text:
    The New Jersey Interstate Bridge and Tunnel Commission et al. v. The City of Jersey City et al.
    [Decided July 13th, 1922.]
    1. Where the Interstate Bridge and Tunnel Commission, in conjunction with the State of New York, contracted for the construction of two tunnels under the Hudson river, 'the contractor was not obliged to comply with the building code of the city in which part of the work was being constructed, as such code did not require compliance by the state, for the powers of municipalities may be abridged by the state.
    2. Statutes in derogation of sovereignty are strictly construed in favor of the state, and are not permitted to divest the state of any of its prerogatives unless such intention is clearly expressed.
    3. The control of highways-by municipalities is subject to paramount control by the state.
    4. The state is immune from taxation by a municipality because taxs« so laid would require other taxation for the purpose of raising money for (heir payment.
    5. The fact that a contract made by the state for the construction of a public work required the contractor to comply with the ordinances of a named city did not authorize that city to require compliance with such ordinances, as the statute permitting a third party to sue on a contract is limited to the class intended to be benefited by the contract.
    On application for an injunction.

      Mr. Emerson Richards, deputy attorney-general, for the motion.

      Mr. Thomas J. Brogan, for Jersey City, contra.

   Walker, Chancellor.

Chapter 49 (P. L. 1918) is “An act to provide for the appointment of an Interstate Bridge and Tunnel Commission and to define its powers and duties,” and provides, inter alia, that the commission thereby created shall have such duties in connection with the providing of interstate bridges and tunnels as should from time to time be conferred upon it by the legislature, and should have all the powers appropriate and necessary for the performance of such duties. Chapter 50 (P. L. 1918) is an act to extend the system of highways in the state and provides for the construction, maintenance and operation of bridges and tunnels across the Delaware and Hudson rivers, or either of them. This latter act authorizes the bridge and tunnel commission to make plans, specifications, &c., for the construction of a bridge or tunnel across the Hudson river in co-operation with .the city or State of New York, and to enter into the necessary agreements or contracts with both states for the construction of the tunnel, *and to enter into the necessary contract for such construction either in its own name or in the name of the state, or both, with full power in the name of the state to acquire by purchase or condemnation all lands, or rights or interests in land's, within the state which may be necessary for the construction of such tunnel. The States of New Jersey and New York, pursuant to the authority vested in them respectively, entered into a contract with Booth & Flynn, Ltd., for the construction of two tunnels between Jersey City and New York City. The magnitude of the work is demonstrated by the fact that the contract price is $12,132,100.50, and the time of completion of the work is fixed as thirty-six months from June 25th, 1922. In pursuance of this contract a larg-e amount of materials have been purchased by the contractor, subcontracts entered into with divers persons, and a large amount of materials assembled for the prosecution of the work at a point in the Erie railroad j^ards in Jersey City. Title to the land required is vested in the State of New Jersey, which land is to be used during the construction of the tunnel, and afterwards as a plaza for an approach thereto. The contractor, pursuant to the terms of the contract and upon notice from the chief engineer of the commission, entered upon the afore-mentioned land of the State of New Jersey and began preparations to erect an air compressing plant necessary for the prosecution of the work, and while so engaged the officers, engineers and workmen of Booth & Flynn, Ltd., were stopped by police officers of Jersey City and prevented from prosecuting the work, for the given reason that it could not be proceeded with unless and until the contractor obtained a permit therefor from the city of Jersey City.

"Upon filing the bill in this cause and the affidavits thereto annexed, from which the above facts are made to appear, an order was made on the mayor and the city commissioners of Jersey City, their officers, agents and employes, to show cause why they should not be enjoined and restrained from interfering with the bridge and tunnel commission and Booth & Flynn, Ltd., in the work of constructing the tunnel or in any manner obstructing, delaying or preventing the erection upon the state’s premises of a power plant or other works, &c.; and they were enjoined in the meantime and until further order of the court.

There are no disputed facts. Counsel for the state contends that the work above mentioned is being done by the state in its sovereign capacity, and is not subject to interference in anywise by the municipality of Jersey City. This great work of constructing tunnels under the Hudson river is the work of the state itself, for the state, wherever it prosecutes any great governmental purpose, either in its own name or by and in the name of its appropriate agent, is the actor in carrying the particular purpose into execution. Morris Canal ads. The State, 14 N. J. Law 411. Counsel for the defendants admits this, but claims that even the sovereign state is bound to acknowledge the right of Jersey City to insist upon the contractor talcing out a permit under its building code for the purpose of prosecuting the work in question. And he relies upon section 15 of the contract, which reads:

“15. In all operations connected with the works the contractor shall strictly comply with all ordinances of Jersey City and of the board of health and all laws of the State of New Jersey and of the State of New York which are applicable to, and control or limit in any way the actions of those engaged in the work or affect the materials entering into the work, or affect the methods and appliances nsed by the contractor in carrying out the work, and he shall further strictly comply with all other federal, state and municipal regulations applicable to the work, including the transportation of materials in and around the city and harbor of New York.”

Jersey City is not a party to the contract.

Municipalities are the creatures of the state and the powers given to them are always subject to- be abridged or repealed by the sovereign who conferred them. See Eastern Tel. Co. v. Public Utility Board, 85 N. J. Law 511. The building code of Jersey City was of course enacted subject to the power of the state to modify or annul it at any time. And the state, in the act creating the bridge and tunnel commission and clothing it with power to provide for interstate bridges or tunnels, with all the powers appropriate and necessary for the proper performance of such duties, without any limitation as to municipal control, overrode that code to the extent of nullifying its provisions so far as they required compliance with them by the state.

Statutes in derogation of sovereignty, such as those conferring powers on corporations, are to be strictly construed in favor of the state, and are not permitted to divest the- state or its government of any of its prerogatives, rights or remedies, unless the intention of the legislature to effect such object is clearly expressed in the statute. 36 Cyc. 1177. No public right can be taken away by mere inference or legal construction. Jersey City v. City of Hudson, 13 N. J. Eq. 420. It will be noticed that there is no saving clause in the act creating the bridge and tunnel commission, whereby its powers are to be affected by municipal ordinances. As already seen, this tunnel project is an extension of the state highway system, and the control of highways by municipalities is always subject to paramount control by the state itself. Jersey City v. City of Hudson, supra; Barnes v. Essex County Park Commission, 86 N. J. Law 141.

The power of Jersey City to enact its building code, which requires that for the erection of any building within the city limits a permit must be procured from the superintendent of buildings, was ordained in virtue of the charter of Jersey City granted by the state. In the absence of language in that charter to the effect that the state as a sovereign should be bound by ordinances passed in virtue of it, those ordinances did not affect the state. See Trustees of Public Schools v. Trenton, 30 N. J. Eq. 667. And the state could at any time override any such charter provision, as acts derogatory from the power of subsequent parliaments bind not; because the legislature, being in truth the sovereign power, is always equal, always of absolute authority; it acknowledges no superior upon earth, which the prior legislature must have been if its ordinances could bind a subsequent parliament. 1 Bl. Com. 90.

It was conceded on the argument that the fee payable to Jersey City for a permit to construct the tunnel in question, based, as required by the ordinance, on the value of the work to be done, would be several thousand dollars, and counsel for the city expressly stated that no exaction by way of fee would be made.

Attempts by a municipality to exact money from the state have always been defeated. Opinions emanating from the attorney-general’s office in two cases, one to tax the state armory in New Brunswick, and the other an endeavor by Camden to levy a sewer assessment against the armory there; held such impositions to be invalid. The reason why the state is immune from taxation by a municipality is because taxes so laid would require other taxation for the purpose of raising money for their payment. See Trustees, &c., v. Trenton, 30 N. J. Eq. 667, supra. Even if Jersey City is willing to forego the collection of a building permit fee, that could not operate to give vitality to an ordinance invalid against the state.

A case in the supreme court, whose doctrine is quite pertinent to the case at bar, is that of Styles v. Long Co., 67 N. J. Law 413, wherein it was held:

“Where a contract is made by a public corporation for the construction of a public work, and incidentally contains stipulations intended for the safety of the public, an individual, who sustains personal injuries by reason of the non-performance of such stipulation, does not bear such a relation to the contractor as will support an action of tort against the latter, based upon the mere violation of the contractual duty. .The injured party is remitted to his action for breach of such duty [if any] as may be; imposed upon tire defendant aside from the contract.”

Its application to the case at bar is this: The contract before me was made by the state for the construction of a public work, and incidentally contained stipulations intended for the safety of the public, Jersey City in particular; and that municipality, if it should sustain injury by reason of the non-perfonnance of those stipulations, worilcl not bear such relation to the contractor as would support an action against the latter based upon the mere stipulation of the contractual duty; but the city would be remitted to its action for breach of such duty as may be imposed upon the contractor by the ordinances of Jersey City, quite aside from the contract, to which tire city is not a party. The statute permitting a third party not' privy to a contract, and who has given no consideration therefor to sue thereon, is limited to those for whose benefit the contract is made, and does not extend to third persons who indirectly and incidentally would be advantaged by its performance. Standard Power Corporation v. New England Casualty Co., 90 N. J. Law 570. Now, Jersey City is not a party to the contract in question, and the contract was not made for its benefit; and Jersey City cannot enforce its ordinances against this work by reason of any provision in the contract to which it is a, stranger.

While a sovereign state cannot be sued in its own courts without its consent, nevertheless, when it sues, the defendant is entitled to appropriate defences. American Dock and Improvement Co. v. Trustees of Public Schools,, 35 N. J. Eq. 181, 252. See, also, 36 Cyc. 910. It is true that Jersey City is not here suing on the stipulation contained in section 15 of the contract, but, being a defendant in the suit, it would be entitled to stand upon that section as defensive matter, if it constituted a valid defence in its hands; but, as shown, Jersey Cityr, not being a park'- to the contract and which was not made for its benefit, it can neither sue on nor defend under it. Irrespective of the contract, it may have rights to enforce ordinances looking to safety in building operations, &c., in the prosecution of the work, but it cannot compel the State of-New Jersey, or its agent, the’contractor, to take out a permit for doing the work, or subject its agent and employes to inspection in the progress of the operation. And it is not to be presumed that the state will suffer this great work to be prosecuted without every reasonable precaution being taken for the safety of every one engaged in it, and of the public its well, through inspection by its own officers, and otherwise.

The views above expressed lead to the malting absolute of the order to show cause and the granting of a preliminary injunction.


source: Caselaw Access Project

author: Walker, Chancellor.

license: Public Domain

text:
    Charles P. Danielly, petitioner, v. Alvada A. Danielly, defendant.
    [Decided July 18th, 1922.]
    1. Desertion, as ground for divorce in this state, is of two kinds, actual and constructive; actual desertion must he (1) willful — that is, intended by the deserter; (2) obstinate — that is, persisted in against the will of the deserted, and (3) continued — that is, without interruption for the statutory period; constructive desertion is where an existing cohabitation is put an end to by misconduct of one of the parties, provided such misconduct is itself a ground for divorce a vinculo or a mensa.

    2. Where a spouse afflicted with a venereal disease, having reason to know it, communicates it to the other, the offender is guilty of extreme cruelty; and the offending party’s knowledge of the condition and danger of infection will he presumed; medical science indicates that it is highly improbable that such disease may be contracted except by sexual intercourse with an afflicted person.
    3. Where a wife contracts gonorrhea and communicates that disease to her husband, as a result of which they quarrel and separate, the wife leaving the husband without protest on his part, no duty rests on him to invite her to return, the desertion being constructively hers; and
    4. In constructive desertion it is the duty of the offending party to endeavor to terminate the separation by manifesting reformation and applying for restoration of marital relationship, giving reasonable assurance of sincerity and probable safety of the injured party in resuming cohabitation.
    On final hearing on masters report and depositions ex pwrte.

      Mr. Frcmlc G. Propert, for the petitioner.
   Walker, Chancellor.

The petition in this cause is one for constructive desertion. It avers that the parties, petitioner and defendant, cohabited together for three months from the date of.- their marriage, September 17th, 1917; that in or about October, defendant w'ent to Boston, Massachusetts, on a visit, remaining there about ten days, and on her return was afflicted with a venereal disease and communicated the same to the petitioner, so that his health was menaced and he suffered extreme pain, anguish, &e. Petitioner complained to defendant, quarrels ensued, and, as a result, the defendant on or about December 22d, 1917, left the home of the petitioner, without protest on his part, and. did not return; that by the true intent and meaning of the statute the defendant for more than two years then last past willfully, continued and obstinately deserted the petitioner. The facts above recited were proved, and the question is, Is the desertion constructive ?

Almost invariably in cases of constructive desertion it is the wife who is the petitioner, and she justifies her actual leaving of her husband upon the ground that his extreme cruelty has driven her from him and thus made the desertion arising out of such separation a constructive one on his part. Causes both physical and mental render the infliction of cruelty by the wife less common than by the husband on her; yet, the law of England and in most of the states of the United States gives the same relief to a complaining husband as to a complaining wife, while in some of them the wife alone is entitled to a divorce for that cause. 1 Bish. M., D. & S. § 1630. In our state the divorce act expressly provides that a divorce from bed and board may be decreed for extreme cruelty in either of the parties. P. L. 1907 p. 474 § 2. In Csanyi v. Csanyi, 93 N. J. Eq. 11, I held that a constructive desertion is one where an existing cohabitation of the parties is put an end to by misconduct of one of them, provided such misconduct is itself a ground for divorce a vinculo or a mensa. It is true that that, case was the usual one of separation being caused by the brutality of the husband; but these constructive desertions are not necessarily confined to cases whore the injured party leaves the offending one, but may also arise where the same spouse is both the offender and the actual deserter.

It has been held that where a husband, afflicted with a venereal disease, having reason to know it, has communicated it to his wife, he is guilty of extreme cruelty. Cook v. Cook, 32 N. J. Eq. 475. See, also, Crane v. Crane, 62 N. J. Eq. 21, 26; Rogers v. Rogers, 81 N. J. Eq. 479, 484. It is gross cruelty for a husband to communicate to his wife a venereal disease; and if he does it, his knowledge of his condition and the danger of infection will be presumed. 1 Bish. M., D. & S. § 1581.

This wife knew she had gonorrhea, for when her husband accused her of it she did not deny it, and the proof demonstrated that she had it.

An actual desertion under our statute must be (1) -willful— that is, intended by the deserter; (2) obstinate — that is, persisted in against the will of the deserted, and (3) continued— that is, without interruption for the statutory period. The desertion in the case at bar was neither willful nor obstinate. The parties Were married September 17th, 1917. They cohabited at petitioner’s residence in Collingswood, and on October 19th, the wife went to Boston on a visit and remained there about ten days. After her return she complained of feeling unwell and a few clays afterwards petitioner also felt unwell. Medical examination disclosed the fact that both had well developed cases of gonorrhea. The petitioner ceased sexual intercourse with his wife on the discovery of this, occupying a separate bed and room thereafter, and they had frequent quarrels about the trouble. It is clear that she communicated the disease to him. The medical testimony indicates that it is highly improbable that the disease may be contracted except by sexual intercourse with an afflicted person.

It is held that where a wife leaves her husband with his actual or presumed consent, he is obliged to make such advances as a reasonable man would to induce her to return, and thus terminate the separation. But our law, Vice-Chancellor Stevenson observed, in Rogers v. Rogers, 81 N. J. Eq. 311, 313, has refrained from laying down any hard and fast rule in regard to tbe duty thus imposed upon a husband of inviting the return of a wife who has separated herself from him, where she is to blame; that when tbe question comes before the court the only test of any practical value in a large number of cases is, taking-all the conditions and circumstances into consideration, Has the man acted like a just man? This case was reversed (S. C., Ibid. 479), but this reasoning was not disturbed. It is obvious that no duty whatever rested upon the petitioner in this case to induce his erring wife to return, afflicted as she was with a loathsome venereal disease. But, further, the situation was reversed, for in cases of constructive desertion it is-the duty of the offending- party to endeavor to terminate the separation by manifesting reformation and applying for restoration of marital relationship, giving reasonable assurance of sincerity and probable safety to the injured party in resuming cohabitation. Csanyi v. Csanyi, supra. The proofs do not disclose any attempted performance of this duty by the defendant.

The views above expressed lead to the conclusion that the petitioner is entitled to a divorce for desertion.

Decree nisi accordingly.


text:
    Mary Zudiak, by next friend, v. Michael Szuryk.
    [Decided August 2d, 1922.]
    1. A bill for partition on behalf of an infant by next friend may not be filed unless it alleges that partition or sale of the premises would operate for the benefit of the infant.
    2. By the ancient practice both at law and in equity, partition was made, however prejudicial to' the interest of the parties; to remedy which our statute authorizes a sale in lieu of partition.

      3. The power to direct partition of property by sale and division of the proceeds is statutory, and the circumstances under which it can be exercised depend upon the statute; and it is incumbent on the person seeking partition by sale to show cause therefor justifying it under the statute.
    4. If a sale in partition be consented to by all parties, they being sui juris (and only such parties can give efficacious consent), that mode of disposition could be attained without decree, as the parties themselves could join in the execution of a proper deed; what the parties can do for themselves the court will not do for them.
    On application for decree for sale.

      Mr. Herbert Olark Gilson, for the complainant.

      Mr. John F. Reger, for the defendant.
   Walker, Chancellor.

The bill is one for partition and accounting. There are only two parties, the complainant and defendant. If both parties were sui juris they could join in a deed. Complainant, who sues by next friend, is but five years of age.

In Brown v. Garton, 86 N. J. Eq. 289, I held:

“Partition is a matter of right only when the complainant is sui juris. No' one has a right to file a bill for partition as next friend of an infant unless it is made to appear upon the face of the bill that partition or sale of the premises would operate for his benefit; and, if such allegation be made, the reference master will be required to take testimony and report whether or not such partition or sale would operate to Ihe benefit of the infant complainant.”

The defendant has answered, admitting the seizin of the parties but denying liability to account. A draft of decree for sale has been presented by the solicitor for the complainant, consented to by the solicitor for defendant, in which it is recited that the lands and premises are so situate that a partition cannot be made without great prejudice io the owners of the same. This decree cannot be made. Even if the bill alleged that partition or sale would operate to the benefit of the infant, relief could not be afforded unless testimony taken before a master made it appear that such was the fact.

The act concerning- partition (Comp. Stat. p. 3903 § 16), provides that when a partition of land cannot be made without great prejudice to the owners of the same the court may order a sale thereof. By the ancient practice, both at law and in equity, partition was made, however prejudicial to the interest of the parties. To remedy this our statute authorizes a sale in lieu of partition. Bentley v. Long Dock Co., 14 N. J. Eq. 480.

The power to direct partition of property by sale and division of the proceeds is statutory, and the circumstances under which it can be exercised depend upon the statutes in force in the different jurisdictions. 30 Cyc. 267. And it is incumbent on any person seeking partition by sale to show cause therefor justifying it under the statute. Ibid. 268.

If a sale in partition be consented to by all parties, they being sui jims (and only such parties can give efficacious consent), that mode of disposition could be attained without decree of the court, that is, the parties themselves could join in the execution of a proper deed. What the parties can do for themselves they cannot require the court to do for them. The court will not do a vain thing.

Leave will be given to properly amend the bill. If the amendment be consented to it will obviate the necessity of taking an order on the defendant to answer the amendment. If amendment be made the complainant may apply for an order of reference in due course.


author: Lewis, V. C.

text:
    Union Trust Company of New Jersey, a corporation, v. New Jersey Water and Light Company, a corporation, et al.
    [Decided April 6th, 1922.]
    1. The acceptance of interest by the mortgagee after the mortgagor-had defaulted in its agreement to replace certain machinery covered by the mortgage, and with full knowledge of such default, ^does not constitute a waiver of the default.
    2. Under a mortgage requiring the mortgagor company in case it sold any obsolete machinery to replace it with new equipment, the substitution for obselete machinery used in the generation of electricity of other machinery which could be used for water purposes only was a 'breach of the condition which gave the mortgagee the right to foreclose after notice.
    3. The mere lapse of time in bringing a suit to foreclose a mortgage after default, in the absence of any proof to work an estoppel, does not bar the right to foreclose.
    On bill to foreclose. On pleadings and proofs.

      Mr. Carlyle Garrison and Mr. Lindley M. Garrison, for the complainant.

      Messrs. Durand, Ivins & Carton ana Mr. Robert II. McCarter, for the defendants, New Jersey Water and Light Company and Atlantic Coast Electric Light Company.
   Lewis, V. C.

The bill in this case is filed to foreclose a mortgage dated July 31st, 1909, añade by the New Jersey Water and Light Company, a corporation of the State of New Jersey, to the Union Trust Company of New Jersey, a corporation of the State of New Jersey, as trustee, upon certain lands and premises situated in the borough of Deal, Monmouth county, New Jersey. The-mortgage was given to secure the payment of two hundred and fifty (250) bonds of the said New Jerse]'- Water and Light Company, of the par value of one thousand dollars ($1,000) each, aggregating two hundred and fifty thousand dollars ($250,000), dated July 31st, 1909, and payable July 31st, 1924, numbered consecutively from 1 to 250, both inclusive, with interest at the rate of five per centum per annum, payable semi-annually on the first day of August and the first day of February in each year thereafter. The Union Trust Company of New Jersey, the mortgagee, was trustee under the mortgage for the bondholders.

Complainant thereafter became tire purchaser for a valuable consideration of one hundred and forty of the bonds, numbered 1 to 140, both inclusive, in the aggregate amount of one hundred and forty thousand dollars ($140,000) principal. The balance of the bonds still remained in the hands of the trustee, pursuant to the terms of a certain agreement made between Samuel Ludlow, Jr., and the Atlantic Coast Electric Light Company, on or about June 15th, 1914, defining and limiting the use to1 which such portion of the bonds should he used.

The Atlantic Coast Electric Light Company is a corporation of the State of New York, and on or about June 15th, 1914, acquired and now owns all of the outstanding capital stock of the New Jersey Water and Light Company, with the exception of a few shares necessary to qualify the directors to act in that capacity. At the time of that transfer the Atlantic Coast Electric Light Company guaranteed the payment of the principal and interest of the one hundred and forty thousand dollars’ ($140,000) worth of bonds outstanding and in the hands of complainant. Ludlow was then president of the Union Trust Company, trustee tinder the mortgage, as well as the owner of practically all the stock of the New Jersey Water and Light Company.

The agreement contained the following clause:

“The party of the second part [the electric light company] agrees that should it at any time dispose of any of the machinery in the plant of the said New Jersey Water and Light Company to be used in its lighting system, the proceeds thereof shall be applied, at the request of the party of the first part [Ludlow] upon the principal of the said bonds. The party of the first part or the then holder of the said guarantee bonds shall secure the consent or release of the trustee of said bonds to such sale.”

This agreement was made subject to the approval of the board of utility commissioners, which was later obtained. The mortgage under foreclosure contained the following clause:

“Thfi company, while in possession of the mortgaged premises, shall have full power from time to time, in its discretion, and without interference by the trustee, to dispose of any portion of the equipment, machinery and implements at any time held subject to. the lien of this indenture, which may have become worn out, obsolete or otherwise unfit for such use; and the company agrees to replace the same by new equipment, machinery or implements, which shall, without further conveyance, be and become subject to the lien of this indenture.”

The mortgage also contained a clause which provided that:

“In case default shall be made in the performance of any covenant or agreement herein contained, and any such last-mentioned default shall continue for a period of ninety days, with written notice thereof to the company, by the trustee, then in each and every such case the trustee may, in its discretion, and upon written request of the holders of a majority in amount of the said bonds outstanding, shall, on notice in writing, delivered to the company, declare the principal of all the said bonds then outstanding to be due and payable immediately; and upon any such declaration the same shall become and be immediately due and payable; anything in this indenture or in said bonds contained to the contrary notwithstanding.”

Complainant charges that certain of the equipment, machinery and implements were removed from the premises covered by the mortgage; and both the water company and the electric light company admit that this was done early in the year 1915, but they claim that they were worn out, obsolete and otherwise unfit for use, and were disposed of under the discretion vested in the mortgagor by the provisions of the mortgage; and that they were replaced by new equipment, machinery and implements; which rendered the plant more efficient than before such replacement, and without impairment of value of the mortgage security.

Complainant contends, however, and the proofs show, that the machinery replaced was of a different character from that removed; and was not designed for or capable of being used in the generation of electricity for lighting purposes; but could be used for water purposes only.

The mortgagee was notified of this change in the machinery at or about the time of the transaction, and a check for one thousand dollars ($1,000) from the proceeds of the sale was transmitted! to it shortly after the sale was consummated, in accordance with the provision of the agreement hereinbefore referred to. The check seems to have been retained for several months, but ultimately, on November 22d, 1915, the mortgagee sent its check to the Atlantic Coast Electric Light Company for $1,001.58, being the amount of the previous remittance with interest, for the reason, it >w'as stated, “That we do not consider that as trustee of the NeW Jersey Water and Light Company we are justified in retaining or crediting the same to the accounts indicated in the correspondence between us since that date (July 30th, 1915), and that it would appear from your recent letters that you have not complied with the agreements you mentioned, in such manner as to justify us as trustee in accepting or crediting the same as you direct.”

The mortgagee, however, appears to have made-no other formal objection to the change in the machinery thus made, nor did it in terms indicate that it regarded such change as a default in the terms and agreements of the mortgage until on or about October 28th, 1920, when it gave written notice to the New' Jersey Water and Light Company that it regarded the removal of the old machinery, and the failure to replace it in kind, as a default in the performance of the agreement in this respect contained in the mortgage. This alleged default having continued for a period of ninety days after such written notice, foreclosure proceedings were ultimately commenced in May, 1921, by the filing of the bill in this cause; the mortgagee having elected to declare the principal of all of the bonds then outstanding to be due and payable under the terms of the mortgage.

The interest on the bonds had been paid regularly, and accepted by the mortgagee, without reservation, at 'the regular due dates, down to the time of the filing of the bill. It also appears that since the month of November, 1915, there had been spent by the Atlantic Coast Electric Light Company the sum of fifteen thousand dollars ($15,000) on the line of the light company, and six thousand dollars ($6,000) on the water plant, in addition to the sum of seven thousand nine hundred dollars ($7,900) expended for the machinery which took the place of the electric light machinery that was removed; the same having been in payment for betterments on the plant of the New Jersey Water and Light Company; but none of the money in question being spent for machinery of like character to that removed, or in replacement of the removed machinery.

The electric light that had previously been supplied from the old plant of the New Jersey Water and Light Company has been supplied since the change in the machinery by light generated in the plant of the Atlantic Coast Electric Light Company, defendants contending that this plan is much more economical than the use of the old system that had been installed and was in use by the old company, at the time of the making of the contract with the electric light company. It is admitted that the new machinery is not capable of being used with, at least, equal facility, for the ¡same purposes for which the old machinery was capable of being used; and that the effect and result of the change of machinery was to so change and alter the plant of the defendant, New Jersey Water and Light Company, as to thereby render the same incapable of actually producing or manufacturing electricity or electric current at that plant.

It is also clear, that the defendants have not taken any steps to replace the machinery removed, in kind, since the giving of the notice of the default by the mortgagee.

Defendants have introduced no evidence that would tend to establish that they have changed their position to their detriment by the failure of the mortgage to take advantage of the default promptly after its occurrence, or at any time up to the giving of the notice in October, 1920.

I am of the opinion that the mere acceptance of the interest by the mortgagee after the default complained of, and with full knowledge of it, does not constitute a waiver of the default. Arkenburgh v. Lakeside Assn., 56 N. J. Eq. 102-109; Industrial Land Development Co. v. Post, 55 N. J. Eq. 559; Bergman v. Fortescue, 74 N. J. Eq. 266; Camden Safe Deposit Co. v. Dialogue, 75 N. J. Eq. 600; Baldwin v. Van Vorst, 10 N. J. Eq. 577.

There has been a clear breach of the condition of the agreement with regard to the replacement of the machinery and equipment removed, and, in accordance with the undoubted rule, this gave rise to the immediate right of the mortgagee to foreclose after the lapse of the period specified. Davis v. Flagg, 35 N. J. Eq. 491; Com. Title Co. v. Lime Co., 86 N. J. Eq. 450, 458; Camden v. Public Service Railway Co., 84 N. J. Law 305, 308.

The mere lapse of time in bringing foreclosure after the default, in the absence of any affirmative proof to work an estoppel, does not bar the right to foreclose. Swinley v. Force, 78 N. J. Eq. 52, 72; Chalmer v. Weston, 27 N. J. Eq. 435.

I will advise a decree in accordance with, these conclusions.


text:
    Grace Louise Hill and Henry J. Russell, executors under the last will and testament of Thomas Hill, deceased, v. Ernest Perry Hill et al.
    [Decided April 13th, 1922.]
    1. The right of a devisee to exoneration by payment of a debt secured by mortgage upon the land from the personal assets of the estate exists in full force except in so far as it has been abolished by statute.
    2. 3 Oomp. Stat. p. 3J¡21 § 2, does not abolish the substantial right of a devisee of land to exoneration by payment of the bond secured 'by mortgage on the land devised to him from the personal property of the testator.
    3. While a statute relating to remedy and procedure is to be liberally construed with a view to the effective administration of justice, it must be strictly construed in so far as it changes or diminishes fundamental rights, both as to the cases embraced in its terms and the methods to be pursued.
    4. The legislature makes public policy, not the courts.

      On bill, &c.

      Mr. James E. Pyle, for tbe complainants.

      Mr. William B. Gannon, for tbe defendants Ernest Perry Hill and Arthur Edward Hill.

      Mr. Philip S. Birnbcmm, for the defendants Grace Louise Hill, trustee, &e., and Maria Louise Hill and Thomas Howard Hill.
   Lewis, V. C.

This litigation was initiated by a bill filed by the complainants as executors of the estate of Thomas Hill, deceased, for instructions regarding the payment of a bond' made by the testator during his lifetime to the Pfovident Institution for Sayings in Jersey City for $10,000 to secure which he gave a mortgage upon the property on Newark avenue, in Jersejr Oityr, devised by him in his will to Grace Louise Hill, as trustee.

As appears from the agreed state of facts all the allegations in the bill are admitted by the defendants Ernest Perry Hill and Arthur Edward Hill, and the complainants, as executors, admit the order limiting creditors and the decree barring creditors in the matter of the estate of Thomas Hill mentioned in the answer of the defendants Ernest Perry Hill and Arthur Edward Hill. No claim under oath has been filed with the executors of the said estate by the Provident Institution for Savings in Jersey City, the mortgagee mentioned in the mortgage covering the lands above referred to, and by no one else for the payment of the amount due on the bond and mortgage mentioned in the bill of complaint, but that verbal demand was made before April 3d, 1920, upon thel executors by the devisees of the real estate covered by said mortgage, that said executors pay said bond and mortgage out of the personal estate of the said decedent and thereby exonerate the real estate from the lien of the said bond and mortgage.

It is admitted that the executors have waived the necessity of the said devisee presenting the said claim under oath, and the question as to the legal right to so waive was not argued before me, although it is set up as one of the defences by the defendants Ernest Perry Hill and Arthur Edward Hill in their answers.

It may be said in passing that it has been held that an executor may pay any claim against the estate, which he is satisfied is just, without requiring a statement of the items, or that it be sworn to. Kinnan v. Wight, 39 N. J. Eq. 501. It was also held, in Heisler v. Sharp, 44 N. J. Eq. 167, that an executor or administrator may pay the debt which is just, though it be barred by the statute of’limitations, and in Boynton v. Sandford, 28 N. J. Eq. 184, that where an action is brought against him on a claim barred by the statute of limitations an executor is not bound to plead the statute.

The interesting and important question, however, which I am asked to pass upon is, Does the doctrine of exoneration exist today in New Jersey, or has it been abolished by the statute of 1S80, in the absence of any express intention to exonerate, as evidenced by the will?

The right to such exoneration was well settled in England and in New Jersey, and, unquestionably, exists to-day in New Jersey in full force, unless it has been abolished in the case of mortgage debts of the ancestor, or devisor, which are. represented by the bonds of such ancestor or devisor which come within the operation of the act of March 12th, 1880. 3 Comp. Stat. p. 3420. The old authorities, laying down the original rule above referred to, may be found cited in Park. Dig. col. 5540 p. 192; Smith v. Wilson, 79 N. J. Eq. (at p. 312).

Of course, all cases lajdng down or; following the ancient rule which precedes the statute of March 12th, 1880,, have an application to the present inquiry, which is confined to the question whether the statute of 1880 abolished the right of exoneration in cases coming within the operation of the statute.

We may go further and say that cases which came up' in court and were decided after the act of 1880 can have little, if any, bearing upon the question under examination., if, as a matter of fact, the bond and mortgage of the ancestor or devisor was in existence prior to the time when the act of 1880 became a law. It may be that the constitutional provision prohibiting the legislature from passing" any law depriving a party of any remedy for enforcing a contract which existed when the contract was made preserves the right of exoneration to the heir or devisee if the bond of the ancestor or devisor was in existence when the act of 1880 took effect. It is settled in tins state that the act of 1880 could not prevent the holder of a bond and mortgage in existence when the act took effect from availing himself of the remedy which he had when the bond was given, by a suit at law before any foreclosure was attempted.

As it is settled, therefore, that the holder of the bond and mortgage was unaffected by the subsequently passed statute of 1880, it may be argued with force that tire right of exoneration in such case is preserved for the benefit of the heir or devisee.

The cases which bear upon the question under consideration are:

(1) Kreuger v. Ferry (Vice-Chancellor Van Fleet, 1886), 41 N. J. Eq. 432, 437; affirmed on opinion below, 43 N. J. Eq. 295. Vice-Chancellor Van Fleet lays down the old rule that the personal estate of decedent is the primary fund for the payment of his debts and that the heir, devisee or widow has a right to exonerate his land in any mortgage existing thereon for which the decedent was personally liable. Vice-Chancellor Van Fleet further held that the right belongs to the three classes of persons mentioned and that an alienee or mortgagee of an heir or devisee has no such right. No notice whatever is taken of the possible effect of the act of 1880. The old rule was affirmed, or rather referred to as in full force. The case, however, has little bearing upon our inquiry for two reasons'—

First. The point decided was that the alienee or mortgagee of the heir or devisee would not receive by assignment or otherwise his grantor’s or mortgagor’s right to exoneration.

Second. As a matter of fact, the bond and mortgage with which the vice-chancellor had to deal was made by the testator in 1860, twenty years before the new law went into effect. In recognizing the old rule of exoneration as in existence in New Jersey, Vice-Chancellor Van Fleet refers (at p. 437) only to one New Jersey case, Keene v. Munn, 16 N. J. Eq. 398, a ease decided in 1863, seventeen years before the statute with which we are dealing was enacted by the State of New Jersey.

(2) Bird v. Hawkins (Vice-Chancellor Grey, 1899), 58 N. J. Eq. 229. Vice-Chancellor Grey recognizes the old rule of exoneration (at p. 254). The only New Jersey case cited to sustain the rule is Whitehead v. Gibbons, 10 N. J. Eq. 236, which case was decided in 1854, twenty-six years before the statute of 1880 was passed.

(3) Higbie v. Morris (Court of Errors and Appeals, 1895), 53 N. J. Eq. 173. This decision of our court of last resort lays down, the .old rule of exoneration and holds that the right of exoneration of land mortgaged by the decedent exists and is payable out of personal property as a primary fund.

It may be noted that the will under examination in this Higbie Case was dated November 10th, 1888, eight years after the statute in question was passed. The opinion of the court' of errors and appeals (at p. 176) states that the mortgage in question existed when the testatrix made her will and when she died, and that such mortgages secured the “personal bond of the testatrix.”

(4) Smith v. Wilson (Vice-Chancellor Stevenson, 1911), 79 N. J. Eq. 310. This case came squarely under the old law of exoneration. The mortgage debt, in respect of which the heirs-at-law claimed exoneration, consisted in a bond of the testatrix secured by a mortgage made b3r the testatrix in 1903. The common law rule of exoneration in such a case was recognized and the authorities cited (at p. 312). Vice-Chancellor Stevenson decided that the right of exoneration in a case like this coming within the class of debts described in the statute of 1880 had been abolished by that statute and that the heirs took title cum one-re. Neither Kreuger v. Ferry, Bird v. Hawkins, nor Higbie v. Morris, above referred to> wa.s cited. The old New Jersey cases laying clown exoneration rule which were decided prior to 1880 were cited.

(5) Atkinson v. Atkinson (Vice-Chancellor Backes, 1914), 84 N. J. Eq. 104. This was a suit by an heir to secure exonera tion. Vice-Chancellor Backes, in a. brief opinion, followed Smith v. Wilson, supra, citing no other cases.

(6) Chancellor Walker, when vice-chancellor, in Hetzel v. Hetzel (1908), 74 N. J. Eq. 770, in a suit involving the construction of a will, held that devisees were entitled to have a mortgage made by their testator paid out of his personal estate in exoneration of the lands, but not as to lands subject to mortgages which were upon them at the time of their acquisition by the testator, which ha assumed. This was a reiteration and an application of the common law rule of exoneration by the vice-chancellor eighteen years after the passage 'of the act of 1880, and without any reference being made toi that act. One of the 'mortgages in this case was made after the passage of the act.

The vice-chancellor, in deciding the case of Smith v. Wilson, did not refer to the ease of Higbie v. Morris nor Hetzel v. Hetzel.

Therefore, it appears that the only reasoned adjudication in this state that the statute of 1880 abolished the exoneration rule was that of Vice-Chancellor Stevenson in Smith v. Wilson, supra; for Vice-Chancellor Backes in Atkinson v. Atkinson, supra, only adopted and applied Smith v. Wilson as a precedent.

I am constrained to dissent from the adjudications in these two cases (Smith v. Wilson and Atkinson v. Atkinson) and from the reasoning of Vice-Chancellor Stevenson in Smith v. Wilson.

The pertinent provision of the statute of 1880 is section 2, which was amended in 1881 (Comp. Stat. p. 3421), which reads as follows:

“That in all cases where a bond and mortgage has or may be hereafter given for the same debt, all proceedings to collect said debt shall be, first, to foreclose the mortgage, and if at 'the sale of the mortgaged premises under said foreclosure proceedings the said premises should not sell for a sum sufficient to satisfy said debt, interest and costs, then and in such case it shall be lawful to proceed on the bond for the deficiency, and that all suits on said bond- shall 'be commenced within six months from the date of the sale of said mortgaged'premises, and judgment shall be rendered and execution issue only for the balance of debt and costs of suit.”

The learned vice-chancellor, in Smith v. Wilson, says (at p. 315) that the act of 1880, and its supplements, have abolished the right of the heir or devisee to be exonerated from a mortgage, created and owned by the ancestor or testator out of his personal estate; that in such cases the statute expressly malees the mortgage the primary fund out of which the debt secured thereby is to be paid, and permits the personal remedy on the bond only after the remedy against the land has been exhausted. Here is no expressed legislative intention to abolish the common law rule of exoneration, and, if the statute has that effect, it must be so held by construction. This statute, it will be observed, relates solely to remedy and procedure, and while such statutes are to be liberally construed with a view to the effective administration of justice, nevertheless, such as take a.wav, change or diminish fundamental rights must be strictly construed both as to the cases embraced within their terms? and as to the methods to be pursued. 36 Cyc. 1188, citing Crowder v. Fletcher, 80 Ala. 219. And in 2 Lew. Suth. Stat. Const. 454, it is laid down that it is not to be presumed1 tha.t the legislature intended to make any innovation upon the common law further than the necessity of the ease required; that- a statute that a mortgagee shall not be entitled to the possession of the mortgaged property until after foreclosure, does not affect his right to the appointment of a receiver as before the passage of the act (citing Lowell v. Doe, 44 Minn. 144).

The supreme court in Tinsman v. Belvidere-Delaware Railroad Co., 26 N. J. Law 148 (at p. 167), observed that statutes in derogation of common law rights are to be strictly construed, and we are not to- infer legislative intent to alter the common law principles further than is clearly expressed, or that the case absolutely requires. See, also, State v. Norton, 23 N. J. Law 33, 40, 41; Hetfield v. Central Railroad Co., 29 N. J. Law 571, 573; Sinnickson v. Johnson, 17 N. J. Law 129; 34 Am. Dec. 184.

Furthermore, the supreme court in Knight v. Cape May Sand Co., 82 N. J. Law 16, expressly held that this very act “which provides That in all cases where a bond and mortgage have or may be hereafter given for the same debt, and proceedings to collect the debt shall be first to foreclose the mortgage/ being in derogation of the common law force inherent in the bond must be construed strictly.” And the court of errors and appeals, although reversing this case, expressly affirmed the supreme court, holding that this statute should be strictly construed, observing that it was at the oppressive proceedings of foreclosing a mortgage and suing on the bond! át tire same time that the statute was aimed. S. C., 83 N. J. Law 597 (at p. 601).

The vice-chancellor, in Smith v. Wilson, goes on to observe (at p. 315) that the rule of exoneration accords with the policy of the English law which protected the heir and had tender regard for landed estates by which families were sustained and family succession was promoted; but in modern times-, and especially in America, land occupies a very different position from that which, it occupied under the old English system; that men buy lands and put mortgages upon them, sell their equities, and oftentimes deal with the lands which they have mortgaged as the primary fund out of which payment of the debt is to be made; that great fortunes which perpetuate families are perhaps handed down more frequently in the form of personal property than in the form of land; that in 1839 the State of New York abolished the right of the heir or devisee, to- exoneration in a statute which provides that whenever any real estate, subject to a mortgage executed by any ancestor or testator, shall descend to an heir or joass to a. devisee, such heir or devisee shall satisfy and discharge such mortgage out of his own property, rmless there be an express direction in the will of such testator that such mortgage be otherwise paid, and he states that the English parliament in 1854 passed a statute similar in effect but much broader, providing that where a person dies seized of land charged with any money by way of mortgage, the heir or devisee shall not be entitled to have the mortgage discharged out of the personal estate or any other real estate of the ancestor or testator, but that such land so received by him shall be primarily liable; unless the testator or intestate by his will, deed or other document has signified any contrary or other intention. These statutes disclose a change of public policy in England and in the State of New York; and the legislature makes public policy, not the courts. Earle v. American Sugar Refining Co., 74 N. J. Eq. 751 (at p. 762), and cases cited.

If our legislature liad intended by the act of 1880 to have abolished the exoneration rule, how easy it would have been for it to have accomplished the purpose by using proper and apt words to express its meaning in that regard, as the legislature of New York did by providing in terms that the heir or devisee should satisfy and discharge the mortgage out of his own property, unless there be an express direction to the contrary, and, as the English parliament did by providing in terms that the heir or devisee should not be entitled to have the mortgage discharged out of the personal or other real estate of the ancestor or testator unless a contrary intention had been expressed.

The title of the act is “An act concerning proceedings on bonds and mortgages given for the same indebtedness and the foreclosure and sale of the mortgaged premises thereunder.” P. L. 1880 p. 255.

In Toffey v. Atcheson, 42 N. J. Eq. 182, Vice-Chancellor Van Flect, in construing the first section of the act of 1880 (at p. 184), said that all this statute attempts to do is to prescribe a new rule of practice.

These acts of 1880 and 1881 have been held to be unconstitutional, but only so far as attempted to be applied to mortgages made prior to their passage. Champion v. Hinklc, 45 N. J. Eq. 162, 165, and cases cited.

As the views above expressed do not accord with the reasoning of Vice-Chancellor Stevenson, and are not in harmony with Smith v. Wilson and Atkinson v. Atkinson, supra, I consulted the chancellor as to the soundness of this opinion and the propriety of promulgating it, and he authorizes me to say that after an investigation of the subject, he concurs in my view that the act of 1880 does not abolish the exoneration doctrine in this state, and that the two- cases last mentioned should, therefore, be overruled.


author: Backes, Y. C.

text:
    Leslie M. Cain v. Webster W. Belden.
    [Decided March 25th, 1922.]
    1. A devise in remainder to such of testator’s brothers and sisters “as may then be living” at the death of another sister to whom a life estate was devised, is not a “contingent estate or expectancy where the contingency is as to the person in whom, or in whose heirs the same may vest” within the proviso of section 19 of the Conveyance act, there being no uncertainty as to the class to whom 'the remainder was devised, so that a deed by the remainderman and the life tenant conveyed a good title.
    2. Even if a devise in remainder to 'testator’s brothers and sisters living at the death of another sister, to whom was devised a life estate, of all within the proviso of the statute, a deed by the remainderman and the life tenant would operate by'way of estoppel to pass a good title.
    On final hearing. On bill, &c.

      Messrs. Edwin B. c(5 Philip Goodell, for the complainant.

      Mr. Arthur II. Bissell, for the defendant.
   Backes, Y. C.

This is a bill for the specific performance of a contract to compel a purchaser of land to pay the purchase price and take title. The answer is that the title is not marketable. The title to the land was formerly in Katherine C. Friedrich and Anna E. Friedrich, as tenants in common. Anna died, leaving a last will and testament, in which she devised her one-half interest as follows:

“Secondly: I give, devise and bequeath, unto my sister KATHERINE C. ERIEDRTCH all my estate of every kind and nature, whether real, personal or mixed, and wherever the same may be situated in trust nevertheless for the following uses and purposes.
“To pay to herself during her lifetime or until such time as she may marry the net income thereof or such part of the principal as may be necessary for her maintenance and support. And in the event of her marriage to divide the remainder of my said estate share and share alike between herself and such of my brothers and sisters as may then be living. And upon the death of my said sister, I give, devise and bequeath the remainder of my said estate unto such of my brothers and sisters as may then be living.”

Katherine and her brothers and sisters conveyed to the complainant by deed with full covenants. The parents of Anna and Katherine are dead. The point made by the defendant is that the devise of the estate in remainder to “my brothers and sisters as may then be living” (at the death of the life tenant) is a “contingent estate or expectancy where the contingency is as to the person in whom, or in whose heirs, the same may vest,” and is within the proviso of section 19 of the Conveyance act (Comp. Stat. p. 1539), and that therefore the brothers and sisters could not make title. The point is not sound. There is no uncertainty as to the class, the brothers and sisters, to whom the remainder was devised. The thing uncertain is whether they or some of them will survive the life tenant. Wilkinson v. Sherman, 45 N. J. Eq. 413. If all the brothers and sisters predecease the life tenant, the devise over will fail, and as to it the deceased will have died intestate, and the estate pass to her heirs-at-law, viz., Katherine and her brothers and sisters, all of whom convejred to the complainant. The same construction applies to the first contingency, of the remainder vesting- upon the marriage of the life tenant.

Even if the case fell within the proviso of the statute, the deed would operate by way of estoppel. Hopper v. Demarest, 21 N. J. Law 525; Wilkinson v. Sherman, supra.

Cantine v. Brown, 46 N. J. Law 599, cited by the defendant as supporting his contention, was a suit for damages for breach of covenant to purchase land. In the chain of title there was a devise to Hannah, Margaret and Phoebe, daughters of the testator. The devise to Phoebe was held to be a life estate, with power of testamentary disposition, with remainder over, if she died unmarried and failed to exercise the power, “at her decease, (to) be equally divided between her sisters, if surviving her, and, if hot, among their children.” Phoebe and the remaindermen-apparent executed deeds to the plaintiff’s lessor. Phoebe was living and unmarried at the time the suit was brought. The court held with the defendant, that the title was defective, obviously, because it was to vest at Phoebe’s death, unmarried and intestate, in “her sisters, if surviving, and, if not, among their children.” The thing uncertain, besides the uncertainty of the sisters surviving, was, the surviving children. Others might come into being and survive, while those who joined in the conveyance might pass away before the life tenant. There, the contingency was as to the person in whom the estate may vest, and the court so indicated and held that the remaindennen-apparent had nothing to grant.

The complainant is entitled to a decree.


author: Griffin, V. C.

text:
    Arthur Brisbane v. James A. Sullivan et al.
    [Submitted March 8th, 1922.
    Decided March 28th, 1922.]
    1. Persons who are not parties or privies to a contract cannot be made parties defendant in a suit for specific performance thereof.
    2. The court of chancery, in a suit for specific performance of a contract io convey land, has no jurisdiction to inquire into the alleged invalidity of a tax title, on the determination of which issue the quantum of the defendants’ estate depends.

      On bill, &c.

      Messrs. Cohn & Cohn and Mr. Robert H. McCarter, for the complainant.

      Mr. Randolph Perkins and Mr. John F. Dreioen, Jr., for the defendants Sullivan.

      Mr. Thomas J. Brogan, for mayor and aldermen of Jersey City.
   Griffin, V. C.

The amended bill in this cause is filed for the specific performance of a contract entered into between the defendant James A. Sullivan and one Bennett Milnor, dated the 19th day of July, 1910. Milnor assigned to the complainant. The title to the premises, at the time of the making of the contract, stood in the name of Ella J. Sullivan, who took title not for herself, but for her brother, the defendant James A. Sullivan, who advanced the purchase-money.

Prior to the date fixed for the passing of title certain alleged defects appeared therein, and Sullivan, being unable to clear up these defects to the satisfaction of either party, the complainant shortly thereafter filed his bill in this court, making Ella J. Sullivan and James A. Sullivan defendants.

It appears that Thomas H. N. Wilks died, on or about the 8th day of July, 1889, seized of the premises in question, leaving a last will and testament, wherein he devised to his adopted daughter, Dora Eleina Wilks, all of his real estate of which he might die seized, for life, and, upon her death, gave and devised the same to the heirs of her body born in wedlock, and if she should die without leaving lawful.issue, then over. Dora married one ICastenhuber, and has two infant children living. From the decree of Vice-Chancellor Howell on the original bill an appeal was taken to the court of errors and appeals, and Mr. Justice Bergen, who wrote the opinion (Brisbane v. Sullivan, 86 N. J. Eq. 411), said: “After the death of testator she neglected to pay the taxes assessed against the property and it was sold for their payment. At the sale, one Dieffenbach became the purchaser, to whom a deed was made for the lands by the municipality making the sale. . Dieffenbach then conveyed the land to the husband of the life tenant, and he, by a deed, in which his wife, Dora, joined, to one Billington, and he to Ella J. Sullivan in trust for James A. Sullivan. All the deeds, subsequent to that of the city, contained full covenants with warranty, and each undertook to convey a title in fee-simple. * * * Alter the making of this contract, the complainant had the title examined by a title guaranty company, which reported to him that the proceedings which resulted in the tax sale were irregular, and that, the tax deed passed no estate, whereupon the complainant refused to take the title unless this alleged defect was removed, and this not being done, he filed his bill of complaint for the specific performance of the contract.” It will be perceived from this, that if the view of the title company is correct, then the only title which passed to Ella J. Sullivan was that derived from the deed made by William P. Kastenhuber and Dora, his wife, she being the life tenant. Thus, the principal question to be solved in this title is whether this tax deed is void; and Vice-Chancellor Howell so decreed, and ordered that the Sullivans convey to the complainant their right, title and interest in the premises, with an abatement of the consideration according to the difference between the value of a fee and a life estate. This decree was reversed. Mr. Justice Bergen, in the opinion just referred to. said that the complainant, under a prayer for general relief "asked for and obtained a decree that the vendor should convey through his trustee, who is a defendant, all his interest, whatever it may be, with an abatement of the consideration price based upon the inefficaey of the tax sale deed, which is not set aside by the decree and cannot be for want of proper parties.”

After the dismissal of tlie bill, the complainant filed his amended bill, seeking to overcome the objection above stated by Mr. Justice Bergen touching the want of parties, making Charles R. Dieffenbach, James Billington and wife, William P. Kastenhuber and Dora Ev his wife, Ella J. Sullivan, J ames A. Sullivan, Jennie Turner and the mayor and aldermen of Jersey City, parties to the suit, and subsequently amended his bill by offering to accept a life estate with an abatement of compensation for the difference in value, if any, between a life estate and a fee-simple in said premises, and making Ruth W. Kastenhuber and Grace R. Kastenhuber, children of Dora, parties defendant in the cause.

At the trial of the cause the printed book containing the state of the ease in the court of errors and appeals in the prior suit was offered in evidence, and some additional evidence was taken to prove that the complainant required the property for a special and unusual reason which would put the case out of the ordinary class.

The first point to be considered is whether, in a bill for specific performance, the complainant may make defendants persons who were not parties or privies to the contract.

In Bacot v. Wetmore, 17 N. J. Eq. 250, Chancellor Green held, “to a common bill for the specific performance of a contract of sale, the parties to the contract are the only proper parties.” Citing Robertson v. Great Western Railway Co., 10 Sim. 314; Wood v. White, 4 Myl. & Cr. 460; Fry Spec. Perf. § 79, to which I may add Tasker v. Small, 3 Myl. & Cr. 63; 40 Eng. Rep. 848; Willard v. Tayloe, 8 Wall. 571; Pom. Cont. § 483 p. 557 (bottom of page).

In Tasker v. Small, supra, Lord-Chancellor Cottenham said (at p. 68) : “It is not disputed that, generally, to a bill for specific performance of a contract of sale the parties to the contract only are the proper parties; and when the ground of the jurisdiction of courts of equity in suits of that kind is considered it could, not properly be-otherwise. The court assumes jurisdiction in such cases because a court of law, giving damages only for the non-performance of the contract, in many cases does not afford an adequate remedy. But, in equity, as ■well as at law, the contract constitutes the right, and regulates the liabilities of the parties; and the object of both proceedings is to place the party complaining as nearly as possible in the same situation as the defendant had agreed that he should be placed in. ' It is obvious that persons, strangers to the contract, and therefore neither entitled to the right, nor subject to the liabilities which arise out of it, are as much strangers to a pro-' ceeding to enforce the execution of it as they are to a proceeding to recover damages for the breach of it. And so is the admitted practice of this court.”

But it is contended that the language in the opinion of Mr. Justice Bergen lastly above quoted, touching the want of parties,, indicates that the court of errors and appeals were of opinion that the parties referred to were proper parties. I do not read the opinion in this light. At most, as I see it, it was an illustration of why the decree in this court was erroneous, and in no sense was intended to indicate that the persons omitted were proper parties to this suit.

My conclusion is that the added parties, being strangers to the contract, were improperly brought into this suit.

With this elimination, the case presented is precisely the same as that dealt with in the court of errors and appeals; and thus the decree entered in this court on remittitur, in accordance with said opinion, is res adjudSicata.

There is another feature of the case which seems to me should lead to, a dismissal of the bill, namely, it prays that all the proceedings touching the sale for taxes and including the deed given by the mayor and aldermen of Jersey City be declared null and void, and that the subsequent deeds passed only a life estate; and the relief "sought is that the defendants Sullivan convey a life estate only for a consideration based on the value of the life estate. In order to aiford this relief, this court must inquire into the validity of these tax proceedings, and determine whether they are regular or irregular, and what estate, if any, passed by the deed from the city — a thing which is beyond the jurisdiction of this court. Mackie v. Cain, 92 N. J. Eq. 631.

The complainant, however, saya that both parties concede the invalidity of the tax title, and that it is merely a collateral issue-in the cause. This the defendants Sullivan deny, and in the ninth paragraph of their answer they say that

“thereupon the defendant .Tames A. Sullivan caused such defects in title to be investigated by counsel, and lie, was afterwards advised by said counsel that, the defendant, Ella T. Sullivan was not seized of a good and marketable title to said lands, and was not seized thereof in fee-simple, and that these defendants could not safely convey the same by warranty deed, as provided in said agreement.”

This answer plainly does not admit, as the complainant alleges, that the parties concede the invalidity of the tax title; but, on the contrary, shows merely a doubt in the minds of the Sullivans as to whether they have a life estate ox a fee; all of which calls for a determination by some court of competent jurisdiction as to the quantum of the estate possessed by the Sullivans; and, as above indicated, this court is without jurisdiction to determine this question.

I will advise a decree dismissing the bill.


author: Foster, V. C.

text:
    Anna Pinkinson v. Jacob Pinkinson and Fannie Pinkinson.
    [Submitted March 14th, 1922.
    Decided March 18th, 1922.]
    1. Where a son purchased and paid for property, and caused the title thereto to be placed in his mother’s name, the law implies that the grantee took title in trust for her son.
    2. In a wife’s suit against her husband and his mother to establish her dower interest in lands, the complainant must show that the mother holds title for the use of her son, or that the son, having purchased and paid for the property, fraudulently, for the purpose of depriving his wife of her dower therein, caused the lands to be conveyed to his mother.
    On bill, &c. 3

      Mr. Sidney A. Bierman and Mr. Frank F. Bradner, for the complainant.

      Mr. Merritt Lane, for the defendants.
   Foster, V. C.

Complainant seeks to establish that the titles to certain properties on Kinney street, Newark, and on Park and Snyder streets, Orange, are held by the defendant Fannie Pinkinson, in trust for her son, the defendant Jacob Pinkinson, who is the husband of complainant, and, between whom there is now pending in this court a suit for separate maintenance; and complainant also seeks to have her inchoate right of dower in these premises established and protected on the authority of Brown v. Brown, 82 N. J. Eq. 40.

The evidence is convincing that Jacob Pinkinson purchased and paid for the Kinney street property and caused the title thereto to be placed in Inis mother’s name, and on these facts the implication of law is that the grantee took this conveyance in trust for her son, the person who furnished the pirrehase-money, and no attempt has been made to rebut this presumption. Baldwin v Campfield, 8 N. J. Eq. 891; Cutler v. Tuttle, 19 N. J. Eq. 549 (at p. 562).

The evidence relating to the payment of the purchase price :for the Orange propertj^ is too uncertain and incomplete to justify the conclusion that Jacob paid this money and contracted for the purchase of this property in the name of Miss Blumen, and later had its title placed in his mother’s name.

To establish her case complainant must show that Fannie Pinkinson holds title to one or both properties for the use of Jacob (Yeo v. Mercereau, 18 N. J. Law 387), or that Jacob having purchased and paid for the |oroperties, fraudulently, for the purpose of depriving his wife of her dower interest therein, caused the lands to be conveyed to his mother. Brown v. Brown, supra, and cases cited.

Complainant has established her contention respecting the Kinney street propert3r, and a decree' will be advised accordingly.


author: Foster, Y. C.

text:
    George A. Lippincott, cum testamento annexo of Howard I. Hance, deceased, v. Susan B. Haviland et al.
    [Submitted March 15th, 1922.
    Decided April 8th, 1922.]
    1. Where a testator established certain trusts, the income to be paid to the 'beneficiaries, and upon the death of any of them the trustee was directed to pay over the principal to such person, as the deceased beneficiary should appoint, the will of a beneficiary, directing payment of her debts, &e., and giving all the rest of her property to her sister and brother, share and share alike, or to the survivor of them, for their own proper use, no reference being made to the trust estate, was not an exercise of the power of appointment.
    2. In the absence of proof establishing a different intention a general devise or bequest by the donee of a power in which the testator refers to the property devised or bequeathed as his property, will not be regarded as an exercise of a power of appointment.
    On bill, &c.

      Mr. George W. Van Gelder, for the complainant.

      Mr. Henry Morris Haviland (of the New York bar), for the defendant Susan B. Haviland.

      Mr. Linton Satterthwaite, for the defendants Martha B. Applegate and others.
   Foster, Y. C.

This bill seeks the construction of certain provisions of three wills, made, respectively, by Eden Wolley, Elizabeth A. Hance and! Howard I. Hance, all deceased.

From the pleadings and proofs and the stipulation of counsel, the principal question to be determined' is whether Elizabeth A. Hance, by the provisions of her will, so exercised the power of appointment given her by the will of Eden Wolley that the share of Ms estate from which she had received income was effectually bequeathed and devised to her sister, the defendant Susan B. Haviland, and to her brother, Howard I. Hance, in equal shares.

Mr. Wolley, who died in 1892, by his will established certain trusts in part of his estate, and the income therefrom was to be paid to the three children of a deceased daughter, viz., Elizabeth A. Hance, Susan B. Hance (now Haviland) and Howard I. Hance, and upon the death of any of the beneficiaries., the trustee was directed to pay over that part of the principal of the trust estate from which the deceased beneficiary had received the income to such person as the deceased beneficiary should by will appoint; and if no such appointment were made, such part of the principal should go to the issue of the beneficiary; and failing issue, then it should go to such persons and such estates as the same would go to and vest in under the law of the state, as if “such children, respectively, died seized and possessed thereof intestate.”

Elizabeth A. Hance, one of the beneficiaries, died on May 24th, 1898, leaving an estate of her own valued at $678.99, and leaving a will executed March 13th, 1897, in which, after directing the payment of her debts and funeral expenses and bequeathing her jewelry and wearing apparel to. her sister, the defendant Susan B. Haviland, she disposed of the remainder of her estate as follows:

“IV. All the rest, residue and remainder of my property, whether real, personal or mixed, or wheresoever situated, I give, devise and bequeath to my sister Susan B. Haviland and to my brother Howard I. Hance, share and share alike, or to the survivor of them, for their own proper use and behoof forever.”

No reference or mention is made in her will to the estate of Eden Wolley, or to the interest of the testatrix therein, or to the power of appointment given her by the terms of Mr. Wolley’s will; and no. effort was made at the hearing to establish an intention on the part of the testatrix to exercise the power of appointment by this or any other provision of her will.

While it is hot necessary that it appear by express terms or recitals in the will that testatrix was exercising'the power of appointment, it must, however, appear in some form that the acts of the testatrix show she had in view the subject of the power and intended to exercise it ini the execution of her will (Meeker v. Breintnall, 38 N. J. Eq. 345), and this intention may be collected from attending circumstances, as that the will includes something the testatrix did not have, otherwise than under the power, or that part of the- will would be inoperative unless applied to the power. Wooster v. Cooper, 59 N. J. Eq. 204 (at p. 223).

As it is the settled law of this state that, in the absence of proof establishing a different intention and p-urpose, a general devise or bequest by the donee of a power in which the testator refers to the property devised or bequeathed as his property, will not be regarded as an exercise of the power of appointment '(Meeker v. Breintnall, supra; Wooster v. Cooper, supra; Ackerman v. Ackerman, 81 N. J. Eq. 437; Farnum v. Penn Co. for Insurance, &c., 87 N. J. Eq. 108; affirmed a.t p. 652), my conclusion is that Miss Hanee did not exercise in her will the power of appointment given her.under the will of Eden Wolley. This determination disposes of the main question in controversy and makes it unnecessary to consider the other questions raised by the parties, and a decree will be advised accordingly.


author: Foster, V.' C.

text:
    Western Electric Company, Inc., v. Jersey Shore Realty Company.
    [Submitted May 1st, 1922.
    Decided May 11th, 1922.]
    1. Where an option -described land north of a certain brook, a deed made in pursuance thereof, and not conveying to the brook, will 'be reformed so as to convey the land described in the option.

      2. Where an option called for the convejmnee of land north of a certain brook, and the conveyance did not convey the land up to the brook, even if waivers were established by the purchasers taking part in the survey, acceptance of the conveyance under protest prevents their being estopped from seeking reformation of the conveyance.
    3. Such option, in the absence of express words of exclusion, calls for a conveyance to the centre line of the brook.
    4. A conveyance of land bounded on a stream above tidewater, carries the title of the grantee to the centre of the stream, if the grantor’s title extends so far.
    On bill, &c.

      Mr. George E. Quigley, for the complainant.

      Messrs. Durand,, Ivins & Garlón, for the defendant.
   Foster, V.' C.

Complainant seeks a decree to compel the specific performance of an option agreement given by defendant to complainant under date of August 28th, 1919, for the sale of part of the property known as the “Foxhurst Farm,” near Deal, in Monmouth county.

The dispute between the parties is over one of the boundary lines of the property, and it arises out of the following circumstances :

The option in question reads, “We agree to give you the option to purchase of ninety days from October 1st, of the northerly part of said farm, containing about seventy acres, which includes all land north of Poplar brook, and the easterly portion containing about nineteen acres south of the brook, and on the easterly line of said farm at the sum or price of $225 per acre.”

Poplar brook is a non-navigable stream about twelve feet wide.

By a letter dated September 27th, 1919, complainant accepted the option and a formal contract for the sale and conveyance of the property was dated October 1st, 1919, and executed on October 25th.

Prior to the acceptance of the option and the execution of the formal agreement, the property was surveyed and from the plot of this survey was secured the description 'which is contained in the contract and in the deed for the property which was executed on December 21st, 1919, and this description differs from the description of the option which calls for the conveyance of “all land north of Poplar brook," in that an arbitrary line is described as the southern boundary of the property, which does not come within one hundred and forty-six feet of the northerly line of the brook at one point, nor within twenty-seven feet at another point.

The execution of the formal agreement by complainant and its acceptance of the deed containing this description were made under formal protest, and the contract was executed and the conveyance accepted1 under this protest because complainant, prior to the execution of the formal contract, had expended about $25,000 in preparing the property for a radio station and had increased this expenditure to about $35,000 at the time the deed was delivered.

Two explanations are given to account for the location of the southerly line of the property at the distances mentioned from the northerly line of the brook; one is by Mr. Bown, an employe of complainant, who assisted in making the survey, to the effect that the reason the survey and description show and describe a straight line some distance north of the brook, instead of indicating the course of the brook, is because of the fact that at the point where the straight line begins there was considerable underbrush extending to the brook, which prevented a clear sight being taken 'from, that paint westerly following the course of the brook; that, in consequence, offsets were taken producing this straight line, but indicating at various points its distance from the northerly line of the brook; the other explanation is offered by Mr. Ross, the treasurer of the defendant company, who dictated the option agreement, and it is, that defendant did not desire thereby to deprive complainant of any of the property extending to the north bank of the brook, but that defendant never intended that this description would give to complainant title to the lands to the centre line of the brook; that he did not consider the loose description contained in the option would be binding, and that he knew when he dictated the option that the ownership and control of the brook was necessary and advantageous to defendant in connection with the use of the southerly portion of the farm for pasture, and in protecting cattle from danger from electric wires which _ complainant might place in the brook, if it had title to the centre thereof. The variation in the description, is'also attempted to be justified by the claim that Mr. Bown, in participating in making the survejq thei-eby waived complainant’s right to have the southerly line of the property run to the brook. The evidence does not show any such waiver,' nor does it show any authority in Mr. Bown to make the waiver of any part of the option, and this comment also' applies to the claim of waiver said to have been made by complainant’s engineering department, as well as to the claim of waiver of the description in the option resulting from the execution of the formal contract and the acceptance o'f the deed under protest. On tire claims of waiver defendant insists that complainant is estopped from obtaining the relief it seeks. But if the waivers were established, and they are not, it is well settled that no estoppel arises if performance is accepted, as it was here, under protest. Oram v. New Brunswick, 64 N. J. Law 19; 40 Cyc. 259.

In view of the admission of Mr. Boss that complainant’s title should extend to, but not beyond, the northerly line of the brook, there remains but one question to be considered, and that is complainant’s contention, that as the correct description of the land it purchased, under the option, included all land north of Poplar brook, this description, in the absence of express words of exclusion, by implication of law, entitled it to a conveyance to the centre line of the brook.

Defendant contends that this extension of the boundary line to the centre of the brook would cause it great inconvenience and might result in loss and in injury to cattle pasturing on other lands owned by it on the southerly side of the brook, and that Mr. Boss had these matters in mind in dictating the option, but because he is not a lawyer he did not know it wtas necessary to be particular in the use of the language he employed in giving the option. While it is probably true that an extension of the boundary line to the centre of the brook will cause defendant some inconvenience, the retention of this line to the side of the brook will likewise cause inconvenience to complainant,, and because of changes in the volume of water in the brook, at different seasons of the year, there will always be uncertainty about the fluctuating location of the southern boundary of its property.

Both reason and authority support complainant’s contention that in the absence of an expressed contrary intent, it is the rule that a conveyance of land bounded upon a stream, above tidewater, carries the title of the grantee to the centre of the stream, if the title of the grantor extends that far (Arnold v. Mundy, 6 N. J. Law 1; Attorney-General v. Del. & B. B. R. R. Co., 27 N. J. Eq. 631 (at p. 638); Kanouse v. Slockbower, 48 N. J. Eq. 42 Tiff. R. Prop. (2d ed.) 1656; 9 C. J. 187); and therefore the decree asked for will be advised.


author: Walker, Ordinary.

text:
    In the matter of the appeal of Edward Beam et al., &c., from an order of the orphans court of the county of Passaic, dismissing an order to show cause.
    [Decided June 7th, 1922.]
    1. A memorandum merely stating the conclusions of a judge on an issue before him, and giving direction as to an order, judgment or decree which ma3' be entered, is an opinion yvhether labeled “memorandum” or “conclusions” or “opinionand from an opinion no appeal lies.
    2. A sham plea is one good on its face, but false in fact; a frivolous plea is one Avhich on its face sets up no defence, although it may be true in fact.

      3. The prerogative court has inherent power to strike out a pleading as sham or frivolous.
    4. The prerogative court is a court of general jurisdiction over the subjects within its cognizance.
    5. Records cannot be proved by parol, and a plea of mil tiel record is triable by the record alone.
    On motion to strike out an answer as sham and also frivolous.

      Mr.-John G. Beam. and Mr. William B. Beam, pro se, for the motion.

      Messrs. Griggs & Harding, contra.

   Walker, Ordinary.

An order to show cause was made by the orphans court of the county of Passaic on March 28th, 1922, returnable April 1st, 1922, and on April 7th, 1922, the court filed a memorandum which concluded: “The order to show' cause will therefore be discharged without costs.” On April 8th a notice of appeal was filed in the orphans court in which it is stated that Edward Beam, John C. Beam and William B. Beam, substituted trustees, &e., thereby appeal to the prerogative court from an order entered'1 therein on April 7th, 1922, discharging the order to show cause above mentioned. Petition of appeal was duly filed and the respondent answered denying that the Passaic orphans court on April 7th, 1922, entered an order discharging the order to show cause. This is the fact. No such order appears in the transcript, nor has any been returned with the papers. The appellants, who are laymen appearing for themselves, seem to have misapprehended the effect of a paper filed by the presiding .judge of the orphans court denominated memorandum.” In this they were perhaps misled by a letter from the judge’s secretary in which the memorandum was referred to as an order. This may be unfortunate, but I cannot turn a memorandum into an order because someone has denominated it an order when in fact it is an opinion of the court. I have no such power.

The respondents having prevailed they should have entered an appropriate order; but, if the appellants were impatient of delay in that regard they could have given notice to the respondents that they would apply to the court to enter such an order in their name, serving- them with a copy of the proposed order, which the court would doubtless have entered, especially if on the return day the respondents did not appear with an order of their own.

The appellants argue that every direction of a court or judge made or entered in writing and not included in a judgment or decree, is an order. The answer to this contention is that a memorandum merely stating the conclusions of a judge on an issue before him, and giving direction as to an order, judgment or decree which may be entered, is an opinion, whether labeled “memorandum” or “conclusions” or “opinion,” and from an opinion no appeal lies.

Errors may be assigned upon matters in the record only' and not upon the reasoning (opinion) which induced the rendering of the judgment. McCarty v. West Hoboken. 93 N. J. Law 247; Birtwistle v. Public Service Railway Co., 94 N. J. Law 407. The doctrine of course applies equally to appeals.

The respondents make the point in limine that there is no practice in the prerogative court under which an answer may be stricken out as sham or frivolous. I think the law is the other wa3r, and that this court has inherent power to order false pleadings stricken out, whether in causes pending before it as a court of original jurisdiction or as an appellate tribunal. Courts of general jurisdiction have power to strike out pleadings as sham or frivolous. And it has been their immemorial practice to do so. Anonymous, 7 N. J. Law 160. The court of chancery has inherent power to strike out a frivolous demurrer. Stanbery v. Baker, 55 N. J. Eq. 270. And the court of errors and appeals will strike out an appeal as sham and frivolous if it presents no arguable case. McMichael v. Barefoot, 85 N. J. Eq. 139. The prerogative court, like the orphans courts, is a court of general jurisdiction over the subjects within its cognizance. See In re Hathorne’s Will, 97 Atl Rep. 263.

There is a marked distinction between pleadings which are frivolous and those which are sham. In 31 Cyc. 613, it is stated

“While the courts sometimes use the terms ‘frivolous’ and ‘sham’ as meaning the same thing, and a motion to strike is often based on the ground that a plea is both frivolous and sham, there is nevertheless a clear distinction between the two, in that a sham plea is good on its face but false in fact, while a frivolous plea is one which on i'ts face sets up no defence, although it may be true. A frivolous pleading is always assumed to be true, while a sham pleading must be proved to be false: the character of the former is determined by mere inspection, while that of the latter is usually determined by proof aliunde."

The answer before me which pleads that there is no such order as that from which tbe appeal purports to be taken, is not frivolous because on its face it sets up a perfect defence. It is not sham, because it is not false in fact. Its truth is apparent on the face of the record and resort does not have to be had to proof aliunde to establish the fact. It is true that William B. Beam, one of the appellants, makes an affidavit that “on the 7th of April, 1922, the orphans court of the county of Passaic did enter its order duly made discharging the said order to show1 cause, which said order was duly filed in-the office of the surrogate of the county of Passaic and now is there on file.” This, while stated as a fact, is but the affiant’s mistaken opinion that the memorandum referred to is an order and was filed as such. The answer, however, amounts to a plea of nul tied record, and such a plea is triable by the record alone. 3 Bl. Com. 330. Records cannot be proved by parol. In re McCraven, 87 N. J. Eq. 28.

The views above expressed lead to a denial of the motion to strike out.

Let an appropriate order be entered to that effect.

Note. — Since writing the above opinion, and when about to file it, I received from the appellants, through the mail, a certified copy of the memorandum filed by the orphans court on April 7th, 1922, to which is appended the signature of the presiding judge, and under it the following:

“The above order was made by me in ojien court on the seventh day of April, 3022, but was not presented to me for signature until the 3d day of June, 1022. I do therefore order that the same be entered mine pro tune as of the 7th day of April, 1022.
Janes F. Mirttjkn, J. S. 0

It is apparent upon the face of it that this action was taken three days after the argument before me of the motion to strike out the answer. Assuming, without deciding, that the signature of the judge under his memorandum opinion and the order for mmc pro ikmc entry operates in our practice to change the memorandum opinion into an order, nevertheless, as an order it is inefficacious to sustain the appellants’ position on the present motion, because no order name pro tunc will be permitted to disturb a status or impair rights which have obtained in a pending litigation. Rinehart v. Rinehart, 91 N. J. Eq. 354.

Now, on May 31st, 1922, when this motion was submitted, the status was that the appellants moved to dismiss as sham and as frivolous an answer which was valid and afforded a perfect defence to the motion. The respondents had then the right to have the court overrule the motion. This status and this right appellants now seek to deprive the respondents of by going toi the judge of the orphans court, apparently ex parte (but Avhether so or not makes no difference here), and obtaining an order nunc pro tun-c, which, if efficacious here as a prior entry in the orphans court would make the defendant’s answer sham, when, in fact, it was perfectly valid when filed. Had I decided this motion on its submission to the court on May 31st, 1922, instead of taking it under advisement, this subsequent proceeding by the appellants in which they attempt to extricate themselves from the situation in which the record placed them, would have been entirely nugatory on the motion to strike. It is to prevent the intervention of subsequent rights and equities from changing a status, that judgments, orders and decrees may be entered as of the date of the submission of the cause to the court. See Clark v. Van Cleef, 75 N. J. Eq. 152.

• The order overruling the appellants’ motion to strike out the answer may be made nunc pro tune as of the day when the motion was submitted, namely, May 31st, 1922.