text:
    William J. Rowland et al. v. New York Stable Manure Company.
    [Submitted April 29th, 1917.
    Decided July 10th, 1917.]
    1. Storing of forty thousand tons of manure from about May 1st to the latter part of September, emitting foul odors, corrupting the air, and penetrating the homes of complainants, is a nuisance.
    2. The causes of action alleged, viz., defiling the air and pollution of water,, are properly joined in one bill of complaint.
    3. Complainants need not show prior application to the local board of health to abate the nuisance and its refusal to act, in order to maintain their bill.
    4. Eight years’ endurance of the nuisance does not constitute laches— every day’s continuance is a new nuisance.
    5. Where the damage is substantial, a court of equity will in the first instance determine the question of nuisance and grant relief.
    6. Defendant’s outlay expended on the property was without the implied consent of complainants, and does not estop them.
    7. Where a nuisance is clearly established, and is causing material irreparable injury to complainants, they are entitled to an injunction, irrespective of resulting damages to defendant.
    On bill, &c.

      Mr. John P. Kirkpatrick and Mr. Russell E. Watson, for the complainants.

      Mr. Edgar W. Hunt, Mr. Spencer Weart and Mr. Edward H. Hoos, for the defendant.
   Backes, V. C.

This is a bill to abate a nuisance to habitations, caused by offensive odors arising from manure piles. The defendant’s business is that of gathering horse manure from stables in New York, Brooklyn and jersey City, and shipping it direct to farmers and dealers in fertilizers, except during the crop growing season, when the collections are stored at the defendant's plant on the Rocky Hill branch of. the Pennsylvania railroad near Monmouth Junction. Storing begins about May 1st, and ■continues untjl the latter part of September, when reshipments ■commence, lasting until the end of the year. On an average, twenty carloads of manure, of twenty-five to thirty tons each, are received daily, the annual accumulations approximating forty thousand tons. The cars are unloaded by cranes and dredges and the manure is stacked in ricks twenty feet high, about one thousand feet long, and from thirty to fifty feet in width. To keep the manure from burning — the animal heat is so intense as to be physically unendurable — -requires soaking with water for a period of three weeks. The water is drawn from what is called the “Black Pool,” which is replenished by the drainage •from the manure ricks. The complainants allege that these manure piles and the Black Pool emit foul, nauseating and sickening odors, corrupting the air and penetrating their homes, ■greatly to their inconvenience and discomfort.

The principles of law applicable to this kind of nuisance have been so often reiterated that I pause before restating 'Chancellor Zabriskie’s pertinent declarations in Cleveland v. Citizens’ Gas Light Co., 20 N. J. Eq. 201: “Any business, however lawful, which causes annoyances that materially interfere with the ordinary comfort, physically, of human existence, •is a nuisance that should be restrained; and smoke, noise and ,bad odors, even when not injurious to health, may render a dwelling so uncomfortable as to drive from it any one not compelled by poverty to remain. Unpleasant odors, from the very constitution of our nature, render us uncomfortable, ánd, when ■continued or repeated, make life uncomfortable. To live comfortably is the chief and most reasonable object of men in ■acquiring property as the means of attaining it; and any interference with our neighbor in the comfortable enjoyment of life, is a wrong which the law will redress. The only question is what amounts to that discomfort from, which the law will qDrotect.”

The complainants, ten in number (four were admitted during the course of the trial) and their witnesses, reside within a radius of a mile or so of the defendant’s plant, in different directions, encircling it, and their evidence (of a score and more) leaves not the shadow of a doubt that they suffered much annoyance and misery from these offensive and disturbing smells. It would be impracticable here, and it would serve no practicable purpose, to recount their testimony. Their definitions and characterizations of the ill-smelling odors vary with the witnesses’ power of description; as one of the witnesses tersely put it “it is hard to describe a bad smell.” A summary of their experiences, and the effects and results of the- smells by which, after ?all, the question of nuisance is to be determined, is, that whenever the wind blew towards them from the direction of the manure heaps, the atmosphere was so laden with the malodor as to cause nausea, headache and vomiting; to cause them to forego their meals, altogether, or to leave them unfinished; to seek shelter in their homes with the doors and windows tightly closed; to, at nighttime, suddenly awaken them from sound slumber, and to deprive them of sleep, or compel them to seek sleep with the windows down and doors shut. Children were driven into their homes from play, and members of families from their porches and,lawns. All of these things did not, of course, happen to all of the witnesses, but nearly all of them to some, and some to all or members of their families, in their turn or in groups, as the winds favored during the hot summer months; and especially were they affected during sultry, damp and foggy periods, when the vapors could be seen arising from the storage grounds and wafted towards their abodes. The effluvium was constant, the inflictions intermittent and recurrent, as the air-currents shifted. The testimony of the complainants as to this state of iffairs is supported by some of the witnesses called .by the defendant, and is not overcome by others who testified that the odors smelled like stable manure and that they were not distressed. I am ready to believe that the smell was like that of stable manure, but stable manure plus noisome gases and vapors generated by these enormous heaps of dung, during the cooling process. It requires no proof to satisfy me of the great difference in volume and pungency of odors emitted by ordinary barnyard manure piles, and those that come from immense deposits, such as the defendant stores, for I need only recall the stifling and overpowering stenches that came from the horse stable manure stored in large quantities on the Newark meadows some years ago, and I believe by this very defendant company, and how we were obliged to close car windows and doors, and stop breathing, while traveling by; and, indeed, we experience the same disagreeable sensations in our present daily 'travel, when passing long trains freighted with this animal excrement. The evidence makes out a clear case of nuisance to the complainants in the comfortable enjoyment of their homes— denounced by judges' and text-writers as among the worst class of nuisances — and of a type similar to many reported in our books, which this court suppressed. Ross v. Butler, 19 N. J. Eq. 294; Cleveland v. Citizens' Gas Light Co., supra; Meigs v. Lister, 23 N. J. Eq. 199; Pennsylvania Railroad v. Angel, 41 N. J. Eq. 316; Rausch v. Glazer, 74 Atl. Rep. 39; Laird v. Atlantic Coast Sanitary Co., 73 N. J. Eq. 49; Kroecker v. Camden Coke Co., 82 N. J. Eq. 373.

The nuisance determined, I will take up in the order submitted by the defendants’ counsel on the argument and in the briefs, the various objections to granting complainants’ relief.

Before answer filed, a motion was made to strike out the bill as amended, on the ground of multifariousness. The gravamen of the bill, as originally drawn, was nuisance to habitation by defiling the air, and by the amendment an additional injury to one of the complainants was alleged by reason of the pollution, from the “Black Pool,” of a natural stream running-through his- property. Decision was reserved until final hearing, with the understanding that if it went against the complainants the amendment, was to be withdrawn and 3 n independent bill filed, with the further stipulation that testimony was to be taken on both branches of the case and used in the second suit, if one became necessary. Tinder the former practice the joining of these causes of action would have been improper (Davidson v. Isham, 9 N. J. Eq. 186; Morris & Essex Railroad Co. v. Prudden, 20 N. J. Eq. 530), and would not have been permitted under the rule of this court promulgated by Chancellor Zabriskie at the March term 1869 (Rowbotham v. Jones, 47 N. J. Eq. 337), but by the supplement to “An act respecting the court of chancery," P. L. 1915 p: 184, the joinder is now allowed. Sections 24 and 25 of subdivision 3 of paragraph “Schedule A" provide:

“24. Separate Causes of Action. Persons interested in separate causes of action may join as complainants or be joined as defendants, respectively, if the causes of action have a common question of law or fact, and arose out of the same transaction or series of transactions.
“25. ‘Transactions.’ ■ The transactions referred to in the preceding section include any transaction which grew out of the subject matter in regard to which the controversy has arisen.”

This remedial provision, which has for its object the simplification of chancery procedure, by uniting in one suit all manner of complaint growing out of the same subject-matter, ought to receive most liberal judicial construction. The causes of action joined in this bill — the corruption of the atmosphere and the pollution of water — arose out of the same transaction, viz., the defendants maintenance of its manure storage ground, to which -the same fundamental principles of law are applicable, generally; and while proof of one offence does not establish the other, the two causes of complaint are so closely allied in connection with the subject-matter of the controversy as to, for all practical purposes, embody a common question of fact within the letter and spirit of the legislation. Either a common question of law or a common question of fact warrants a joinder; and the use of the disjunctive particle is an indication of the broad sweep of the legislative intent, along with the trend of the times, towards economy of time, labor and costs of litigation.

• By plea, the defendant challenges the complainants' right to ■maintain this suit without first showing that application had been made to the local board of health to take proceedings, and that the board had, without just cause, neglected or refused to do so. The police power of the state or local boards of health to abate'nuisances and to apply to this court to enjoin them, is limited by the statute to those “hazardous" or “injurious to public health." 2 Comp. Stat. p. 2652. The bill in this case floes not charge that the odors are noxious, unwholesome, or hurtful to health, but alleges merely that they are of a character so offensive and disagreeable as to make life uncomfortable, thus stating a case over which the health bodies have no jurisdiction. Board of Health v. Neidt, 19 Atl. Rep. 318; State v. Freeholders of Bergen, 46 N. J. Eq. 173; Board of Health v. Lederer, 52 N. J. Eq. 675. But, if the case were one of a distinct and special injury affecting the enjoyment of property, arising out of a public nuisance, the injured party would’ be entitled to redress, without first invoking or resorting to the means created by law for the suppression of public offences! Equity sometimes will decline, or, with reluctance entertain, jurisdiction to abate a public nuisance at the instance of 'an individual suffering an injury distinct from that of the public, where the remedy at law is adequate and efficacious (Morris & Essex Railroad Co. v. Prudden, supra), or where the legislature has established institutions with power 'of speedy and economical redress, as for example the public utility commission; but this inclination does not extend to subordinating a right of private redress to a co-ordinate remedy in the public.

The defendant further sets up in its answer that it and its predecessor in title carried on business in the same manner at Monmouth Junction continuously for the past eight years, and that “the complainants are in laches and are therefore debarred from maintaining this suit, unless and until they shall have first established in ordinary proceedings at law the fact that this defendant is guilty of maintaining upon its premises an actionable nuisance.”' I know of no rule, and no authority has been brought to my attention, to sustain the proposition that equity will not grant relief from a constant or recurring nuisance because of the laches of the complainants until the question of nuisance i's settled by the verdict of a jury. Where the right or title of the complainant is not disputed, or is apparent, and the fact of the injury has been clearly made out by the evidence, and the damage is substantial, a court of equity will in the first instance determine the question of nuisance and grant relief. Carlisle v. Cooper, 18 N. J. Eq. 241; S. C., 21 N. J. Eq. 576; Duncan v. Hayes, 22 N. J. Eq. 25; Stanford v. Lyon, 37 N. J. Eq. 94.

In Higgins v. Flemington Water Co., 36 N. J. Eq. 538, Chief-Justice Beasley said: “After a court .of equity has entertained a bill, and, instead of sending the case to a trial at law, has itself tried the questions - of fact .involved, and settled the legal right in favor of the complainant, it certainly would be a result much to be deprecated, if, at such a stage of the controversy, it was the law that the chancellor were required to say to such a complainant, ‘Your right is clear; if you sue at law you must inevitably recover, and after several such recoveries, it then will be the duty of this court, on the ground of avoiding a multiplicity of suits, to enjoin the continuance of this nuisance ;■ still you must go through the form of bringing- such suits, before this court of equity- can or will interfere.’ In those cases in .which, to the mind of the chancellor, the right of the complainant is clear, and the damage sustained by him is substantial, so that his right to recover damages at law is indisputable, and the chancellor has considered and established his right, I think it not possible that any authority can be produced which sustains the doctrine contended for by the counsel of the defendant.” Where the nuisance is erected and completed, and there is no pressing necessity for intervention, or' where on the question of nuisance the evidence is in sharp conflict and doubt exists, a verdict of a jury must be had before equity will aid. Attorney-General v. Heishon, 18 N. J. Eq. 410; Tuttle v. Church, 53 Fed. Rep. 422,; Elizabeth v. Gilchrist, 86 Atl. Rep. 535. The chancellor may, in his discretion, decline to hear and determine a close question of fact of nuisance and may frame an issue for a jury, to inform “the conscience of the court.” Bassett v. Johnson, 3 N. J. Eq. 417; Fisler v. Porch, 10 N. J. Eq. 243; Trenton Banking Co. v. Woodruff, 2 N. J. Eq. 117; Newark & New York Railroad Co. v. Mayor of Newark, 23 N. J. Eq. 515; Carlisle v. Cooper, supra.

Upon the argument and in the briefs of counsel they raise the question of laches as a bar in its broader aspect. . 1 do not see how the complainants can be charged with sleeping upon their rights, so as to deprive them of relief. It would be most inconsiderate to hold that having, for the past eight years, lived in a filthy atmosphere, inhaling and enduring the stench from the defendant’s business without complaint, they must patiently submit to further discomfort, and as long as the defendant sees fit to impose upon them. Every day’s continuance is a new or fresh nuisance. Board of Health v. Lederer, supra; Society v. Low, 17 N. J. Eq. 19, Carlisle v. Cooper, supra; Brady v. Weeks, 3 Bab. 157; Wood Nuis. § 18, foot-note cases. Nor are the complainants equitably estopped by acquiescence. The defendant’s outlay in the purchase and preParaiá°n of its land, -for the purpose of carrying on an offensive trade, was-not with the implied consent of the. complainants; and if it had been they rightfully could have refrained from taking action in the expectation that the business would be carried on so as not to harm them. The expenditure of about $20,000 by the Pennsylvania Eailroad Company in laying additional trackage and building a railroad scale on its own right of way to accommodate itself to the trade of the defendant, which is dwelt upon by counsel as a feature in the element of estoppel, can he of no possible concern.

The defendant puts forth considerable effort to cast the blame for the complainants’ annoyance upon a nearby manure storage plant belonging to one McGirr, and also upon loaded manure cars standing on sidings of the Pennsjdvania railroad at Monmouth Junction, but the evidence points unmistakably to the defendant as the prime and principal offender. Witnesses have traced the odors by the sense of smell, and the gases and vapors by the eye, directly to the defendant’s storage plant, and also located their origin by the direction of the wind. The McGirr plant is small and may have, to some extent, contributed to the nuisance of which the defendant is guiltjq and so perhaps the railroad company, but either or both neither justify nor excuse the defendant. Meigs v. Lister, supra.

The defendant appeals to the court’s discretion to withhold relief for the reason that to grant an injunction would do .more harm than a denial would to the complainants. The doctrine of “weighing the inconveniences,” it is argued, ought to be applied because the injury to the complainants is comparatively small when contrasted with the annual loss to the defendant’s farmer customers of thirty-eight thousand tons of horse-stable manure,“enough- to fertilize heavily three thousand eight hundred acres of land, which would produce, on an average good crop, seven hundred and sixty thousand bushels of potatoes,” and the consequent loss to the public at large of this great and valuable amount of foodstuff; and the eventual destruction of the defendant’s entire business because of its inability, for failure of a market for its commodity, or a place to put it during the summer season, to comply with the city stable owners’ demands to be rid of his stable manure daily the year round; not to speak of the defendant’s loss of profits. 'A similar appeal in behalf of the public was swept aside by Chief-Justice Beasley in the Higgins Case, wherein he quoted Lord Cranworth in Broadbent v. Imperial Gas Company, 7 De G. M. & G. 436: “If it should turn out that this company had no right so to manufacture gas as to damage the plaintiff’s market-garden, I have come to the conclusion that I cannot enter into any question of how far it might be convenient for the public that the gas manufacture-should go on. * * * But unless the company had such a right, I think the present is not a case in which this court can go into the .question of convenience or inconvenience, and say, where a party is substantially damaged, that he is only to be compensated by bringing an action toties quoiies. That would be a disgraceful state of the law, and I quite agree with the vice-chancellor in holding that in such a case this court must issue an injunction, whatever may be the consequences with regard to the lighting of the parishes and districts which this company supplies with gas.” The discretion exercised by courts of equity in -refusing injunctions on the ground of greater injury to the defendant, is properly restricted to applications pendente lite. Tichenor v. Wilson, 8 N. J. Eq. 197; Higgins v. Water Co., supra; Simmons v. Paterson, 60 N. J. Eq. 385. But, on final hearing,-if the nuisance is clearly established, and it appears that it is causing substantial, material -and irreparable injury to the complainant, for which there is no adequate remedy at law, the law is settled in this state, and by the great weight of authority in other jurisdictions, that the complainant is entitled to relief by injunction, irrespective of the resulting damage to the defendant. Higgins v. Water Co., supra; Hennessy v. Carmony, 50 N. J. Eq. 616; Campbell v. Seaman, 63 N. Y. 568; Sullivan v. Jones Steel Co., 208 Pa. 540. The cases on the subject of comparative injury are collected in the foot-note to Bristol v. Palmer, 31 L. R. A. (N. S.) 881, and supplemental notes in L. R. A. 1916-C, 1269. The principle was upheld in Simmons v. Paterson, but the court of appeals found itself justified in withholding injunctive relief “in view of such acquiescence and the magnitude of the injury which would fall upon the public by prohibiting the use of the sewers,” and held that a substitute remedy of adequate compensation would be a just disposition of the controversy. The nuisance complained of was the pollution of the Passaic river -through the defendant’s sewer system, built at an enormous expense under legislative authority, and which had existed for many years. The equities that stayed the courf's hands were acquiescence and impending peril to health and life.

The defendant relies upon what was said by Vice-Chancellor Pitney in Hennessy v. Carmony, supra, as furnishing a distinction between the right to an injunction where the act complained of is a trespass to real estate and where the injury is created by noisome and disagreeable odors interfering with the comfortable enjoyment of habitation. The opinion does not show that the vice-chancellor differentiated the remedy. Reilley v. Curley, 75 N. J. Eq. 57. Pure air and the comfortable enjoyment of property are as much rights belonging to it as the right of possession and occupancy. Fertilizing Co. v. Hyde Park, 97 U. S. 659.

During the course of the trial counsel for the defendant admitted that there was no method of treatment nor any contrivance by which the nuisance could be overcome, and that there was no remedy short of a removal of -the cause. An injunction will, therefore, issue restraining the defendant from storing manure on its premises after the first day of April, 1918. The time is thus extended to enable the defendant to carry on its business during the present summer, and to seek another location, if one can be found. This will not be burdensome to the complainants, in view of their toleration for the past eight years, and is equitable to both parties. ' The complainants are entitled to costs.


source: Caselaw Access Project

author: Backes, V. C.

license: Public Domain

text:
    Mumford Molding Machine Company v. E. H. Mumford Company.
    [Submitted May 15th, 1917.
    Decided August 7th, 1917.]
    1. A name applied, to a machine covered by letters patent is generieally descriptive, even though some of the features of the machine were not the subject of a patent.
    2. The fact that the machines sold were numerous and of various kinds does not prevent the use of the patentee’s name from being descriptive.
    ' 3. Where a patentee licensed complainant to manufacture machines and authorized the use of his name as part of complainant’s corporate title, and revoked the license after complainant had established a goodwill in the trade, such good-will cannot be infringed to the detriment of complainant.
    4. Where complainant is entitled to the good-will of the trade the question who manufactured the machines is immaterial to their right of protection.
    5. A purchase of part of the goods of a bankrupt company which had been licensed to manufacture the machines, does not carry with it the good-will of the bankrupt.
    O. Both complainant and defendant will be restrained from using the name “Mumford” in such manner as to lead the purchasing public into the belief that the business of one is that of the other.
    On iinal hearing, bill, counter-claim and proofs.

      Messrs. Lindabury, Depue & Faullcs (J. Edward Ashmead), and A. C. Harford (of the Illinois bar), for the complainant.

      Messrs. Hutchinson & Hutchinson (G. Percy Hutchinson), and Mr. Harvey L. Lechner and Mr. Archworth Martin (of the Pennsylvania bar), for the defendant.
   Backes, V. C.

This controversy is over the right to the use of the name “Mumford” in connection with the manufacture and sale of molding machines.

The contestants are corporations formed under the laws of this state and each seeks an injunction restraining the other from the use, either “directly or indirectly, in connection with the manufacture, sale, advertising of or dealing in any molding machines not manufactured by your orator, of the words ‘Mumford’ or any colorable imitation of your orator’s trade-names ‘Mumford,’ ‘Mumford machines,’ ‘Mumford molding machines,’‘Mumford jolt rammers,’ ‘Mumford core bench jolt rammers,’ ‘Mumford split pattern drawdng machines,’ ‘Mumford pneumatic vibrators,’ etc., or combinations thereof and from copying and colorably imitating the catalogs, circulars and other forms of advertising used -by your orator and from adopting or using any other method or device likely to injure unfairly your orator’s molding machine business or by means of which it, the said defendant (the said complainant) is likely to unfairly profit by the trade reputation of your orator or its product.”

The history of the ease is this: In 1905 Edgar H. Mumford organized “The E. H. Mumford Company”' under the laws of Pennsylvania, for the purpose of manufacturing molding machinery embodying- his inventions, upon which he secured patents. After operating four years the company' bankrupted. Mumford then arranged wdth one Sargent, who apparently furnished the capital, to organize the complainant The Mumford Molding Machine Company, and entered into an agreement with that company to grant it an exclusive license to manufacture and sell molding machines under all the patents owned or controlled by him for the full life of the patents, and under all other patents thereafter- to be owned or controlled by him. On its part the company ¿greed to employ Mumford as its vic’e-president and general manager, such employment' to continue as long as he was capable of performing the duties of that position, and for his- services as vice-president and general manager it agreed to pay him a minimum salary of $400 a month and as copnnission a sum equal to the excess of three and one-half per cent, of the total gross sales of molding machines- over the total annual salary. These payments were to cover all compensation for the license, so long as Mumford remained in the employ of the company as its vice-president and general manager, and in case he ceased tó hold those positions he was to receive in lieu of and by way of royalty for the license a total sum equal to twenty per cent, of the net profits of the company, to be paid to him, his personal representatives or assigns. Mumford caused to be executed a license for five letters patent and for six inventions for which applications for letters patent were pending, and remained with the' company five years, during which time nine letters patent were granted to him, and two applications were pending upon which letters patent were granted shortly after he severed his relations.' The inventions thus patented were incorporated in molding machines manufactured for the complainant during Mumfordh employment, at least during some time of it. In November, 1914, he was removed from the office of vice-president and general manager, the company, in the notice of removal, declaring that it would thereafter operate under the alternative provision of the contract providing for the payment of twenty per cent, of the net profits in lieu of the monthly salary. Mumford protested, and notified the company that if it persisted he would be forced to treat his removal as a revocation of the license as well as an abrogation of the entire contract, and that he would demand full reparation, and a few days after, it is assumed, he canceled the contract, which the company accepted and ratified by letter, which also notified him that it renounced and waived any and all rights and advantages it may have had under the contract. Mumford’s letter of cancellation is not in evidence, and the assumption is based upon the company,s letter of acceptance and ratification of the cancellation of the contract. Mumford died shortly after, in April, 1915, in the meantime having carried on trade in the name of The 'E. H. Mumford Compány, the Pennsylvania corporation. The following month, his son, T, J. Mumford, and his widow, Rose Skeel Mumford, formed the defendant company under the name of E. H. Mumford Company, to which the widow, who was the sole legatee under the will of Edgar H. Mumford, granted an exclusive license to manufacture and sell molding machines, containing the patented improvements under which the complainant formerly operated, represented by sixteen letters patent issued to Edgar H. Mumford. Inevitable confusion in the trade resulted, for which, in a measure at least, both parties were responsible, in that neither recognized and respected the rights of the other, for it must be acknowledged that both have vested rights in the field of commerce, which the law will protect against infringement.

The principal question .presented, and upon the decision of which ultimately rests the course to be outlined to these litigants .in their future dealings, is whether the name “Mumford” as applied to molding machines is a generic designation indicating machines embodying the inventions of Mumford, or whether it signifies origin or source of manufacture only, i. e., a trade name. Now, for this purpose, we must go a little further into the history of Mumford’s connection with the development of molding machinery. Molding machines are used only in foundries' and utilized in making sand-moulds for metal castings, and as implements for that purpose are perhaps as old as machinery science, and as multifarious in style, type and cast, as the variety of uses to which they are put in the numerous lines of foundry work. Mumford, who was an inventor and an. authority on molding machinery, and widely known as such throughout the foundry trade, from time to time invented substantial and valuable improvements upon the basic principles of different kinds of molding machines, for which inventions the government gave' him letters patent. To his improved machinery he gave his surname, and in the foundry trade, to which the molding machinery business is, in reality, an adjunct, and which is managed and controlled chiefly by experts keen to note the progress in machinery — the purchasing public in the case— Mumford’s line of molding machines came to be known because of his inventions, and to.the trade the name “Mumford” stood for the line of machines embodying those inventions. That this understanding prevailed generally is established by numerous witnesses of capacity called in the case. Furthermore, no one but Mumford had the right to manufacture his patented machinery without his consent, 'and having associated his name with the monopoly, it became the generic description of his types of molding machinery. “One class of names,” says Rogers on Good Will, Trade-marks and Unfair Trading, ch. 24, p. 236, “the courts have held to bej descriptive by a course of reasoning which is not perhaps convincing to persons unused to legal methods of thought. ' These are the naihes which have been applied to patented articles. After a good deal of discussion and many diverse decisions the courts have at last, with substantial unanimity, laid down the. rule that the name applied to a thing covered by letters patent, is descriptive. The theory is that the article cannot be the subject of patent unless it is absolutely' new. Being new it must have a name. The name, therefore, describes a new thing and becomes the descriptive or generic name of that'thing. During the term of the patent the right to ’ use the name which has been applied to the thing belongs exclusively to the owner of the patent, who may license the use of the name in connection with the patent, and restrain its use on other than the patented article, because this would be a deceptive misdescription. No particular difficulty is experienced during the life of the patent because its owner, having the exclusive right to make, use and vend the patented thing, and being ■ able to stop the use of the name on articles not made in accordance with the patent, enjoys a complete monopoly of the article and name.”

The text is supported by many cases in this country and England. Singer v. Stanage, 6 Fed. Rep. 279; Gally v. Colts’ Patent Fire-Arms Co., 30 Fed. Rep. 118; Armstrong v. Ettlesohn, 36 Fed. Rep. 209; Centaur v. Heinsfurter, 84 Fed. Rep. 955; Adam v. Folger, 120 Fed. Rep. 260; DeLong Hook and Eye Co. v. American Pin Co., 200 Fed. Rep. 66; Dover v. Fellows, 163 Mass. 191; Waterman v. Shipman, 130 N. Y. 301; Singer Manufacturing Co. v. June Manufacturing Co., 163 U. S. 169; Cheavin v. Walker, 5 Ch. Div. 850; Powell v. Birmingham Vinegar Brewery Co. (1896), 2 Ch. 54 Linoleum Manufacturing Co. v. Nairn, 7 Ch. Div. 834.

In DeLong Hook and Eye Co. v. American Pin Co., the court observed: “No matter in what other connection the owner may have used the name, it must be remembered that one of the advantages of his patent monopoly has been to have his article known to the public by a name which in the public mind can only mean one thing as applied to that patented article, to wit, that it is the article. When, during the life of the patent, the public bought a Singer sewing machine, it bought a machine of a particular character, and associated solely in the public mind with the machines made under the Singer patents.”

In Powell v. Birmingham Vinegar Brewery Co., Lindley, L. J., made this comment: “Again,'if a person makes or sells an article and calls it by a particular name, the use of that particular name by others for the same sort of goods is not necessarily an infringement of his rights, even if the name is not obviously descriptive: If the article is a patented article, sold by the patentee under the name in question, then when the patent expires anyone is at liberty to make and sell the article, and to sell it under the name by which it has become known in the market; and- if nothing more is done, the patentee has no’ redress.” This was decided in Cheavin v. Walker and Linoleum Manufacturing Co. v. Nairn.

Consonant with the property rights that spring from'tacking a name to a patented article, the complainant, 'throughout the five years of Mumford’s employment, recognized and treated the name Mumford as the generic description of the line of molding machines covered by his patents. Because of his scientific skill and his inventive genius, Mumford’s name had commercial charm; the company was organized, primarily, to develop his inventions, surely not to secure his business talents, for, after his failure, he had little to. recommend him in that respect; handsome royalties were paid for his license; his name was featured in the corporate title, in advertising, and on the patented devices; and, above all, the machines were held,out to the trade as the subject of liis letters patent.

The contention is made that the principle of the text in Rog. Good Will is not applicable, because Mumford molding machines were not patented as an entirety. That the machines Were not patented as a whole is beside the question. This was unfeasible,* because of their antiquity. As already stated, Mumford added to the basic principles his numerous and varied inventions, which, when embodied in the particular machine or class of machines, distinguished the machine or class as a whole from'those of any other inventor or manufacturer; and although the article was one in common use, the improvements invented and exclusively'incorporated had the effect of differentiating the patented from the common article, and so when the name Mumford was applied it carried with it to the trade the’signification that the machine was of definite character and mechanism, and of the line of machinery patented by him, and indicated nothing •in regard to the workmanship or by whom manufactured. Call the patented inventions incidental, accessory or detail or whatnot, as the complainant now sees fit to characterize them and to minimize their importance,' they, nevertheless were, in the particular type of machine in which they were embodied, sufficiently characteristic and fundamental to warrant the issuing of letters patent, and sufficiently formidable to ward off infringement for many years, and to operate as an effective shield against intrusion upon the monopoly enjoyed by the complainant during the period of its license.

It is also claimed that the rule is not to be applied because certain of the machinery included, inter alia, a feature patented to Mumford and Huggins, or a feature -patented to Mumford and Atha, or a feature patented to one Huggins. The answer is that the inclusion of a subsidiary patented.device of another,’ could not, conceivably, alter the public impression, as to the predominating feature of the structure.

The further contention that “Mumford” could not be the generic description of the patented articles, because there were many different machines in the Mumford line, so that it was impossible for the name to designate or describe all of them, is answered in Singer v. June, by Mr. Justice White, upon a state of facts somewhat similar to the present. “It cannot,” lie says, “be denied that the Singer machines were covered by patents, some of which were fundamental, some merely accessory. There can also be no doubt that the necessary result of the existence of these patents was to give to the Singer machines, as a whole, a distinctive character and form which caused them to be known as Singer machines, as deviating and separable from the form and character of machines made by other manufacturers. This conclusion is not shaken by the 'contention that ■as many different machines were made by the Singer Manufacturing Company, therefore it was impossible for the name ‘Singer’ to describe them all, because the same designation could not possibly have indicated many different and distinct things. The fallacy in the argument lies in failing to distinguish between genus and species. To say that various types of sewing machines were made by the Singer Manufacturing Company in no way meets the view, borne out by the testimony, that ■all machines by them constructed were in some particular so made as to cause them all to be embraced under the generic head •of ‘Singer,’ and to be protected in some respects by the patents held by the company. From this fact it resulted that during the life of the patents none of the -machines as a whole were •open to public competition. Persuasive support of this view is afforded by the fact that in many adjudicated cases, to which we shall have occasion hereafter to advert, where, since the expiration of the patents the right to the exclusive use of the name ‘Singer’' has been asserted, it has, almost without exception, been found that Singer machines, as a whole, were a distinctive class, preserving a general uniformity of nature, however varying may have been the types by which their structure was manifested.

■ “It may be assumed that the proof establishes that for certain classes of the general type of Singer machines, that is, the species used only for particular and exceptional manufacturing purposes, an addition of some other word or description' to the generic name ‘Singer’ was necessary to completely convey a perfect indication of the machine referred to, that is, Singer’s '‘carpet-machine,’ Singer’s ‘leather-machine,’ &c. But this fact does not counterbalance the conclusive proof that, 'as a whole, the Singer machines represented a general class, and were known to the public under that comprehensive name and no other.”

The conclusion, foreshadowed by the finding of facts and the authorities cited, that the name “Mumford” is the generic description of machinery constructed under his, patents and during the existence of the monopoly, flowing from the letters ¡oatent, the subject of exclusive appropriation by the patentee and his assigns,‘upholds the defendant’s title.

But, because of the former contractual relations between the patentee and the complainant, we must go further and consider the property rights which accrued to the complainant from the secondary sense in which the name came to be known to the public, as origin ox source of manufacture, for, as the supreme court, in Singer v. June, said: “To sajr that a person who has manufactured machines under a patented monopoly.can acquire no good-will, by the excellence of his work, or the development of his business, during the patent, would be to seriously ignore rights of private property, and would be against public policy, since it would deprive the one enjoying the patent of all incentive to make a machine of a good quality, because at its termination all the reputation or good-will resulting from meritorious work would, be subject to appropriation by everyone. On the other hand, to compel the one who uses the name after the expiration of the patent, to' indicate that the articles are made by himself, in no way impairs the right of use, but simply regulates and prevents wrong to individuals and injury to the public.” Ludlow Valve Manufacturing Co. v. Pittsburgh Manufacturing Co., 166 Fed. Rep. 26.

Mumford was instrumental in organizing the complainant company, and gave it his name, which he at all times insisted should be conspicuously displayed on its product and in its advertising matter. By the expenditure of large sums of money in advertising the monopoly, superiority of workmanship and fair dealing with customers, the company built up a large and valuable business, in which the skill and industry of Mumford played no small part. The manufacture of machines was not confined to those patented by Mumford. Others were built that contained no patented devices, and this was the. contemplation of the parties, if I interpret the contract rightly. The- record discloses that of a total of twenty-three species and one hundred and five sizes of machines, twenty species and ninety-nine sizes were patented, and that a large percentage in number of machines marketed did not embrace any features covered by the Mumford patents. Obviously, it must have been understood by Mumford that the good-will and trade name, which -he was actively promoting, would survive to the company upon the termination of the agreement, by tire expiration of its terms, for cause or by mutual consent; and, correspondingly by the company, upon the abrogation of the contract before its natural expiration, that the property rights flowing from the patents reverted to the patentee. So, as a consequence, when the patentee and the manufacturer parted company, a reciprocal duty arose to refrain from carrying on their respective businesses in a manner calculated to deceive the purchasing public to the injury of the other, and in this respect, as'already intimated, both parties were remiss, but in different degrees. Although after the severance, the complainant ceased to manufacture molding machines embodying the patents, it continued to play up the catch-name “Mumford” in its advertising matter and on its wares, and in some instances to display machines as patented, without indicating in anywise the cancellation of its license, thus giving forth the impression that its title to the patents Avas unimpaired and its product unchanged. The defendant company was- much bolder. Besides adopting the name “Mumford” as part of its corporate title, it virtually copied the complainant’s catalogue bodily, cut for cut of machines, figure numbers, sizes, capacity, gross weights and code words, including cuts of machines manufactured by the complainant, upon which there were no patents whatever. The descriptive matter was reproduced verbatim, and the copy even Avent to the point of representing that the complainant’s London correspondent was that of the defendant. And so with its other advertisement, replete with simulations and cunning misrepresentations, and done with, such' aggravation as to be absolutely convincing of a studied effort to lead the trade into the belief that the defendant was the complainant’s successor, .and that it was the sole manufacturer of Mumford’s molding machines; altogether a most flagrant case of pirating the business of the complainant. And what is more, the defendant openly avows it was its deliberate intent and purpose to simulate the catalogue, and attempts to justify its conduct on the ground that the molding machinery therein advertised was of structures embodying the Mumford patents, and, as the complainant company had surrendered its license to manufacture, ipso facto, it had lost its right to advertise them. The complainant company had on hand and for sale machines which it rightfully made and had the right to sell; and, furthermore, this specious claim does not meet the charge that the defendant’s catalogue included cuts and descriptive matter of complainant’s unpatented machinery, and that its other advertising was obviously designed to mislead. Eureka, Fire Hose Co. v. Eureka Rubber Manufacturing Co., 69 N. J. Eq. 159; National Biscuit v. Pacific Coast Biscuit Co., 83 N. J. Eq. 369.

It is urged that the complainant, by reason of its unconscionable conduct in arbitrarily and without cause terminating the contract, forfeited all rights thereunder and that it ought not to be heard in equity to maintain rights- it fraudulently retains. It may be, as the defendant argues, that “the inference is plain here that tire complainant company, after 'having gotten Mumford in its toils and having obtained all the benefit it possibly could have derived from him and his inventions, threw him out into the cold, hoping thereby to still retain those benefits and advantages without compensation.” The difficulty with this is that the question is not fully presented for decision. The issue- is raised by the answer, but all that appears on the face of the record is, as already noted, Mumford’s release as vice-president and general manager, and his subsequent cancellation of the contract and the company’s ratification thereof. This implies a mutual rescission so that the causes which led to it are immaterial, so far as this case is concerned. The employment feature of the contract was-to last during the lifetime of the patents,-so long as Mumford was capable. Off the record the complainant says it had ample cause for his discharge. Whether the discharge was lawful was not tested by Mumford, who seemed to have treated the incident as closed, and judgment ought not to be passed, whicb would have for its basis only doubtful and conflicting inferences.

■It is further set up in the briefs that there is no justification for the continuance of the complainant company, even as a name, because it has no books, bank account, employes, assets worth mentioning, and neither manufactures nor sells. The company never manufactured. Until 1913 its principal office was in Plainfield, where its machines were built by another concern, and that year it moved to Chicago, where machines are manufactured by the Hanna Engineering Works, the owner of all of its capital stock, and its product is marketed by the Vulcan Engineering Sales Company. The claim is that the complainant clings to the name “Mumford,” simply to enable the manufacturing company and the sales company to derive profits at the expense of the defendant in the deception of the public. The premise is hardly true, but a complete answer is that we are not concerned with the methods of the complainant in carrying on its business or how it disposes of its profits. Its good-will, being established, entitles it to protection against infringement. The amount of its capital stock is unimportant, as is that of the defendant’s, as well as the fact that the defendant does not manufacture its output.

It is also set up by the complainant that its trade name was inherited from the E. H. Mumford Company of Pennsylvania by the purchase of the. assets of that company, which, it is claimed, carried with it the good-will. Undoubtedly, the property rights of a trade mark or trade name may pass by an assignment or by .operation of law to anyone who takes at the same time from the assignor the right to manufacture of sell the particular merchandise; and, unquestionably, the transfer of the property and effects of a business may carry with it the exclusive right to use such trade marks or trade names as had been used in such business. Dixon Crucible Co. v. Guggenheim, 2 Brew. (Pa.) 321; Allegretti v. Allegretti Chocolate-Cream Co., 52 N. E. Rep. (Ill.) 487. But the doctrines lack application to the present situation. Here the complainant did not succeed to the business of the bankrupt company. It purchased only a part of its wares and acquired the right to manufacture the class of goods manufactured by the old company, not from that company; but from, Mumford, the owner of the patents. It was manifestly not desirable to succeed to the business and good-wi'll, if it had any, of the defunct company, with its large outstanding liabilities to creditors and stockholders, and a new company was born, with a new name, and with the right to apply that name to products derived exclusively by contract independently of the old company.

The transaction between the licensee and patentee, resulting in the peculiar situation of .leaving the parties with perfectly meritorious, though conflicting, claims to the trade name “Mumford,” involvés the more difficult task of working out a line, within the boundary of which each may enjoy the widest latitude in competing with the other, but which may not be crossed without encroaching. This may be accomplished with the least inconvenience or danger by each plainly distinguishing its goods from the others. Were it not for the defendant’s property right in the name, the principle declared by the court of errors and appeals in International Silver Co. v. Rogers Corporation, 67 N. J. Eq. 646, would be controlling, and the defendant would be enjoined unqualifiedly. There the use of an individual’s name, in a corporation of which, he was an incorporator and officer, was enjoined, because it was satisfactorily shown that it was voluntarily selected and for the purpose of making an unfair use of it' in competition with the complainant. Eureka Fire Hose Co. v. Eureka Manufacturing Co., supra; L. Martin Co. v. L. Martin & Wilckes Co., 75 N. J. Eq. 39, 257. But the application of that rule would be too drastic and the remedy punitive, in that it would, in effect, destroy private property, for it cannot be denied that the patentee’s name, associated with his inventions, adds materially to the market value of the patents. It will answer all practical purposes to enjoin the defendant from using the name “Mumford” in its corporate title, or otherwise, except in the vending of molding machines manufactured under the exclusive letters patent issued to Edgar H. Mumford, and joint patents to Mumford and Atha and Mumford and Huggins,' and not then, unless it shall, in its catalogue, circulars and advertisements distinctly indicate, in type as large and conspicuous as “Mumford” in its corporate title, or any con-. traction or address thereof, that the machines are not of complainant’s manufacture, and unless it shall, upon the machines themselves, conspicuously and unmistakably specify that such machines are not of complainant’s make. The defendant will also be enjoined from copying or colorably imitating the catalogue, circulars or other forms of advertisihg used by the complainant, not including so much of said catalogue as represents machines embodying the patents of Edgar II. Mumford, ■ exclusive of the code words; and will further be enjoined from representing in its advertisements, expressly, by implication, insinuation, 'or otherwise, that it is the sole manufacturer of Mumford molding machines.

On the other hand, the complainant will be enjoined from using the name “Mumford” in its corporate title, or otherwise in vending molding machines of the type formerly' manufactured and sold by it under the license of Edgar II. Mumford, and now or hereafter manufactured under the patents of Edgar H. Mumford, and sold by the defendant, unless it shall, in its circulars, catalogue and advertisements distinctly indicate, in type as large and conspicuous as “Mumford” in its corporate title, or any contraction or address thereof, that the machines were not made under the Edgar H. Mumford patents, and unless it shall, upon such machines, conspicuously and unmistakably specify that such machines were not made under the Edgar H. Mumford patents; or unless, in vending such machines and. other machines containing the Mumford-IIuggins valve patent allusion is made to such patent, it shall, in its advertisements and on the machines in the manner aforesaid, state that they are’ not of defendant’s manufacture.

These restrictions are .subject to modifications upon motion to settle the final decree, and are meant to indicate the attitude of forbearance the parties must assume towards each other in the future.

The complainant’s request to enjoin the defendant from using “Mumford” in its corporate title is denied, for the reason stated by Vice-Chancellor Emery and set forth in the third subdivision of .his opinion in Eureka Fire Hose Co. v. Eureka Manufacturing Co., supra (at p. 174), with the same reservation.

There will be no accounting and no costs.


text:
    Karl Schaffer, petitioner, v. Maika (also known as Marie) Krestovnikow; otherwise Mary Schaffer.
    [Submitted July 10th, 1917.
    Decided October 9th, 1917.]
    1. Proof of ceremonial marriage and proof of matrimonial relations for fifteen years raises a presumption of the legality of the marriage which can only be overcome by clear and conclusive evidence of the validity of a prior mafriage] and that it subsisted at the time of the entering into the marriage in question.
    2. The burden is on the petitioner seeking annulment on the ground that his wife was not divorced from a living husband at the time of her marriage to him, to negative every reasonable possibility of the invalidity of his wife’s prior marriage.
    3. Marriages between people of the Greek Orthodox faith and non-Christians in Russia being illegal there, are so regarded elsewhere.
    4. Because the former husband of the defendant selected a priest of the Russian Church to perform the marriage ceremony, and because he was an officer in the Russian army, it may be presumed that he was of the Greek Orthodox faith, and the burden is on the complainant to show that he was not.
    5. Held, evidence does not sufficiently establish the prior marriage of the defendant.
    6. General neighborhood reputation of death of defendant’s prior husband held admissible.
    7. If the first marriage was legal and existing when the second was contracted, under the belief by the parties that the first was of no effect, and that they lived together as husband and wife under this belief, the moment when the disability was removed they became husband and wife.
    8. If the second marriage was meretricious if, after the death of defendant’s husband, she and the petitioner contracted to live as husband and wife, it would be sufficient.
    9. The doctrine of “unclean hands” would bar the petitioner from a decree of annulment.
    On petition and counter-claim.

      Mr. Abe J. David, for the petitioner.

      Mr. Benjamin M. Weinberg, for the defendant.
   Backes, V. C.

This is a petition for an annulment of marriage and a counterclaim for support under the statute. The petitioner and defendant are of the Jewish faith and were married in Husatin, Russia, January 15th, 1903, by a rabbi. They immediately came to this country, settling in Elizabeth, where they cohabited until the latter part of September, 1916, when the petitioner-abandoned the defendant on the pretence that he had then discovered that she was not divorced, as she represented, at the time he married her. The petitioner has attained some prominence in Elizabeth and, due to the joint efforts of himself and defendant, has acquired considerable property. No children have been born of the union, but early in their married life they lawfully adopted a son. Up until he abruptly and pitilessly east her aside, their habit and repute were notoriously those of husband and wife. In justification of his course, and as a ground for relief, the petitioner sets up that the defendant was married to one Vasili Krestovnikow, in 1889, and that this marriage subsisted at the time the petitioner married her. The proofs tend to show that Vasili and the defendant were married by a priest of the Russian church, and that they lived together as husband and wife in Cherna-Ostrow, a small village in Russia, over twelve years. The petitioner, who was then an itinerant photographer, took his meals at their home, made love to the defendant, persuaded her to believe that her marriage to Vasili was unlawful because he was a Gentile and she a Jewess, and elope with her to America. I give no credence to the petitioner’s version that within three months after he departed from Cherna-Ostrow, the defendant followed him to the nearby town where they-were married and represented that she had obtained a divorce, nor do I believe his story that he separated from the defendant because he discovered this was not true. He claims that her perfidy was disclosed to him when he came across a military pass issued to the defendant, in which she was certified as the wife of Vasili, but this is obviously false because the pass was issued in 1901 when, to the knowledge of the petitioner, the defendant was living with Yasili as his wife. Abused confidence certainly did not actuate the petitioner. It may have been the lure of another woman, as intimated, but I surmise that the defection and. his efforts to be rid of the defendant is because the darling of his youth is passé and he is weary of her.

The proof of a ceremonial marriage, and the fact that the petitioner and defendant lived in apparent matrimonial relation for fifteen years, raises a strong presumption of the legality of their marriage, and this presumption can only be overeóme by clear and conclusive evidence of the validity of the first marriage and that it subsisted at the time the second was entered into. The burden of showing this is on the petitioner and to the extent of negativing every reasonable possibility of its invalidity. Sparks v. Ross, 72 N. J. Eq. 762; affirmed, 76 N. J. Eq. 550.

Under the' laws of Russia, marriages entered into between people of the Greek Orthodox faith and non-Christians are illegal and void. 10 Comp. Civ. Stat. Rus. book 1 ch. 1 % 1 subdiv. 1 37. Illegal and void there, they are so regarded elsewhere. 1 Bish. Mar., D. & S. 887; Canale v. People, 177 Ill. 219. Vasili was a Christian; the defendant a Jewess. While it is not distinctly proved that Yasili was of the Greek Orthodox faith, it may be presumed from the fact that he selected a priest of the Russian church — Greek Orthodox' — to perform the marriage ceremony; and the further fact that ,he was an officer in the Russian army — a bandmaster' — leads to the belief that he was. However, the burden is upon the petitioner to prove that he was not, and this he has not done. That Yasili was a member of the Russian church was not questioned during the trial nor upon the argument; the contention being that tire defendant had changed her faith to that of Yasili’s religion, and that this should be presumed from the presumption that the officiating clergyman performed his duty and proceeded only when his authority was complete. The defendant positively denied the change, and militating very strongly against any such presumption is the fact that‘the petitioner married the defendant as a Jewess, which, according to his own argument, could not have been accomplished if she were a Christian, unless deception had been practiced upon the rabbi. This, of course, is not pretended.

The evidence fails to establish a prior marriage with that degree of particularity required to overcome the powerful presumption of the legality of the marriage here assailed, and a denial of relief may be safely rested on this ground.

There are other .grounds upon which this union may be upheld. Vasili died in 190A-1905. A presumption of his death is established by general neighborhood reputation that he died in the service, testimony whereof was given by numerous and dependable witnesses. This testimony is admissible. 1 Whart. Ev. § 223; 2 Wigm. Ev. § 1605; Ringhouse v. Keever, 49 Ill. 470; Scotts Lessee v. Ratliffe, 5 Pet. 81; Arents v. Long Island Railroad Co., 150 N. Y. 1. The petitioner contends that the presumption is overcome by the .testimony of, his father, who says he saw Vasili four years ago in Russia. Schaffer, Sr.’s, testimony is unsatisfactory and unconvincing, and while it is harsh to believe that it was given with relaxed conscience under pressure of the sinister and contemptible purpose of the son, this, under the circumstances, is not at all improbable. Now, assuming that the first marriage was legal and existing, and entertaining the view, as I do, that the second was contracted by the petitioner and defendant in the belief that the first was of no effect under the law, because of the diversity of -religions of the contracting parties, and that they entered upon it with matrimonial intention, and subsequently cohabited, both before and after the removal of the impediment, apparently matrimonially, they, in law, became husband and wife the moment the disability was removed. Robinson v. Robinson, 83 N. J. Eq. 150; affirmed, 84 N. J. Eq. 201.

But, even if we should regard the cohabitation under the second marriage as meretricious at the start, and so continued until the death of Vasili, there is ample proof in the case showing án abandonment of the illicit relation and an intention thereafter to live in a legally matrimonial state as husband and wife. After being informed of Vasili’s death in 1904, the petitioner declared to the defendant that she was his wife and announced in substantially the same language her status to others upon different occasions, and thereafter the two,'by habit, conduct and declarations, held themselves out as husband and wife. No particular words are necessary to declare or express a change of intention. If, from what was said by them, it can be gathered that the parties have entered into a contract to live henceforth as husband and wife and to abandon the old relation and to substitute therefor a matrimonial status, it will be sufficient. Mick v. Mart, 65 Atl. Rep. 851; Bey v. Bey, 83 N. J. Eq. 239.

Then, too, so far as respects relief to tire petitioner, the doctrine of “unclean hands” would bar him if we looked upon the cohabitation as continuously criminal. Rooney v. Rooney, 54 N. J. Eq. 231; Kretz v. Kretz, 73 N. J. Eq. 246; Freda v. Bergman, 77 N. J. Eq. 46.

•The jrrayer of the petition will be denied and alimony will be allowed the wife on her counter-claim, the amount and that of counsel fee to be fixed on motion for final decree. The alimony will begin to run from the filing of the petition. Swallow v. Swallow, 84 N. J. Eq. 411. Costs to the defendant.


text:
    Francis S. Hoyt et al. v. E. I. du Pont de Nemours Powder Company et al.
    [Submitted July 28th, 1917.
    Decided November 12th, 1917.]
    1. The assets of a corporation cannot be used to retire capital stock as against the lien of bondholders, even though sufficient property remains to amply secure them.
    2. A provision in a trust deed securing a corporation’s bonds requiring a demand by twenty-five per cent, in value of the bondholders to move the- trustee to action, restricts collection or foreclosure proceedings, but is not a limitation upon the inherent rights of bondholders to protect their interests.

      On bill, &e.

      Mr. Edward M. Colie and Mr.. Runyon Colie, for the complainants.

      Mr. Frank S. Kaizenbach, Jr., and Mr. J. P. Laffey and Mr. William I-I. Button (of the New York bar), for the defendants.
   Backes, V. C.

This bill is to restrain the use of corporate assets to retire capital stock, in impairment of the rights of bondholders. Bound figures and approximate sums will be used to explain the controversy. The defendant, the New Jersey-du Pont Company was a holding company until 1906, when it began manufacturing explosives and allied products. In that year it made a four and one-half per cent., thirty-year gold bond issue of $16,000,-000, secured by a trust deed, imposing

“a charge in favor of the trustee upon all its present and future property, including- all its lands, plants, factories, machinery, goods, patent rights, trade-marks, processes, improvements, and all other property, both real and personal, of every name and nature whatsoever and wherever situated, and present and future net income, earnings and profits for the benefit of said bonds.”

Since then and particularly during the present world-war, huge sums of money have been made out of military powder, and from a holding company of $37,500,000 of possessions, it had grown to a corporation of over $200,000,000 of assets, when in 1915, the management decided to reorganize. The Delawaredu Pont Company was formed with an authorized capital of $240,000,000, and bought the Jersey company’s property and business for $120,000,000; the price being paid by $1,500,000 cash, $59,500,000 debenture shares, and $59,000,000 -common stock of the Delaware company. The Jersey company used the cash to take up mortgage liens approximating that sum, and divided the $59,000,000 common stock among the holders of its $29,500,000 of common stock — a two hundred per cent, dividend. The $59,500,000 of debenture sliares were calculated to retire all of the Jersey company’s liabilities, consisting of the bond issue (then outstanding), $14,000,000; preferred stock, $.16,000,000; common stock, $29,500,000. All but $1,000,000 of the bonds, and $300,000 of the preferred stock, have been retired, and there remains in the treasury $31,000,000 of the debenture shares and cash. Halted in its scheme to dissolve, the Jersey company now proposed to use $26,000,000 of the debenture shares to retire that amount of the $29,500,000 of its common stock, and proceedings, according to the statute,under way to'decrease the common stock to $3,500,000. Accomplished, this would leave $5,000,000 of debenture shares and cash to secure the unredeemed bonds and preferred stock. The complainants, owners of $40,000 of the bonds, object, contending that the debenture shares are, as after-acquired property, subject to the lien of the bonded indebtedness and that the intended use would be a dissipation of their security, to which the Jersey company in substance replies that the security will be equal to what it was when the bonds were issued, that, it is ample and that the complainants ought to be content — an appeal to the complacent but not an answer to the issue tendered.

It is debatable whether the Jersey company had the right to sell its assets in bulk and retire from business, in view of the covenant contained in the trust deed that “it will at all times do all things necessary to preserve its corporate existence and will actively conduct and carry on the business for which it was incorporated,” notwithstanding the provisions of its charter and a-clause in the trust deed that “until default as hereinafter defined, the Powder Company shall at all times have control of all of its property, and the right to use, sell or otherwise deal with and in the same as it may see fit, and may dispose of all profits ' and income thereof, including income of the securities held by the Trustee in the shape of dividends or otherwise.” This question, however, is not raised and under the frame of the bill the exchange by the Jersey company of one class of property for the other is affirmed and the substitution of securities assented to. It is also not in dispute that upon'the conversion, the lien of the trust deed upon the newly-acquired property was subject to the right reserved to declare dividends) and the distribution of all the surplus, by the two hundred per cent, dividend to the common stockholders, is not challenged. Nor is the use of the securities, to redeem pro tanto the bond issue, seriously criticised, as it well might be, but what the complainants protest against is the further abstraction of securities from the fund created and pledged to secure their debt, and their absorption by stockholders, in liquidation of a subordinate liability — an effort which finds no support in principle or authority and so inherently wrong as to require only a recital to manifest its illegality. Ikelheimer v. Cons. Tobacco Co., 59 Atl. Rep. 363; Fidelity Trust Co. v. Hoboken and Manhattan R. R. Co., 71 N. J. Eq. 14; Watt v. The Hestonville, M. & F. P. R. R. Co., 1 Brew. (Pa.) 418.

Acknowledging that the scheme to reach $26,000,000 of $29,-500,000 of assets, by converting it into surplus through a re'duction of the par value of the Jersey company’s three hundred and fifty thousand shares of common stock from $100 to $10, thus decreasing its authorized capital from $35,000,000 to $3,-500,000, ignores the bondholders’ lien upon the entire assets, the defendant argues with much earnestness that inasmuch as-the ratio of assets to bonds at the time they were issued was two and a half to one, and that the remnants under the proposed plan will leave the ratio of $5 of security to every dollar of bond, plus the lien of the trust deed upon the property transferred, the complainants will suffer no injury and iiave no cause for complaint. This falsely assumes the power to convert capital into surplus for stock dividend purposes and the right of the debtor to dictate what of his securities the creditor may retain and what of them may be confiscated. Even if the Jersey company’s assurance that the bonds will be paid at maturity, and the interest in the meantime, and that the security is adequate, even gilt-edge, be accepted as facts, it is still clear that the bondholders may be injuriously imposed upon and their property impaired. Industrial securities, unlike investment in ordinary bond and mortgage on land, have a legitimate speculative value depending on the success or failure of the enterprise and reflected by daily quotations on the exchange. No better illustration can be had than the rise in market value from $85 to $102, of these very bonds, the moment the reorganization was announced and it became known that back of the bonds were two hundred millions instead of thirty-seven and a half millions. And that such an event was probable and contemplated by the New Jersey company is evinced by the stipulation in the trust deed that at any time before maturity the bonds were redeemable at $110. Of this prospect, obviously the bondholders cannot be deprived. But, aside from the speculative feature, it is the province of the bondholders to retain all that has been pledged to secure their debt and until the3r are paid the debtor has no'choice. Who can tell what the Delaware company’s debenture shares will be worth henceforth and'until maturity in 1936? Surely the complainant-bondholders are not obliged to take the risk.

The provision in the trust deed requiring a demand by twenty-five per cent, in value of the bondholders to move the trustee to action, restricts collection or foreclosure proceedings, but is not a limitation upon the inherent rights of bondholders to protect their interests. Chicago, &c., Railroad Co. v. Fosdick, 106 U. S. 47; Carter v. Fortney, 170 Fed. Rep. 463; The Guaranty Trust Co. v. Green Cove Railroad, 139 U. S. 137; Mack v. American, &c., Co., 79 N. J. Law 109; Schultz v. Van Doren, 64 N. J. Eq. 465; affirmed, 65 N. J. Eq. 764; Reinhardt v. Interstate Telephone Co., 71 N. J. Eq. 70.

An injunction will issue restraining the distribution of the assets to the stockholders. With the proposed reduction of capital stock, the secondary purpose of which is to reduce corporation taxes, the complainants have no concern, and the ad interim restraint in this respect will be dissolved. The complainants are entitled to costs.


author: Griffin, V. C.

text:
    Ignits Ratkewicz and Amelia Ratkewicz, his wife, v. Framisczk Kara et al.
    [Submitted March 17th, 1917.
    Decided April 20th, 1917.]
    1. Where a defendant in a foreclosure suit consulted a solicitor, who advised him to satisfy complainant’s claim, and he thereupon requested him to obtain time to make his arrangements to do so, and the solicitor wrote complainant’s solicitor to that effect, and the complainant delayed entering his decree pro oonfesso for more than' a month, there was no neglect on the part of the defendant’s solicitor in not filing an answer which would entitle defendant to have the decree opened so that he might answer.
    2. When there was an encroachment of a few inches on defendant’s land by a wall of the adjoining property, and defendant brought an action of ejectment therefor, and recovered judgment for possession, defendant’s expenses in this respect should not be allowed in abatement of the amount due on the mortgage when the property was conveyed to defendant by complainant, who was foreclosing the mortgage.
    On order to show cause why final decree should not be opened and leave given to answer. Order ‘discharged.

      Mr. Adrian D. Sullivan, for the complainants.

      Mr. Robert S. Hartgrove, for the defendants.
   Griffin, V. C.

The complainants filed their bill to foreclose a purchase-money mortgage. The defendant Framisczk Kara was duly served with process, retained counsel, and a decree pro oonfesso and final decree were entered in default of answer. Kara, now, by his petE. tion, asks that the final decree be opened, with leave to answer, on the ground that his solicitor neglected to file an answer, and that he has a good claim for the abatement of the amount appearing to be due on the bond.

The solicitor tiras charged is a reputable member of the Passaic bar. A reference to the petition and affidavits filed discloses the fact that the solicitor was retained on or prior to October 17th, 1916, on which day he wrote complainants’ counsel for 'an ■extension of time to answer to November 15th, which extension was given. Again, oh November 27th, 1916, Kara’s solicitor 'wrote complainants’ solicitor as follows:

“My Client, Mr. Kara, called at my office this morning, and after going over with him in detail, the subject of his claim under the above foreclosure proceedings, I advised him to make some arrangements about satisfying the claim of your claim under the mortgage held by him. Mr. Kara informed me, however, that it will be impossible for him to raise the money at once, but said that if given about one month’s time, he was certain he could obtain another loan on his property -so as to pay off your client’s mortgage.
“To that end, may I ask whether or not your client woulfl be willing to grant Mr. Kara an. extension of time for one month within which to raise the money to pay off the mortgage now under process of foreclosure ?
“I shall very much appreciate any courtesy yoit may extend along the lines above suggested and will await your further advice in the matter.”

That Kara did confer with his solicitor, and was so advised, and did inform his solicitor, as stated in the letter, he does not deny. It is, therefore, quite apparent that on November '27th Kara abandoned the idea of putting in an answer and merely wanted time to raise the necessary funds to pay the complainant. The complainant delayed entering his decree pro confesso until February 7th, 1917, and his final decree until February 16th, 1917.

Upon the foregoing state of facts, it is quite apparent that the solicitor was in nowise guilty of neglect.

The next question to be considered is, Has the defendant such a defence that the court should open the decree and permit him to answer?

The complainants sold the land in question to Kara, giving a full, covenant warranty deed, and taking back a purchase-money mortgage to secure part of the purchase price. Both at the time of the conveyance to Kara, and the acquisition of the property by the complainants, there was a building on the lands adjoining to the south, the foundation wall of which was entirely under ground. This wall was constructed of rough, irregular stone, points of which, in some places, extended into Kara’s land, and at others the wall was at least flush with the dividing line. The greatest encroachment at any point was eight and one-quarter inches. This fact was unknown to the parties until about August, 1915, when a survey was made which disclosed the above situation. The complainants say, on information and belief, that "one Ling,', their grantor, offered to remove said encroachment, and had made arrangements to remove said encroachment, and that the said Kara and his wife refused to permit him to enter upon the premises for the purpose.” Kara does not deny this statement.

In March, 1916, Kara and his wife began an action of ejectment against the adjoining owners for the possession of a strip of land nine inches in width, running from the front to the rear of the lot, and $1,000 damages. The defendants answered, and the cause coming on to be heard before a circuit judge without a jury, and the defendants admitting .the allegations in the complaint, judgment was given in favor of the plaintiffs for six cents damages and the possession of the premises described in the complaint.

While the judgment was for the possession of nine inches in width, it is quite apparent from the affidavit of the engineer who made the survey that the. encroachment was not as stated in the complaint, but as above indicated.

The defendants’ claim, which they assert against the complainants, is- set forth in the eighteenth paragraph of the amended petition as follows:

“I have been put to considerable expense and burthened with a large outlay of money in respect to the said judgment of the said Passaic circuit court, and attempts to clear my property of the said encumbrances.”

Such expenses could not be recovered in an action for mesne profits (Pike v. Daly, 54 N. J. Law 4), and cannot be allowed in abatement of the amount due on a purchase-money mortgage.

The order to show cause will be discharged.


author: Lane, V. C.

text:
    Jacob W. Fisher v. T. W. Griffith Realty Company, a corporation, and J. H. Mayzel Company, a corporation.
    [Decided June 3d, 1917.]
    1. In a suit to prevent the erection of an apartment house in violation of a restrictive agreement — Held, that the evidence was insufficient to warrant the relief asked, the character of the locality having changed greatly since the execution of the agreement, and several buildings having been erected contrary to the restrictions of the agreement.
    2. A court of equity will not, at the suit of a party thereto, enforce a restrictive agreement covering but a small territory, where it appears that the character of development of the surrounding territory unrestricted has been such as to defeat the purpose of the parties to the restrictive agreement.
    On bill, &C.

      Mr. Edgar H. Pinneo (of Messrs. Riker & Riker), for the complainant.

      Mr. Saul Cohn, for the defendants.
   Lane, V. C.

The bill is filed by the owner of a piece of property on the westerly side of Lincoln avenue, in the city of Newark, between Elwood and Delavan avenues, to prevent the erection of an apartment-house upon the southwesterly corner of Elwood and Delavan avenues, a point distant from complainant’s house, exclusive of the width of Dclavan avenue, of one hundred and three and eight-tenths feet. The right of complainant is based upon an agreement entered into on or about the 1st of February, 1894, between the then owners of the property extending from a point one hundred feet south o£ Elwood avenue on the westerly side of Lincoln avenue to a point two hundred feet south of Delavan avenue and extending for a depth of two hundred feet, restricting such property to use for the erection of private residences. The agreement referred to was without consideration other than mutual promises. For the purpose of these conclusions I have determined to adopt the construction put upon the agreement by Vice-Chancellor Howell in a memorandum handed down by him upon the application for preliminary injunction, which con-, struction is to the effect that the agreement as entered into would prevent the erection of the structure proposed by the defendants. The complainant acquired his title by deed from Mary Ella Eagles, dated March 27th, 1909. Mrs. Eagles and her husband, who owned the property in 1894, were parties to the agreement providing for the restrictions. The street next westerly to Lincoln avenue is Summer avenue. Originally, tire restricted property, or most of it, had been owned by what is now the Phillips estate. The Phillips homestead is on the plot, a portion of which is now sought to be used for apartment-house purposes. The estate also owned property on the easterly side of Summer avenue, and at or about-the date the agreement was entered into between the property owners on the westerly side of Lincoln avenue - a similar agreement was entered into by the property owners on the easterly side of Summer avenue, among whom was Mrs. Eagles, the predecessor in title of the complainant. At the time the respective agreements' were entered into the property in the immediate neighborhood was developed in substantially tire same manner. From Chester avenue, the street next to Delavan, southerly, to. Elwood avenue, on the westerly side of Lincoln avenue, there were either private residences or vacant lots. The buildings were substantial, and by that I mean structures costing in tire neighborhood of from $10,000 to’ $15,-000, and requiring the outlay of considerable money each year to properly maintain. The remaining property, in the 'block bounded by Elwood, Summer, Delavan and Lincoln, was undeveloped. On the easterly side of Lincoln avenue, from Chester to Elwood, there were a number of private dwellings which had been built for some time. These dwellings, while not as substantial as those on the westerly side, yet housed persons who . had been in the neighborhood for years, and offered no obstacle to the consummation of the plan which I think those who entered into the restrictive agreement had in mind. Nowhere on the restricted area or in the neighborhood were there two-family houses or apartments. The neighborhood was not only strictly residential, in the sense that almost all who lived therein owned their own houses, but residential in the sense that the houses erected might be termed residences in contradistinction to dwellings. Considerable of the land on the easterly side of Lincoln avenue was undeveloped. There is no doubt in my mind but that the purpose of the parties to the agreement of 1894 was to keep the neighborhood strictly residential, a neighborhood in' which 'a person who could afford to invest anywhere from ten to fifteen thousand dollars in a residence, and who could afford to keep up such a residence, would be glad to' live. Whether that hope and anticipation would be achieved or riot depended, of course, upon whether the undeveloped property and the property unrestricted in the immediate neighborhood should be developed upon a corresponding scale. The restricted area now under consideration comprised a comparatively short distance on .one side of a street. It is apparent that if the other side of the street facing the restricted area should be developed in a manner not consistent with" the plan of those entering into the agreement, the purpose of the agreement would fail. So, also,, if the property on the side streets, Delavan and Elwood, or on the street in the rear, Summer, should be developed in a manner not consistent with the- plan, this would mean its failure. That the parties at the time realized that it was necessary for the success of the plan that the easterly side of Summer avenue should be restricted, is indicated by the fact that similar restrictions were entered into by the owners on that street. To these restrictions, as I have above stated, Mrs. Eagles, the predecessor in title of the complainant, was a party. I might say that originally the Phillips estate owned the entire block bounded by Summer, Delavan, Lincoln and Elwood avenues, approximately one-half of the block bounded by Summer, Chester, Woodside and Elwood avenues, Woodside being the street next westerly to Summer, approximately one-half the block bounded by Mount Prospect, Elwood, Woodside and Chester avenues, Mount Prospect being the street next westerly to Woodside, and also a large portion of the block bounded by Lincoln, Delavan, Summer and Chester avenues; it also owned six lots north of Elwood opposite the block between Woodside and Summer. Conceding that the restrictions under discussion would prevent the erection of the proposed structure of the defendants, the question is whether or not the neighborhood has so changed as to make it inequitable for this court to enforce tire provisions of the agreement. I think it has.'

Facing complainant’s house there have been erected on the northeast corner of Delavan and Lincoln avenues two two-family houses. The remainder of the easterly side of the street is built up in approximately twenty-one one-family houses. These houses, however, are not comparable in any respect with those built upon the westerly side of the street. While -they are private dwellings, each of them covers practically an entire lot, this with few exceptions, and they are of much cheaper construction than those which apparently were contemplated by the parties to the agreement. The street next easterly to Lincoln avenue is Washington, and between Delavan and Elwood it has developed into a business section with some two-family houses and dwellings. Some of the dwellings on the easterly side of Lincoln avenue, between Delavan and Elwood, are houses which have been removed from the westerly side of Washington. The easterly side of Summer avenue, which is the westerly boundary of the block in which complainant’s house is situate, is built up substantially in two-family houses. There are ten two-family houses and nine single houses, excluding the dwelling on the southeasterly corner of Summer avenue and Elwood, and the dwellings are of the class that I have described as having been built on the easterly side of Lincoln avenue. On the easterly side of Summer avenue, extending from the southeasterly corner of Summer and Delavan, and -on the property formerly of the Phillips estate, there have been erected a row of houses, eight of which are two-family and one of which is three-family. On the easterly side of Lincoln avenue, south of Delavan, there are a number of private dwellings of the character that I have described as having been erected on the easterly side of Lincoln between Delavan and Elwood, and there are also two two-family houses between Delavan and Chester. An apartment-house has been built on one of the corners of Summer avenue and Delavan, I think on the southwest corner. Two apartment-houses have been built on the northerly side of Delavan avenue between summer and Lincoln, and these abut in the rear upon complainant’s property. On the restricted territory it is conceded that there has been built on the southerly side of Delavan avenue, opposite the apartment-houses last referred to, at least one two-family house I find from the testimony that all three two-family houses on the southerly side of Delavan avenue are within the restricted territory. These two-family houses, while around the corner from the complainant, are but a comparatively short distance from him. On the westerly side of Lincoln avenue, two doors from the complainant, there have been erected five houses, which in the testimony have been called duplex, or double, in contradistinction to two-family. Each house has one roof, one set of outside walls, a partition in the middle, so that it may be used for two families. Whether they may be called, technically, private dwellings or not, I think, unquestionably, their erection was a violation of the spirit of the restrictive agreement. They are not in accordance in anywise with the plan of the parties to that agreement, but are rather in harmony with the present development of the territory in the immediate vicinity.

A survey of the territory in the vicinity indicates clearly that it has grown into a place principally for two-family and apartment-houses and small dwellings. On the northeasterly corner of Washington avenue and Delavan, a block away from complainant’s house, is a twenty-three-family apartment-house; about a quarter way down the block, on the easterly side of Washington avenue, between Delavan and Chester, approximately two blocks from complainant’s house, is a large apartment-house. The testimony taken before me demonstrates that the property within the restricted area is no longer salable for residential purposes. Two witnesses, one of whom was Alfred S. Skinner, Esq., who owned the property on the northwesterly corner of Lincoln avenue and Delavan, and was a party to the agreement, testified that'-when they canie to dispose of their houses they could do so only at great sacrifice. They and several other witnesses testified generally to the change in the neighborhood, attributing it to the construction of the car barns, the influx of small-salaried employes, the noisome smells which came sometimes from the Passaic river, and the establishment of the Mount Prospect and Forest Hill section of the city of Newark. It is to be observed that Mount Prospect avenue is the next street westerly to the vicinity under consideration, but it lies on a ridge and there is no access to it from the vicinity in question short of, I think, half a mile, except by stairs, so that there is a clear line of demarcation between the Mount Prospect section and this vicinity. No evidence worthy of serious consideration was produced which would indicate that the restricted property was at the present time salable for residential purposes. The effect of the development has been such as to completely surround this small restricted territory on one side of a street by a class of houses not at all in harmony with those contemplated by the restrictive agreement. I cannot see that the erection of the building in question will irreparably or in anywise injure the complainant, in view of the character of the neighborhood. The apartment-house to be erected is of the latest type; the rent will be approximately $10 a room, which means that there will be a class of people inhabit it who can afford to pay from forty to sixty dollars a month and upwards; the general character of the neighborhood will not be changed. The apartments are not so numerous as that there will be an excess of noise and confusion. Taking the territory as a whole I think that the apartment will be a betterment rather than a detriment. It must not be overlooked that neither the complainant nor his predecessor in title protested against the erection of the two-family houses on the southerly side of Delavan avenue within the restricted territory, and contrary to the restrictive agreement, nor against the erection of what have been called the double houses on the westerly side of Lincoln avenue within the restricted territory, and I think within the restrictive agreement, as construed by Vice-Chancellor Howell, nor that there are at the present time two apartment-houses on the northerly side of Delavan avenue, which while not within the restricted territory abut on complainant’s house; nor that complainant’s predecessor in the title, although a party to the Summer avenue agreement, acquiesced in its violation. The ultimate fate of all of this territory is that it will be built up with two-family and apartment-houses. • It is only a question of time. _ My recollection is that the complainant, or, if not the complainant, one of the witnesses who owned one of tire residences, testified that a man would be foolish to buy into the territory for residential purposes in the sense contemplated by the restrictive agreement.

My conclusion is that it wauld be inequitable for this court to at this 'time enforce the restrictive agreement and that the case is within that of Page v. Murray, 46 N. J. Eq. 325.

I will advise a decree dismissing the bill, but, under the circumstances, the dismissal will be without costs. This case is determined, of course, solely upon the facts now before the court, and I express no opinion as to whether, if an attempt were made to erect in this neighborhood a tenement-house .or a factory, or if an attempt were made to violate the restrictive agreement in any other manner, this court would or would not intervene.


text:
    Adelaide L. De Lukacsevics, petitioner, v. Charles De Lukacsevics, defendant.
    [Decided June 24th, 1917.]
    1. A writ of sequestration to enforce the payment of alimony places in custodia lec/is the property sequestered, and no right can be acquired in that property except subject to the operation of the writ.
    2. The operation of a writ of sequestration issued in an alimony case extends to secure not only alimony due at the time of the issuance of the writ but alimony which may subsequently accrue.
    On petition of certain creditors for relief.

      Mr. Edward A. Levy and Mr. Frederick A. Heisley, for the creditors.

      Mr. Frederick S. Taggart, for the petitioner.
   Lane, V. C.

These are applications on behalf of certain judgment creditors of the defendant, Charles de Lukaesevics, and also on behalf of the holder of a note made by defendant, upon which note is endorsed a statement that certain automobiles hereinafter mentioned are held as collateral, to obtain payment of their respective debts from a fund in the possession of an officer of this court under a writ of sequestration. Pending this suit the court made an order for temporary alimony. The defendant had appeared. The order was not complied with. The defendant left the state. Thereupon the court, under the provisions of the twenty-sixth section of the Divorce act of 1907 issued its writ of sequestration under which the sheriff took in his possession two automobiles and certain other personal property of the defendant and entered upon real estate of the defendant and sequestered the rents and profits. Thereafter a receiver was appointed who superseded the sheriff, and who now has in his possession one of the automobiles and a fund of some $200, the balance of the proceeds of sale of the other automobile, the remainder of the money having been used to pay alimony to the petitioner up to the 14th of April, 1917.

The real estate is said to be worth in excess of $10,000, but in its present condition is unrentable, and it will be necessary to expend in the neighborhood of between four and five hundred dollars for taxes and repairs. All of the judgments were obtained after the writ of sequestration had been issued and executed. Under the cases of Wood v. Price, 79 N. J. Eq. 1; affirmed, 79 N. J. Eq. 620; Close v. Close, 28 N. J. Eq. 472, it seems to me that there is no doubt but that the execution of a writ of sequestration in cases of this nature places in custodia legis the property of the defendant sequestered to satisfy or compel the satisfaction of the claims of the wife for alimony, and that no rights can be acquired in the property except subject to the operation of the writ. The operation of the writ extends to secure not only alimony due at the time of the issuance of the writ, but alimony which may subsequently accrue. I think that the property sequestered is no more than reasonably necessary in view of the circumstances, to retain for the purpose of satisfying or compelling, satisfaction of the claims of the petitioner. This results in the application of the creditors being denied. So far as the owner of the note is concerned, he took no chattel mortgage or other instrument which might be recorded evidencing his lien, nor did he take actual or constructive possession of the chattels, so that the lien under the writ is superior to his rights, if any he has.