text:
    Lena Beck, complainant, v. Wernar E. Beck, defendant.
    [Decided December 28th, 1925.]
    1. Equity will not enforce that part of a separation agreement binding spouses to live apart.
    2. Equity will not enforce the maintenance provision of a separation agreement unless the parties are living apart at the time, or the separation is to, and does, take place immediately following the making of the agreement.
    On final hearing.

      Messrs. Silberman & Grossman, for the complainant.

      Mr. John P. Manning, for the defendant.
   Backes, Y. C.

The parties to this suit, husband and wife, were at odds, and agreed, in writing, to live separate and apart, and in lieu of support and maintenance the husband agreed to- execute to his wife a de.ed for his interest in their home, owned jointly by them; the wife to pay her husband $5,000 to be raised by a mortgage on the dwelling, in which the husband agreed to join before conveying the premises to her or her appointee. The parties never separated. Their relations are as they were before the agreement, somewhat more strained, perhaps, because the husband reniged on his bargain, but he furnishes the means, possibly not as generously as he would under different circumstances, and she manages the household; they eat at the same table and occupy the same bed, plus. Six months after the agreement the wife filed her bill to compel the husband to join her in executing the mortgage, so she could pay him off, and to require him to convey to her his interest in the house. Separation agreements between spouses were at one time without sanction of Jaw, and, though they are not now regarded as against good morals and contrary to public policy as in former days, they are not encouraged or looked upon with favor, and are recognized only of necessity, because of the lesser of two evils— divorce and separation. While equity will not enforce a contract of married couples to live separate and apart, it will, if a separation follows in consequence, enforce such of its provisions as are made by the husband for the wife’s support, upon the consideration that it is in fulfillment of his marital obligation to maintain her during coverture. Calame v. Calame, 25 N. J. Eq. 548; Aspinwall v. Aspinwall, 49 N. J. Eq. 302; Buttlar v. Buttlar, 57 N. J. Eq. 645; see, also, Miller v. Miller, 1 N. J. Eq. 386. But where, as in the present case, there has been no separation, and the husband is discharging his matrimonial duties in cohabitation with his wife, and the consideration has failed, equity will not enforce the contract; it will not promote the separation. Equity will not enforce the maintenance provision of a separation agreement unless the parties are living apart at the time or the separation is to, and does, take place immediately following the making of the agreement. 9 R. C. L. 525; Gaines v. Poor (Ky.), 3 Metc. 503; Galusha v. Galusha, 116 N. Y. 635.

Complainant’s counsel raised the point that the $5,000 to. be paid by the wife to the husband is sufficient consideration for his contract to convey to her his interest in the property. Indeed, it is upon that theory that the bill is framed. The answer discloses that the husband’s undertaking was part of the separation agreement. The point is not well taken. The $5,000 is no part of the consideration for the contract to convey. It is in the nature of an abatement of the amount of the provisions for the wife’s support during separation. The provision was the value of the husband’s interest in the house less $5,000.

The bill will be dismissed.


source: Caselaw Access Project

author: Baches, Y. C.

license: Public Domain

text:
    Catherine Paxton, petitioner, v. Paul L. Paxton, defendant.
    [Decided December 28th, 1925.]
    Shiftlcssness, resulting in failure to support a wife, is not constructive desertion by a husband and ground for divorce.
    On exception to master’s report-.

      Paula Laddey, for the exceptant.
   Baches, Y. C.

Assuming that the jurisdictional fact of residence has been established, and it has not, and also that the wife’s testimony is corroborated, and it is not, the petitioner has failed to make out a case of desertion. The husband was nineteen, the wife twenty, when they were married. He had a position without pay. They went to live at his mother’s home. She left three years later, returned for three months, upon his promise to provide a separate home, and again left, barely two years before the petition was filed. The petitioner left on both occasions because her husband did not provide for her, and did not provide a separate home. Pood and shelter came from his mother,' and money for her and her baby’s other needs were supplied by his mother and her father. Her husband gave her nothing material. Her grievance is that he worked without earning at inventing, and that it was mortifying to live at the expense of his mother and to accept her dole. There is no complaint that the mother-in-law did not treat her kindly, nor that her husband was unkind to her. Her position was trying, but leaving her husband under such circumstances does not mark constructive desertion on the part of the husband. Failure to support or failure to provide a separate home, without more, does not constitute a constructive, willful, continued and obstinate desertion on the part of the husband. If he has the means and .ability, it is his duty to provide both, and failure, under some circumstances, may spell desertion, as, for instance, where it appears that the failure to support is intended to drive the wife away. Palmer v. Palmer, 22 N. J. Eq. 88; Sanford v. Sanford, 32 N. J. Eq. 420; Borquin v. Borquin, 33 N. J. Eq. 7; Skean v. Skean, 33 N. J. Eq. 148; Corson v. Corson, 69 N. J. Eg. 513; Farrier v. Farrier, 58 Atl. Rep. 1079.

Exception overruled.


author: Backes, Y. C.

text:
    Merchants and Manufacturers National Bank, complainant, v. The Newark Rubber Company, defendant.
    [Decided December 29th, 1925.]
    1. A purchaser of real estate from, a receiver of an insolvent corporation, who is willing but unable to carry out his contract, is entitled to the return of his down money upon the resale of the property for a higher price, in excess of the deposit.
    2. The validity of claims ■ against a receiver in insolvency, for liquidated sums, should be adjudicated in equity.
    3. The statute of frauds is available at law and in equity, to a receiver, in bar of a claim by a broker for commissions on the sale of real estate.
    4. The statute of frauds will not prevent an allowance to a broker for his services in the sale of real estate, though his engagement by the receiver was not in writing, if his services are necessary and beneficial to the trust estate.

      On petition for directions to receiver.

      Mr. Merritt Lane, for the petitioner Gwillim.

      Mr. John A. Bernhard, for the petitioner Kraemer.

      Messrs. Riker & Rilcer, for the receiver.
   Backes, Y. C.

Two petitioners seek payment of their claims refused by the receiver.

The receiver contracted to sell the company’s plant to Gwillim, one of the petitioners, at private sale, approved by the court, for $40,000. An earnest of $500 was paid, and, later, $2,500, upon the receiver stipulating in writing to extend the time of closing to March 20th, 1922, the purchaser agreeing to pay the meantime carrying charges. Gwillim was unable to raise the price, and, after waiting patiently a .year, the receiver, with the court’s sanction, sold the plant to Johnson Products Company for $55,000. The carrjdng charges amount to $7,175.74. Gwillim now asks for the return of his deposits.

Time was of the essence of the contract. The stipulation extending the time is evidence of that. King v. Ruckman, 20 N. J. Eq. 316; Orange Society v. Konski, 94 N. J. Eq. 632. But the receiver was not exacting, and, although constantly urging, was sympathetic and indulgent, and hopeful that Gwillim would succeed in his struggle, and was, up to the time another purchaser was found, anxious that he should have the property. On the return day of the order to show cause why the new sale should not be confirmed and the confirmation of his contract revoked, Gwillim announced his ability and readiness to perform. Some one had come to his rescue in the pinch, but, as often happens, too late, and besides the new purchaser, whose original offer had been $40,000, raised it to $55,000, which he was unable to meet. Had there been parity of price Gwillim would have been favored, though he had lost his right to demand specific performance by liis delay. Wachung, &c., Co. v. Llewellyn, &c., Corp., 96 N. J. Eq. 498. The penalty ought not be pressed beyond withholding from him the benefit of his bargain. He was willing but unfortunate. The creditors have suffered no loss, rather they have profited. It would be inequitable. Wachung, &c., Co. v. Llewellyn, &c., Co., supra. The deposits will be ordered returned, with interest, if any has been collected by the receiver.

Gwillim paid the wages of the watchman of the plant as part of the carrying charge undertaken by him in the written stipulation extending the time of performance of the agreement, and he asks reimbursement. He was in possession and had the benefit of the watchman’s services. Denied.

Kraemer, the other petitioner, a real estate agent, claims his salesman, Smith, negotiated the sale to Johnson Products Company for $40,000 on the verbal promise of the receiver to pay him a commission of five per cent, on that sum. Upon the bid being presented to the court for its approval it was, as already stated, increased to $55,000 and was confirmed, and the sale was executed. Kraemer petitioned the court to direct the receiver to pay the commission. This was denied upon a statement of counsel in open court that the contract, if made, was verbal, within the statute of frauds, and that the receiver denied making it. Leave to sue at law was given. That was wrong practice. The adjudication in this court should have been final. Potter v. Spa Spring Brick Co., 47 N. J. Eq. 442; Vanderbilt v. C. R. R. Co., 43 N. J. Eq. 669. The action at law was by consent of the parties referred to a supreme court commissioner under section 155 of the Practice act (a questionable practice — New York Metal Ceiling Co. v. Kiernan, 73 N. J. Law 763), who found and reported that the petitioner negotiated the sale upon the receiver’s promise to pay him the commission, but as the promise was not in writing, and as the petitioner had not mailed a registered letter to the receiver within five days after the authorization to sell, as required by chapter 273 of the laws of 1918 (7 Comp. Stat. Cum. Supp. p. 1452), the agreement was within the statute and unenforceable.

On a -rehearing of his application the petitioner presents the plea that while he is barred at law, a court of equity-ought not to permit its receiver to interpose the statute of frauds. Upon looking into the testimony taken by the commissioner it appears that the purchaser, a client of the real estate agent, was in search of a factory, and, after showing him many others, Smith, so he testified, called on the receiver and told him he had a prospect and asked if he had authority to pajr him a five per cent, commission, and that the receiver replied he had, and that he would pay it. The receiver denied the inquiry and the promise and claimed that whatever connection the salesman had with the sale was as representative of the purchaser. The only other bit of testimony was that of the purchaser, who said he stated to the receiver that he would pay no commission, to which the receiver replied that he would take car.e of that. It was the word of the petitioner against that of the receiver. The burden of proof was on the petitioner. The proofs were in balance. The petitioner, it would seem, had failed on the issue of fact. With the testimony in such sharp conflict, it was not only the right but the duty of the receiver to interpose the statute in bar. The exigency illustrates the wisdom of the policy requiring written proof of such transaetions.

The cause of action is strictly legal and subject to legal defenses and is controlled by the rules of law, though the remedy is in equity. Buttlar v. Buttlar, 57 N. J. Eq. 645. Eqrtity will not, of course, permit its receivers to hide behind the statute of frauds to accomplish a fraud, but the principle is not applicable.

It does not follow, however, that an admittedly retained real estate agent is not entitled to compensation for negotiating a sale of real estate for a receiver if his authority is not in writing or he has failed to comply in other respects with the provisions of the statute. If his services are necessary or beneficial to the estate reasonable allowance will be made. In re New Jersey Refrigerating Co., 96 N. J. Eq. 431.

The prayer of the petition is denied.


author: (xUIJTIiT, Y. C.

text:
    Felice Cerra, complainant, v. Joseph Maglio and Wife, defendants.
    [Submitted October 27th, 1925.
    Decided November 7th, 1925.]
    Complainant owns one lot. with a building thereon erected covering the entire width, with windows overlooking the premises of defendant. Defendant is the owner of a lot adjoining, with a building erected thereon. Between the two buildings there is a driveway from which the complainant’s building receives light and air. The predecessor in title to both lots purchased the same at a special master’s sale in partition. The complainant advanced the deposit which was paid to the special master, and entered into a contract with the purchaser to purchase the one lot and to receive a full covenant, warranty deed. Afterwards the purchaser assigned her bid for the other lot to the defendant, who had full knowledge of the rights of the complainant under his contract. By an order of the court, after reciting the contract and1 treating the contract as an assignment of the hid, it was ordered that the special master convey the one lot, to the complainant and the other lot to the purchaser or her assigns, and pursuant to that order the master simultaneously conveyed to the complainant and defendant the respective premises in question — Held, (1) that as the defendant took with full knowledge of the rights of the complainant under his contract, the complainant took with the same rights as if the master 'had conveyed both tracts to the purchaser, and the purchaser had first conveyed to the complainant and thereafter conveyed to the defendant; (2) that, under such conveyances, an implied grant of an easement for light and air attached, as an appurtenant, to the lands of the complainant over the lands of the defendant, the windows being plainly necessary for the enjoyment, of the bedrooms in the building; (8) that an injunction would issue restraining the defendant from building on his lands in such manner as to destroy this easement.
    On bill, &e.

      Messrs. Levenson, Gomen cG Levenson, for the complainant.

      Mr. Peter Bentley, for the defendants.
   (xUIJTIiT, Y. C.

The bill in this canse was filed to restrain the defendants from erecting a wall which would close the windows of the complainant. The property of the complainant is known as No. 73 Madison street, Hoboken; that of the defendants as No. 71 Madison street, Hoboken. Buildings stand on both lots — that on lot No. 73 covers the entire width thereof, with eight windows, two on each floor, overlooking lot No. 71. On lot No. 71 is erected a three-story building covering only a portion of the width of said lot. Between the buildings on lots 71 and 73 there is a driveway, wholly on lot 71, to a garage in the rear. The defendants undertook to widen their building on lot 71 to the full width, which would close the windows on lot 73.

The title of both parties is derived from a special masters ‘ deed in partition in the case of Ida Hartkorn, complainant, v. Margarethe Witte et al., defendants (38/684). At the sale, held on November 10th, 1915, Ida Har.tkorn became the purchaser of both tracts on a bid of $10,600. On November 12th, 1915, Ida made a contract with Musarra and Cerra to sell lot 73 Madison street for $8,200, $1,000 of which was paid on the execution of the agreement. In that contract Ida agreed to deliver to Musarra and Cerra a full covenant warranty deed, conveying to them the fee-simple of said premises, free and clear of encumbrances, “subject to the terms and conditions of sale by the special master to Ida Hartkorn.” This contract is annexed to the petition for second amended decree for sale, nunc pro tunc, filed May 8th, 1918, and is a matter of record. On the 15th day of March, 1918, Ida assigned her bid for No. 71 Madison street to Julius’ J. Kislak, which, after stating that she assigned the bid so far as it concerns 71 Madison street to Kislak, proceeds as follows:

“I further hereby declare and acknowledge that the sum of $1,000 heretofore by me paid to said master, William C. Asper, is the money deposited with said master by Antonio Musarra and Felice Cerra, and I request said master to apply said sum of $1,000 on tbe price of $S,200, which said Musarra and Cerra are to pay for the part of the premises purchased by them from me, and I request the said master to deliver a deed to them for said premises so purchased, and I further request said master to deliver a deed for 71 Madison street aforesaid to said Kislak or his assigns.”

At the foot of said assignment Kislak assigned his interest in the following words: “Hoboken, K. J., May 15th, 1918. I hereby assign my rights, title and interest in and to the above instruments to Max Bernfeld. Julius J. Kislak.” Kislak, also, hv a formal assignment dated on May 15th, 1918, assigned said bid to Bernfeld and requested the special master to deliver the deed for said premises to Max Bernfeld upon the paj-ment by him of the balance due the special master for the purchase of said premises.

On March 18th, 1918, by an order dated on that day, after reciting that Ida Hartkorn had contracted, in writing, under her signature, to sell lot 73 to Musarra and Cerra for $8,200, and that, on the execution of said contract the said Musarra and Cerra had paid to the said William C. Asper, master, the sum of $1,000, and that the said contract was equivalent to an assignment of her bid for 73 Madison street, it was ordered

“that the master make, execute ancl deliver to the said Antonio Musarra and Felice Cerra, the assigns of Ida Hartkorn * * * in compliance with the aforesaid decx-ee, a good and sufficient conveyance in the law for that part of said lands and premises known as No. 73 Madison street, Hoboken, New Jersey, purchased by said Ida Hartkorn as aforesaid and sold by lier to said Antonio Musarra and Felice Cerra as aforesaid, and that the said master do make, execute and deliver to the said Ida Hartkorn, in compliance with aforesaid decree, or to her assigns, a good and sufficient conveyance in the law for the remaining part of said lands and premises known as No. 71 Madison street, Hoboken, New Jersey, purchased by her ns aforesaid, upon her complying with the conditions of said sale.”

This order was consented to by counsel of the respective parties to the suit, and also by Samuel A. Besson, solicitor for Musarra and Cerra, assigns of Ida Hartkorn. There is nothing in the order which indicates that anyone other than Ida, at that time, had any interest in Ko. 71 — no reference being made to the assignments to Kislak or Bernfeld. In pursuance of said order, the said master, at the office of the New Jersey Title Guarantee and Trust Company, in Jersey City, on the 27th day of May, 1918j delivered to Musarra and Cerra a deed for 73 Madison street, and to Max Bernfeld a deed for 71 Madison street. These deeds were delivered simultaneously. Both deeds recite the order of March 18th, 1918, above referred to, and also, after the description in each deed, is the following clause: “Together with all and singular the hereditaments and appurtenances to, the same belonging,” and in the habetidum of the deed to Musarra and Cerra is the following clause: “According to the true intent and meaning of the. said decree as amended, and the proceedings above mentioned, and the acts of the legislature of the State of New Jersey in such case made and provided.” The above language is also in the deed of Bernfeld, with the exception of the words “as amended,” which are omitted.

There is also contained in the deed to Bernfeld a recital that Ida ilartkorn had assigned to Kislak, and that Kislak had assigned to Bernfeld.

The title to 73 Madison street being vested in Musarra and Cerra, Musarra and wife, on July 2d, 1918, conveyed his equal undivided one-half part of lot 73 Madison street to Cerra, the complainant, by full covenant warranty deed.

On August 15th, 1918, Bernfeld and wife conveyed lot 71 Madison street to the defendants.

The complainant claims that, as both parties derived their title from Ida Ilartkorn, a common owner of both tracts, through the assignments of her bid, and the master’s deeds were delivered simultaneously, as an appurtenant to the grant to tire complainant there passed the right to light and air through the windows then existing on his premises.

If the special master had conveyed both tracts to Ida Ilartkorn on her bid, and she had conveyed lot 73 to the complainant and Musarra, retaining lot 71, there would be an implied grant of an easement for light and air which would forbid Ida, or her grantee, from erecting a building so close to the walls of the complainant as to shut out the light and air, such windows being plainly necessary for the enjoyment of the bedrooms in the building. Sutphen v. Therkelson, 38 N. J. Eq. 318; Ware v. Chew, 43 N. J. Eq. 493; Toothe v. Bryce, 50 N. J. Eq. 589; Greer v. Van Meter, 54 N. J. Eq. 270; Johnson v. Hahne, 61 N. J. Eq. 438 (441); Lengyel v. Meyer, 70 N. J. Eq. 501; Taylor v. Wright, 76 N. J. Eq. 121; Fowler v. Wick, 74 N. J. Eq. 603.

The defendants’ cormsel, in his brief, cites the cases of King v. Miller, 8 N. J. Eq. 559; Hayden v. Dutcher, 31 N. J. Eq. 217, and Bloom v. Koch, 63 N. J. Eq. 10 (18), to negative the idea of the doctrine of ancient lights in New Jersey. In the first two cases cited the complainant and defendant did not derive title from the same common source, but each was independent of the other, and, therefore, have no application in this case. In the last case (Bloom v. Koch) the complainant derived title from the defendant, who, at that time owned the adjoining premises; and, in that case, the court held that the defendant could not build so close to the complainant’s building as to obstruct its light and air.

The instant case is not placed upon the doctrine of ancient lights, or a user for over twenty years, but on the right acquired by an implied grant.

The serious question in this case is whether the assignment of parts of the bid of Ida Hartkorn, whereby one party acquired one lot and the other acquired the other, simultaneously, imposed an easement for light and air in favor of lot 73.

The defendants, owners of lot 71, had knowledge, both from the petition for second amended decree filed May 8th, 1918, of the contract of Ida to sell to Musarra and Cerra, and give a full covenant warranty deed subject to the terms and conditions of sale by the special master to Ida Hartkorn, a copy of which was annexed to said petition, and from the very assignment to Kislak, which refers to the fact that Musarra and Cerra had purchased the lot No. 73 from Ida. It is therefore apparent that Kislak and Bemfeld, his assignee, were charged with notice of the rights of Mnsarra and Cerra in the premises. The question, therefore, arises (the contract between Ida and Musarra and Cerra, coupled with the assignment, both being prior in time to the assignment to defendants) whether the deed made by the special master to them would not operate in the same fashion as if the special master had conveyed to Ida, and she had conveyed to the complainant first, retaining title to lot 71, and. thereafter conveying lot 71 to the defendants, even though both of the master’s deeds were executed and delivered at the same time — Kislak and Bernfeld both being charged with knowledge of the rights of Musarra and Cerra in the premises?

The conclusion I have reached is that, by the contract with, and assignment to, Musarra and Cerra, they were placed on the same footing as if the master had conveyed to Ida, and she had conveyed under said contract to Musarra and Cerra, and to the defendants by deeds dated and delivered the same day, the defendants being charged with notice of the prior rights of Musarra and Cerra, the complainant is entitled to a decree in his favor.

The defendants made a point and offered evidence to show that the complainant took out the old windows and put in new ones which were larger. The old windows were in two pieces and swung on hinges into the rooms. These he removed and placed in modern windows that moved up- and down, and, in order to do this, put in a casing to carry the sash cord and weights. The windows were produced in court, and show that they are neither wider nor higher than the old windows, and the overwhelming testimony is to the same effect.

I will advise a decree for the complainant.


author: Griffist, >Y. C.

text:
    Mary Ann Egan, by her next friend, complainant, v. Mary E. Egan, defendant.
    [Submitted November 2d, 1925.
    Decided November 17th, 1925.]
    Brother and sister being seized as tenants in common, the property was sold at a tax sale under the Martin act to the wife of the brother, who paid the tax with her own funds. The parties lived in the premises in question for several years after the sale; the sister knew that the wife had purchased the premises as her own and asserted-an adverse claim against her and her brother, and knew that she made improvements on the premises and mortgaged the same to raise funds for the purpose, and she never asserted a claim against the wife; and at the end of about twenty-nine years after the purchase, when the sister became non compos, another sister filed a bill in this court to have the wife declared a trustee for the sister as to a one-half interest in said premises. The sister moved from the premises some five or six years after the wife bought, and had a paralytic stroke upwards of fifteen years after the purchase, but when she became mentally unsound does not appear. The brother died upwards of twenty years after the wife had purchased the property — Held (1) where one tenant in common acquires a tax title, or redeems land from a tax sale, his act inures to the benefit of all his co-tenants', xipon their reimbursing him for their proportionate shares, and, until such payment is made, he has a lien upon his co-tenants’ shares; (2) a husband cannot acquire a tax title to lands as against his wife; (3) the brother and sister were tenants in common holding several and distinct titles. When the defendant purchased at the tax sale she purchased the several estates of complainant and her husband. The complainant, in her own right as to her one-half interest, could not maintain a bill because her right to redeem had been cut off. But she urges that as, in equity, the husband was excused from suing during the continuance of the marital relation, she also, through him, was invested with the same right, and was excused from suing- for the same period. Conceding, for the purpose of argument, that the right to sue was preserved to her that might have existed in the husband, she cannot be excused from her laches, because the reasons why this doctrine does not apply to the husband do not apply to her; (4) assuming that she has the right to sue, she should be denied relief on the ground of laches.

      Oil bill, &C.

      Mr. L. Edward Herrmann, for the complainant.

      Mr. David Nimmo, for the defendant.
   Griffist, >Y. C.

The bill in this cause is filed by the complainant against the defendant to have it declared that the defendant holds a one-half interest in the premises described in the bill, in trust (implied) for the complainant, and prays that the defendant make a conveyance to her of such interest.

The facts are as follows: Michael Egan, the father of complainant, died in 1888, leaving his last will and testament, in which he devised to the complainant and to his son, Thomas Egan, the premises now known as 135 Armstrong avenue, Jersey City, as tenants in common. He left other children who are not included in this devise. The complainant and Thomas and other of the children resided in the home, and after the defendant married Thomas she came to live there. The property being in arrears for taxes, the city collector of Jersey City sold the premises to the defendant on the 8th day of October, 1895, and she paid for the same with her own moneys. On the morning of the sale the defendant told the complainant that she was going down to the tax sale, and asked the complainant to mind her baby. At the tax sale were a sister of the complainant and other persons. When the defendant came home from the sale she threw the tax receipt or certificate on the table and the complainant picked it up and asked why Tom’s name was not on the paper, and the defendant said that she had borrght it for herself. This is testified, on the part of the complainant, by Mary J. Egan, a sister-in-law of the complainant, and the defendant testified substantially to the same effect. She also says that she told her husband that she had bought the property for herself. An old neighbor of the parties says that the complainant, when she was leaving the home, said that she was sorry she lost her home, and had to leave it, &c.

I may add that it is quite evident that all of the witnesses desired to tell the truth, hut the long time elapsed made it well-nigh impossible for them to testify with reasonable certainty.

The complainant and the others (except the defendant and her husband) moved from the house some five or six years after defendant received her deed for the property. The answer alleges that they moved in 1903. It is not clearly proven when they actually left.

The defendant continued in open and hostile possession, paying the taxes and treating the property as her own. On June 1st, 1903, she made a mortgage for $500 to Reuben Simpson et al., trustees, which was duly recorded June 2d, 1903, and canceled of record July 3d, 1908. On June 2d, 1908, she made another mortgage, dated June 4th, 1908, acknowledged July 2d, 1908, and recorded July 3d, 1908, to the Greenville United Building and Loan Association for $1,430, payable in installments on the building loan plan. This mortgage was canceled of record on November 25th, 1913. The moneys received on the first mortgage were used to pay off the taxes, &c. The moneys from the second mortgage were used to pay taxes and for alterations, improvements, repairs, and, apparently, to pay off the first mortgage.

Afterwards the complainant had an apoplectic stroke; some witnesses for the complainant place it at fifteen or eighteen years ago, and they say that she had another stroke ten or twelve years ago. Some say that her first stroke was around ten or twelve years ago. But, in any event, her mind does not appear to have been affected after the first stroke, and it is not clear that she was sufficiently affected after the second stroke as to render her mentally incompetent. But if we take the longest period from the sale in 1895 to the date of her first stroke (fifteen or eighteen years) from eleven to fourteen years had elapsed from the date of sale. If, however, we fix the period of the stroke from ten to twelve years ago, from seventeen to nineteen years elapsed before beginning suit. Here, again, the great uncertainty of the witnesses in fixing the period of either stroke renders it difficult to determine within reasonable time when either occurred. A physician was called by the complainant who testified that he had treated her for three years — that is, from about 1922 to 1925 — during all of which time she was non compos mentis; but he could not state, in his opinion, how long before that period she was in that condition. No other physician was called, who treated her prior thereto, to testify.

Thomas (the husband of the defendant), the other tenant in common, died in October, 1923. The defendant made a contract to sell the property in 1924, and spoke to Mary Jane Egan, the wife of John, a brother of complainant, about the sale; and shortly thereafter this bill was filed, some twenty-nine years after the defendant’s purchase at the tax sale, and twenty-eight years after she received the deed, during all which time, with full knowledge of the facts, neither the complainant nor any of her relatives asserted that the complainant had any interest in the property.

The first point made by the complainant is that a confidential relation exists between the husband and wife, and when the wife bought this property at the tax sale she became a trustee for the benefit of her husband and the complainant as tenants in common, and, therefore, she is bound to convey the one-half interest to the complainant, and account for the rents, &c. And complainant argues that, as the husband would become a trustee if he bought at a tax sale of his wife’s property, the same doctrine would apply to the wife.

It is elementary that if one tenant in common acquires a tax title, or redeems land from a tax sale, his act inures to the benefit of all his co-tenants upon their reimbursing him for their proportionate share of the amount paid by him, and,-until such paj'ment is made, he has a lien upon his co-tenant’s share. Roll v. Everett, 73 N. J. Eq. 697, 701.

In Laton v. Balcom, 64 N. H. 93; 10 Am. St. Rep. 381, the defendant purchased the property at a tax sale. At that time his wife held a mortgage on the premises, and afterwards obtained judgment on the same, which was paid by the plaintiff, who took a release from the wife. The court held that the husband could not acquire a tax title to the premises as against liis wife. The court said: “To preclude a person from acquiring a valid tax title he must be under some legal or moral obligation to pay the tax, or there must be something in his contract or fiduciary relation to the owner of the property which renders it inequitable> as between them, that he should acquire the title,” and held that the defendant was precluded from becoming a purchaser for his own benefit as against his wife. The court further said: “The obligations and duties of husbands and wives to each other, both express and implied, create such relations of trust and confidence between them that neither can acquire the other’s property by a clandestine payment of taxes.”

To the same effect are Burns v. Bryne, 45 Iowa 285, and Christy v. Fisher, 58 Cal. 256.

As opposed to these cases is Willard v. Ames, 130 Ind. 351; 30 N. E. Rep. 210, where it is 'said: “It seems to be the settled law that a husband, whose duty it is to look after the business interests of his wife and family, as well as to support them, will not be permitted to acquire title to the property of his wife by purchase at a tax sale; but we know of no law to prevent a wife from purchasing, at a public sale, the lands of her husband * * * provided the purchase is made upon her own account and with her own money. The wife is under no obligation, legal or moral, to pay the taxes on her husband’s property.”

In the instant case the complainant and the husband of the defendant were tenants in common, holding by several and distinct titles, the only unity recognized between them being that of possession. See Bouv. Dicl., tit. “Tenants in Common." When the defendant purchased at the tax sale she purchased the several estates of the complainant and her husband. The complainant here, recognizing the character of her estate, filed her bill praying that the one-half only be convejnd to her, upon which theory she has not made the heirs and devisees of the husband parties to the suit. It cannot be said that she, in her own right, as to her half interest, could maintain the bill, as the sale to the defendant was valid as to her, and the complainant’s right to redeem was cut off. But she urges that, because the husband had a right to sue as tenant in common, she, through him, was invested with the same right, and, also, that as equity excused the husband from suing during the continuance of the marital relation, she also was excused for the same period. Conceding, for the purpose of argument, and without determining that the same right to sue is preserved to the complainant that may have existed in the husband, the theory that she could sue at any time that the husband might, without being charged with laches, I cannot subscribe to. None of the reasons for not applying the doctrine of laches to the husband can apply to the complainant.

Even with the above concession, the complainant cannot prevail, because she is guilty of gross laches.

In the case of McCarton v. Traphagen, 43 N. J. Eq. 323, 338, Vice-Chancellor Van Fleet said: “Courts of equity have, from the earliest times, upon general principles of their own, even where there was no analogous statutable bar, refused relief to stale demands. * * * The reason of the rule is apparent, and consists in the difficulty, and, in many cases, the impossibility’-, of ascertaining, after a great lapse of time, the facts necessary to enable the court to exercise its power with safety. He who delays asserting his rights, until the proofs respecting the transaction out of which he claims his rights arose, are so indeterminate and obscure, that it is impossible for the court to see whether what seems to be justice to him is not injustice to his adversar}’, should be denied all relief, for, by his laches, he has deprived the court of the power of ascertaining, with reasonable certainty, yvhat the truth is, and thus of doing justice.” See, also, Dyer v. Waters, 46 N. J. Eq. 484; Hendrickson v. Hendrickson, 42 N. J. Eq. 657; Coles v. Vanneman, 51 N. J. Eq. 323; Lutjen v. Lutjen, 64 N. J. Eq. 773, 783; Ten Broeck v. Jackson, 71 N. J. Eq. 582.

In Lutjen v. Lutjen, supra, the court deals with the periods which constitute laches, and says it applies even though the position of the defendant has not changed.

T will advise a decree dismissing the bill.


author: Grieein, Y. C.

text:
    Gertrude E. Maxwell, complainant, v. William T. Maxwell, defendant.
    [Submitted November 2d, 1925.
    Decided December 10th, 1925.]
    1. In order to establish a presumption of a common law marriage by habit and repute, there must not only he shown cohabitation, but reputation as husband and wife.
    2. In a suit for maintenance by a wife, where the husband filed a c-ross-petition for annulment charging- a prior common law marriage of the complainant to one M., which the complainant by answer denies, and it appearing that the complainant had a child by M., and from the time of the birth of the child to the time when M. left the city, held herself out to the community -where she lived as the wife of M., and also made complaint to the overseer of the poor against M. for not supporting her and her child, and also made complaint in the juvenile court against M., in which she swore that she was the wife of M., and afterward wrote to the judge of that court that ishe and liar husband had agreed to live together again and desired to drop the proceedings, and several -witnesses testified that M. had called complainant his -wife, and complainant had signed a life insurance application stating that she -was “separated” and took out life insurance under the surname of M., and told her family that she -was married to M. until he left the city, when she says- she told them the truth, and stated that she perjured herself and lied about her marriage to keep herself from disgrace, this is not enough to establish a common law marriage, -when the parties were not capable of contracting such marriage at the time the child was born, by reason of prior ceremonial marriage, not then dissolved, and no proof of cohabitation after that date is proved.
    On bill, &c.

      Mr. James E. Pyle, for the complainant.

      Messrs. Butler & Butler, for the defendant.
   Grieein, Y. C.

The bill in this cause is filed by Gertrude E. Maxwell against her husband, William T. Maxwell, for maintenance under section 26 of the Divorce act. The defendant answered, admitting going through a form of ceremony of marriage with the complainant, and, by a cross-petition, charges that the complainant entered into a common law marriage with one Charles McClellan, and- lived with him as his wife for many years, and that there is one child born of the union; that Charles McClellan was living at the time of the supposed marriage to the defendant, and is still living, and that the said marriage has not been dissolved or annulled, but was then subsisting, and that at the time of the marriage to defendant she held herself out to be the widow of Charles McClellan, and that the said child was the issue of such marriage.

The answer of the complainant to this cross-petition denies the common law marriage, as well as the facts alleged in the cross-petition, which tended to show the same, and says that at the time of the marriage said defendant had full knowledge of the fact that, although she had a child born to her, she was unmarried.

The parties in this suit were married at Kidgefield, Bergen county, New Jersey, on November 28th, 1923. In the certificate and record of marriage the complainant’s maiden name was given as Gertrude Nadratoska. The defendant gave his age as thirty-five years, and the complainant gave hers at twenty-five years. In one column are the words “Single, Widowed or Divorced,” and in this column the words “Single” and “Divorced” are erased as to the defendant, and the words “Widowed” and “Divorced” erased as to the complainant ; thus the representation contained in the certificate is that the defendant was a widower and the complainant single. Under the column “No. of Marriage” the certificate shows that this was the second marriage of the defendant and the first marriage of the complainant. The answer of the defendant says that the defendant had four children by his previous marriage, one of whom was married and three were under the age of twenty-one years, and that the complainant had one child, a boy of six years of age.

It seems that some dissension arose between the parties concerning the treatment of the defendant’s children by the complainant, which resulted in their separation on January 8th, 1924, less than two months after the marriage, the defendant taking his children with him. Afterwards, learning, as he says, of the common law marriage between the complainant and McClellan, he says he took his “stuff” away January 18th, 1924, and did not return to her. After the separation and before the trial a child was born to the complainant and defendant.

When the case was opened it was considered wise to try the annulment case first, as the result of such trial might dispose of the case for separate maintenance, at least as to the complainant, and the case was thereupon proceeded with on the defendant’s cross-petition for annulment.

The facts are as follows: On August 8th, 1918, a child, Charles Wilfred McClellan, was born to the complainant and Charles W. McClellan. The attending physician was Dr. Charles II. Pink. The mother’s age in the certificate of birth was given as twenty years, and the father’s thirty-three. The complainant was delivered at the home of her mother, 437 Pacific avenue, Jersey City. There was present at the time the father, Charles McClellan. This is testified to by McClellan, but is denied by the complainant. The residence of McClellan was at 267 Washington street, Jersey City, at which place his family owned a saloon, and he acted as bartender there, and the family, including McClellan, lived in the floors above the saloon. Thus, McClellan and the complainant lived about a mile and a half apart. At the time of the birth of this child McClellan was a married man, having been married to Mabel Withers at Lancaster, Pennsylvania, on November 5th, 1913, who divorced him on August 12th, 1918, in the court of common pleas of Dauphin county, Pennsylvania, four days after the birth of the child, Charles Wilfred McClellan. Prior to the birth of this child the complainant held herself out as being married to McClellan. After the child was born she visited McClellan at the saloon in Washington street four or five times a week,, taking the baby with her, and seemed to be on friendly relations with McClellan, his mother and the members of his family.

The testimony of McClellan was taken in Harrisburg, Pennsylvania, prior to the hearing, ahd, he testified that she, at the time the child was born, asked him to marry her, and. he told her he would later on. He did not tell her, however, that he was then the husband of another woman, and his story throughout is to the effect that he promised her, from time to time, to marry her by a ceremonious marriage, or otherwise.

The evidence is overwhelming that, during the time from the birth of the child down to the time McClellan left the city and went to Pennsylvania, in June, 1920, she held herself out to the community in the neighborhood of 267 Washington street and 437 Pacific avenue, Jersey City, as the wife of McClellan, and was known by the neighbors as being such.

After the child was born the complainant made a complaint to the overseer of the poor in Jersey City that her husband, Charles McClellan, was not supporting her and her child, and the poor master fixed an appointment and wrote to McClellan to meet him with his wife. The parties appeared before him, and the poor master directed him to pay $10 a week. The poor master had several assistants who sometimes interviewed the applicants, and both the poor master and his assistants made entries in a book, which was their record of what transpired at the meetings, and, while the poor master knew, in a general way, the history of this case, and saw the parties frequently, it would appear that he did not, in every instance, attend to these parties when they came to his office. On being examined as to the dates when his record shows that he handled their case, he found that his name appeared only as to the examinations on June 5th, June 8th and June 28th, 1920. He says that McClellan and Mrs. Maxwell appeared on June 8th, 1920, and that, on that occasion, “the two of them called at my office in Bright street, and they told me they were going to look for rooms and get away from both parties [that is, the relations]; that they thought they could get along better together if they got away from both sides.” I have ignored the testimony of the poor master as to what transpired on other occasions than June 5th, June 8th and June 28th, because he, apparently, made no record of it. On June 30th, 1920, the complainant called at the office of the poor master and saw Mr. Gatety, a clerk of the poor master, and she said to him that “her husband was at Harrisburg, and that she had a warrant issued Jrme 29th, 1920, from Judge Sullivan’s court; she said he ran away on Monday to Harrisburg.” On June 29th, 1920, she went with John Eggers, a detective, to the prosecutor’s office with the warrant for McClellan, to have him extradited. She was turned over to one of the prosecutors. Nothing further was done.

On September 16th, 1919, shortty after the birth of the child, complainant “of No. 437 Pacific avenue, Jersey City, New Jersey,” made a complaint in the juvenile court against “Charles McClellan, of 267 Washington street, Jersey City,” in which she swore that she was the wife of Charles McClellan, and that “he absconds, deserts and willfully refuses and neglects to provide for and maintain his wife and family, and by reason thereof they are liable to become chargeable on the city of Jersey City.” Afterwards, on September 22d, 1919, she wrote to Judge Grece, who was judge of the juvenile court, stating the she and her husband had agreed to live together again, and were going to get their own apartments, and that she was hasty in taking the means she did, and, therefore, trusted that there would be no further need of continuing the trouble, and says, “If I must be in your court Wednesday, and my husband, ’phone my husband, 620 Montgomery.” This communication is signed by the complainant.

A barber testified that McClellan took the complainant to his establishment to have “his wife’s hair shampooed.” Another witness testifies that he was with McClellan on the street, and McClellan told him he was “waiting for his wife,” and the complainant came up to them, and then, without anything being said, the witness went on his way.

There was one witness, Annett, who testified that he lived over the saloon at 267 Washington street for two weeks, and during that period he saw the eomplainapt and MeClelIan entering one of -the bedrooms late at night with the baby. This man’s testimony I do not regard as of much value. I think the overwhelming evidence is that she slept in her mother’s house on Pacific avenue continuously after the birth of the child. On this point, however, neither party has produced all of the evidence that the nature of the case is susceptible of. McClellan’s mother, his brother and two sisters are living, none of whom were called.

On September 30th, 1920, the complainant signed an application to the Metropolitan Life. Insurance Company, in which, in • answer to the question, “If adult, married or single ?” there was written “separated,” and the words “married or single” stricken out.

On April 5th, 1920, she took out a policy in the Metropolitan Life Insurance Company on the life of Charles McClellan, her child, and, on the same day, took out two more policies in the name of Gertrude McClellan, in the same company. She says that these policies were taken out by her mother, but her mother, although called and examined, was not questioned on the subject.

She told the members of her family, and they believed, that she was married to McClellan for about two years, until McClellan left Jersey City; then she says she told the truth to her mother and family.

She admits that she perjured herself on thg application to the juvenile court, and lied to people about her marriage. And all of these things she said she did to keep herself and child and family from disgrace.

The defendant says that before he married her she told him that she was a widow, and the widow of McClellan. She told the defendant’s sister, while they lived on Olean avenue, that her husband (McClellan) took sick and went up to Canada and came home and died. She also told the father of defendant that her former husband, McClellan, was dead.

On returning from the marriage ceremony the defendant asked the complainant why she had given her status to the priest as single instead of a widow, and she replied that “it didn’t make any difference, that she was single.”

In view of her perjury and lying, as she says to defend her fair name and that of her family, I place little credence in any story she has told which favors her case, and, therefore, take it as true that she did represent to the defendant that she was a widow at the time of the marriage, and made the representations to the father and sister of the defendant that she was a widow, as testified to by them.

Defendant produced as a witness complainant’s brother, a worthless boy', who had been convicted of crime, and who, to wreak vengeance upon his sister, mother and family, went on the stand and testified that the complainant lived with McClellan at his mother’s house on Pacific avenue. This is all denied by the mother and the family, and I am satisfied that his story' is made out of the whole cloth.

Notwithstanding the great wrong which’ the complainant says McClellan had done her, she seems to be on rather friendly relations with him and his family. Shortly after the first hearing he called her on the ’phone and attempted to borrow from her $40. This she admits, saying that about a week and a half after the first trial McClellan called her up on the ’phone and asked her to loan him $40, and she told him she did not have it. She says, “He said he wanted it for some business, and his mother had a paralytic stroke and he needed money, and being.that his mother was very good to me when the baby came, he thought maybe I would help him out by loaning him $40, and I didn’t have it, and I didn’t give it to him.” This testimony was brought out in rebuttal of her brother Anthony’s testimony, who said that McClellan had telephoned that if she did not send him $40 he would tell the court that his testimony was a lie, all of which she denied.

The complainant also told the members of the family that she had been married to McClellan in St. Thomas’ Church, in New York City, which she says was also a lie; and there is no evidence in the case, nor any suggestion, of a ceremonious marriage between McClellan and the complainant.

This reduces the case to one proposition, namely, were the complainant and McClellan husband and wife under a common law marriage contracted prior to the marriage to Maxwell?

At the time that this McClellan child was born, the parents being incapable of contracting, there could have been no common law marriage, and there is no evidence that at any time thereafter was there any agreement of marriage per verba de prcesenti. If this suit was between McClellan and the complainant, one side seeking to establish the marriage and the other side opposing, it is likely, if true, that evidence could have been offered showing the time when such contract was entered into. But here, both McClellan and the complainant are interested on the same side in denying the existence of such marriage: therefore, the defendant is unable to prove such agreement, even if it existed. In this situation the defendant, to prevail, must show that McClellan and the complainant lived together in such habit and repute that a presumption is raised of a contract of marriage per verba de prcesenti.

In Commonwealth v. Stump, 53 Pa. St. 132 (at p. 136), Chief-Justice Woodward said: “Reputation and cohabitation, at best, are only presumptive proofs, and, where either of these grounds fails, the court should not allow the presumption of marriage to be built upon the other.”

In order to establish a presumption of a common law marriage by habit and repute, there must, not only be shown cohabitation, but reputation as husband and wife. Neither reputation without cohabitation, nor cohabitation without reputation, raises this presumption.

In re Yardley’s Estate, 75 Pa. St. 211, Chief-Justice Agnew said: “Neither cohabitation, nor reputation of marriage, nor both, is marriage. When conjoined, they are evidence from which a presumption of marriage arises.” He says, further: “The Scotch expression conveys the true idea, perhaps, better than our own, The habit and repute’ of marriage. Thus, when we see a man and woman constantly living together, where one is dwelling there the other constantly dwells with him, we obtain the first idea or first step in the presumption of marriage, and when we add to this that the parties are constantly living together, are reputed to be man and wife, and so taken and received by all who know them both, we take the second thought or second step in the presumption of the fact of marriage. Marriage is the cause —these follow as the effect.”

In re Boyington’s Estate, 157 Iowa 467; 137 N. W. Rep. 949 (at p. 951), the court said: “As already indicated, reputation is important only as bearing on the intention of the parties in living together.”

To the like effect are In re Callery’s Estate, 226 Pa. 469; 75 Atl. Rep. 672 ; Taylor v. Taylor, 10 Colo. App. 303; 50 Pac. Rep. 1049; O’Malley v. O’Malley, 46 Mont. 549; 129 Pac. Rep. 501; People v. Spencer, 199 Mich. 395; 165 N. W. Rep. 921;. Williams v. Herrick, 21 R. I. 401; 43 Atl. Rep. 1036.

In Wallace’s Case, 49 N. J. Eq. 530 (at p. 535), Chancellor McGill cites with approval the views in Yardley’s Case, supra, which he says will serve to illustrate that which is meant by matrimonial cohabitation, namely: “But it is a misnomer to call the visits of Howard Yardley to Elizabeth Sithens cohabitation. It was lacking in its chief element— constancy of dwelling together. * * * His visits to her were of an irregular kind, and, however frequent and continued, bore no resemblance to married life.” The chancellor, continuing, says: “He further says that ‘matrimonial cohabitation is where the parties have the same habitation, so that where one lives and dwells there does the other live and dwell always with him.’ ” There is not the slightest evidence of cohabitation in this case.

The burden of proof being cast upon the defendant to establish a contract of marriage per verla de pi'cesenti, and having attempted to establish a presumption of such marriage by proving habit and repute, and having failed to prove cohabitation, his cross-petition will be dismissed. Vreeland v. Vreeland (Chief-Justice Gummere), 78 N. J. Eq. 256; Michaels v. Michaels (Vice-Chancellor Foster), 91 N. J. Eq. 408.

Counsel may apply for a day to try the maintenance suit.


author: Griffin, V. C.

text:
    Harvey L. Wyatt et al., executors, &c., complainants, v. Mildred Berger, defendant.
    [Submitted September 2d, 1924.
    Decided December 10th, 1924.]
    Complainants’ testatrix contracted to sell lands, fixing the date for performance. In the contract the vendor covenanted and agreed that the building erected on the lands above described does not encroach on adjoining property, nor does the buildings on adjoining ing lands encroach on the property above described. On the date of the contract the coping of an adjoining building encroached on the premises in question three inches for a depth of about twenty-two feet. Time was not, by the contract, made of its essence. The defendant not having taken title on a date to which the passing was adjourned, the complainants gave notice in writing to the defendant fixing a date for closing, Which made time of the essence of the contract. After receipt of this notice defendant had a survey made which disclosed the encroachmeent, and one day before the time fixed in complainants’ notice defendant sent a notice to complainants, rejecting the title, giving several reasons, one of which is that the building adjoining the premises in question on the north encroached over for twenty-five one hundredths of a foot on the premises in question for approximately a distance of twenty-two feet, more or less. About a month after the above notice was served the complainants had the encroachment removed, and within a week thereafter conferred with defendant’s counsel for the purpose of fixing a dato to pans title. Defendant’s counsel declined, stating that defendant stood on her notice rejecting the title. Shortly thereafter the bill was filed' — Held, 1. Complainant having made time of the essence of the contract, and being unable on the day appointed to deliver a title free from encroachments, the defendant had a right to refuse to carry out the contract. 2. Where an encroachment is slight the court might decree specific performance with abatement of purchase price, yet "where the contract contains a covenant that there are no encroachments, specific performance will not be decreed, because to do so would be to draw a new contract for the parties upon which their ' minds had never met. 3. There is no difference in principle between a case where time is not of the essence of the contract and the encroachment exists at the time of final decree, and a case where the encroachment is removed before bill filed but after the date appointed for closing title, where time is of the essence of the contract.
    On bill, &C.

      Messrs. 2Ielosh, Morten & Melosh, for the complainants.

      Messrs. Gross & Gross, for the defendant.
   Griffin, V. C.

The bill in 'this cause was filed to compel the defendantvendee to specifically perform a contract entered into on the 15th day of September, 1922, whereby Anna P. Simpson, widow, in her lifetime, contracted to convey, and the defendant contracted to purchase certain lands in Hudson county for the sum of $20,000, to be paid for as follows: $500 on the execution of the agreement; $4,500 on delivery of a deed, and the balance by mortgage for $15,000. In the contract the vendor “covenants and agrees that the building erected on the land above described does not encroach on adjoining property, nor does any buildings on adjoining property encroach on the land above described.” The title was to pass on January 10th, 1923. On November 4th, 1922, Mrs. Simpson died, leaving a will in which she appointed the complainants as her executors. After the date fixed in the contract for the closing of the title the complainants wrote the defendant as follows:

“Xou are hereby notified that the executors of the estate of Annie F. Simpson demand that you perform your contract made with Annie F. Simpson, dated September 15th, 1922, for the purchase of premises No. 50 Tonnele avenue, such performance to take place on or before January 31st, 1923. We have endeavored to find your address, and have asked the Branleygran Company to furnish it to us, but tliey have not complied with such request. Had we known your address we would have communicated with you on the 10th inst. When title is closed the interest will be demanded upon the unpaid purchase price from January 10th, 1923.”

On February 1st, 1923, one Joseph Irving, who was the agent of the defendant, wrote a letter to Mr. Morten, one of the executors, as follows:

“After being notified by you that you would require an additional deposit of $500 on account of the contract made by the late Mrs. Anne Simpson with Miss Mildred Bergen, for premises 50 Tonnele avenue, this city, I immediately got in touch with Miss Bergen, and she authorizes me to state to you that on the 12th inst. she will mail check for the amount you require.
I am doing all I can to get myself in readiness for the closing of the matter.”

On February 5th, 1923, Mr. Morten wrote Mr. Irving (Exhibit 5) as follows:

“Replying to your letter of the 1st inst., relative to the purchase of property No. 50 Tonnele avenue, Jersey City, I would advise that the Rev. Dr. Wyatt and myself, executors of the estate of the late Anna IT. Simpson, feel that in giving you until February 12th within which to make an additional deposit of $500 is all the time that we can grant, and unless you make this deposit we will have to consider the contract as abandoned by you and either rent the property or make some other disposition thereof so that the interest of the estate may be protected. I am writing you so that there may be no misunderstanding, and ask you to regard this as formal notice to that effect.
We do this so that we will not be open to any criticism ourselves, and while personally we would like to give you longer time and every possible opportunity to avoid any loss, yet in duty to the persons who are the beneficiaries under the will of Mrs. Simpson, we cannot do what we would like to do, but we must do as the law requires us to do.
I feel quite certain that you appreciate the position in which we are placed and will govern yourself accordingly.”

This additional deposit of $500 having been paid, the time for closing the title was extended to April 1st. On April 3d, 1923,_eomplainants' solicitors wrote to the defendant a letter (Exhibit 6), of which the following is a copy:

“You have not performed contract for purchase of Tonnele avenue property, and on behalf of the executors of the estate of Anna F. 'Simpson we now give you notice that if contract is not performed by the 10th inst. we shall deem the contract null and void and feel at liberty to make such disposition of the property as opportunity may afford. All your rights under contract heretofore made will cease and determine after April 10th, 1923.”

On April 9th the defendant's solicitors wrote the complainants' solicitors (Exhibit 7), of which the following is a copy:

“We represent Mildred Bergen, the purchaser of property No. 50 Tonnele avenue, Jersey City, which she purchased on September 15th last, from Anna F. Simpson.
Our client has turned over to u3 your letter of the 3d inst. addressed to her.
We desire to say that our client rejects the title in question for the following reasons:
1. That the building adjoining the premises in question on the north encroaches over for 25/100ths of a foot on the premises in question, for approximately a distance of 22 feet, more or less.
2. That the executors of the seller are unable at the present time to convey according to contract terms, because the lands in question are liable for the debts of the deceased, for one year from the date of her death.
3. There is no waiver of inheritance tax releasing the property in question on file in the county clerk’s office in Hudson county.
4. That there is a life estate in the premises in question outstanding in Ida B. Simpson, the life tenant mentioned in the will of Anna F. Simpson.
The purchaser is able to perform and has had the balance of the purchase price in readiness for some time past, and she insists upon rejecting the title for the reasons above set forth.
Will you kindly have your client make arrangements to refund the deposit, as well as search and survey fees and fees paid to the broker under the contract in question.”

About the 18th of April, 1923, the defendant rendered a claim, under oath, to the complainants for a return of the moneys paid under the contract, and for search and survey . fees.

It appears that the complainants were anxious to close the title promptly, and the defendant, for some unexplained reason, desired delay. In this situation the complainants wrote the letter of April 3d, 1923 (Exhibit 6), in which the complainants gave plain notice to the defendant that unless the title was closed on April 10th the contract would be null and void, thus attempting to declare time to be of the essence of the contract, which was not the ease before.

A question arises as to whether this notice (Exhibit 6), in the langage of Mr. Justice Holmes in Stewart v. Griffith, 217 U. S. 323; 30 Sup. Ct. Rep. 528, was “politely to apply a spur” to the defendant to speed her in the performance of the contract, or whether it was intended to operate as making time of the essence of the contract. As applied to the letters (Exhibit 3 (undated) and Exhibit 5), of February 5th, 1923, it is easy to conclude that these were intended to “spur” the defendant to perforin her contract; but, as applied to the letter of April 3d, it cannot be. The language in the letter of April 3d is positive and certain, leaving no room for doubt that it was the intention of the complainants to regard the contract at an end on April 10th, 1923, if the defendant did not perform on or before that date, thus attempting to make time the essence of the contract.

At the time Exhibit 6, of April 3d, 1923, was written, the complainants were unaware of the fact that the c.oping of an adjoining building encroached on the premises in question about three inches for a distance of about twenty-two feet in depth. This discovery was made by the defendant on April 6th, when she had a survey made. It does not appear that the result of this survey was made known to the complainants, or that they had any knowledge of that fact until they received Exhibit 7 of April 9th, 1923. They then undertook to have the encroachment removed, which was done between the 1st and the 10th of May following; and on the 17th of May the complainants’ solicitors advised that the defendant’s solicitors that the encroachment had been removed, and that they were then ready to deliver a deed for the premises in question at a time to be fixed. The defendant’s solicitors refused to<> entertain the proposition, and stated that their client still maintained the position she had taken when the letter (Exhibit 7) was written.

The complainants argue that time was not made of the essence of the contract by defendant at any time; that the notice of the defendant rejecting the title did not so make it, and they argued that twenty days’ notice should have been given by defendant requiring the performance thereof. Orange Society, &c., v. Konski, 94 N. J. Eq. 632; 121 Atl. Rep. 448. I cannot agree with this view. The defendant, by Exhibit 7, did not attempt to make time of the essence of the contract; this was attempted to be done by the complainants, arid as the complainants could not give good title, by reason of this encroachment, on April 10th, the defendant, accepting the notice of the complainants in the light that it was intended, gave notice rejecting the title because of the encroachment. And this she had a right to do. Where the encroachment is slight, the court might decree specific performance with an abatement of the purchase price (Scheinman et al. v. Bloch, 97 N. J. Law 404; 117 Atl. Rep. 389; affirmed, 98 N. J. Law 571; Doherty v. Egan Waste Co., 91. N. J. Eq. 400, 406; 111 Atl. Rep. 499), yet, where the contract contained a covenant that there were no encroachments, the rule seems to be otherwise. In the ease of Herring et al. v. Esposito, 94 N. J. Eq. 348, the contract in question had a clause against encroachments similar to the one in the present suit; there the encroachment was slight (from two to one and five-eighths inches), and Vice-Chancellor Bentley distinguished between cases in which there were no specific covenants against encroachments and one containing such covenant, and said, in effect, that the court could not disregard the clause of the contract, because to do so would be to draw a new contract for the parties upon which their minds had never met; and he dismissed the bill, and decreed that the complainant should return the defendant the deposit. There the case was on final hearing, with the encroachment continuing at the time of final decree; here the case is on final hearing with the encroachment removed; but the principle, it seems to me, is the same in both case, whether the encroachment existed at the time of final hearing, where time is not of the essence of the contract, or on the day appointed for the closing of the contract, where time was made of its essence.

Whether the time fixed in the notice of April 3d was short and unreasonable need not be considered. That question might have been raised by the defendant if she desired to perform. Instead, however, she treated it as sufficient, and gave notice of the encroachment, -and rejected the title. Under such circumstances the complainants are not entitled to compel the specific performance of the contract.

Having reached this conclusion, it is unnecessary to consider the other three objections of the defendant contained in Exhibit 7.

A decree will be advised dismissing the bill, and that the complainants return the deposit demanded in the - counterr claim, together with the expenses referred to in the statute.


author: Buohanan, Y. C.

text:
    Riverside Building and Loan Association, complainant, v. William H. Bishop et al., defendants.
    [Decided November 18th, 1925.]
    1. A judgment recovered against the owner of mortgaged premises after the filing of foreclosure bill, but before final decree, will attach to the mortgaged premises.
    2. A junior judgment, by levy under execution, acquires priority of lien over a senior judgment on which no levy has been made, as well pending suit to foreclose mortgage on the premises levied upon as before the commencement of such suit.
    3. One recovering judgment against the owner of mortgaged premises pending foreclosure suit, but before final decree, is entitled to be admitted as a defendant even after final decree, and to have his interest and priority as against the other defendants determined.
    On petition to open and amend final decree, &c.

      Mr. Wilfred B. Wolcolt. for the defendant-petitioner, J. S. Collins & Son.

      Messrs. Bleakly, Sloclcwell & Burling, for the defendant Eleck Brothers.

      Mr. William N. Cooper, for the defendant Berger Brothers Company.
   Buohanan, Y. C.

Complainant’s bill sought foreclosure of mortgage on lands of defendant Bishop, in Burlington county. Junior lien-holders were made defendants, including certain judgment creditors.

On May 25th, 1925, about two months after the filing of the bill, petitioner, J. S. Collins & Son, recovered judgment against defendant Bishop in the supreme court, on which it caused execution to be issued and levy made on the mortgaged premises, about June 1st. It was ignorant of the pending foreclosure suit until advised by the sheriff, about July 17th, that the latter had received fi. fa. therein; thereupon it immediately applied to be made a party defendant (which was done) and for a stay of sale (which was denied). It then obtained an order to show cause on the defendants (other than the second mortgagee) why the final decree and fi. fa. should not be amended so as to direct the sheriff to pay into court all moneys derived from the sale over and above the amounts necessary to satisfy complainant and the second mortgagee, and the sheriff’s costs.

The final decree (and the fi. fa.) following the master’s report provided for the payment of the claims of the several lienholder defendants, except, of course, that of petitioner, in a specified order of priority.

Petitioner contends that, by virtue of the execution and levy under' its judgment, it has a claim upon the surplus moneys prior to the claims of defendants, whose judgments were recovered earlier, but on which no levy was made.

That the mortgagor’s estate in the lands — the equity of redemption — may be conveyed by him or subjected to the lien of judgments against him, prior to the commencement of the foreclosure suit, is, of course, conceded. It is not clear how or why this situation is, or should be, affected by the filing of the foreclosure bill or by the subsequent proceedings in the foreclosure suit until the actual sale, or, at any rate, until the final decree, except that, of course, a change in the mortgagor’s title occurring subsequent to the filing of the bill and not altering the mortgagee’s interest should not be, and is not, permitted to affect the mortgagee in the prosecution of his suit.

A person who acquires an interest in the equity of redemption pending the foreclosure need not be brought in as a defendant by the complainant-mortgagee, but, on the other hand, he is entitled to be admitted as a party on his own application, and to have a hearing and determination as to his claim or interest in the surplus after satisfaction of complainant. Chancery act, sections 29, 30. An examination of the files of foreclosure suits in this court would inevitably disclose innumerable instances where grantees of the equity of redemption under conveyances made pendente lite have been admitted in this way, and also, I doubt not, many like instances as to persons acquiring judgments pendente lite against the owners of the equity of redemption. Assuredly no difference in principle is apparent as between such a grantee and such a judgment creditor.

“The mortgagor, and others claiming under him, are considered, both in law and equity, as seized and absolute owners of the premises against all others except the mortgagee and those claiming under him * * Thompson v. Boyd, 21 N. J. Law 58, 62; Wade v. Miller, 32 N. J. Law 296, 303.

This ownership or estate of the mortgagor clearly remains in him (except as affected by conveyances or encumbrances made by him or liens obtained against him) until actual sale under the foreclosure decree. The right of redemption is not cut off until the actual sale, either as to the mortgagor or as to a grantee from the mortgagor, even after final decree. Atwood v. Carmer, 75 N. J. Eq. 319. And the mortgagor’s estate (outside of the mortgagee’s interest) must needs be subject to modification or transfer as well by operation of law as by his voluntary act pending the suit and prior to sale.

The only additional question involved in the present issue is whether a change in the priorities of the several parties interested in the equity of redemption can be affected pending the foreclosure suit. No logical reason to the contrary appears or has been suggested. If, pending the suit, the mortgagor may convey his estate subject to the mortgagee’s intereát, so also it may be sold and conveyed away from him under judgment at law and execution sale; and so also may lienholders subsequent to complainant-mortgagee effectuate changes in their respective priorities as between or among themselves, or have such changes effected by operation of law, so long as complainant be not prejudiced.

Suppose several judgments were recovered against the owner of mortgaged premises immediately prior to the filing of foreclosure bill and^ a subsequent adjudication in bankruptcy against the owner. Under the long-established practice the trustee in bankruptcy is made a party defendant. Dick. Ch. Prec. 343, note. If the judgments were subject to avoidance under the Bankruptcy act, can it be doubted but that a final decree would be opened in so far as it established the lien and priorities of such judgment, so that the trustee in bankruptcy might have the opportunity to have the judgments avoided and procure the surplus moneys for the bankrupt estate?

The instant case seems no different in principle. The petitioner recovered its judgment in the supreme court against the owner of the mortgaged premises after the filing of the bill but before sale or even final decree. It'thereby acquired a lien upon the mortgaged premises, which in nowise affected complainant’s rights, or the rights of the second mortgagee, but which affected the rights of the defendant owner at least. Petitioner not being a party to the suit, its rights as against the other defendants were not established by the final decree, and it has not had its day in court. It claims rights in the surplus moneys over and above the amount necessary to satisfy the complainant and the second mortgagee, superior, not only to the defendant owner, but the other defendants as well. Its petition alleges that it caused levy to be made on the mortgaged premises, and that it thus acquired priority over the liens of the defendant judgment creditors upon whose judgments execution had not then been issued and levy made.

The legal premise to this conclusion seems to rest upon the well-established law of this state. Sales of Land Act, § 9; Clement v. Kaighn, 15 N. J. Eq. 47; Lippincott v. Smith, 69 N. J. Eq. 787. That the concurrences took place after the bill was filed (but before final decree) seems insufficient to negative or modify the operation of the rule. The petitioner is entitled to have these issues heard and determined.

The final decree will be opened and amended (and likewise the /?. fa.) so as to direct the sheriff to pay into court the surplus moneys over and above the amount necessary to satisfy complainant and the second mortgagee and the costs of sale. The order confirming the master’s report will be set aside except as to the complainant and second mortgagee, and it will be referred back to the master to ascertain and determine the amounts due the several other defendants, including the petitioner and their respective priorities. (It appears that the master, in determining the priorities of the other defendants, failed to consider the dates of levy on executions.)

It is argued that petitioner is barred by laches or estoppel. Not so. The moving papers show that as soon as it learned of the foreclosure suit it applied to be made a party and to stay the sale, and, being unsuccessful in the latter, gave notice, both at the sale and by letter to each defendant weeks before the sale, of its claims of priority.


author: Buchahah, V. C.

text:
    In re estate of James S. Kiger, deceased.
    [Decided November 17th, 1925.]
    An application by a trustee under a will for instructions and authority from this court, the trust not having been theretofore established in this court, must be by bill and not by petition and order to show cause.
    On petition, &c.

      Mr. Edward L. Kaizenbach.

   Buchahah, V. C.

The Trenton Banking Company, as trustee under the will of James S. Niger, deceased, seeks instruction and authority from this court for the sale of a dwelling-house, forming part of the corpus of a trust estate created by the will for the principal benefit of testator’s invalid son, and the purchase of a smaller dwelling-house in place thereof.

It has proceeded by petition and by order to show cause upon the testator’s son and the nine persons interested (as equitable remaindermen) in the trust estate. The order provided for service of copies thereof (and of the petition and affidavits) by mail to those of the respondents who resided oirt of this state. None of the respondents appeared on the return date. The trust has not heretofore been established, nor jurisdiction otherwise acquired in regard thereto in this court.

'In certain instances the proceedings involving trust estates may be commenced in this court by petition instead of by bill, where the legislature has so provided. See, for instance, P. L. 1907 p. 190. No such statute applicable to the present instance has been brought to the attention of the court.

In the absence of such statutory authorization the original jurisdiction of this court must he invoked by bill. In re Miller, 67 N. J. Eq. 431; In re Ungaro, 88 N. J. Eq. 25 (at p. 27). The present proceeding hv petition is erroneous, and, as in the Ungaro Case, the petition would have to be dismissed were it not for the fifth section of the Chancery act of 1915, which provides that the court may order proper amendments to be made.

If the respondents had answered or otherwise appeared and submitted to the jurisdiction, the defect, in view of the statute last mentioned, would not be so serious, since proper amendments could readily be made and the case proceed to hearing or the taking of proofs ex parte. No one of them, however, has answered or appeared, and, hence, although the court may have jurisdiction of the cause it has not jurisdiction over the persons of those named as respondents. Jurisdiction over the person, except where proceeding by petition and order to show cause is authorized by statute, can ohly be acquired by subpama ad respondendum or order of publication and substituted service, in the absence of voluntary appearance. The act of 1915 in nowise purports to alter this.

The named respondents, having interest in the trust estate which would be affected by the court’s determination, are necessary parties, and no decree binding upon them can be made unless they are brought into court. In re Ungaro, supra.

Petitioner may have leave, if it so desires, to amend its petition in such wise as to make it a bill of complaint (and the chancellor authorizes me to say that this is precisely what was meant by the statement in the Ungaro Case that “the petitioner may elect to file an amended petition”), or it may file a new bill. In either event, however, it will have to bring in the necessary parties defendant by subpoena and order of publication, unless it can procure their voluntary appearance. The order to show cause must be discharged.


author: BuohxUstan, Y. C.

text:
    John Enz et al., complainants, v. Anna Bowan et al., defendants.
    [Decided December 5th, 1925.]
    Where there is a testamentary gift to a class, with a provision that the issue of any of the class dying before the period of distribution shall take the share the parent would have taken if surviving, the issue of those of the class already dead at the date of the will are included with the issue of those who die subsequently.
    On final hearing.

      Mr. Martin P. O'Connor, for the complainants.

      Mr. Clarence 1). Meyer, executor pro se.

      Mr. David Peinsivog and Messrs. Stamler, Stamler £ Koestler, for the defendants.
   BuohxUstan, Y. C.

The question at issue is the interpretation of the second codicil to the will of Catherine Buchsman, deceased.

Testatrix had had five children by her first marriage and four by her second marriage. In 1911, when her will was executed, both husbands were dead. Of the children by the first marriage, Mary, John and William were living and Jacob and Catherine were dead, each leaving children. Of the children by the second marriage Louisa was living and Frederick, Philip and Anna were dead, the latter also leaving children.

By the will she gave to John a house and lot of the value of about $4,000, with a gift over to his wddow and children if he predeceased her; to William a house and lot worth about $3,000, with a similar gift over, and to Mary a $2,000 legacy. To Louisa she gave a house and lot worth about $2,000 and $1,500 in money, with a similar gift over. These were the only living children. To the children of Jacob (deceased) she gave $2,000; to the children of Catherine (deceased) $2,000, and to the children of Anna (deceased) $2,000. The other turn children had died unmarried. She had conveyed to Jacob, some years earlier, a house and lot worth about $2,300. The residuary estate was left to the four living chil’dren by name.

In March, 1919, she executed a codicil, -whereby she revoked the gift to William (who had died unmarried in the meantime), and gave it to the children of Anna (deceased), revoking the previoirs gift to them of $2,000. She cut off $500 from the legacy to Louisa, and revoked the $2,000 legacy to Mary, to whom she had in the meantime conveyed a house and lot worth about $2,500. The residuary estate she gave to the three then living children by name.

In July, 1919, she executed a second codicil, amending the residuary clause so that it should read as follows:

“All the rest, residue and remainder of my estate, real, personal and mixed, I give and bequeath and devise unto my children to be divided equally between them, and if any child died Lsio] leaving issue, the share of such child shall be divided among such children.”

John, Mary and Louisa were still living; each of them was married and had children living. The residuary estate consisted of realty and personalty aggregating about $12,000 net.

John, Mary and Louisa survived testatrix, and claim the entire residuary estate; on the other hand, the children of those children of testatrix who predeceased their mother claim to be entitled to share in the residuary estate, together with the living children of testatrix.

The dispute arises as to whom testatrix intended by the words “children,” “child,” “child” and “children,” as the words, respectively, appear in the quoted portion of the second codicil.

It is conceded by all that the word “children” at the end of the paragraph refers, not to children of the testatrix, but to her grandchildren (either some or all of them); in other words, that the residuary estate is not to go to the children of testatrix and the survivors or survivor of them. It would appear that there can be no doubt as to this, for the testatrix has specified only the contingency of a child dying without issue. If she had intended to create the right of survivor-ship amongst her then living children, assuredly she would have had that intent in the event of a child dying without leaving issue.

At first impression, on the reading of the paragraph in question, one might well conclude that testatrix probably intended a gift to her then living three children, with a substitutionary gift to the children of any of the three who might predecease the testatrix leaving issue; that the word “died” was a clerical error or an inadvertence for the word “die.” It will be observed, however, that the preliminary language of the codicil expresses the specific purpose of the codicil as being to “alter and amend the residuary clause” theretofore existing in the testatment; that the language of the residuary clause in the original will and in the first codicil is clear and unambiguous and under the twenty-second section of the Wills act (in force at, and long before, and ever since, the execution of the original will), the effect of the residuary clause of the first codicil would be precisely what the second codicil seems at first to mean, so that there was no necessity for alteration or amendment unless testatrix desired to change that effect, and that the second codicil was drawn by counsel learned in law, a man of excellent standing at the New Jersey bar, who had also drawn the will and first codicil.

It is reasonable to presume, therefore, that testatrix did not mean that the residuary estate was to go to the three living children with substitutionary gifts over to the children of any who should predecease her (as is the contention of complainants), and we have alreadjr seen that she did not mean a gift to her living children with the right of survivorship amongst them.

The only other natural disposition for her to make, and the only other one which is possible under the language she has used, is a gift of the residue in equal shares to and among those of her own children who should be living at her death and the respective children of her children who should then be dead (including those who were dead at the time of the making of the codicil).

That this was the intention of testatrix, and is the true interpretation of the clause in question, seems certain. Where there is a testatmentary gift to a class with a provision that the issue of any of the class dying before the period of distribution shall take the share their parent would have taken if then living, the gift is to be construed to be to the issue of any of the class who were already dead at the date of the will as well as to the issue of any who died later, unless, of course, the will, as a whole, shows a contrary intention. Such is the law as determined by Chancellor Runyon in Outcalt v. Outcalt, 42 N. J. Eq. 500. See, also, Baldwin v. Tucker, 61 N. J. Eq. 412 (affirmed, 64 N. J. Eq. 333, on Vice-Chancellor Emery’s opinion), where a very similar determination is made on the basis of similar principles. The reasons underlying these determinations are set forth fully in the cases cited and need not here be repeated.

In the present case no contrary intention appears from other portions of the will to prevent the operation of the rule just mentioned. On the contrary, it is evident from the whole will and the surrounding circumstances that the testatrix had a general purpose of distributing her entire estate in portions approximately equal (or roughly so) among her living children and the families of her deceased children. That purpose she had partly effectuated by gifts inter vivos, and the design of the will, as modified by the codicils, was to complete the scheme.

It is unnecessary, therefore, to consider certain testimony which was objected to as being equivalent to testimony of oral declarations of intention, the effect of which, if deemed admissible, would be further to buttress the conclusion already reached.

The argument of complainants, based on the ordinary meaning of the word “if,” would have more weight if the paragraph were in the phraseology of the testatrix herself, although even then it is seriously to be doubted if it would be sufficient to overcome the other factors in the ease. Here, however, it was the language of counsel (and counsel who, it may fairly be presumed, was familiar with the law of the cases hereinbefore cited). “If,” as similarly used in wills, has not infrequently been construed to mean “when,” and “in the case of.” Its connotation is by no means limited to a condition of absolute uncertainty.

Counsel may be heard, on notice, on the question of costs and allowances.


author: Buchanan, Y. C.

text:
    Anna M. Ramsey, complainant, v. George W. Ramsey, defendant.
    [Decided December 21st, 1925.]
    Wliere a wife filed a petition for divorce oil the ground of desertion, and a solicitor was appointed actively to defend, the husband being confined in an asylum, and an answer denying the desertion was filed, and later an amended answer and counter-claim alleging adultery of the wife, and no answer to the counter-claim was filed, but the wife obtained a voluntary dismissal of her petition, if there- is any validity to the counter-claim, the cause should proceed as an ex-parte suit under rule 266A. if at all.
    Oil petition for divorce.

      Mr. Azariah 21. Beeleman, for the petitioner.

      Mr. Byman Herr, for the defendant.
   Buchanan, Y. C.

The wife filed petition for divorce on the ground of desertion. A solicitor was appointed, under. the statute, actively to defend, the husband being confined in an insane asylum. Answer denying the desertion was filed, and later an amended answer and counter-claim, alleging adultery by the wife. The wife filed no answer to- the counter-claim, and has now obtained voluntary dismissal of her petition.

It is difficult to see that there can be valid prosecution, of the counter-claim, which is filed by a guardian ad liiem (whose authority is only to defend), and which has an-affidavit of non-collusion made, not by the defendant, but by the solicitor.

However, if there can be any validity to further proceedings on the counter-claim, it is obvious that the present situation comes within the spirit of rule 266A, and the cause should proceed as an ex parte suit, if at all.


author: Buchahak, Y. C.

text:
    Charles Kapschandi, complainant, v. Joseph Sipos et ux., defendants.
    [Decided January 7th, 1926.]
    Under P. L. 1.918 eh. 286 § 6, a covenant in a mortgage in the words there specified gives the mortgagee no right to foreclose for the mortgagor’s default in performance of covenant to keep the mortgaged premises insured for the benefit of the mortgagee.
    On final hearing.

      Mr. Emil J. Hoos, for the complainant.

      Mr. Frederick I. Pelovilz, for the defendants.
   Buchahak, Y. C.

Complainant sues to foreclose a bond and mortgage for $2,380, dated July 1st, 1924, payable $20 monthly and in full in five years, with interest semi-annually. The bill was filed March 4th, and alleges maturity of the-full amount by reason of sixty days5 default in installments of principal due August 1st, September 1st, October 1st, November 1st, December 1st and Januarjr 1st, and the like default in interest due January 1st, and (by amendment) by reason of default in insuring for the benefit of complainant as mortgagee. The mortgage was in the form set forth in section 1 of the 1918 supplement to the act concerning mortgages (P. L. 1918 p. 816), and contained the covenants respectively set forth (and construed) iii the succeeding sections.of that supplement.

Admittedly, no payment of installment had been made or tendered prior to December 27th, 1924, when a $20 installment was tendered, and December 29th, an additional $100 was tendered. Both sums were refused and returned on the ground that the whole principle was due, and that nothing-less than the full amount would be accepted. Defendant is, and has at all times been, ready and willing to make all the payments accraing due, and deposited the $120 in this court when this suit was commenced.

The substantial defense interposed to the alleged right to foreclose for default in payment of installments of principal (and it is set up also by way of counter-claim for reformation of the bond and mortgage), is that by mutual mistake the bond and mortgage do not correctly set forth the actual agreement of the parties; that such actual agreement was, in fact, that the payment of the installments of principal should commence on December 17th, and, hence (under the facts hereinbefore set forth), there had never been any sixty-day default in the tender of principal installments, nor anjr default in interest.

The proofs in support of this alleged mutual mistake more than meet the high degree of sufficiency required in such cases; there is not even the shadow of doubt to the contrary. The testimony of defendants, and especially of the attorney who represented them, is clear and convincing; it was not denied by complainant, and the attorney who represented complainant was not called to testify. Moreover, the documentary evidence affords practically incontrovertible corroboration.

The evidence need not be recited. The parties intended that the first installment of principal should be due and payable on December 17th, 1924; that the instruments do not so provide is due to the mutual mistake of both parties and their respective agents; they should be reformed accordingly.

Under the actual agreement of the parties (and the provisions of the bond and mortgage reformed accordingly) there was no sixty days’ default in tender of any installment and no default in tender of interest; hence, complainant has no right to foreclose on either of these grounds.

There was, concededly, a failure by defendants to comply with the covenant to insure the mortgaged premises for the benefit of the complainant-mortgagee. Evidence was offered by defendants tending to show a waiver by complainant, and tending to show that their failure had been induced by complainant’s conduct. This need not be considered, however, for the reason that under the terms of the mortgage, and under the provisions of our statutes, the defendants’ default in this particular gives complainant no right to demand payment or to foreclose.

The covenant in the mortgage in question, under which complainant claims the right to foreclose for default in insuring, is in the language set forth in the first paragraph of section 6 of the 1918 supplement to the Mortgage act (supra). The second paragraph of that section defines the meaning and effect of a covenant in such language, and in so doing omits any and all meaning and effect for, or reference to, the clause relative to default in insuring. The statute, therefore, deprives that clause in the covenant of any. effect, and the complainant has no right to foreclose for defendants’ failure to insure.

Defendants are entitled to decree, with costs, on the bill, and, also, on their counter-claim. They will be required to pay to complainant the amount of installments and interest unpaid and due under the instruments as reformed, less the amount paid into court, which the clerk will be directed to pay to complainant. The covenant to insure has already been fulfilled.