real Prop. § 571, and some eases from other states. After reading Caplan v. Palace, &c., Co., supra, I am of the same opinion that I expressed last summer. The ease to which reference is made does not, so far as my reading of the opinion reveals, refer in any way to the constructive notice arising from tenancy in a building such as the one involved in the case at bar. I also feel that the reference to Tiffany is inapplicable, for the same reason, and the citations from the courts of our sister states are not directly in point. In Boyer v. Chandler, 160 Ill. 394, the decision was per curiam, no authorities are cited, no argument given, and is at variance with the reasons herein expressed.

I will advise a decree, so far as the defendant Eose Zucker is concerned, dismissing the bill and' leaving the same, so far as it prays for relief from other defendants, in the exact status it occupied at the close of the first day’s session of the final hearing.


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    Celia Sobel, petitioner, v. Alexander Sobel, defendant.
    [Decided July 21st, 1926.]
    Where the court of errors and appeals decides a case, and' remits the record to this court, all motions in the case should be made in this court, where the record is, and this includes a motion for counsel fees for services rendered in the court of errors and appeals.
    On petition, &c. On application for counsel fee for services rendered on appeal in the court of errors and appeals.

      Mr. John N. Platoff, for the petitioner.

      Messrs. Weinberger & Weinberger, for the defendant.
   Bentley, V. C.

Alimony was fixed and allowed the petitioner in this court on final decree and affirmed by the court of errors and appeals. During the appeal, application was made by petitioner’s counsel to the court of errors and appeals for allowance of counsel fee for the services rendered in the appellate court. The customary motion was made by some member of that court to carry the application to conference, and the motion was adopted by the court. When the opinion of that court was delivered and filed, it disposed of the question presented by the appeal but made no mention whatsoever of the application by the appellee for counsel fee. In other words, the meritorious question of the appeal was decided but there was no decision on the motion for counsel fee. After the cause had been remitted back to this court notice was given by petitioner’s solicitor of the present application.

It is my understanding that an appeal operates to remove the cause appealed from this court into the court of errors and appeals, so that the court of first instance is without power to deal further with the subject-matter, except as dealt with in Ashby v. Yetter, 78 N. J. Eq. 173. During such time, all incidental motions must be made to the court of errors and appeals and not to this court. After the appeal has been heard upon its merits, according to the rules of the appellate court and its judgment has been regularly and correctly entered, and the time within which an application for re-argument may be made has expired without such motion, and the remittitur has been entered and the cause remanded to the lower court, then the court of errors and appeals is stripped of its jurisdiction and all further relief must be sought in this court. As early as King v. Ruckman, 22 N. J. Eq. 551, Chief-Justice Beasley so declared. In that case a motion was made for a re-argument after the case had been heard upon its merits in the court of errors and appeals, judgment entered, and the papers and proceedings remitted to the court of chancery. After a review of authorities in many jurisdictions the chief-justice said that there was no doubt as to the authority of that court to amend its judgment where it was erroneous by reason of fraud, accident or mistake, and then he says: “But I also think that when such judgment has been rendered after a hearing upon the merits, and has been entered on the minutes in accordance with the views of the court, and the record has been regularly remitted to the inferior court, this court has no further jurisdiction in the ease.”

To like effect is the opinion of Chancellor Runyon, in Putnam v. Clark, 35 N. J. Eq. 145, where there is an exhaustive review of authorities, including King v. Ruckman, supra, and quoting the language set out above. In the Florida Case of Lovett v. State, to be found in 16 L. R. A. 313, there is such a collection of authorities and so clear a discussion of them that the editors of that work decided that no further annotation was needed, and it amply supports the views already set out.

The reason for the above discussion is, that defendant’s counsel takes the position that his client is entitled to the judgment of the court of errors and appeals, to which the suhject has been committed by the petitioner, and has a vested right therein of which he cannot be deprived by a second like application now made to this court. He says in his brief: “Eor all intents and purposes, there is an undetermined motion still pending in the court of errors and appeals and now under consideration by that cowrt.” (Italics mine.)

Of course, in view of what has already been said, it becomes apparent that this is not so. An application for counsel fee in a divorce suit is a mere incident thereof, and if, according to its course of practice, the court of errors and appeals will not recall the entire case it has nothing before it upon which to predicate a decision of the so-called pending question. Should counsel for the petitioner now attempt to further press the application that has not been decided, it requires no vivid imagination to foretell what the answer would be. If there were' a motion “still pending” in that court “and now under consideration” by it, of course, no member of the court of chancery would presume to forestall, but when the canse was regularly remitted, the motion expired, and, hence, does not exist.

Another ease in point is that of Weeks v. Lister, 62 N. J. Eq. 813. In that case, application was made for counsel fees and expense of printing after decision upon the merits and the remitting of the record. It is true that this application was not made while the appeal was pending, but the following language of the court, which I here italicize, mahes it abundantly apparent that the present application in the case at bar is made with entire propriety to this court:

“The application for counsel fees should first be made in this court. If the court then passes on it, the decision is final, but if tlie court.does not pass on it, or if through mere inadvertence the application for counsel fees is not made while the case is before the court, then after the remittitur, the court of chancery has jurisdiction to grant counsel fees and printing in the court of errors and appeals upon a proper1 case being presented in these respects.”

An examination of the language used shows that it is an' application such as the present one that the court of errors and appeals had in mind when it said that if the court “does not pass on it” the court of chancery has jurisdiction to grant the prayer, after the remittitur has been entered. It is also true that this particular language was not necessary for a decision of the motion then being considered, but it is clear intimation from the court of last resort as to a common matter of practice with which its members must have been entirely familiar.

Upon an oral argument of this motion, defendant’s counsel undertook to illustrate his position by a hypothetical supposition, viz., that if counsel fee is awarded now on this motion, the court of errors and appeals may, subsequently, decide similarly the motion made in that court, and thus the defendant will find himself under obligation to pay twice for a single service. This point is not pressed in the brief subsequently filed, and the answers thereto are so obvious that I assume the point is abandoned.

I will allow a counsel fee of $1,000 for the services performed in opposing the defendant’s appeal.


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    Christine Dietrick, petitioner, v. Arthur C. Dietrick, defendant.
    [Decided August 19th, 1926.]
    Where a -woman who has a decree for alimony from her divorced husband marries again, and the former husband seeks to be relieved from further payments of such alimony, a presumption arises that the necessity for alimony no longer exists, but it is subject to be rebutted upon a showing that her second husband will be unaible to support her in anything like the station in life of the man whom she has divorced, in which event the alimony should either be continued, without change, or modified according to the circumstances of each individual ease.
    On petition, &c.

      Mr. Albert Leuly, for the petitioner.

      Messrs. Butler & Butler, for the defendant.
   Bentley, V. C.

The above petitioner, in 1918, secured a final decree of divorce from the bonds of matrimony for the cause of adultery, and in the decree was allowed permanent alimony at the rate of $10 each week. Subsequently, the petitioner married a man named Hill, and thereupon the defendant, her former husband, filed a petition in this cause praying that he be relieved of any further payment under the aforesaid decree. It appears that the woman opened an establishment for the dressing of hair and other activities, commonly called a beauty parlor, in 1918, but, almost immediately, was obliged to abandon the venture because of misfortunes that fell upon her. She was also the owner of a parcel of real property which she sold in November, 1923, and secured as her equity therein the sum of nearly $10,000. Her present husband, she says, is employed at wages of $55 a week, out of which he contributes to her support, and that her present father-in-law pays her $55 a month for board and lodging. She says that she has been obliged to live upon the proceeds of the sale of her real property, so that that sum has shrunken from its original amount to the sum of $10.

Her affidavit is filled with vague hearsay statements and suppositions, such as information that the defendant has sold an apartment-house for $35,000,'but she neither discloses the source of her information nor does anyone else substantiate what she says. Neither is she able to give any enlightenment as to what encumbrances or liens were upon the property, making it impossible to calculate the equity realized upon the sale. Her statements are denied by the man.

There is thus presented for the first time in this state, so far as I know, the question of the effect of a woman’s remarriage upon her right to alimony from her former husband. It is true that Vice-Chancellor Grey said, in Abele v. Abele, 62 N. J. Eq. 644, that because the successful wife was quite young enough to expect to be married again he would not allow permanent alimony. I do not conceive, however, for obvious reasons, that this was any adjudication on the subject now being considered. Warren v. Warren, 92 N. J. Eq. 344, is authority to the effect that such a motion as the one under consideration will not be allowed where the man is in contempt for failure to obey the alimony order. Vice-Chancellor Backes says: “The second marriage * * * does not, ipso facto, terminate the alimony.” This is far from meaning that it never will have that effect. This question has been passed upon by the courts of a number of our sister states and those of England. In some of the jurisdictions, such as New York, in the case of Shepherd v. Shepherd, 1 Hun 240; affirmed in 58 N. Y. 644, and in Indiana in the case of Miller v. Clark, 23 Ind. 370, the subsequent marriage has been declared to have no effect upon the previous allowance, although the New York rule has been considerably weakened by the later opinion in Kiralfy v. Kiralfy, 73 N. Y. Supp. 708, -where the earlier opinion is examined and distinguished, almost to the vanishing point. On the other hand, the authorities in Massachusetts, from Albee v. Wyman, 10 Gray 222, to the present time, are to the effect that the remarriage throws upon the former wife the burden of establishing prima facie proof that the support afforded by her second husband is inadequate. This was expressly held in South-worth v. Treadwell, 168 Mass. 511, and was followed by the supreme court of California in Cohen v. Cohen, 150 Cal. 99, where the court says, “we think this rule is just and equitable.”

The English rule is of no assistance because of the practice growing out of their Divorce act of 1857, which provides for inserting the dum sola et casta vixerit clause, which is never, so far as I know, used in our decrees. Bid. N. J. Biv. Pr. (2d ed.) 155.

The fundamental reason for permanent -alimony has been most clearly stated by Sir J. P. Wilde, in Sidney v. Sidney, 4 Swab. & T. 178, where he says:

“The needs of the wife and the wrong of the husband are the same in both cases. In both cases the husband has, of his own wrong and wickedness, thrust forth his wife from the position of participator- in his station and means. Obliged in both eases to withdraw from his home, she is, without any fault of her own, deprived of her fair and reasonable share of such necessaries and comforts as lay at his command. Why should not the husband’s purse be called upon to meet both cases alike? It has been said that in one case she remains a wife, and in the other she does not. This remark would carry great weight if the provision were intended to continue in the event of her second marriage, but it can hardly affect the rate of allowance made and continued so long only as the wife remains chaste and unmarried. * * * A very large number of the divorce cases since the act have been petitions by the wife for cruelty and adultery, or desertion and adultery. And among certain classes of the community a very common ease indeed is that of a young husband who, either not agreeing with his wife or getting tired of her shortly after marriage, endeavors to shake her off. In this endeavor he generally begins by treating her with neglect and contempt, often half starves her, often beats her, often insults her by open adultery, and ends by deserting her and cohabiting with another woman. That the wife should desire a divorce in such a case can hardly be a matter of surprise, and that she should obtain it is but bare justice. But it is the very thing that the husband wants, too. He has succeeded in shaking off the obligations of marriage, and that by his own voluntary breach of them. And if he can part with his wife at the door of the divorce court without any obligation to support her, and with full liberty to form a new connection, his triumph over the sacred permanence of marriage will have been complete * * *. No man should, in my judgment, be permitted to rid himself of his wife by ill-treatment, and at the same time escape the obligation of supporting her.”

After such an allowance has been made in a final decree, it may be modified upon the application of either party. Barrett v. Barrett, 41 N. J. Eq. 139. Hence, it is only necessary to determine what effect, if any, a remarriage of a woman ought to have upon the precedent decree for alimony under the circumstances of this case.

When the ordinary run of men' and women intermarry, the wife, in her way and by her efforts, contributes in no small degree to the acquisition of such property as the husband is able to accumulate. Without her services and economies his expenses and expenditures would probably exceed the necessary disbursements in the home. Because of her limitations and her necessary activities in his behalf, she is not trained or equipped for success in the field of commerce or any of the other ordinary means by which a man obtains a livelihood. Now, when he, by his misconduct, forces her to withdraw from cohabitation, and she establishes her wrongs in a decree of divorce, it is only just, as Sir J. P. Wilde says, that her necessities should be met by the resources she has assisted her husband in acquiring, as well as his earning powers. This is not in the nature of a penalty imposed upon him for his misconduct, but it is based upon the necessities of the wife and intended to compel him to respond to his duty to support her in his station in life. Boyce v. Boyce, 27 N. J. Eq. 477. Upon consideration of these principles it would seem clear that the fair and just rule to be deduced is, that the remarriage of the wife who has divorced her husband ought to raise a presumption that the necessity for alimony no longer exists, but it is subject to be rebutted upon a showing that her second husband will be unable to support her in anything like the station in life of the man whom she has divorced, in which event the alimony should either be continued without change, or modified according to the circumstances of each individual ease.

It is reasonable to suppose, in the absence of proof to the contrary, that a woman who has been supported by her previous husband will choose from her associates a second mate substantially as well able to support her as the man from whom she has been freed. Neither is at a violent assumption to credit her second husband with being a man who is competent to discharge the material elements of his obligation to his wife. Under these circumstances there would be no further need of the support from the first husband, and as the whole subject of alimony is based upon the theory of the necessities of the wife, the reason for alimenting her would appear to have come to an end. Common experience seems to substantiate the accuracy of these observations, because in the history of our state it appears there has never been occasion for a husband to seek the aid of this court .to protect him from the rapacity of a former wife, although there must have been hundreds or thousands of instances of women entitled to alimony who have remarried. To the vast majority of women there would he a natural repulsion against accepting the bounty of any man whose conduct had driven his wife to seek and obtain a decree severing the bond of matrimony one moment beyond the necessity of her case, and the natural supposition is that she has found the- support provided by her second husband to be ample for her comfort.

' If, however, a woman’s heart should be won by a second spouse whose ability to support her should be inadequate, for any reason, it would appear to be the wise course to compel the man from whom she has been divorced to continue to discharge the obligation he had assumed when he married her. Any other policy might result in an obstacle to marriage, upon which the law has always looked with abhorrence. The woman having been given by law the right to marry again should not be penalized by an exercise of that right, in view of the favorable regard of our institutions toward marriage.

Applying the above observations to the facts of this case, we find that this respondent and her husband are in receipt of an annual income of about $3,300. While she vaguely alleges in her affidavits that she has been “accustomed to having more clothing, pleasures and entertainment, and living in better style” while married to her first husband, there is not a single fact alleged in support of this declaration, and when it is contrasted with the striking fact that she was only allowed the very small sum of $530 a year alimony after she had proved her husband’s guilt and her right to her freedom, it would seem fair to assume that he was not a man of any great substance during the time of their married life. He has been remarried, as he had a right to do, and is rearing a. family as the result thereof. While his first duty, in the eyes of the law, is to support his first wife so long as that may be necessary, his added burdens and the rights of innocent third parties may properly be taken into account when such necessity has been terminated. Nichols v. Nichols, 25 N. J. Eq. 60.

The order for alimony should be suspended.