text:
    The West Jersey Railroad Company v. The Camden, Gloucester and Woodbury Railway Company.
    1. A street railway constructed in a highway under authority of law, with a road-bed which will admit of the free use of the highway by all other lawful means, operated by cars patterned after the style and size of cars ordinarily in use by horse railways, the motive power of which is electricity supplied by means of overhead wires supported by poles planted in the sidewalks, immediately within the curbs, is but a modification of the public use to which the highway was originally devoted, and is not an additional burden on the land for which compensation may be required.

      2. Whether there may not be methods of operating an electric railway resorted to which will be within the objection that it constitutes an additional servitude for which compensation must be made, qucere.

    3. And whether serious injury to improvements which the abutting landowner may make upon and under sidewalks by the planting of poles to support the overhead wires will not be within like objection, quaere.

      4. Equity will not enjoin an unauthorized obstruction in a public highway, at the instance of a private person, corporate or natural, who does not suffer some special damage from it, differing in kind from the damage which such person sustains merely as a member of the community; and within this rule, a railroad company, though it does public service, stands substantially upon the footing of a private individual.
    5. Such special damage is not suffered by a steam railway company which has merely the right to operate its road across the highway at grade, through the establishment in the highway of a street railway, the motive power of which is electricity supplied by means of wires elevated a sufficient height to admit the free passage of the cars of the steam road thereunder.
    On motion to dissolve injunction. Heard on bill, answer and accompanying affidavits.

      Mr. Lems Starr and Mr. David J. Pancoast, for the motion.

      Mr. Samuel II. Grey, contra.

   The Chancellor.

The complainant, the West Jersey Railroad Company, was constructed in virtue of the authority conferred by its charter, approved February 5th, 1853 (P. L. of 1858 p. 39), through what is now the city of Woodbury, in the county of Gloucester, crossing, at grade, a public road now known as Cooper street, in that city.

The complainant’s charter did not give it express authority to construct its railroad across that highway. The authority for that purpose was had by implication from the charter’s establishment of the termini of the road, to join which it was necessary to construct the proposed railway across existing highways.

Immediately south of Cooper street the complainant secured a site for a depot and car-yard, which bounds some two hundred feet or more upon the southerly side of the street, and upon which a railway station has been erected.

The defendant, the Camden, Gloucester and Woodbury Railway Company, was incorporated for the purpose of constructing, maintaining and operating a street railway for the public use, under the provisions of the statute entitled “An act to authorize the formation of traction companies for the construction and operation of street railways or railroads operated as street railways, and to regulate the same,” approved March 14th, 1893: (P. L. of 1893 p. SOU), and is now engaged in the construction of a street railway through Cooper street, which it intends to operate by means of electric motors supplied with electricity from overhead wires supported by poles planted in the outer edge of the sidewalks of the street, just within the curb, a suitable distance apart. That railway will pass the complainant’s depot and cross its tracks which are laid over Cooper street. Four of the poles will be erected upon the complainant’s land, within the lines of Cooper street, but in such position that, so far as now appears, they will not interfere with the passage of light or air from the street or hinder the complainant’s free access to and from its property. Nor will they do appreciable injury to the sidewalks or works of any kind which the complainant has constructed in Cooper street. They will not interfere with the complainant’s railway tracks which cross Cooper street. The overhead wires will be erected twenty feet above the surface of the highway and will not obstruct the passage of the complainant’s trains.

It does not appear that the defendant will operate its railway with cars of unusual size, or in trains or in any manner not now customary in the operation of street railways where the motive power is electricity supplied by means of overhead wires, according to that which is known as the trolley system.

The complainant seeks to sustain the injunction it has obtained as a protection against the invasion of its property rights, which, under the constitution, cannot be appropriated by the street railway without authority of law and upon compensation.

The rights which it deems to be threatened arise from its- ■status — first, as the owner of the fee of land occupied by Cooper street, and second, as the owner of a steam railroad authorized to cross that street.

The ownership of the fee in the soil in the public street is subordinate to the public use thereof for the purposes of a highway. That use is an easement of passage by everyone over the highway and every part of it, by any means which will not subr stantially and permanently exclude anyone from the enjoyment of that common right. The means by which such use is to be lawfully had cannot be particularly defined, because, as suggested by Vice-Chancellor Van Fleet, in Halsey v. Rapid Transit Street Railway Co., 3 Dick. Ch. Rep. 380, they will be as numerous as the improvements of the age and new wants, arising out of an increase in population or an enlargement of business, may render necessary.

It has been repeatedly declared by the courts of this state that the use of the public easement of a highway by a horse railway is a lawful servitude, and therefore is not a new burden of the soil for which compensation must be made to the owner, the reason being that it is a convenient and beneficial means of passage to the public, which does not prevent the accustomed use of the highway by others. On the contrary, it so accommodates and facilitates that use that it more than compensates for the slight inconvenience that its rails and the necessity of permitting it to have the right of way over ordinary vehicles occasions. It is a means of use which stands in marked distinction from the steam railway (though the difference is only in degree), whose raised rails, noise, speed and accompanying danger have led the •courts to declare it to be incompatible with the common use of the highway, and therefore an additional servitude, for which the owner of the soil must be compensated. Citizens’ Coach Co. v. Camden Horse Railroad Co., 6 Stew. Eq. 267.

The electric street railway, as now ordinarily in use by cars patterned in style and size after the horse railway car, stands, as a means of using a highway, in degree between the horse and the steam railways. As in case of the horse railway, its rails do •not materially interfere with the ordinary use of the highway. While its motive power, as usually applied, exceeds in capacity that of the horse railway, and the noise and danger attending its operation are greater, they do not extend to the power, noise and danger of the steam locomotive, with its attendant train of cars. Its capacity for speed is great, but that is subject to municipal control. I do not now deal with future possibilities in the management of the electric railway. It may readily be conceived that the greater motive power it possesses may sometime induce an attempt to use the highways by trains of cars or by rails and cars of such character and size as to practically work all evils of the steam railway, and that there will be inaugurated systems of through cars, in furtherance of rapid transit between distant points, which will crowd and burden the street to the inconvenience and obstruction of its other uses, without any accommodation to the ordinary local use of the street, and thus the degree of incompatibility with the common use may be so raised that the courts will be obliged to distinguish between methods of use and declare against some as creating an additional servitude of the land occupied by the highway, the crucial test for that distinction being whether the use contemplated is compatible with the purpose for which the common highway was originally designed. But such use is not, at present, the normal operation of the electric street railway, and it is not claimed that any such abnormal conditions exist in the ease under consideration.

Basing their conclusions upon the contemplation of the customary use of the electric street railway, the courts have regarded that, as operated by the trolley system, it is not an additional burden upon the soil in the common highway. Halsey v. Rapid Transit Street Railway Co., supra; Taggart v. Newport Street Railway Co., 16 R. I. 668; Detroit City Railway Co. v. Mills, 85 Mich. 634; Lockhart v. Craig Street Railway Co., 139 Pa. St. 419; Hudson River Telephone Co. v. Watervliet Turnpike and Railroad Co., 135 N. Y. 398, 407; Mount Adam's and Eden Park Inclined Railway Co. v. Winslow, 3 Ohio C. C. 425. The first cited of these cases is the utterance of this court.

- But it is a work of - supererogation, at this time; to treat thi's question as more than an unsettled and doubtful one. - 'It is at least that. The present application is to dissolve a preliminary-injunction, which will not be suffered to stand in the protection of the complainant from a use of the street by the defendant, which may or may not invade its property rights. Unless the invasion be clear the injunction must be dissolved. Citizens' Coach Co. v. Camden Horse Railroad Co., supra; Hagerty v. Lee, 18 Stew. Eq. 255.

But it is urged that the poles, planted within the curb lines of the sidewalk, to support the overhead wires, are at least an invasion of private property.

The sidewalks are parts of the highway, subject to the public easement. They are set apart, principally, for use by pedestrians. They are defined by the curb lines, beyond which vehicles may not go, and at which, experience has taught, lamp, hitching and awniug-posts, shade-trees and the like may be planted without inconvenience either to pedestrians or vehicles. At that place the lamp-post, which provides a .means to light the highway, and thus facilitate its use, has not been regarded as an additional burden upon the soil, and, upon similar consideration, it becomes difficult to perceive why the poles, which accommodate a convenient use of the highway by a street railway, are to be regarded differently. It is to be remembered, however, that the abutting land-owner ordinarily has something more of property than the ownership of the mere fee of the soil, in the sidewalk. By the laws and usages of the state, the sidewalk has, in a degree, been regarded as an appendage to and a part of the premises abutting upon it, and as so essential to the beneficial use of such premises that its improvement is properly imposed upon the owner of the abutting land. Halsey v. Rapid Transit Street Railway Co., supra; Agens v. Newark, 8 Vr. 415; Weller v. McCormick, 18 Vr. 397. It follows that, if such improvement of the sidewalk or constructions under it, which the landowner shall lawfully make in pursuance of his duty to the public or for his own private convenience, be expensive in character, so that substantial damage will result to him from the planting of the trolley poles, a serious question will arise whether there will not be a taking of his property for which he must be compensated, and a threatened invasion sufficiently serious to induce this court’s interference. But that question is not presented in this case. It does not appear that the complainant has improved the sidewalk in front of its property, so that the planting of the poles will substantially or seriously damage such improvement, or, indeed, that it has improved them at all.

Another consideration borne in mind is that the abutting property-owner has the right of ingress to and egress from his property by means of the street, in a manner which will accord with the lawful purposes to which he devotes his property, and also to a reasonably available way through the highway to the several stories of his building in cases of emergencies like fire. He also has the right to light and air from the highway. And he cannot be deprived of either of'these rights by the placing of poles or erection of wires without compensation being made to him. Paterson Railway Co. v. Grundy, 6 Dick. Ch. Rep. 213, 223. No question touching these rights is presented at this time.

Upon the subject of the rights thus far considered, the supreme court of this state, in the recent case of State, Roebling, pros., v. Board of Public Works of the City of Trenton, 29 Atl. Rep. 149, which was presented in shape of an application to vacate the stay of proceedings incident to the issuance of a writ of certiorari for the review of an ordinance purporting to grant the right to erect a trolley road in front of the prosecutors, in granting the motion declared as follows :

“ 1. It is doubtful whether the prosecutors, as abutting owners, have in the street any right which is violated by the erection and maintenance of trolley poles and wires in front of their premises, under legislative authority.”

Passing to the status of the complainant as the owner of the railroad authorized to cross the street, I there also fail to find an invasion of any right.

Its right to cross Cooper street is precisely that which was considered by Vice-Chancellor Van Fleet, in Lehigh Valley Railroad Co. v. The Orange Water Co., 15 Stew. Eq. 205, where he said : "Where a right to cross or occupy a public highway is granted by implication, the corporation can occupy only so much of the public easement as may be reasonably necessary to enable them to accomplish the purposes for which they were, created. Beyond this they cannot go” &c. The pre-existing public right and convenience of the highway emphasizes the utility of this rule. Township of Raritan v. Port Reading Railroad Co., 4 Dick. Ch. Rep. 11, 13. The exercise of the right to cross does not of necessity exclude the public from the enjoyment of the highway at the point of crossing, further than to permit the lawful operation of the railroad. The high rate of speed and the dangerous character of the trains run over the crossing necessitate that, in the operation of its railroad, the complainant shall have the right of way, to be exercised in accordance with, the requirements of law, and imposes the duty upon the public in the use of the highway, as the railroad crossing is approached, to stop, if necessary in the exercise of due care, look and listen, in order that the right of the railroad may be safely accorded to it. But there is nothing in the right which otherwise limits the use of the highway by the public or restricts the increase of the volume of that use, either in the manner originally exercised or through conveniences which invention may from time to time provide. It follows from the conclusion that the use of the street by the electric car, as it is now usually operated, is within the purposes for which the highway was created, that such car is not to be excluded from the point in that highway where the. railroad may cross it. It, like other passers in the street, must conform with the requirements which the railroad imposes— stopping, if necessary, looking, listening and yielding the right of way.

Nor do I perceive any tenable objection to the suspension of the trolley wire over the railroad crossing at a sufficient height. In the present instance it is not suggested that the elevation intended will be insufficient to permit the proper operation of the complainant’s road.

It is insisted that the defendant has not strictly complied with, the statute to obtain the right to lay its rails and operate its cars in Cooper street.

In absence of any attempt upon the part of the defendant to take property of the complainant for its uses, this objection, if ■well founded, is without force. It goes merely to show that the defendant's work will be a public nuisance. But it does not exhibit a nuisance against which the complainant may appeal to this court.

If that which the defendant proposes to do will not work some special damage to the complainant, differing in kind from the damage which the complainant will suffer in common with all other members- of the community, it has no standing to ask for injunction merely because the defendant proceeds ultra vires. Remedies to restrain, abate or punish a public nuisance are to be invoked by the public officials who are charged with duty in that respect (Township of Raritan v. Port Reading Railroad Co., supra), and not a mere volunteer who is without special cause of complaint. Van Wagenen v. Cooney, 18 Stew. Eq. 25.

The injunction will be dissolved, with costs.


source: Caselaw Access Project

author: Van Fleet, V. C.

license: Public Domain

text:
    Teresa V. Manning v. Margaret A. Riley.
    1. As against a voluntary settlement tlie law raises, in respect to existing debts, a conclusive presumption of fraud.
    2. By the statute of frauds, a promise made in consideration of marriage is not binding unless it be in writing and signed by the party to be charged therewith.
    3. A post-nuptial settlement, made in pursuance of an ante-nuptial parol promise, and followed by nothing on the part of the wife but marriage, is voluntary.
    4. Marriage is not such a part peformance, on the part of the wife, of an ante-nuptial parol contract as will take the contract out of the statute of frauds and make it the legal duty of the husband to make a post-nuptial settlement in conformity to his ante-nuptial parol promise.
    5. If a man make a promise to another person, for the purpose of inducing that person to do an act, other than to marry him, and the act is done on the faith of such promise, the promisor will be held to his word and be compelled to do what he promised.
    On final hearing on bill and answer and proofs taken orally.

      Mr. John O. H. Pitney for complainant.

      Mr. Edward A. Day for defendant.
   Van Fleet, V. C.

■ The complainant is a judgment creditor of John M. Riley, and she brings this suit to procure a decree adjudging that a settlement made by her judgment debtor on his wife, the defendant in this case, is without force as against her judgment, because it was made by way of gift and without consideration. The defendant, on the contrary, insists that the settlement rests on a consideration sufficient to make it valid against the complainant’s judgment.

The facts are not in dispute. The defendant and John M. Riley intermarried on the 15th day of August, 1878. She was a widow and he was a widower. The defendant says just prior to their marriage Mr. Riley promised that if she would marry him he would give her his homestead house and lot. When required to state more in detail the circumstances under which the promise was made, she said that she did not object to marrying Mr. Riley, but she did object to going to his home to live, because some of his children and grandchildren were living with him, and that she told him so, and then proposed that, after their marriage, he should come to her house and make that his home; to this, she says, he replied that he was very much attached to his garden and did not want to leave it, and that if she would consent to maruy him and go to his house to live, all of his children, except one son and a grandchild, should leave and go elsewhere, and he would also give her his homestead house and lot for herself. This promise, though made prior to the 15th day of August, 1878, was not performed until February 14th, 1888. Mr. Riley then, through a third person, conveyed his homestead, for a nominal consideration, to the defendant. The reason her husband did not fulfill his promise earlier, the defendant says, was because she told him that a conveyance to her might create an enmity between his sons and himself, and perhaps also between them and her* and that his word was all she wanted. The debt on which the complainant’s judgment is founded arose in January, 1883, more than five years before the settlement in controversy was made.

The above summary exhibits all the material facts of the case. No evidence, in proof of the ante-nuptial contract on which the defence rests, was produced except that of the defendant herself, and the truth of her evidence, on that point, stands entirely uncorroborated. Not a single fact or circumstance was proved by the oath of any other witness, or in any other way, which goes to substantiate or confirm the truth of her evidence on that point. "With the evidence in this condition, I think it may well be doubted whether the evidence is sufficient to warrant a judicial finding that the contract alleged was in fact made, but in order to determine the question mainly discussed by counsel on the argument, it will, for present purposes, be assumed that the contract on which the defence rests has been proved as alleged, and that the promise of the husband to make a conveyance was made to induce the defendant to consent to marry him, and not to induce her to consent to go to his house to live after their marriage.

If the settlement in question was voluntary, the complainant’s right to have it set aside as fraudulent, as against her debt, is, under the established law of this state, incontestable. The rule on this subject laid down by Chancellor Kent, in Reade v. Livingston, 3 Johns. Ch. 481, 500, has been for so long a period, and in so many instances, adopted by the courts of this state as the rule of judgment in such cases, that it must be considered so completely and thoroughly settled that any attempt by counsel to induce this court to change or overthrow it should be regarded rather as an exhibition of rash courage than as a display of discretion. And that rule is : That if the party be indebted at the time of the voluntary settlement, it is presumed to be fraudalent in respect to such debts, and no circumstances will permit those debts to be affected by the settlement, or repel the legal presumption of fraud. The presumption of law, in this case, does not depend upon the amount of the debts, or the extent of the property in settlement, or the circumstances of the party. There is no such distinction set up or traced in any of the cases. The attempt would be embarrassing, if not dangerous, to the rights of creditors, and prove an inlet to fraud. The law has, therefore, wisely disabled the debtor from making any voluntary settlement of his estate to stand in the way of his existing debts.” Out of the multitude of cases in which the courts of this state have enforced this rule, two only will be cited — Haston v. Castner, 4 Stew. Eq. 697, 704; Hagerman v. Buchanan, 18 Stew. Eq. 292, 296.

The question, then, upon which the decision of this case must turn is, Was the settlement voluntary? It is admitted that it was founded upon an ante-nuptial parol promise, and that it has the support of no other consideration. Prior to the enactment of the statute of frauds such a promise was held to be a sufficient consideration to support a post-nuptial settlement. The reasoning was this : the marriage having been procured by means of the promise to make a settlement, and the promisor having received the consideration for his promise, thereby became bound, according to the ordinary principles of justice, to keep his word aud perform his promise. May Fraud. Conv. 370. But this rule was abrogated by the statute of frauds. That statute, in substance, ordains that no action shall be brought to-charge any person upon any agreement made upon consideration of marriage, unless the agreement upon which such action shall be brought shall be in writing and signed by the party to be charged therewith. Rev. p. 445 § 5. This provision of our statute is almost a literal transcript of the original statute of Charles II. The purpose of the statute is plain. It was designed to render hasty and inconsiderate oral promises, made to induce marriage, without legal force, and thus to give protection against-the consequences of rashness and folly. Lord Cranworth, in Warden v. Jones, 2 De G. & J. 76, 82, described the object of the statute and the duty of the courts in maintaining it, in these words: Persons are so likely to be led into such promises inconsiderately, that the law has wisely required them to be manifested by writing; and it is the duty of this court to act in conformity with the statute, and not to endeavor to escape from its generally very salutary enactments in consequence of its operating harshly in a particular case.”

Wow if an ante-nuptial parol promise to make a settlement cannot be made the foundation of an action — and that is the express mandate of the-statute — it follows necessarily that such a promise imposes no legal duty on the promisor; by making it, no legal duty is imposed or obligation incurred, and its breach consequently creates no legal liability. Its performance therefore is an act of pure grace — the doing of a favor and not the doing of a duty — and so is voluntary in the strongest sense of that term. But it has been said that while such a promise imposes no legal duty, it creates a moral obligation, and that such an obligation should be held to be a sufficient consideration for a post-nuptial settlement and free it from the imputation of fraud even as against creditors. The answer, however, made by Lord Northington, in Spurgeon v. Collier, 1 Eden 55, 61, and adopted by Lord Cranworth, in Warden v. Jones, supra, to this argument, must, I think, be considered conclusive. Lord Worthington said: If such a parol agreement were to be allowed to give effect to the subsequent settlement, it would be the most dangerous breach of the statute and a violent blow to credit, for any man, on the marriage of a relation, might make such promise of which an execution never could be compelled against the promisor, and the moment his circumstances failed he would execute a settlement, pursuant to his promise, and defraud all his creditors.”

The defendant has performed her part of the ante-nuptial contract. She married the man who promised to make a settlement on her. There are cases where parol contracts, within the statute of frauds, may be taken out of its operation by part performance, and thus made enforceable in equity. The special ground upon which relief is given in this class of cases is that the statute being designed to prevent fraud, justice should not permit it to be used as an instrument of fraud or as a shield by the fraud-doer. But marriage, standing alone, has never been regarded as a sufficient part performance of an ante-nuptial parol contract to withdraw the contract from the operation of the statute. This was so decided as early as 1720, in Montacute v. Maxwell, 1 P. Wms. 618, 620. The rights of creditors were not involved in this case. The bill was filed by a wife to compel her husband to make a settlement in conformity to his ante-nuptial parol promise. On the hearing, the principal argument urged in behalf of the wife was that she, by marrying the defendant, had fully performed her part of the contract, and that the contract was thereby taken out of the statute and thus became enforceable in equity, but the court held that the wife was not entitled to a decree, declaring that where there is no fraud, only relying upon the honor, word or promise of the defendant, the statute making those promises void, equity will not interfere. The principle laid down in this case has been uniformly adhered to by the English courts. Lord Cottenham, in Lassence v. Tierney, 1 Macn. & G. 551, 571, in commenting on what he had said in Hammersley v. De Biel, reported in a note to 12 Cl. & F. 61, said: “A parol contract followed only by marriage is not to be carried into effect, marriage being no part performance of the contract. If it were there would be an end of the statute, which says that a contract, in consideration of marriage, shall not be binding unless it be in writing; but if marriage be part performance, every parol contract followed by marriage would be binding.” And Sir John Romilly, master of the rolls, in Warden v. Jones, 23 Beav. 487, 490, held that where a man enters into a parol contract with his intended wife and nothing follows but the marriage, the marriage cannot be treated as part performance, and that the carrying into effect the parol contract after marriage, by a deed, amounts to no more than a voluntary settlement. The same principle has controlled the decision of other cases. Redding v. Wilkes, 3 Bro. C. C. 400; Dundas v. Dutens, 1 Ves. Jr. 196, 199; Caton v. Caton, L. R. 1 Ch. App. Cas. 137.

In Story’s commentaries on Equity Jurisprudence (vol. 1 § 768), it is said:

“If there has been no fraud, and no agreement to reduce the settlement to writing, but the other party has placed reliance solely upon the honor, word or promise of the husband, no relief will be granted, for, in such a case, the party chooses to rest upon the parol agreement and must take the consequences. And the subsequent marriage is not deemed a part performance, taking the case out of the statute, contrary to the rule which prevails in other-cases of contract. In this respect it is always treated as a peculiar case standing on its own grounds.”

That marriage alone and of itself is not such a part performance of a parol ante-nuptial contract as will withdraw the contract from the operation of the statute of frauds and render it enforceable in equity, must, I think, be considered the settled law both of this country and England. Many of the cases so adjudging will be found cited in May Fraud. Conv. 373, Fry Spec. Perf. 263 § 408, and Waterm. Spec. Perf. 390 § 288.

But it is argued that an entirely different doctrine was established by this court in Satterthwaite v. Emley, 3 Gr. Ch. 489, the contention being that Governor Haines, sitting as chancellor, decided in that case that a marriage contracted by a woman, under an ante-nuptial paVol promise to make a settlement on her, constituted a sufficient consideration to give validity to a post-nuptial settlement made in pursuance of such promise. I do not think the case can be understood to declare any such doctrine. The bill in that case was filed to procure a decree giving effect, in favor of the wife and against the creditors of her husband, to an ante-nuptial parol contract by the husband to make a settlement. The wife failed to prove the contract on which her suit was founded, and the court so found. With that finding the ease ended. The court, with the case in this condition, was not required to consider what effect, if any, could be given to the contract. That question could not arise until the contract was first established by proof. Nor do I understand that any opinion, uttered as a deliberate judgment, was expressed upon that question. The most that the chancellor did was to intimate the inclination of his mind. He said that if the contract alleged had been proved he should have been inclined to hold that a settlement made in pursuance of it was valid. “Such settlement,” to speak in his own words, “could not be considered voluntary, but upon a good and valuable consideration, to wit, the marriage and the conveyance of all the wife’s estate.” ‘Subsequently to the marriage, it appeared that the wife had conveyed all her lands, through a third person, to her husband, in order, as it was alleged, that they might be conveyed to a trustee in fulfillment of the ante-nuptial parol contract. If the lands of the wife were conveyed to her husband, upon his promise to convey them to a third person in settlement upon her, there can be no doubt that his promise bound him in equity; nor that the wife’s conveyance would, in that case, have constituted a perfect consideration for a settlement upon her, provided it had been made promptly, and before her husband had made use of the ownership of the lands as a means of obtaining credit, for in that case it will be observed that the wife would have done something more than marry, namely, have conveyed her lands. In this situation of affairs the duty of the court would be plain. It would be bound to enforce that rule of equity jurisprudence which declares that, if a man make a promise to another person, for the purpose of inducing that person to do an act, and the act is done on the faith of such promise, the promisor will be held to his word and be compelled to do what he promised. Warden v. Jones, 23 Beav. 487, 493; Hammersley v. De Biel, 12 Cl. & F. 62.

It is thus made plain, as I think, that the judgment of the court, in Satterthwaite v. Emley, does not give the slightest countenance to the notion that marriage alone and of itself is a sufficient consideration to give validity, as against creditors, to a post-nuptial settlement made in pursuance of an ante-nuptial parol promise. And yet that is the only consideration on which the settlement in this case rests. The conduct of the settler was, as against his wife, entirely free from fraud or wrong of any kind. He would have fulfilled his promise at a time when he could have made a voluntary settlement which would have been perfectly valid against the complainant’s debt, if the defendant had not persuaded him not to do so. Her conduct, as she describes it, ivas so unselfish and confiding as to be worthy to be called magnanimous. To prevent her husband’s children from losing confidence in his love, and to preserve their affectionate relations, she persuaded him, after the marriage, not to settle his homestead on her then, assuring him that his word was all she wanted. She put her trust in what, under the law, is without the least legal force. This may be the proper subject of regret, but it can have no influence whatever on the judgment of the court. The demands of justice are superior to the claims of affection or benevolence. The law requires a debtor to be just before he is generous — to pay his debts before he attempts to dispose of his property by gift. The deeds in question were executed in fraud of the complainant’s rights, and must be set aside.


text:
    John V. Ten Eyck v. George M. Manning.
    1. The remedy by specific performance is not a matter of strict right but of sound judicial discretion, and will be granted or denied as the justice and right of the particular case shall seem to the court, on full consideration of the rights and equities of the .parties, to require.
    2. As a general rule, specific performance will not he decreed in any case where mutuality of obligation and remedy does not exist.
    3. Where a husband agrees to exchange land belonging to his wife for land of the defendant, and the title to the land which the husband agreed to convey is still in the wife when the husband sues, and also when decree is to be pronounced, no decree for specific performance can be made.
    On final hearing on bill and answer and proofs taken orally.

      Mr. Woodbridge Strong for complainant.

      Mr. George O. Ludlow for defendant.
   Van Fleet, V. C.

This is a suit for specific performance. The material facts may be stated in a few words. On the 12th day of December, 1890, the parties made a written contract, by which the complainant agreed to well and sufficiently convey to the defendant, by deed of warranty, free from all encumbrance except a mortgage debt of $4,000, certain lands in Middlesex county; and the defendant agreed that he would, as the consideration for the complainant’s conveyance, well and sufficiently convey to the complainant, free from all encumbrance except a mortgage debt of $3,500, a farm in Somerset county, and also assign and deliver certain goods and chattels. The’deeds were to be interchanged at a short day in the future. The lands which the complainant agreed to convey are described in the contract as all the lands conveyed to the complainant by deed of Louis Gr. Knowles, on March 15th, 1884, recorded in a book and on a page designated. No lands were conveyed by Mr. Knowles to the complainant. The deed referred to, by way of description, was not made to the complainant, but to his wife. At the time the contract was made she was the owner of the lands which the complainant agreed to convey, and is still their owner. She was not a party to the contract, and is not, of course, bound by it. She is not a party to this suit. The defendant refused to perform, and thereupon the complainant brought this suit. In addition to a decree for specific performance, he asks that the contract may be so reformed that it shall describe the lands which he agreed to convey as lands conveyed by Mr. Knowles to, his wife. The case will be considered as though the contract had been originally drawn so as to impose upon the complainant an obligation to well and sufficiently convey, by deed of warranty, lands belonging to his wife and not himself.

Of the many defences set up only one need be considered, and that is that the contract which the complainant asks to have enforced does not give to the defendant a right to the same remedy against the complainant which the complainant seeks against the defendant; in other words, that this court could not, on the defendant’s application, compel the complainant to specifically perform the contract. The remedy by specific performance is not a matter of strict right, but of sound judicial discretion, and will be granted or denied as the justice and right of the particular case shall seem to the court, on full consideration of the rights and equities of the parties, to require. The enforcement or denial of this remedy is regulated by certain well-established principles, one of which is that it will not be granted, as a general rule, in cases where mutuality of obligation and remedy does not exist; or, stated in another form, mutuality of remedy is essential to the maintenance of a suit for specific performance. Fry Spec. Perf. § 286; Waterm. Spec. Perf. § 196.

While the forms in which this principle has been expressed are somewhat variant, they are identical in substance. Sir James Wigram, vice-chancellor, in Waring v. Manchester Railway Co., 7 Hare 481, 492, stated it in this form: “ If that which the defendant is entitled to be something which the court cannot give him, it certainly has been the-generally-understood rule that that is a case in which the court will not interfere.” And in Van Doren v. Robinson, 1 C E. Gr. 256, 259, Chancellor Green said : “ The general principle is that where the contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other.” In Beard v. Linthicum, 1 Md. Ch. 345, 350, Chancellor Johnson held that if one of the parties is not bound, or is not able to perform his part of the contract, he cannot call upon the court to compel specific performance by the opposite party; and in the subsequent case of Duval v. Myers, 2 Md. Ch. 401, 405, the same judge said in substance that the right to the specific execution of a contract depends upon whether the agreement is obligatory upon both parties, so that upon the application of either against the other the court can compel a specific performance. And Chief-Justice Beasley, in pronouncing the opinion of the court of errors and appeals, in Richards v. Green, 8 C. E. Gr. 536, 537, said : In every case that I can find, where specific performance has been ordered, a mutual remedy existed upon the contract at the time of rendering the decree. It seems to me that the rule is universal to this extent, that equity will not direct a performance •of the terms of an agreement by the one party, when, at the time ■of such order, the other party is at liberty to reject the obligation of such agreement.” The reason on which this principle rests was stated by Lord Redesdale, in Lawrenson v. Butler, 1 Sch. & L. 13, 18, m this wise: were it “otherwise it would follow that the court would decree a specific performance where the party called upon to perform might be in this situation, that if the agreement was disadvantageous to him he would be liable to the performance, and yet if advantageous to him he could not compel a performance. This is not equity as it seems to me.”

This, like many other general rules, is subject to exceptions. A covenant to renew a lease will be enforced against the lessor, though the lessee is under no reciprocal obligation to accept an additional term. Van Doren v. Robinson, 1 C. E. Gr. 256, 259. And so, too, where an optional or unilateral contract to convey rests on a sufficient consideration to make it obligatory, the contract may be specifically enforced. As, for example, if a lessor, by the lease, agrees to convey the demised premises to the lessee at a future time, at a fixed price, without requiring the lessee to enter into a reciprocal obligation to purchase, a specific performance of the contract may be ordered against the lessor, the presumption in such a case being that the lessee agreed to pay a larger sum as rent, in consideration of the optional right to purchase, than he otherwise would have agreed to pay. Hawralty v. Warren, 3 C. E. Gr. 124, 126. But, except in these cases and others resting on a similar foundation, the principle, I think, must be considered to be firmly established, by a multitude of adjudications, that specific performance will not be decreed in any case where reciprocity of remedy does not exist.

In my judgment, the statement of this principle decides this case. No argument is required. As is manifest, no court could compel the complainant, on the application of the. defendant, to specifically perform the contract. He does not own the lands which he agreed to convey, and cannot, therefore, convey them. A decree directing him to do so would be mere empty words without the least coercive force. Even if such a decree should be made at his instance, he could not obey it. If it was performed at all, his wife would have to do the essential act, namely, convey the land, and she would have to do it as a favor and without being entitled, by force of the contract, to receive anything in return for her land. A decree ordering the complainant to specifically perform this contract would be just- as impotent to accomplish its purpose as a like decree against an infant. No such decree can be made against an infant, because he is incompetent to make a valid contract to convey. If he signs such a contract and an attempt is made to enforce it by ■suit by his next friend, the suit will be dismissed at the cost of the next friend. Flight v. Bolland, 4 Russ. 298. The chief-justice cited this case, in Richards v. Green, supra, as furnishing a pointed illustration of the way in which the doctrine, that a court of equity will never order the specific performance of an agreement in favor of a complainant whom it cannot compel to perform his part of the bargain, was applied.

The precise question raised here has already been decided. Luse v. Deitz, 46 Iowa 205, is in all material respects precisely like the case under consideration. There, as here, a husband agreed to exchange land belonging to his wife for land of the defendant; and there, as here, the defendant, on tender of a deed ■executed by the husband and the wife, refused to make a conveyance to the husband, and the husband then brought an action for specific performance. Relief was denied on the ground that the right to the remedy sought was not reciprocal. The court, after declaring that the want of mutuality in remedy constituted an insurmountable obstacle in the way of decreeing specific performance, added: The fact that Luse tendered to Deitz a deed in due form, executed by himself and his wife, does not affect the case. The objection still exists that Deitz could not have ■enforced performance against Luse if Luse and his wife had been unwilling to convey. If a party, who is not bound to specifically perform, may, by tendering performance, enforce a specific performance against the ofher party, he may, at his ■option, enforce the specific performance of any contract, though not bound to like performance himself.”

I think it is thus made plain that the complainant must be denied relief in conformity to both principle and precedent. His bill must be dismissed, but I do not think that costs should be awarded against him. The defendant interposed many defences, some of which are without either substance or merit. The defendant’s course in this respect has greatly- increased the cost of the litigation to the complainant. In view of this and other circumstances, I think the dismissal should be ordered without costs to either party against the other.


author: Yan Fleet, V. C.

text:
    Collins Winters v. William H. Earl.
    1. A deed absolute on its face, executed as a security, will be declared to be-a mortgage.
    2. The fact that the deed was executed as a -security may be proved by parol evidence.
    3. The burden of proof in such a ease rests on the party alleging that the-deed is not what it purports to be on its face.
    4. On a bill to redeem the general rule is, that the mortgagor will be required to pay costs, but this rule may-be dispensed with when the mortgagee’s conduct-has been oppressive.
    On final hearing on bill and answer and proofs taken orally.

      Mr. Francis J. Swayze for complainant.

      Mr. Charles M. Woodruff for defendant.
   Yan Fleet, V. C.

The object of this suit is to have a deed absolute on its face-declared to be a mortgage. The principle is well established that if a debtor makes a conveyance, absolute on its face, to his-creditor, as a security for a debt, the deed will be considered in equity to be a mortgage, and the fact that it was executed as a security, and not as an unconditional conveyance, may be established by parol evidence. Phillips v. Hulsizer, 5 C. E. Gr. 308, and the cases there cited. Any legal means of proof may be used to establish the fact that the deed was executed as a security. In the absence of a written defeasance, the evidence in such cases usually consists of the. declarations of the grantee; the relations subsisting between the parties at the time the deed was executed; the retention by the grantor, subsequent to the execution of the deed, of the possession of the land and the exercise of dominion over it, in making improvements and repairs, paying taxes and the like; the value of the property compared with the consideration actually paid or allowed; an understanding that the consideration should be repaid and the payment of interest on it subsequent to the date of the deed. Sweet v. Parker, 7 C. E. Gr. 453. The burden of proof is, of •course, on the party claiming that the deed is not what it purports to be on its face, and in order to prevail his proof must •outweigh that of his adversary.

The deed in question was made by the complainant to the •defendant on the 8th .day of June, 1889, and conveyed about eight acres of rough land, with a small house, the whole being then worth not much over $500. The complainant was a laborer, who occasionally drank to excess, and the defendant was the proprietor of a saloon and restaurant. When the deed was made the land was in process of foreclosure. The person who was prosecuting the foreclosure suit had purchased the mortgage for the purpose of foreclosing it. He wanted to get •rid of the complainant as a neighbor, and he foreclosed the mortgage in order that he might buy the land at the foreclosure ■sale and then expel the complainant from it. The complainant knew that this was the purpose of the foreclosure, and as was natural, desired, with strong desire, to defeat it. Through a third person he applied to the defendant for help. This person testifies, that he asked the defendant, on behalf of the complainant, to furnish the money required to take up the mortgage, and that the defendant, after two or three interviews, promised to furnish sufficient money to help the complainant “out of the scrape.” The complainant says that when the deed was made, it was distinctly understood between the defendant and himself, that the deed was to stand as a security, the same as a mortgage, and that when he repaid the defendant the money advanced to take up the mortgage, he was to have his property back, and that the defendant said, all he wanted, in the meantime, was the interest on his money. The complainant further says, that when he signed the deed the defendant promised to give him “ articles ” to show that he held the deed as a security, but that the defendant has never performed his promise. The defendant, on the contrary, denies that the deed was executed as a security, but he admits that he made a promise to reconvey. When first asked to state the bargain under which the deed was made, the defendant said: “ There was no bargain, only that he didn’t want Mr. French to have the property.” (Mr. French was the complainant in the foreclosure suit.) Subsequently the defendant said, he told the complainant when the deed was executed, that whenever he wanted to sell the property he would give him the first chance to buy, and that the complainant replied, he would give as much as anybody. This is the position in which the evidence of the parties themselves puts the case. The evidence of the complainant shows that the deed was executed as a security, while the defendant says it was executed as an unconditional conveyance, and that the only right the complainant retained rested on a parol promise that he might repurchase the property provided he would pay as much as any other person.

But there is other evidence tending to show the real character of the deed. Two different persons applied to the defendant, about a year after the execution of the deed, to purchase the land. To the first he said, that he could not sell then because the complainant had a right to redeem the land, but he would let the applicant know when the complainant’s right to redeem had expired. On cross-examination this witness somewhat changed his evidence. On being asked whether the defendant did not say that the reason he could not sell was because he had promised to convey to the complainant, and that he had the preference, he replied that the defendant did say so; hut he subsequently testified, that while he could not repeat the words used by the defendant, the fact they conveyed to his mind was, that the complainant had a right to have his property on repaying, within a time limited, the money which the defendant had advanced. The other applicant made an offer of $500 for the property. The defendant had paid $366. He declined this offer, saying, that he had promised to hold the property for the complainant and he was going to do it. At the time the deed w'as made, a tenant was in possession of the land under a letting for three years, at an annual rent of $48. After the delivery of the deed, the complainant remained on the land with the tenant and collected the rent up to spring of 1892. He also paid the taxes on the property, and paid to the defendant the interest of $366, in annual payments for three years. The first payment was made June 9th, 1890 — the deed was delivered, it will be remembered, June 8th, 1889 — the second payment was made June 19th, 1891, and the third June 7th, 1892. For the first payment the defendant gave the complainant a receipt, in which he stated that he had received from the complainant $21.96 “in full for one year’s interest.” The complainant also, during the three years succeeding the delivery of the deed, made permanent improvements on the property. He had a well dug; also a ditch made at a cost of $15, besides his own labor; he put windows in the house, and also new boards on one of its sides; he removed rocks and stones from the garden and built a stone fence which added, as seems to be undisputed, at least $50 to the value of the property; he also planted currant bushes and fruit trees. These improvements added, as the proofs show, at least $100 to the value of the property.

These facts corroborate the truth of the complainant’s evidence, and gó very far to prove that the defendant’s story eannot be true. They show that the defendant for three years, recognized the $366, which he had advanced to take up the mortgage, as a debt which the complainant owed him, by receiving interest on it from the complainant, and that for the same period he allowed the complainant to deal with him as though his rights in the laud were merely those of mortgagee, and to exercise a dominion over the land which indicated that he was its owner. But the defendant insists, that while the course of dealing between the complainant and himself, may, in some of its aspects, justify the belief that the relation existing between them, in respect to the land, was that of creditor and debtor, yet such, in truth, was not the fact, but that the complainant’s annual payments to him were not made in discharge of interest but as payments in the nature of rent. He says the way these payments happened to be made was this: that when the deed was made he did not know the tenant in possession of the land, nor whether he was good or not, but he knew that the complainant boarded with him. He, therefore, arranged with the complainant that he should collect the rent of the tenant, and out of it pay the taxes and the interest on the $366, which he had advanced to take up the mortgage, and the balance the complainant might take for keeping the property in repair and for his services in taking care of it. The complainant denies that any such arrangement was made or suggested. His denial is supported by the probabilities of the case. It is manifest, that the natural effect of such an arrangement would have been to induce the complainant, if it was true that his only right in respect to the property was the bare right to repurchase it on paying as large a price as any other person might offer, to refrain from making either repairs or improvements. Every addition he made to the value of the property was so much money thrown away. Nay, worse than that, for every dollar he added to the value of the property lessened his chance of his being able to get it back. By increasing the value of the property he necessarily increased the price which he must pay on its repurchase. The fact that the complainant increased the value of the property, by permanent improvements, to the extent of at least $100, shows, almost conclusively, that he did not understand that any such arrangement existed as that set up by the defendant. The defendant’s conduct shows also, I think, quite strongly, that no such arrangement existed. He was offered, about a year after the deed was made, $500 for the property. This was $134 more than he had paid: — an advance on his investment of $366 quite sufficient, as it seems to me, to satisfy the greed of even an avaricious person. The person who made the offer was eager to purchase and able to pay at. once. How, in this situation of affairs, it is somewhat difficult to understand, why, if the defendant regarded himself as the absolute owner, and subject to no duty to the complainant except to reconvey, he did not require the complainant, soon after this offer was received, either to enter into a contract of purchase, or to increase his annual payment from $21.96 to $30. But he did neither; on the contrary, for two years subsequent to the offer he continued to receive from the complainant merely the interest on the sum which he had advanced to take up the mortgage. This course of conduct was perfectly consistent with the complainant’s claim that the deed was executed as a security, but utterly inconsistent with the defendant’s claim that it was executed as an unconditional conveyance. In my opinion, the decided weight of the evidence, on the point in dispute, is with the complainant. All the material undisputed facts of the case lead to the conclusion that the deed was executed as a security, and it must, consequently, be declared to be a mortgage.

Costs will be allowed to neither party against the other. On ■a bill to redeem, the mortgagor is, as a general rule, required to pay costs,'but this rule-1 think should be dispensed with in this case. The defendant’s conduct in resisting redemption has been oppressive. He has resisted the complainant in a case where, as I think it is manifest, from his own conduct, that he knew the complainant was asking for nothing which he was not justly entitled to. As I look at the case, it would be more consonant with justice to award costs against the defendant than in his favor.


author: Yan Fleet, Y. C.

text:
    The National Docks and New Jersey Junction Connecting Railway Company v. The Pennsylvania Railroad Company and The United New Jersey Railroad and Canal Company.
    1. On an application to remove a suit from a state court to the circuit court of the United States the state court is not required to let go its jurisdiction until a case is made which, upon its face, shows that the defendant, claimingthe right to remove, can remove the suit as a matter of right.
    2. The decision of a court of general jurisdiction, acting within the scope of its power, has inherent in it such conclusive force that it cannot be challenged collaterally, and such decision also conclusively binds all parties embraced in it, unless on objection made to such court itself, or in a course of direct appellate procedure.
    3. To justify the removal of a suit from a state court to the circuit court of the United States, on the ground of a separate controversy between citizens of different states, there must be a controversy which is wholly between the plaintiff and the defendant seeking to remove, and which is capable of being finally determined between them, and complete relief afforded as to the separate cause of action, without the presence of others originally made parties to the suit.
    4. On an application to remove, the allegations of the complainant’s bill must be considered as confessed.
    5. In deciding whether or not a separable controversy exists between the plaintiff and the defendants claiming the right to remove, the cause of action alleged in the plaintiff’s pleading must be accepted as the only criterion of the decision, and if it is there alleged that the cause of action is joint, and if it appears that some of the defendants are citizens of the same state with the plaintiff, it must be held that the suit is not removable.
    On application to remove suit to the circuit court of the United States.

      Mr. Charles L. Corbin and Mr. John R. Emery for complainant.

      Mr. James B. Vredenburgh and Mr. Joseph B. Bedle for Pennsylvania Railroad Company.
   Yan Fleet, Y. C.

The parties to this suit, both complainant and defendant, are railroad corporations. The complainant was organized under the General Eailroad law of this state and is a citizen of this state; the Pennsylvania Eailroad Company was created a corporation by the legislature of Pennsylvania and is a citizen of that state; and the United Yew Jersey Eailroad and Canal Company was created a corporation by the legislature of this state and is a citizen of this state. Several years ago the United Yew Jersey Eailroad and Canal Company leased its railroads and other property to the Pennsylvania Eailroad Company for nine hundred and ninety-nine years, subject to the payment of an annual rent of nearly two millions of dollars, with a right of re-entry in case the lessee made default in the payment of the rent reserved for ninety days, or failed to perform any other covenant of the lease. Eecently the complainant has acquired a right, against both defendants, to construct its railroad under and across the railroad of the defendants. For such right, it is alleged, that just compensation has been made in a manner authorized by law. After just compensation had been made, the complainant attempted to construct the crossing, which it had acquired a right to construct, and thereupon both defendants, as it is alleged, by certain acts and omissions prevented the complainant from constructing the crossing. This suit was then brought to obtain an injunction prohibiting the defendants from further preventing the construction of the crossing, and also, if necessary, for the appointment of a manager to regulate the use of the easement which is held by the parties in common. The Pennsylvania Eailroad Company now claims the right to remove this suit to the circuit court of the United States, on two grounds — -first, because its determination involves the decision of a question arising under the constitution of'the United States; and second, because the suit embraces a controversy which is wholly between it and the complainant, and which can be fully determined as between them without the presence of the United Yew Jersey Eailroad and Canal Company. To effect such removal, a petition and bond have been presented. The complainant denies, however, that the suit is removable, and insists that it has the right to have the suit proceed here precisely as though no effort to remove it had been made. The complainant has a right to have the question thus raised decided by this court, for it is settled, by repeated decisions of the supreme court of the United States, that the state court is not required to let go its jurisdiction until a case is made which, upon its face, shows that the defendant, asking for removal, can. remove the suit as a matter of right. Removal Cases, 100 U. S. 457, 474; Crehore v. Ohio and M. Railroad Co., 131 U. S. 240, 244; Pennsylvania Co. v. Bender, 148 U. S. 255, 258. The decision of this question then is a duty which this court cannot escape.

The way it is claimed that a question under the federal constitution arises between these parties is this: The complainant instituted proceedings to condemn a right for its railroad to cross that of the defendants; coihmissioners were appointed, who made an award; both parties appealed — the.- complainant appealed and both defendants also appealed; pending the appeals, the circuit court of the county of Hudson, in which the appeals were triable’ on the application of the complainant, and against the protest o’f both defendants, ordered the plan of crossing to be amended, and on the trial of the appeals, directed that the amended plan should be adopted' as the basis on which compensation should be awarded. This action of the Hudson circuit court, it is contended, was not only without warrant of law, but constituted a violation of that provision of the federal constitution which ordains: “ Nor shall any state deprive any person of * * * property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” Without stopping to discuss whether, if it were conceded that the decisions of the Hudson circuit court, on the points in dispute, were erroneous, such errors could, under any circumstances, be held to constitute a denial of the constitutional rights of the defendants, within the meaning of the provision above quoted, it is enough, for the purposes of this application, to say, that if this suit were removed, nothing can be more certain than that the circuit court of the United States could not, in this suit, review or reverse the action of the Hudson circuit court in the respects indicated, ñor in any other; nor could it alter or modify, to the slightest extent, the jndgment pronounced by that court. While the judgment recovered in the Hudson circuit court fixed, finally and conclusively, the sum which must be regarded as just compensation, so far as was necessary to give the complainant the right, on the payment of that sum, to appropriate the property or right condemned, this suit is in no sense a continuation of that suit, but is, in both its substance and form, a new, distinct and independent action. This suit rests on principles, and was brought to obtain relief, which a court of law can neither administer, nor grant. The judgment pronounced by the Hudson circuit court is,, as between these parties, a final and conclusive determination of all matters which were put in issue in the suit or proceeding in which it was pronounced, and so it must stand and be treated and accepted everywhere until it -is set aside by the court which pronounced it, or is changed or reversed by a direct appellate proceeding.

That such is the effect which the circuit court of the United States, and all other tribunals not possessing appellate jurisdiction, must give to this judgment is a proposition that is not open to debate. It is recognized as a cardinal rule in all enlightened systems of jurisprudence. In the language of Mr. Justice Miller, in Harvey v. Tyler, 2 Wall. 328, 342: “Whenever it appears that a court possessing judicial powers has rightfully obtained jurisdiction of a cause, all its subsequent proceedings are valid, however erroneous they may be, until they are reversed on error or set aside by some direct proceeding for that purpose.” And Chief-Justice Beasley, in McCahill v. Equitable Life Assurance Society, 11 C. E. Gr. 531, 538, stated the same principle in these words: “ The decision of a court of general jurisdiction, acting within the scope of its powers, has inherent in it such conclusive force that' it cannot be challenged collaterally, and that such decision definitely binds all parties embraced in it unless, on objection made to such court itself, or in a direct course of appellate procedure.” The same principle was laid down by Mr. Justice Grier in Peck v. Jenness, 7 How. 617, 624, and by Mr. Justice Davis in Randall v. Howard, 2 Black 585, 589. A multitude of other decisions to the same effect might be cited. The circuit court of the United States for this district has already decided, in a suit between the Pennsylvania Railroad Company and the complainant, that it is not within its province, sitting as a court of equity, to act as a court of review as respects alleged errors of a court of law, even if such errors were committed by the court of last resort of this state in deciding a federal question, for, in such a juncture of affairs, the only tribunal which has power to review the decision of the state court, on such a question, is the supreme court of the United States. Pennsylvania Railroad Co. v. National Docks Railroad Co., 51 Fed. Rep. 858, 859.

It is thus made plain, as I think, that the question the Pennsylvania Railroad Company claims has arisen between it and the complainant, under the constitution, is not involved in this suit but is entirely outside of it, and for that reason cannot be agitated in this suit either in this court or in the circuit court of the United States. If such a question has arisen at all between these parties, it arose on the trial of'the appeals before the Hudson circuit court and was there decided. If further litigation respecting it is desired, it can only be had, according to the established principle, by the removal of the judgment embracing it, by a direct proceeding, to some tribunal having power to review the decisions of that court. Such power neither exists in this court, nor in the circuit court of the United States.

By an act of congress, approved August 13th, 1888, amending the prior act of March 3d, 1887 (Rev. Sup. p. 611), the circuit courts of the United States are given original jurisdiction, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, in which there shall be a controversy between citizens of different states in which the matter in dispute exceeds a specified value. The act' also provides, that when a suit shall have been commenced in any state court, of which the circuit courts of the United States are given original jurisdiction, the same may be removed into the circuit court of the United States for the proper district, by the defendant or defendants therein, being non-residents of the state in which the suit was commenced. And then follows this provision :

“And when in any suit mentioned in this section there shall he a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants, actually interested in such controversy, may remove said suit into the circuit court of the United States for the proper district.”

This provision constitutes the second ground on which the right of removal is based. It formed part of the act of March 3d, 1875. The second clause of the second section of that act was expressed in precisely the same words. - 18 Stat. pt. 3 p. 4-70. Their meaning has been settled by repeated decisions of the supreme court of the United States.

The claim of the Pennsylvania Railroad Company is, that there is in this suit a separate and distinct controversy or cause of action between it and the complainant, which is capable of being finally determined, as between them, and complete relief given without the presence of the other defendant. In other words, that this suit is founded on a cause of action in which the United New Jersey Railroad and Canal Company has no interest whatever, but which is so entirely and exclusively between the Pennsylvania Railroad Company and the complainant that it may be properly and safely heard and determined, and full and complete justice done to every right and interest involved in the controversy, with them alone as the parties litigant before the court, and without the presence of any other person. To authorize the removal of this suit, this claim must be found to be true in all its essential parts, for the rule is well established, as was said by Chief-Justice Waite in Fraser v. Jennison, 106 U. S. 191, 194, and repeated in Ayres v. Wiswall, 112 U. S. 187, 192, and also in Louisville Railroad Co. v. Ide, 114 U. S. 52, 55, that the provision above quoted only authorizes the removal of “ suits where there exists a separate and distinct cause of action, on which a separate and distinct suit might have been brought and complete relief aiforded as to such cause of action, with all the parties on one side of that controversy citizens of different states from those on the other. To say the least, the case must be one capable of separation into parts, so that in one of the parts a controversy will be presented with citizens of one or more states on one side, and citizens of other states on the other, which can be fully determined without the presence of the other parties to the suit as it has been begun.” The same rule was laid down by Mr. Justice Gray, in Torrence v. Shedd, U. S. 527, 530, in this wise: “To justify a removal, on the ground of a separate controversy between citizens of different states, there must, by the very terms of the statute, be a controversy which can be fully determined as between themand by the settled construction of this clause, the whole subject-matter of the suit must be capable of being finally determined as between them, and complete relief afforded as to the separate cause of action, without the presence of others originally made parties to the suit.” The supreme court of the United States has also repeatedly decided, as Mr. Justice Bradley declared in Little v. Giles, 118 U. S. 596, 600, “ that a suit brought against several defendants, some of whom are citizens of the same state with the plaintiff, charging them all as joint contractors or joint trespassers, cannot be removed into the United States court by those who are citizens of another state, although they allege in their petition for removal that they are not jointly interested or liable with the other defendants, and that their controversy with the plaintiff is a separate one.” The same rule must necessarily be applied to all wrongdoers who act in concert, whether they are called joint trespassers, tort-feasors, disseisors, or by any other name. Where the wrong is joint, the remedy, to be complete and effectual, must be joint.

These adjudications define with precision what controversies or causes of action are sufficiently distinct and separate to be subject to be removed from a local court to a federal court in cases where the defendant, applying for removal, is a citizen of a different state from that in which the plaintiff has his citizenship, although there may be other defendants to the suit who are citizens of the same state with the plaintiff. But how is the separable character of the controversy to be determined? To-what source must the court go to ascertain, whether or not the-wrong or cause of action, in respect to which the plaintiff seeks-relief or redress, is so entirely and exclusively between the-plaintiff and the defendant claiming the right to remove that it is capable of being finally determined, and full and complete justice done, on a trial between them alone, and without the presence of the other parties ? There is no source to which the court can go to ascertain the wrong or cause of action which the plaintiff means to make the foundation of his suit, but his pleading. And it is now settled that, on such applications as this, the allegations of the complainant’s bill must be considered as confessed. East Tennessee, Virginia and Georgia Railroad Co. v. Grayson, 119 U. S. 240, 244. This is the principle which controls the judgment of the supreme court of the United States in disposing of writs of error from orders remanding or refusing to remand — which is the final stage of such litigations— and it would, therefore, seem necessarily to follow that it must likewise control at the initial point of such litigations, as well as in all succeeding stages. And it is also firmly settled that, in deciding whether or not a separable controversy exists between the plaintiff and the defendant seeking to remove, the cause of action alleged in the plaintiff’s pleading must be accepted as the only criterion of decision, and that if it is there alleged that the wrong was committed by all the defendants jointly, or that the cause of action is joint, the suit is not removable. The utterances of the supreme court of the United States on this point are clear and decisive. Mr. Justice Bradley, in Little v. Giles, 118 U. S. 596, 601, said: “A defendant has no right to say that an action shall be several which a plaintiff elects to make joint. A separate defence may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to a final determination in his own way. The cause of action is the subject-matter of the controversy; and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings.” The rule, as thus stated, was repeated by Mr. Justice Gray in Torrence v. Shedd, 144 U. S. 527, 530. Mr. Justice Bradley also said, in substance, in Little v. Giles, 144 U. S. 602, that “where the cause of action is several, as well as joint, the plaintiff may sue each defendant separately or all jointly. It is for the plaintiff to elect which course to pursue, and if he elects to proceed against all jointly, the defendants will not be permitted to object.” And he then adds: The fact that a judgment in the action may be rendered against a part of the defendants, does not divide a joint action in tort into separate parts any more than it does a joint action on contract.”

That this suit is the proper subject of equity cognizance is free from all doubt. The law is settled that one railroad corporation may acquire the right, by condemnation, to construct a •crossing for its road over that of another railroad corporation. 'On the acquisition of such right, the land, at the point of crossing, becomes subject to an easement in favor of both corporations. And the court of errors and appeals, speaking by Chancellor McGill, has declared, that “ if, in the use of this common easement, whether it be acquired under proceedings to condemn a crossing in a specified manner or under proceedings to condemn a crossing generally, conflict should at any time arise between the companies, the interposition of equity may be -invoked to secure to each the enjoyment of its privilege in a lawful manner.” National Docks Railroad Co. v. United Companies, 24. Vr. 217, 244. An essential part of the right which the complainant has acquired is the right to construct a crossing — its road cannot cross that of the defendants until a crossing has been built— hence the work of construction constitutes a lawful and necessary use of the easement which it has acquired.

Now, on looking into the complainant’s bill, it appears, that •every wrongful act, which the complainant states as the foundation of its right to relief, and against which it asks for judicial protection, is charged to have been done by the defendants jointly. And the same is true of’ every wrongful omission alleged in the bill. All the wrongful acts and omissions set forth are alleged to have been done and omitted by the defendants, acting in concert to effect a common purpose. There can be no doubt, therefore, that if the complainant shall, on the final hearing, establish the case made by its bill, it will demonstrate that it is entitled to the same measure of relief against both ■defendants. But in addition: the right which the complainant has acquired, was acquired against both defendants; the primary object of this suit is to enforce "that right against both defendants ; the construction of" the crossing, according to the plan on which compensation was awarded, will work a thorough and permanent change in a part of the demised premises; it will ■substitute an arched tunnel, constructed of masonry, for solid earth. The change may, as is manifest, very seriously affect the rights of the owner of the reversion, and cannot, therefore, according to well-established principle, be made by judicial process, except such owner is a party to the suit and has an opportunity to be heard. And even if such owner has done nothing in denial of the complainant’s right, I regard as entirely clear that, in any suit or proceeding to enforce the complainant’s' right, such owner has an indisputable right to be present in court, as a party, in order to see that the process which issues, directs that the crossing shall be constructed in substantial compliance with the plan on which eompensatian was awarded. Unless such owner is a party, any process the court may issue or any judgment it may pronounce will be without force as against him. Besides, the- lease under which the Pennsylvania Railroad Company holds the demised premises is subject to both surrender and forfeiture. It may be that it is highly improbable that either event will ever occur, but they are both possible. There are other things besides insolvency which may lead to a forfeiture. The lessee may refuse to abide by the covenants of the lease for any reason which appears to be sufficient to its managers, or from mere caprice. The presence of a right of re-entry in the lease renders the lessor, in my judgment, in view of the character of the rights involved, and the nature of the relief asked, a necessary party to this suit. The suit, in my judgment, would have been fatally defective, in point of parties, if the lessor had been omitted.

My conclusion is, that the suit is not removable, and this court is, therefore, under no duty to surrender its jurisdiction.


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    Harriet A. Drost v. John Hall et al.
    1. No one can make an assignment of dower but the tenant of tbe freehold.
    2. A writ of dower will not lie against a person holding a mere chattel interest in the land, or having an estate of less duration than the life of the dowress.
    3. An action of dower can only be maintained against the owner of the land or the tenant of the freehold, for no other person has power to make a valid assignment of dower.
    4. While courts of equity possess concurrent jurisdiction with courts of law in suits for dower, they govern themselves in the decision of cases involving no equitable right by precisely the same principles that would govern a court of law in deciding a like case.
    On demurrer.

      Mr. James ParJcer for complainant.

      Mr. John W. Beelcman for demurrants.
   Van Fleet, V. C.

This is a suit for dower. The defendants deny, by demurrer, that the case made by the bill entitles the complainant to any decree against them. The material averments of the bill are r that the complainant and Henry G~. Drost intermarried in 1849; in 1850 Henry became the owner in fee of a tract of land in Middlesex county; in 1851 he conveyed part of it to one Miles Oakley; the complainant joined in the execution of the deed, but, as she was then an infant, less than seventeen years of age, her right in the land did not pass; Henry died in 1881 — it is not stated whether he died testate or intestate — and then it is alleged, that the defendants all have or claim to have some interest in portions of the land, and that they deny that the complainant is entitled to dower in the land and refuse to assign dower to her. It will he observed that it is not alleged that the defendants have any estate in the land, nor even that they have possession of it, but merely that they have or claim to have some interest in portions of it, without defining such interest, whether it is that of an owner, encumbrancer, tenant for years, or however otherwise it arose or was created. The defendants contend that an averment in this form does not show that they have any estate in the land, or that it is within their power to assign dower. It is certain that if it is not shown that they have such an estate in the land as invests them with power to assign dower, no action can be maintained against them for not making an assignment.

The law has long been settled that no one can make an assignment of dower but the tenant of the freehold (1 Co. Litt. tit. “Dower ” c. 5 §§ 39, 35a; Ellicott v. Mosier, 7 N. Y. (3 Seld.) 201, 205) • and it is also settled, that a writ of dower unde nihil habet will not lie against a person holding a mere chattel interest in the land, or having an estate of less duration than the life of the. dowress. Com. Dig. 503 G. 2; Hurd v. Grant, 3 Wend. 340, 341; Galbraith v. Green, 13 Serg. & R. 85, 94; Seaton v. Jamison, 7 Watts 533, 537. The reason on which this rule rests, as stated by Mr. Park in his treatise on the Law of Dower, is, in substance, this: An assignment of dower being an aet involving the interests of the persons entitled to the inheritance, no one is competent to assign dower but the tenant of the freehold. As no tenant of an inferior nature is capable of binding the rights of the freeholder in a real action, and consequently, as a judgment obtained on a writ of dower, brought against a person having merely a chattel interest, would be voidable by the freeholder, the consistency of the law requires that such person should not bind the freeholder by assigning dower without action. A person having only a chattel interest is not entrusted with the defence of the inheritance. Park Dow. 256; 11 Law Lib. 181. The reason of the rule was also stated by Chief-Justice Ruggles in Ellicott v. Mosier, supra. He said, as the object of an action of dower is to obtain or compel an assignment of dower by the heir or owner, it can only be maintained against the owner or tenant of the freehold, for no other person can assign dower. The writ of dower was abolished in New York in 1830, by statute, and an action of ejectment given in its stead. The courts, in construing this statute, have held that a widow, in attempting to recover her dower by ejectment, must bring her action against the actual occupant of the land. Sherwood v. Vanderburgh, 2 Hill 303, 307. But it has also been held, that a judgment in favor of the widow, and against the occupant, will not bind the owner unless he has been made a party to the suit and had an opportunity to make a defence. Ellicott v. Mosier, supra.

Dower, when founded on a legal seizin, is a pure legal right, and while courts of equity possess concurrent jurisdiction with courts of law for its enforcement, yet, in cases where no equitable right is involved, they determine the right set up by the widow by precisely the same principles which would govern the decision of a court of law in a like case. And if her right to dower is denied on legal grounds, equity will defer the final determination of her claim until her legal right has been established by a judgment at law. Ocean Beach Association v. Brinley, 7 Stew. Eq. 438, 439.

The bill wholly fails to show that the defendants have such an estate in the land, in which dower is claimed, as invests them with power to assign dower, or makes it their duty to do so. For this reason I think, the demurrer must be sustained with costs.