author: Leaking, Y. C.

text:
    Union Building and Loan Association of Camden, New Jersey, complainant, v. Ralph D. Childrey et al., defendants.
    [Submitted June 10th, 1924.
    Determined June 20th, 1924.]
    Wlhere lands were sold under a decree in foreclosure, and the sale confirmed, but the deed not delivered, the right of redemption by the owner of the lands is extinguished.
    On bill to foreclose. On hearing on petition of mortgagor to redeem, filed after sale under foreclosure decree had been made and sale had been confirmed, and before deed to purchaser had been executed.

      Mr. D. Trueman Stackhouse, for the petitioner.

      Mr. Charles V. D. Joline, for the respondent Nathan Obus.
   Leaking, Y. C.

No facts are in dispute herein. The single question for determination is whether a mortgagor is entitled to redeem the mortgaged premises, by payment of the amount of the decree and costs, after a sale has been made under a foreclosure decree and the sale has been confirmed, but before a deed has been executed by the officer who made the sale.

No claim is made that the sale was not regular in all respects or that the amount bid was not adequate. The claim is that the right of a mortgagor to redeem obtains until the delivery of a deed by the judicial officer.

The mortgaged premises were purchased at the sale by a third party for an amount in excess of the amount decreed to be due to the mortgagee; that purchaser now resists petitioner’s claim of right to redeem.

In the early English practice the ordinary remedy of a mortgagee was the procurement of a decree foreclosing the equity of redemption; in later years that remedy has been commonly referred to as “strict foreclosure.” In form, the decree was that upon failure of the defendants to pay the amount found due at a specified time—usually three or six months—they should stand foreclosed of all equity of redemption of, in and to the mortgaged premises. 2 Dan. Ch. Pl. & Pr. 998; 3 Ibid. 2213, 2214. Default in payment pursuant to that decree was operative to create an absolute estate in the mortgagee; but to render the decree pleadable, an order of confirmation was necessary. That order issued upon an affidavit being filed disclosing that defendants had not paid at the time specified for that purpose. 2 Dan. Ch. Pl. & Pr. 998. In appropriate circumstances the court would extend the time for payment of the money even though the final order had been enrolled. 2 Ibid. 999; Thornhell v. Manning, 1 Sim. (N. S.) 451. In certain classes of cases— included, among others, ownership by an infant heir, whose equity of redemption could only be absolutely foreclosed by decree until default should have been made after the infant had arrived at majority—the mortgaged estate could be ordered sold. 2 Story Eq. Jur. § 1026; 2 Fonb. Eq. 271; 1 Dan. Ch. Pl. & Pr. 284. Subsequently, under 15 and 16 Vic. § 18, a decree foreclosing the equity of redemption and directing sale of the mortgaged estate to satisfy the debt appears to have been permitted at the request of the mortgagee, and on terms at the request of the mortgagor. 2 Dan. Ch. Pl. & Pr. 1265. I think no English authority can be found in any way recognizing or even suggesting the possibility of the existence of a right of redemption after a public sale had been made pursuant to a foreclosure decree.

There appears to have been no statute in this state specifically authorizing a decree for sale of the mortgaged estate prior to the act of Februaiy 29th, 1920. R. S. 1820 (Penn.) 702. By act of March 12th, 1798 (Pal. L. 80S), a decree for sale was authorized in foreclosure suits after a decree pro confesso against an absent mortgagor; by the act of 1820 the decree for sale was authorized in all foreclosure cases. Section 8 of act of 1820 has been continued in force until this time, and is identical with section 53 of our present Chancery act. 1 Comp. Slal. p. 129. Section 9 of the act of 1820 is essentially the same as section 54 of our present Chancery act, and directs the sheriff or other officer making the foreclosure sale to deliver a deed to the purchaser.

A decree for sale is now the ordinary procedure in the foreclosure of mortgages in this state, and its usual form is the form adopted in the present case: “That the defendants stand absolutely debarred and foreclosed of and from all equity of redemption in and to the said mortgaged premises when, sold as aforesaid by virtue of this decree.” In Atwood v. Cramer, 75 N. J. Eq. 319 (at p. 325), Vice-Chancellor Emery expressed the view that under that form of decree the right of redemption continues until the sale; that view is by him based upon the language of the decree, “when sold as aforesaid by virtue of this decree.” The same view had been previously adopted by the same vice-chancellor in Howards Sav. Inst. v. Essex B. & L. Assn. (N. J. Ch.), 46 Atl. Rep. 228, and in Wimpfheimer v. Prudential Ins. Co., 56 N. J. Eq. 585.

The first statutory requirement in this state for a confirmation of sale in foreclosure cases appears to have been section 4 of the act of March 12th, 1880. That act, unmodified in its requirement for a confirmation of sale, is now section 50 of our Mortgage act. 8 Comp. Siai. p. 84-22. That requirement is that the sale shall be reported, and if approved shall be confirmed “as valid” and “effectual in law,” and an order shall direct the officer making the sale to execute a deed to the purchaser. Chancery rule 218, adopted September 20th, 1880, is to the same effect.

It is the contention of petitioner that although the right of redemption cannot be said to extend beyond the time of the sale, the sale cannot be understood as having been made until the deed is delivered pursuant to the order of confirmation, since the sale is consummated by the delivery of the deed.

On the contrary, 1 am convinced that the “sale” which the statute contemplates, and which the decree specifically refers to as the time when the equity of redemption shall be deemed foreclosed, is the public sale made by the officer as distinguished from the deed of conveyance which is to be executed after the sale shall have been confirmed.

By the terms of the decree defendants are to “stand absolutely debarred and foreclosed of and from all equity of redemption in and to the said mortgaged premises when sold as aforesaid by virtue of this decree.” By a preceding provision of the decree a writ of fieri facias is ordered issued, directed to the sheriff, “commanding him to make sale, according to law, of the -said mortgaged premises.” As directed by that writ the sheriff has made report to the court that after duly advertising the sale of the property he has sold the same at public vendue to Harry H. Teitelman for $10,610, he being the highest bidder; the report also being accompanied with the statutory affidavit touching the sale. On that report an order has been made in which it was “ordered that the said sale be and the same is hereby confirmed as valid and effectual in the law,” and directing the sheriff to execute a deed to the purchaser. It is thus clear that the writ, the return and the order of confirmation, by their terms contemplate the act of procurement of a purchaser at a public vendue as the sale which the decree has ordered made under the writ, the issuance of which writ the decree directs. And it appears to me equally clear that the sale referred to in the decree as the termination of the right of redemption as well as in the act authorizing the decree of sale is the public exposure of the property for sale and the procurement of a purchaser by that means. Not only is that “public sale” of the property a sale in the common acceptation of that term, but at that time the equitable title to the property passes to the purchaser. Unless that sale should be set aside by failure of confirmation or for other cause, the purchaser at the public sale can enforce a formal conveyance, and specific performance can be enforced against such purchaser either by petition in the foreclosure suit or by bill for specific performance. Silver v. Campbell, 25 N. J. Eq. 465; Bowne v. Ritter, 26 N. J. Eq. 456. Thus the highest bidder, as purchaser at a sheriff’s sale, acquires by the act of purchase a right to a conveyance. The order of confirmation confirms and has relation back to that sale, and the delivery of the sheriff’s deed is a mere ministerial act which the officer is required to perform to consummate the sale and vest in the purchaser the legal title in compliance with the law under which the sale is made. The sheriff’s deed, when delivered, also has relation back to the time of the public sale. The date of the sheriff’s deed and the date of its delivery are declared to be circumstances of no importance so far as the sale is concerned. Carpenter v. Shanley, 75 N. J. Eq. 369; Morse v. Hackensack Savings Bank, 47 N. J. Eq. 279, 281. In Wimpfheimer v. Prudential Insurance Co., 56 N. J. Eq. 585, the view is clearly expressed to the effect that the officer’s procurement of a purchaser by a public sale of mortgaged premises pursuant to the decree is operative to terminate the right of redemption, subject only to confirmation by the court. It is unnecessary here to determine whether a right of redemption may be said to exist after the officer’s public sale and before its confirmation; in this case the sale has been regularly made and duly confirmed; the deed will follow as a mere ministerial act.

An order will be advised discharging the order to show cause and restraint.


source: Caselaw Access Project

author: Leaking, V. C-

license: Public Domain

text:
    Helen C. Douglass, now Aleck, complainant, v. Charles Cooper Spear et al., defendants.
    [Submitted March 30th, 1025.
    Determined May 7th, 1925.]
    1. To set aside 'instruments which appear to have been executed with all formalities required 'by law, clear evidence of their infirmity should be required.
    2. Where a woman conveys all of her property without consideration or independent advice, and without adequate knowledge of the operative force of the deeds, which conveyance inures to the benefit of her son, and which were procured by the son through the exercise of his influence over his mother, which influence was made possible by reason of her extreme confidence in him, she should be relieved from the operation of the deeds.
    On final hearing on bill to set aside conveyances.

      Mr. Joseph Beck Tyler, for the complainant.

      Mr. David R. Rose, for the defendant Spear.

      Mr. Lewis Starr, for the Locustwood Cemetery, Inc.

      Mr. William T. Boyle, for the Locustwood Cemetery Association.
   Leaking, V. C-

The purpose of the bill is to restore to complainant the legal title to three several properties which she conveyed to the Equitable Estates Corporation, June 22d, 1920.

I think it clear that on that date these properties were owned by complainant and not by her son, who now claims that he then owned them. Eor many years they had maintained strong and mutual affections as mother and son with little if any care to measure or perpetuate obligations arising from their financial transactions. Their mutual purpose and expectation appears to have been that the mother should own and enjoy the properties so long as she lived, and that they should then pass to her son as her heir. I am unable to believe that financial aid extended by the son to his mother was with a purpose to acquire any legal or equitable estate in any of the properties.

Defendant Equitable Estates Corporation was formed to take title to these properties, and upon the conveyances being made by complainant to that corporation on the date named its stock, except what is known as qualifying shares, was issued in the name of the mother and son in this manner: “Charles 0. Spear and Helen C. Douglass, jointly, with full right of survivorship.” No question has been raised touching the power of a corporation to issue its stock in this manner or touching the estate thereby created in the two persons to whom the stock was issued; but the practical effect was soon discerned by complainant when it was found that she could no longer control the property without the co-operation of her son.

Complainant is a woman who enjoj^s a high degree of intelligence, and her memory and mental powers at this time appear to be but little impaired. But it is as clear as the obvious can be made clear that to an extreme and unfortunate degree she possesses a tendency to place implicit confidence in those whom for the moment she trusts; throughout the long series of transactions disclosed in this case this has been clearly manifest. Pending this suit against her son, and on the eve of the day it was first set for trial, a short period of personal contact of complainant with her son induced her to seek its dismissal in his behalf and to join with her son in hostility against her husband; and shortly thereafter, pending a refusal of this court to dismiss the suit, without investigation as to whether it was complainant’s voluntary act, a short period of contact of complainant with her husband lead her to renew her trust in him and to again press her claims against her son.

It is difficult to ascertain exactly what transpired when these three conveyances were executed by complainant to the Equitable Estates Corporation, but I think it can be stated with reasonable certainty that their execution represents more nearly the purpose and will of complainant’s son than her purpose or will, and does not in any substantial sense represent her voluntary or intelligent acts. I am satisfied that she was not advised and did not know or understand, and was given no reason to believe that the transaction was irrevocably placing beyond her control or beyond her right of absolute enjoyment all the property which she owned and which she had so long enjoyed; whereas, in its operative effect, the transaction strips her of all right of control ox present enjoyment except as her son shall dictate through his control of the board of trustees of the corporation. The extent to which her right of enjoyment is lost is best seen by the conveyance which the son thereafter caused the corporation to make with a purpose to put the title in others; that conveyance, however, was ineffective to accomplish its purpose by reason of the lis pendens filed herein. The conveyances here in question properly may be classed as conveyances of all of complainant’s property 'made without consideration and without independent advice and without adequate knowledge of their operative force and effect, which conveyances substantially inured to the benefit of complainant’s son and which were procured by the son through the exercise of his influence over his mother, which influence was made possible by reason of her extreme confidence in him. Complainant should be relieved from their operation. Any suggestion that defendant corporation, as such, was the recipient of the legal title under the conveyances, and is immune from attack because it did not participate in their improper procurement, is untenable. In the circumstances disclosed by the evidence in effect the corporation may be said to have been a mere recipient of the legal title for the benefit of complainant and defendant to whom the stock was to be issued under the plan devised by the complainant’s son.

Under date of November 2d, 1917, a paper which has been referred to as a declaration of trust appears to have been signed by complainant, in which she declares that all the three properties here in controversy belonged to her son. I am convinced that it was neither a fact nor the understanding of either complainant or her son at that time or at any other time that these properties were owned by the son. At that time complainant’s then husband had long been absent and complainant feared he might be alive. To say'the least, complainant’s son did not discourage that fear on his mother’s part. The protection of these properties from any such claim had long been complainant’s aim, and various plans had been devised for that purpose. This was one of them. I am convinced that in the circumstances disclosed by the evidence touching the execution of this so-called declaration of trust it cannot be accepted as substantial evidence of the ownership by the son of the properties in controversy. Indeed, the instrument which complainant signed contemplated her enjoyment of rights practically co-extensive with a fee. These rights are now denied to her if the conveyances to the Equitable Estates Corporation stand. I am unable to believe that either the conveyances to the Equitable Estates Corporation or the assignment of a contract which was made at the same time or the declaration of trust executed prior thereto represent voluntary acts or deeds of complainant.

To set aside instruments which appear to have been executed with all the formalities required by law, clear evidence of their infirmity should be required; the evidence in this case fully convinces me of the facts which are made the basis of this decision.

A decree will be advised pursuant to the conclusions here stated.


author: Lewis, Y. 0.

text:
    Margaret Ebell and Francesco Ebell, complainants, v. Louis De Stephano et al., defendants.
    [Decided December 30th, 1924.]
    Wihere a married woman is induced to part with her property without independent advice or the protection of counsel to an amount enormously in excess of the debt of her husband to another to whom the conveyance were made, by threats of prosecution of her husband, such conveyances should be set aside, upon payment of the sum originally received by the married woman, when the conveyances were made, and an accounting of the business of the husband with the grantee in the conveyances should be had.
    On pleadings and proofs.

      Messrs. Maley & Malay, for the complainants.

      Mr. Gaorga E. Outlay, for the defendants.
   Lewis, Y. 0.

This bill is filed to annul certain conveyances made by complainants to defendant De Stephano, alleged to have been made under duress, and for other incidental relief, joined with which is a prayer for an accounting as between the complainants Francesco Ebell and his co-partner De Stephano.

In the latter part of March, 1922, Francesco Ebell and the defendant Rodermond engaged in a joint adventure in foreign exchange, whereby Rodermond invested the sum of $13,700 as the capital for the enterprise, and Ebell contributed his services in the management of it. It was agreed that Ebell should retain $1,100 of this amount as his own money, and the balance of $12,600 was to be utilized in the business. Ebell was a broker in New York City of many years’ experience. The exact method by which the enterprise was carried on. does not clearly appear from the testimony, but there is sufficient evidence to- show that to some extent it was conducted upon margins and futures. This appears affirmatively upon the face of the written agreement between the parties at the time of the formation of the partnership. Rodermond was to receive seventy-five per cent, of the profits, and the balance was to be retained by Ebeli. The sum contributed by Rodermond was stated in the agreement to be for the joint account of Rodermond and Ebell for operation in foreign exchange under Ebell’s discretion. Inspection of the books and records could be had b}^ Rodermond or Iris attorneys at any time, and it was agreed that the account could be closed upon ten days’ notice to Ebell.

The business of the partnership seems to have been directed chiefly towards dealing in German marks, and the venture soon ended in disaster.

On or about June 17th, 1922, Ebell notified Rodermond and De Stephano, who appears to have made the advances to Rodermond, that the account was abo-ut exhausted, and that additional money was required in order to meet the demands of brokers for further advances on the existing margins. De Stephano was willing to advance more money, but Rodermond 'waa unwilling to do so-. Ebell thereupon agreed to contribute the additional funds himself if De Stephano would furnish them to him on a mortgage. This De Stephano agreed to do.

On June 19th a bargain and sale deed was drawn by De Stephano’s attorney and executed by Mr. and Mrs. Ebell, conveying the real estate of Mrs. Ebell to- De Stephano-. This was property which had always been in her name and which she had bought with money inherited from her grandfather. Upon this security, Ebell was to receive $3,000 from De Stephano-.

The testimony in question shows that the bargain and sale deed was intended to be simply a mortgage, although it contained no clause of defeasance. The deed was placed upon record the same day that he was requested to call at the office of De Stephano’s or Rodermond’s attorneys in New York, and he was there served with a notice terminating the partnership. Rodermond had, meantime, assigned all his interest in the partnership to De Stephano, who claimed at that time to have Rodermond’s interest therein. Ebell requested the payment to him of the $3,000 which he was to receive under the mortgage, but he was put off by De Stephano. That same evening, however, De Stephano and Rodermond called at EbelFs home in Weehawken, New Jersey, for the purpose of settling the matter, as they said, although, at that time, Ebell stated that he preferred to defer it. ■ During the discussion which took place there mention was made of the fact that Ebell had overdrawn his account with the firm, and De Stephano thereupon said that he would let him have no money, and that he would put the matter in the hands of the district attorney for prosecution. Ebell protested that his accounts were straight and that no moneys had been withdrawn except with the full knowledge and acquiescence of Rodermond, who had been always present in the office during the transaction of the affairs of the partnership. The fiim moneys were kept in two banks in RodermoncFs name, and Rodermond signed all checks on those accounts. Ebell felt, however, that he could be put in a nasty position because of lack of proof, and that the others had him at a disadvantage which would be difficult to combat, and he became fearful of the disclosure threatened. Mrs. Ebell, who was also present, was stricken with fear on account of the threats of prosecution made by De Stephano, and she began to cry, and in order to save her husband from what she believed to be a criminal prosecution she said she was willing to convey all that she had to De Stephano to satisfy his claim.

On the following day, at the behest of De Stephano, a warranty deed was rhade conveying her real property, and a bill of sale was also executed eov^ing all her personal property. The real estate was e^pated to be worth about $30,000, subject to- mortgages amounting to- about $1-1,000. The personal property was estimated to- be worth about $15,000.

Contemporaneously with the execution of those instruments, a contract was entered into between Mr. and Mrs. Ebell of the one part and Louis De Stephano of the other, reciting the situation here outlined, and whereby the Ebcils were to- have the right to secure a reconveyance by De Stephano of the property thus conveyed, on or before- January 1st, 1923, bi' the payment to him of $29,217, plus- expenses and. disbursements, and in the meantime they were to pay De Stephano rent for the premises at the rate of $175 per month', payable in advance.

Upon failure to thus redeem by January 1st, 1923, the Ebells were to- vacate without further notice.

According to- the testimony of Gregg, the bookkeeper for the firm, the maximum amount which was lost in the business venture was $7,040.46. The books of account do not show what became of the difference. It is to be borne in mind, however, that of the $13,700 originally contributed by Rodermond, $1,100 was to- retained by Ebell absolutely. This left $12,600 fox working capital. The net loss being $7,040.46, the most that Ebell could be charged with, by an actual calculation, is the difference between that amount and $12,600, which is $5,559.54. But the testimony in the present proceeding do-es not disclose the situation with regard to the details of tire partnership affairs sufficiently to state an account between the parties. It may well be that, upo-n a strict accounting, the respective rights of the partners would show up in an entirely different light. However that may be, that is a situation in which the complainant Margaret Ebell does not figure; that is simply between Francesco Ebell and his co-partner ox co-partners.

The transfer of the property referred to- was completed on June 20th, 1922. On June 26th,.still other counsel for De Stephano in 'New Jersey communicated with Ebell, as follows :

‘‘Mr. Louis De Stephano has consulted me about your failure to observe your promises to him to make good his moneys which you appropriated to your own use. I have the papers covering the entire transaction before me. It is not necessary for me to relate any of the details. You are thoroughly familiar with them. If you do not make good by Wednesday morning, the 28th inst., I shall turn the matter over to the district attorney.”

At the hearing De Stephano admitted that he had agreed with Mr. Ebell that if he and| his wife would turn over their interest in their home and give him a bill of sale on all their personal property that he would then not press any criminal charge against Ebell. Ebell denied unequivocally that he had ever admitted misappropriating funds of the partnership, or that he felt that he was guilty of any such misappropriation.

.The present bill was filed July 3d, 1922, promptly after the conveyances aforementioned were made. Mrs. Ebell testified that from the beginning she felt that they had been wronged in the transaction, but that she had been impelled to do what she had done through fear caused by what De Stephana had said.

An accounting might show that there was a very small amount, if anything, due from Ebell to his partners. At the most, under the present testimony, it could not exceed about $5,600. De Stephano has claimed that he should be paid the whole amount of the original statement, which is contrary to the agreement. In any event, a simple calculation shows that the property thus extorted from Mrs. Ebell, who was without independent advice or the protection of counsel, is enormously in excess of any amount that could be found to be due from Ebell to his partners upon an accounting; and although the largest amount for which it would appear that Ebell could be liable to De Stephano is only about $5,600, nevertheless, by the agreement of redemption, the Ebells could not redeem their property except upon the payment of over $29,000, and that action was required to be taken within about six months, or the title would become absolute in De Stephano, automatically, and the Ebells would be forced to vacate without notice.

The agreement between the Ebells and Louis De Stephano entered into on .June 20th, 1922, acknowledged the receipt by Margaret Ebell of the sum of $1,000 as part of the consideration for the transfer of the property.

"Under the circumstances disclosed by the proofs in this case, I am convinced of the reasonable probability of the complainants hawing been coerced into the conveyance of their property' by the threats and duress of De Stephano, and I am strengthened in that opinion because the unconscionably excessive amount exacted by him as the condition upon which the property thus secured from the Ebells could be redeemed by them.

I am clearly of the opinion that the conveyances of the real estate and the bill of sale of the personal property of the Ebells to De Stephano should be set aside, and that the property should be reconveyed, but the consideration of $1,000 should be returned to De Stephano, if, in fact, Mrs. Ebell received that sum as part consideration, thus placing De Stephano and Mrs. Ebell in slain, quo. Ball v. Ball, 79 N. J. Eq. 170; Lomerson v. Johnston, 20 Atl. Rep. 675; Schuster v. Arena, 83 N. J. Law 79.

As between the complainant Francesco Ebell and the defendant De Stephano, not only does the bill praj for an accounting, but counsel for the complainants upon the hearing stated that “we stand ready to pay the money back that has been advanced on this deed, and will ask for an accounting as to whether or not there is any indebtedness existing between complainants and defendants.”

Without expressing any opinion at this time with regard to the propriety of stating an account between the parties to the partnership agreement of March, 1922, because of the nature of the enterprise in which thej thus engaged, and which can only be passed upon conclusively when the evidence pertaining thereto has been taken, and is before the court upon the accounting, I think that the accounting prayed for should be directed to be made. The special master, upon the reference, should find and determine specifically the nature of the business enterprise of the partnership, whether or not it was such an enterprise as would be sanctioned by law, and what amount, if any, the parties may be liable for or entitled to receive, respectively, from the other. Pratt v. Boody, 55 N. J. Eq. 175; affirmed, 56 N. J. Eq. 429.

I will therefore advise a decree in accordance with these views.


author: Lewis, V. C.

text:
    Rosaria Pipitone, petitioner, v. Cologero Pipitone, defendant.
    [Decided January 8th, 1925.]
    1. Insanity of a defendant in a divorce action, which intervened before the cause of action accrued to the petitioner, ends the willful desertion charged against him.
    2. Where a petition for divorce lor desertion was filed by a wife, alleging that her husband deserted her more than two years betore the filing of the petition, and it appeared on the hearing that about seven months after the alleged desertion was charged to have begun, the defendant became imprisoned in the state prison for crime, and was eight months afterwards transferred from the prison to the state hospital as an insane person, where he still is, he cannot be held to willfully, eontinuedly and obstinately desert the petitioner, as his confinement arrested the period of the desertion.
    On petition for divorce.

      Mr. Charles E. 8. Simpson, for the petitioner.

      Mr. L. Edward Herrmann, for the defendant.
   Lewis, V. C.

This is an action for divorce brought against a defendant who is now confined in the state hospital for the insane at Trenton. The case is on final hearing before me. The facts are:

On April 27th, 1920, the defendant deserted the petitioner while living in the town of West New York, this state. On May 1st, 1920, the defendant shot a boy in the neighborhood-in which he was living and then fled the jurisdiction. Subsequently, he was apprehended and was sentenced to serve a term in the state prison for fifteen years. He was sent to that institution in November, 1920. On August 3d, 1921, while incarcerated there, he was transferred to the state hospital for the insane at Trenton. The allegation of the petition filed in the cause is that the defendant deserted the petitioner in the month of April, 1920. It appears, therefore, that on August 3d, 1921, less than two years after the desertion, that the defendant was involuntarily confined in the New Jersey State Hospital for the Insane at Trenton. He still continues insane and confined in this institution, and, therefore, cannot be held to willfully, continuedly and obstinately desert the petitioner. It must be conceded that the mental condition of the defendant and his confinement arrested the period of desertion. He was no longer a willful deserter. .

These facts were all set forth in the answer and crosspetitiop, filed in behalf of the clerk of the court of chancery, who was appointed the guardian ad litem, for the defendant. At the appropriate time the petitioner’s solicitor filed a notice of motion to strike out the answer and cross-petition. The application came up on a motion given under the notice, and I continued it under rule 67 until final hearing. In due course the matter came before me under an order of reference for final hearing. Testimony was taken and the motion to strike out the answer and cross-petition was renewed. After hearing argument I stated that if the facts set up by the answer and cross-petition were true they constituted a bar to the suit. Solicitor of the petitioner conceded that the facts were true, which were presented in the said pleadings, but contended that the case was within the thirty-first section of the Divorce act of 1907. I do^ not so construe this section. As before stated, insanity intervened before) the canse for action accrued to the petitioner, and willful desertion was thereby ended. See Porter v. Porter, 32 N. J. Eq. 400; Gordon v. Gordon, 88 N. J. Eq. 436; affirmed, 89 N. J. Eq. 535.

An order may be entered dismissing the petition.


text:
    The Radio Corporation of America, complainant, v. De Forest Radio Telephone and Telegraph Company, defendant.
    [Decided February 9th, 1925.]
    1. Equity will never enforce a restrictive covenant unless the right of the complainant is clear.
    2. A court of equity will not enforce a restrictive covenant assigned unless the effect of the enforcement of it will be to protect property held by the complainant at the time of suit.
    3. lllhere a provision in an agreement required a company to obtain from purchasers of its apparatus an agreement that the apparatus should not be used in the transmission or reception of messages for pay, or by others than the original purchasers, or for purposes other than radio communication, its purpose was to protect the exclusive right of the seller in the field of the transmission and reception of messages by wire or radio for pay, and where the complainant is not using apparatus or selling apparatus for use in this field, it is not entitled to enforce the covenants for the purpose of protecting the “pay” field, when such enforcement will injure the business of the defendant in the “amateur” field.
    On bill, &c.

      Messrs. Griggs & Harding (Mr. L. F. H. Betts, of tbe New York bar), for tlie complainant.

      Messrs. Wall, Haight, Carey & Iiarlpence and Mr. Samuel E. Darby, Jr., for the defendant.
   Lewis, V. C.

The bill in this case is filed for the specific performance of a covenant contained in a contract made between the Western Electric Company and the defendant. There is no- suggestion in the suit of any claim for the infringement of a patent. This court, of course, is without jurisdiction to try such an issue, and it can only be brought in the federal courts.

This controversy first came before the court on April 13th, 1923, on an application for a rule to show cause why an injunction should not issue against the defendant. The rule was returnable April 30th, 1923, but hearing on said rule was continued until May 21st, 1923, when an injunctive order was made with the consent of solicitor at that time appearing for the defendant corporation.

The covenant, which this suit is brought to specifically enforce, is:

“No apparatus shall be sold or leased by the He Forest company under its reserved rights, except upon written agreement by the purchaser or lessee, ns the case may be, that neither said apparatus, as a whole, nor any part thereof, shall be used in the commercial transmission or reception of messages for pay, or used by others than the original purchaser or lessee, or used for any purposes other than radio communication.”

The preliminary injunction restrained violation of this covenant.

In December, 1923, through other solicitors, the defendant corporation made application for a modification of this injunctive order. This was denied, among other reasons, because the day for the opening of the final hearing was near at hand.

At the final hearing considerable testimony was taken and a'large number of exhibits came before the court. The facts wore fully presented and elaborate arguments, orally and on briefs, followed.

The Dc Forest company, in 1917, granted to the Western Electric Company patent rights having to do with radio operation; the Western Electric Company, in 1917, assigned these rights to the American Telephone and Telegraph Company; in 1920 the American Telephone and Telegraph Company granted licenses to the General Electric Company “nonexclusive,” and upon the same date the General Electric Companjr extended to the Badio- Corporation of America, the complainant, certain rights under the patents; the De Forest company, in making the contract of March 16th, 1917, with the Western Electric Company, reserved certain rights to manufacture and sell radio- apparatus for amateur- use; it agreed that no apparatus should be sold or leased by it under such reserved rights except upon written agreement by the purchaser otr lessee, as the case might be, that neither said apparatus as a-whole, nor any part thereof, should be used in the commercial transmission or reception of messages for pay, or used by_ others than the original purchaser or lessee, or used for any purposes other than radio communication; ‘the American Telephone and Telegraph Company, for whose benefit the contract was made between the De Forest company and the Western Electric Company, and to whom the contract was assigned-as was contemplated when it was made, was interested in retaining for itself the entire field of transmitting messages for pay by wire and in securing to itself, as far as it could, the field of transmitting wireless messages for pay; on January 18th, 1923, aai instrument was made between the American Telephone and Telegraph Company and the Badio Corporation, which pumorts to assign to the Eadio Corporation the rights of the telephone company in the restrictive covenant of the De Forest company contained in the agreement of March 16th, 1917, between the De Forest company and the Western Electric Company, together with all right of action and-to damages or other legal or equitable relief which had accrued to the telephone company for or on account of any breaches of the covenant with respect to the patents mentioned in the instrument; this so-called assignment reserved to the telephone company “the right hereafter to avail itself of said covenant and to bring suit for violation thereof with respect to said letters patent in all cases where the telephone company * * * shall ox may be specifically damaged or harmed by violation of said covenant with respect to the said patent; provided, that if the aforesaid reservation and exception cannot legally be made, then this agreement shall be wholly void and of no effect;” both the Radio Corporation, the complainant, and the De Forest company, the defendant, are engaged in the amateur held.

The suit is brought by the Radio Corporation to compel the De Forest company to obtain a written agreement from every purchaser or lessee that neither the apparatus as a whole, nor any part thereof, shall be used in the commercial transmission or reception of messages for pay, or used by others than the original purchaser or lessee, or used for any other purpose than radio communication.

The effect of the relief prayed for would be to compel the De Forest company to submit to a sales method, seriously crippling it in disposing of apparatus for the use for which it is entitled to dispose of apparatus under its reserved rights under the agreement of March 16th, 1917. The Radio Corporation is engaged in disposing of apparatus for use in the amateur field, and, if it can compel the De Forest company to submit to this method of sale, it, not being required to secure similar agreements from its customers, will be benefited by a decrease in competition. Both the Radio Corporation and the De Forest company have equal rights in disposing of the apparatus for amateur use. It is not claimed that any of the apparatus sold by the De Forest company is being used for the transmission of messages for pay, or for any purpose other than amateur or experimental, and it would be no concern of: the Radio Corporation if, as a matter of fact, the apparatus sold by the De Forest company were used for the transmission of messages for pay or for other than amateur or experimental use, for the Radio Corporation is not in that field. The right of the Radio Corporation to the protection of the covenant is rested upon the fact that the covenant goes with the grant of the licenses', and that to the extent that it has secured licenses or rights under the agreement of March 16th, 1917, it is entitled to the protection of the covenant therein contained, and also- upon the assignment made on January 18th, 1923, by the American Telephone and Telegraph Company to the Eadio Corporation. I do not think that it acquired any rights under the assignment of January 18th, 1923, which it did not have before. Whatever may be the effect of this assignment at law, a court of equity will not enforce a restrictive covenant assigned unless the effect of the enforcement of the restrictive covenant will be to protect property held by the complainant at the time of the suit. If the Eadio Corporation has no property to be protected it cannot set a court of equity in motion, because of the assignment of the equitable cause of action referred to in the agreement of January 18th, 1923.

Eor the purposes of this case, however, I think it may be assumed that by virtue of the various instruments between the Western Electric Company, the American Telephone and Telegraph Company, the General Electric Company and the Eadio Corporation, the Eadio Corporation became ^ ested with the right to enforce this covenant to the extent that it is necessary or appropriate that it should be enforced to protect the property which the Eadio Corporation obtained by virtue of these various assignments, which I shall assume to be the right to dispose of apparatus for amateur use.

I am satisfied that, assuming all of the legal questions raised with respect to the rights of the complainant in its favor, the injunction prayed for should be denied.

The clear purpose of the provision and the agreement of March 16th, 1917, requiring the De Forest company to obtain from purchasers of its apparatus an agreement that the apparatus should not be used in the transmission or reception of messages for pay, or by others than the original purchasers, or for purposes other than radio communication, was to protect the exclusive right of the American Telephone and Telegraph Company in the field of transmission and reception of messages either by wire or radio for pay. The complainant, the Eadio Corporation, is not rising apparatus or selling apparatus for use in this field, and it is not entitled to enforce the covenant for the purpose of protecting the “pay” field. While the provision of the covenant requiring the De Forest company to secure agreements from its customers, &c., are restrictions upon the reserve rights of the De Forest company', nevertheless, in construing the covenant, the whole instrument must be taken into consideration as well as the circumstances surrounding the transaction, and, when that is done, it is quite apparent that the restrictive covenant was inserted for the purpose of protecting the “pay” field. Complainant is now seeking to have this restrictive covenant enforced to reduce competition in the “amateur” field, a purpose never contemplated. To- say the best for the complainant, it is not clear that it was-ever contemplated that this restrictive covenant should be used solely for the purpose of so hampering the De Forest company in the sale of apparatus for the very purpose for which it is permitted to- sell, and without a charge that a single apparatus sold by it has been diverted from the purpose for which it was sold, so as to result in a benefit to the Eadio Corporation by the elimination of competition. It is fundamental that equity will never enforce these restrictive covenants unless the right of the complainant is clear.

The negotiations between the De Forest company, the Marconi company and the Eadio Corporation the patent attorney of the De Forest company and Mr. Folk, the general patent attorney of the telephone company with respect to the conduct of the business in 1919, were sufficient to lead the De Forest company to believe that the telephone company', and those interested in the enforcement of the covenant, placed a practical construction upon the covenant, to the effect that its purpose- was to- protect the “pay” field, and the conduct of the parties and the statements made at the time were sufficient to lead die De Fo-re-st company to- believe that so- long as it conducted its business in such a way as that the “pay”' field was protected, there- would be no- insistence upon the performance by it of the strict letter of the covenant of March 16th, 1917. It relied upon this construction of the covenant and upon this understanding of the attitude of the parties, and upon the faith of that reliance it built up a sales organization at considerable cost and entered into contracts with, many distributors, which it has been obliged to cancel by reason of the preliminary injunction heretofore granted herein, and it is now being sued upon such contracts for considerable sums of money for damages; it expended a considerable sum of money in increasing its plant equipment. It is quite apparent that the De Forest company would not have so acted had it not assumed that it could continue to sell its apparatus, for amateur use through the usual trade channels, and I think that it had the right to assume, from the conduct of the telephone company and its representatives and the others interested in the covenant, that it might continue so to do. To compel the De Forest company to obey the strict letter of the covenant would, in effect, prevent it from doing business at a profit. It would make the investment of the De Forest company worthless.

And to go back to the first proposition, the covenant will have to be used for a purpose not contemplated by it. It will have to be used to reduce competition in the "amateur” field, whereas the purpose was to prevent competition in the “pay” field. In Driver v. Smith, 89 N. J. Eq. 339, are gathered together all the cases which have been decided in this state up to that time upon the question of the discretion of the court of chancery in the enforcement of negative covenants. and in that case injunctive relief was. denied upon the ground that the award of an injunction in such a case is a matter of discretion, and that the decree asked for by the complainant would do more injustice than justice.

Under all the circumstances of this case, I think that if there is any legal right in the complainant it should be left to its remedy at law. If it has a legal right, and there has been loss occasioned to it by reason of the invasion of that right, then it would seem that it is no more- difficult to fix damages than it was in the case of Sperry & Hutchinson v. Vine Bros., 66 N. J. Eq. 330.

In a case just decided in this court (East Jersey Water Co. v. Newark, 96 N. J. Eq. 231; 2 N. J. Adv. R. 1293), it was held that, under the facts in the case, the complainant should be left to its remedy at law. The bill was filed by the East Jersey Water Company to compel the city of Newark to comply with the conditions of a covenant contained in a contract between the East Jersey Water Company and Newark, under which Newark acquired its water works, which covenant provided that Newark would not furnish water to public or private corporations outside of certain territory. In violation of the covenant Newark proceeded to make contracts for the furnishing of water outside of the territory referred to, and the bill was filed by the East Jersey Water Company to enforce specific performance of the negative covenant. The injury, of course, to the East Jersey Water Company was the loss of customers. The court held, upon the doctrine of Sperry & Hutchinson v. Vine Bros., supra,, that complainant should be left to its remedy at law, if it had any remedy.

I will advise a decree dismissing the bill.


author: Lewis, Y. C.

text:
    Charles H. Edwards, complainant, v. Laura Stults et al., defendants.
    [Decided April 9th, 1925.]
    1. Where a testatrix provided in her will that the residue of her estate should be “divided equally between the heirs specified herein,” such residuary estate should be divided equally between her sister and her niece, excluding other more distant relatives, servants, a church, and a relative of the husband oil the testatrix, although they were named in the will.
    2. Soudder v. Tanarsdale, IS N. J. Bq. .109, followed.
    On pleadings and stipulated facts.

      Mr. Robert Carey and Mr. William L. Rae, for the executor, complainant.

      Mr. Harry Lane, for Jennie Patton and the Patton, defendants.

      Mr. Klemmer ICalieissen and Mr. William D. Danberry, for Laura Stults.and the Anderson, defendants.
   Lewis, Y. C.

The bill in this case is filed by the executor, pursuant to the statute, to obtain a construction of a portion of the last will and testament of Caroline Snedeker, deceased.

At the time of her death she left, surviving her, numerous relatives. She had no children. There were three sisters, viz., Roxanna Applegate, Maria L. Stults and Laura B. Stults. There -was also a niece, Jennie Patton, a daughter of Adelaide Stults, a deceased sister of the testatrix; and Jennie Patton had four children. The sister, Laura B. Stults, had one child, Lillian Anderson; and Lillian Anderson had five children. In the will bequests were made specifically to each one of these relatives of the testatrix except the two sisters, Roxanna Applegate and Maria L. Stults. Those two sisters are not named in the will. In addition to the legacies to the relatives specified, bequests were also made to Kate Bohen, a household servant of the testatrix, but not a relative ; to the Üniversalist Church at Hightstown, and to Edna Applegate, a relative of her husband, but not of the testatrix.

The testatrix then provides in the eleventh clause of the will, as follows: “'The residue of my estate to be divided equally between the heirs specified herein.”

The contest arises upon the construction to be given this clause. It is contended by one group of the beneficiaries under the will that the residue of the estate, under this clause, is to be divided between the strict heirs-at-law of the testatrix who are specified in the will, and it is stipulated that the next of kin of the testatrix are the same persons as the heirs-at-law, viz., the sister, Laura B. Stults, and the niece, Jennie Patton.

On the other hand, it is contended that the group that is to take the residue of the estate, under the provisions of the eleventh clause of the will, should include, in addition to the strict heirs-at-law or next of kin, ail the relatives of the testatrix who are specified in the will.

There is a third possible contention, and that is, that the residuary legatees are all the beneficiaries named in the will, including the non-relatives of the testatrix and the church at Hightstown.

The problem thus presented is a perplexing one, upon which the arrthorities are not in entire accord. Leavitt v. Dunn, 66 N. J. Law 309.

It is a fundamental rule of construction that, if a testator uses technical terms in a will, their technical meaning will be given effect, unless there is a clear indication of a contrary intention by the testator. The intention of the testator is the cardinal guide, and that is what should be given effect here, in so far as the intention of the testatrix can be determined from the language of the will, and in the light of the authorities which govern the construction to be given the phraseology here employed.

In this state, following the English rule, our courts have established the rule that, in the absence of clear language indicating a different intention, a gift to “heirs” is held to be to such persons as would take as heirs-at-law of the real property, and those who would take as next 8f kin of personalty. In other words, the persons to take as “heirs” would be determined by the nature of the property passing by the will, realty going to the strict heirs-at-law, and personalty going to the next of kin. Scudder v. Vanarsdale, 13 N. J. Eq. 109; Welsh v. Crater, 32 N. J. Eq. 177; affirmed, 33 N. J. Eq. 362; Hayes v. King, 37 N. J. Eq. 2; citing Wingfield v. Wingfield, L. R. (9 Ch. Div.) 658, and Stev. Tr., L. R. (15 Eq.) 110; Ward v. Dodd, 41 N. J. Eq. 414; Leavitt v. Dunn, 56 N. J. Law 309, supra; Cross v. Cross, 17 N. J. Eq. 288.

The testatrix left an estate of about $13,000, consisting of both real and personal property. The real estate has been sold and converted into cash, and the proceeds of the real estate, together with the personal property now in the hands of the executor to be distributed, amount to, approximately, $5,000. The will does not distinguish between the real and personal estate, but disposes of it without distinction. But that can make no practical difference in this case, because identically the same persons would take as heirs-at-law or as next of kin; and the real test, therefore, is not between different groups who might take as heirs-at-law or next of kin, but between the group that either as heirs-at-law or next of kin would take the residue, and the other relatives outside of those groups, and the other beneficiaries under the will, who claim to come within the phrase in the eleventh clause, “the heirs specified herein.”

It seems to me that if this were a ease of first impression, and if I were unhampered by authority, I should be inclined to hold that the real intention of the testatrix here was to distribute her residue among all the legatees or beneficiaries named in her will. She is not shown to have possessed a technical legal knowledge of the terms employed in her will, and the scrivener who drafted the will was a layman. If she had intended that only her strict heirs were to take the residue, it would have been a simple matter for her to have stated that the residue should be divided between her sister, Laura B. Stults, and her niece, Jennie Patton. But when it came to naming the numerous beneficiaries mentioned in the will, it would be perfectly natural for the lay mind to avoid that particularity of detail, and refer to all those who had been mentioned as the recipients of her bounty, as her “heirs specified therein,” and this regardless of whether or not they were her relatives. And this construction might be adopted where such intention was manifest is asserted by Chancellor Green in Scudder v. Vanarsdale, 13 N. J. Eq. 109 (at p. 113), supra.

However, in that case, Chancellor Green pointed out that where there were included among the legatees persons who were of no kin to the testatrix, that was a conclusive objection to such a construction. He says that:

“Among other constructions sought to be given to the residuary clause, it is claimed that the testatrix, by the term ‘heirs,’ meant ‘legatees,’ and that the design was to distribute the residue as well among her husband’s relatives as her own. This construction may be adopted where such intention is manifest. Collier v. Collier’s Exrs., 3 Ohio 81. R. 369.

“But no such intention is manifest on the face of this will, nor is there anything from which such intention can be legitimatety inferred. A conclusive objection, moreover, to this construction is, that there are included among the legatees’ servants and others, who are of no kin either to the testatrix or her husband.”

Although there are authorities which sustain the view that the term “heirs” shordd be construed to mean “legatees” under the provision similar to that involved in this case (see Roddy v. Fitzgerald, 6 H. L. Cas. 823; Greenwood v. Murray, 28 Minn. 120; Graham v. De Yampert, 106 Ala. 279; Clark v. Scott, 67 Pa. 446; Harvey’s Est., 30 N. Y. Supp. 1; Townsend v. Townsend, 25 Ohio St. 477; Roland v. Miller, 100 Pa. 47), still I feel that I am bound by the view expressed by this court in Scudder v. Vanarsdale, supra; and inasmuch as it was there ruled that the fact that among the legatees were persons who were of no kin to the testatrix, conclusively negatived the proposition that the term “heirs” was equivalent to “legatees,” I feel obliged to so rule in the present case. I think there can be no middle ground. Either all the legatees must be permitted to participate under the phraseology of the eleventh clause of the will, or the participants under that clause must be limited to the next of kin specifically mentioned in the will, viz., Laura B. Stults and Jennie Patton.

I, therefore, feel constrained to advise a decree directing that the residue of the estate shall be divided equally between Laura B. Stults and Jennie Patton, the next of kin of the testatrix specified in the will.


text:
    Nathan Rabinowitz and David Laderman, complainants, v. John Rooney et al., defendants.
    [Decided May 12th, 1925.]
    1. Specific performance is only to be exercised in the sound discretion of the court, and is not a matter of right; to warrant a decree for specific performance, the proof must be clear and convincing.
    2. Where two of several heirs signed an agreement of sale, and the vendee knew that there were other heirs who had not signed, on a bill filed by the vendee for specific performance, as the proof is not clear as to those not signing the agreement of sale, a decree for specific performance may be made against the two who signed, but upon payment of the full purchase price, or the complainant may elect to have the -bill dismissed.
    On pleadings and proofs.

      Mr. John IF. Harding, for the complainants.

      Mr. Michael Bunn and Mr. Arthur 0. Bunn, for the defendants.
   Lewis, V. C.

This is on bill for specific performance. An option was given by John Rooney to sell his property April 16th, 1923. On April 19th, 1923, there was a formal contract to sell, signed by John Rooney, as attorney in fact for the estate of James Rooney. On April 20th, 1923, power of attorney was given to John Rooney to act for tbe heirs on the sale of the property, which was signed by some of the lreirs fox themselves, and also signed for the others, but without authority. John and Thomas Rooney undoubtedly signed these agreements and are bound by them. The other heirs claim that they never authorized or ratified the contract of April 19th, 1923, and that those who signed the power of attorney of April 20th (which complainants refer to as the “ratifying agreement”) did not know its contents, and that they supposed that they were furnishing a list of the heirs only.

Specific performance is only to be exercised in the sound discretion of the court, and is not a matter of right.

To warrant specific performance the proof must be clear and convincing.

If the proof is substantially evenly balanced, or if the court is left in doubt because of the lack of clearness of it, it denies specific performance and leaves the parties to their remedy at law. Lindley v. Keim, 54 N. J. Eq. 418.

The testimony seems to be sufficient for the court to- decree specific performance against John Rooney and Thomas Rooney, but is very insufficient and doubtful with relation to the other heirs. They deny having ever authorized the contract, or that they ratified it. The complainants have tried to make out a case based upon inference and possibilities and circumstantial deductions, to fasten the contract upon the other heirs; but, in the face of their positive denials, it is difficult to see how this testimony is to prevail against them. Farrier v. Shaw, 118 Atl. Rep. 339.

The relief of specific performance is discretionary, and when the testimony is substantially in balance, or weighs about evenly, or when it leaves the court in doubt, the undoubted rule is that specific performance will be denied, and the parties will be left to their remedy at law.

Tinder these circumstances it would seem that the complainants are entitled to specific performance as against John and Thomas Rooney, if they desire it, for their interest in the land, but upon payment of the full purchase price.

I do not see where the court has the power to force a new contract on the parties, and say that they should take less than the purchase price agreed upon, particularly where it is clear, as it is in this case, that the purchasers knew that there were outstanding interests which might not have authorized the making of the contract.

If complainants do not see fit to take a decree for specific performance against John and Thomas, for their interests, upon payment of the full consideration agreed upon, then they may elect to have the bill dismissed.

As to the other defendants, I think that specific performance should be denied.

In order that there may be a ratification of a preceding act or document, all the details of the act and all the terms of the document must be brought home to the attention of the party whose ratification is sought. He only ratifies those things which are brought home to him as having already been done. That principle is well established.

The first instrument executed by John Rooney, as has been stated already, was an agreement to sell his property. A few days later the second document was executed by John Rooney as attorney for the estate of the decedent. That was the printed, formal agreement to sell the property in question. Almost immediately after that was executed the prospective purchasers appeared to have conceived the idea that it was not binding upon the other co-owners, for they at once sought out the other heirs and endeavored to obtain from them a ratification of that agreement. If there was no question as to the validity of that agreement, why should these purchasers have been so fearful of it, and why should they have taken such immediate and aggressive steps to secure a ratification of it?

'The last paper executed was this so-called ratification, on April 20th, 1923. The testimony clearly shows that only a part of the owners actually signed it, and some of those signed for the remaining owners, upon the statement, they say, made by the purchasers, that they simply wanted to secure a list of the names of the heirs. However that may be, it is difficult to see how this paper of April 20th, 1923 (marked “Exhibit GSYz”), can be called a ratification. There is nothing in the testimony to show that the precedent acts of John Rooney, and the agreement of April 19th {“Exhibit C-Jf’), with all its terms, were brought to the attention of these parties whose ratification was sought. Nor does this paper of April 20th, 1923, in terms, purport to be a ratification of anything. It is rather an authorization, at that point, to John Rooney to act in behalf of the purported signers, on the sale of the estate of the late James Roonej. Its'exact language is: "We, the undersigned heirs of James Rooney, do appoint John Rooney with power of attorney, and do invest him with full power to act in onr behalf on sale of estate of the late James Rooney.” This power of attorney could, of course, be revoked at auy time. The most that could be said for it is that it might have been a sufficient authorization to John Rooney to act for those who had become parties to it in the future, subsequent to its execution. But there is nothing in the testimony to show that any action was taken by John Rooney, subsequent to its execution, to effectuate a conveyance of the property in question, pursuant to its authority. Had there been, there might be a different situation presented for adjudication, but even then it could not go beyond the point of being regarded as an authorization to sell the interests of those who were parties to it. Certainly, it could not bind those whose names were signed without their knowledge and without their assent.

I shall so advise.


text:
    J. & A. Steinberg Company, a corporation, complainant, v. Boruch Pastive, Sarah Moskofsky, William Moskofsky, Sarah Moskofsky and Abraham Moskofsky, defendants.
    [Decided May 18th, 1925.]
    1. Where one paid the owners of land, worth from $7,000 to $10,-000, about $6,750, and expended $3,000 for alterations and improvements thereon, there does not seem to be a discrepancy in the consideration which would, in itself, indicate a fraudulent transfer.

      2. Where real estate is owned by a husband and wife as tenants by the entirety, after the husband dies, there is no interest of his in the lands that is liable to be seized by his creditors, but during the lifetime of both, the creditors of either could seize the respective interests and sell them under execution.
    On bill, pleadings and proofs.

      Messrs. Weinberger & Weinberger, for the complainant.

      Messrs. RanzenJiofer & RanzenJiofer, for the defendants.
   Lewis, Y. 0.

Benjamin Moskofsky and Sarah Moskofsky, his wife, were the owners as tenants by the entirety of a tract of land known as No. 25 Union avenue, Rutherford, New Jersey. On November 14th, 1922, they conveyed the property to the defendant Boruch Pastive. He paid the grantors $2,000 in cash for the property, and also canceled a note of $1,000 of the husband’s which Pastive held; and he took the property subject to mortgages aggregating $3,750, together with interest and other accrued -charges thereon. Since he acquired the property from Mr. and Mrs. Moskofsky the purchaser has spent about $3,000 for alterations and improvements. On December 14th, 1922, Benjamin Moskofsky died, leaving his wife, Sara, surviving him. The present bill is filed to set aside the above-mentioned conveyance on the ground that it was made in fraud of creditors.

At the time of the conveyance the husband was indebted to several creditors for considerable sums of money. He was seriously ill, and it was necessary that medical and surgical attention should be obtained, and he needed funds for this purpose. It afterwards developed that he was suffering from an incurable disease, and a short time after he was operated upon at the hospital he died. The purchaser was the wife’s brother. When he was asked by the wife to loan some money for the medical expenses he replied: “I cannot, I have given you a thousand dollars already; how can I give you any more?” Then the husband said, “We have got to sell the house because I have got to get money to live.”

Mrs. Moskofslcy testified that part of the money that was received from the sale of the property was used to pay doctors’ and hospital bills, and some was paid on account of the debts of some of the creditors.

There is some conflict in the testimony regarding the value of the premises in question, but it seems to be fairly established that at the time of the conveyance it was not worth more than from $7,000 to $10,000. It is claimed by the complainant that it is now worth $14,000.

It will be observed that the purchaser paid and assumed mortgages and charges amounting to about $7,000 in the aggregate, and thereafter spent about $3,000 more in improving the property.

There does not seem to be, therefore, a discrepancy in the consideration which would in itself indicate a fraudulent transfer. I am inclined to the view that no fraud sufficient to avoid the conveyance has been established.

Aside from this, I am of the opinion that, under the adjudicated cases in this state, there would be no interest of the husband now liable to seizure by his creditors in the property in question. The husband and wife were tenants by the entirety. Upon the death of either the entire fee would vest in the survivor. During the lifetime of both, however, the creditors of either could seize the respective interests and sell the same under execution, but the purchaser of such interests of either of the owners would take simply the prospect or chance of such owner surviving his co-owner; for, as I have already stated, if the person whose interest was thus seized or sold should predecease his co-owner, his interest would fail, and the entire fee would vest in the survivor to the exclusion of the other’s creditors. During the lifetime of the co-owner, whose interest might be thus seized and sold by his creditors, the purchaser would be entitled to share the usufructs with the other co-tenant, to that extent becoming a tenant in common with the other.

It is perfectly apparent that, by the death of the husband, Benjamin Moskofsky, prior to the filing of the bill in this case, whatever interest he may have had in the premises in question would have survived to, and vested in, his wife, who survived him. Had they still been the owners as tenants by the entirety, the husband’s creditors would have thus been excluded. And if it should be held that, for any reason, the conveyance made by the husband and wife in November, 1922, was not effective to divest them of title, permanently, it seems to me that any restoration of title would now simply vest the entire fee in the survivor, beyond the reach of the husband’s creditors.

The result upon either phase of the case is therefore that the bill of the complainant cannot prevail, and I will advise a decree that it be dismissed.


author: Backes, Y. C.

text:
    Ella F. Wines, petitioner, v. August F. Wines, defendant.
    [Decided December 16th, 1924.]
    Where testimony of petitioner in a divorce case makes out a case of extreme cruelty, the rule of corroboration only requires that belief in its truthfulness must find support in the testimony of others, or of surrounding established circumstances. If certain acts of cruelty are corroborated, it is fair to assume that testimony of petitioner of other acts of cruelty, for which corroboration is lacking, is true.
    On exception to master’s report.

      Messrs. Kraemer & Biegler, for the exceptant.
   Backes, Y. C.

This suit is for divorce on the ground of desertion. The petitioner charges that as a result of the extreme cruelty of her husband she was compelled to leave him, and ever since and for more than two years thereafter he willfully and obstinately deserted her. The cruelty is alleged to have been habitual, and various acts are particularized. The defendant was served personally but failed to answer. The master, to whom the cause was referred, reported adversely, being of the opinion that the petitioner’s testimony of cruelty was not adequately corroborated. . The parties were married in February, 1918, and separated in June-, 1921. No complaint is made of the husband’s conduct prior to the birth of their child in January, 1920. From that time on it appears, from the testimony of the wife, that he choked and brutally beat her on many occasions, the last being the day she left their two-room apartment. A married sister of the defendant, who for six months lived in an apartment adjoining that of tire couple, testified that very often she heard the petitioner screaming at night, and the defendant cursing, swearing and calling her vile names, and upon one occasion saw him choking his wife and knocking her head against the wall, and on another occasion, during a quarrel, which she overheard, the petitioner came running into her house with finger-prints on her arm, the defendant rushing after her and threatening “that he would break her damn neck.” The sister further testified that the cursing and screaming were at all hours of the night and very often. Another witness testified that one night she heard the petitioner scream in distress and the next morning saw her with marks on her arm and face, and at another time, on a night when she and the petitioner had been to a dance and on returning home about twelve o’clock, she saw the defendant pull the petitioner in the door, pull off'her hat and coat and throw her down a flight of stairs. The mother of the petitioner also gave testimony that she saw bruises on the petitioner’s neck and aims, and that on speaking to the defendant about the assaults upon his wife he answered that she aggravated him so that he could not help it. There was no’ corroboration of the last assault, the. immediate cause of the petitioner’s departure, which the master mentions, and, perhaps, mistakingly regarded as necessary to a compliance with the rule of corroboration. The rule is defined and applied in Lasker v. Lasker, 91 N. J. Eq 352; Meek v. Meek, 92 N. J. Eq. 23; Orcutt v. Orcutt, 94 N. J. Eq. 303, and Smith v. Smith, 96 N. J. Eq. 59; 2 N. J. Adv. R. 1188. The testimony of the wife makes out, beyond question, a clear case of extreme cruelty. The rule of corroboration only requires that belief in its truthfulness must find support in the testimony of others, or of surrounding established circumstances. That I find in the testimony of the sister of the defendant, and the friend of the petitioner, as to specific instances of assaults by the defendant on his wife, and it is satisfying that she speaks the truth as to his violence on many other occasions when witnesses were not present. If he beat her once it is fair to assume, in the circumstances, that he did it again. If he beat her at the times as to which her testimony is corroborated, her story is acceptable as true that he assaulted her on the occasions as to which corroboration is lacking.

The petitioner is entitled to a divorce.


author: Baokes, Y. C.

text:
    Margaret W. Coe, plaintiff, v. Benjamin J. Coe, defendant.
    [Decided December 22d, 1924.]
    When vicious assaults are committed by a husband on a wife, the right of action for divorce for extreme cruelty (under P. L. .1928 p. 494) accrues, and is vested when the offense is committed; but the right of prosecution is postponed by the statute for six months.

      On petition for divorce.

      Mr. Howard 8. Dodd, for the petitioner.

      Mr. William Ripley Cobb, for the defendant.
   Baokes, Y. C.

This suit is for a divorce on the ground of extreme cruelty, under the 1923 supplement to the Divorce act. P. L. 1923 p. 1/.91/.. The couple lived together nearly twenty years, and up until August, 1922, the acts of violence complained of were infrequent. From that time on until the following June, when thej separated, there was great discord, and the husband’s ill-temper spent itself in at least four or live vicious assaults upon his wife, by seizing her by the throat to choke her, throwing her down or causing her to fall, and bj, mauling- and beating her. To this the wife testified in great detail, and she is supported by her two daughters, who gave proof of their father’s oppressive conduct towards her and of at least one of the assaults. The defendant admits most of the scenes but denies the assaults. He admits that in one of the struggles he struck his wife in the face-, but claims it was accidental, and that at another time he put his hand to her mouth to stop her screaming. I have no doubt of his guilt. The painful details of the assaults need not be related here. It is simply a case of an irascible and domineering husband enforcing submission to his will by brute force, of which submission to intercourse under unreasonable, if not shameful, circumstances was not the least.

It is contended that, though the petitioner be believed, a decree should be denied because her testimony is not corroborated in accordance with the rule in divorce cases. That rule requires that the truthfulness of petitioner’s testimony be verified by other witnesses to the occurrences or by the surrounding established circumstances. If they bear witness to some of the material things sufficient to satisfy the conscience of the court that the petitioner’s testimony as a whole is credible and worthy of belief, that is enough. Lasker v. Lasker, 91 N. J. Eq. 352; Meek v. Meek, 92 N. J. Eq. 23; Orcutt v. Orcutt, 94 N. J. Eq. 303, and Smith v. Smith, 96 N. J. Eq. 59; 2 N. J. Adv. R. 1188. Such corroboration is found in the testimony of the two daughters, who, as already remarked, witnessed their father’s conduct at home and saw one of the assaults made on their mother.

It is also contended that there should be no divorce, because the act of 1923 provides “that no' petition for divorce shall be filed until after six months from the date of the last act of cruelty complained of,” and that the defendant during that time tendered clue amends. If he had, it could not avail and relieve him of his predicament. The right of action for extreme cruelty is vested when the offense is committed ; the right of prosecution is postponed for six months. There is no period for repentances like in suits for constructive desertions, based on extreme cruelty, in which the sinner may relieve himself of the sentence of divorce^ by contrition and assurance of future conjugal conduct as pointed out in Gordon v. Gordon, 89 N. J. Eq. 535. The court is powerless to relieve him even though it believes the repentance to be sincere and future good conduct is assured, as in English v. English, 27 N. J. Eq. 579. The right of action is as fixed and absolute on the commission of the offense as in adultery. The postponement for six months, of the right to sue, is to give the injured party time to calm down and reflect, put the offender on probation, and to forgive if pardon is deserved. Condonation rests exclusively with the offended party.

There will be a decree.


text:
    William Whitney Ames, complainant, v. Board of Education of Montclair, New Jersey, and Wayne M. French, defendants.
    [Decided January 2d, 1925.]
    1. Public servants shall not be interested, directly or indirectly, in any contract made with the public agencies of which they are members.
    2. Where a contract is made hy a board of 'education for sale of its land in which one of the members of the board has, indirectly, an interest, such contract will not be enforced in equity, even though the motives and purposes of the member be hopest.
    On final hearing.

      Mr. Oharles Jones, for the complainant.

      Mr. Robert M. Boyd, Jr., and Theodore J. Badgley, for the defendants.
   Backes, Y. C.

The bill is for tbe specific performance of a contract to sell land. The Montclair board of education, April 24th, 1923, passed tbe following resolution:

“Mr. McKinney moved that this property [the land involved in this suit] be offered for sale at private sale to any purchaser who may offer at least the price of $29,260, and that it should be sold subject to .restrictions and present encumbrances, and subject also to any liens for improvements that may have been made, and that the secretary be authorized to enter into a contract with any purchaser willing to pay that price on those terms and conditions, and that after consulting with the town attorney as to the proper form of deed to be drawn, the president and secretary he authorized to draw up, exlecute and deliver said deed.”

The next day the complainant, at the instance of Union N. Bethell and his son Bichard, submitted to the secretary of the board the following proposal, which was accepted:

“April 25, 1923.
Mir. Fred P. Reagle,
Secretary, Board of Education,
Montclair, Now Jersey.
Dear Sir—•
I hereby offer to purchase from the board of education of the town of Montclair, the real estate owned by it, being the plot of land on the easterly side of North Mountain avenue, having a frontage on North Mountain avenue of two hundred feet, and extending through to Edgemont road, as more particularly described in the advertisement in the Montclair Times of the issue of March 31st,' for the sum of twenty-nine thousand two hundred and sixty [$29,260] dollars cash, to be paid one thousand [$1,000] dollars on the acceptance of this offer and the balance on passing of the title, within a .reasonable time after the acceptance of this offer.
I will accept a title to the premises- subject to restrictions and present encumbrances, and subject, also, to any liens for improvements that may have been made prior, to this date, and will be glad to execute a formal contract for the same as soon as the same can be prepared -and presented for signature.
I enclose herewith check for $1,000, being the original deposit.
Yours very truly,
[Signed] Wm. Whitney Ames.
Accepted for the board of education, Montclair, N. J., April 25, 1923.
[Signed] Fbed P Reagle,
Sec."

Later, the board rescinded the resolution, and so-ld the land to the defendant French for the same price, and after this bill was. filed conveyed it to him. He took with notice.

The background of this action is a long and bitter struggle, between Mr. Bethell, a member of the board, to retain the land for a school site, and a group of residente of Montclair, who objected to a public school in their midst, in which village politics played no unimportant' part. The group had the sympathy of three of the five members of the board and the strenuous opposition of Mr. Bethell, who consistently voted against all efforts to dispose of the land. On May 22d the group urged the board to- reject Mr. Ames’ contract, and a resolution was passed requesting him to withdraw. At this meeting Mr. Bethell partly disclosed his hand by submitting the following:

“To the Board of Education:
Respecting the Edgemont land recently sold by the Board of Education, and the adjoining so-called Sussman lot, I am authorized to say that these properties will be held [unimprovedi] for a reasonable time so that the board may take them if they are desired for school purposes; that if, under condemnation, which may be necessary to remove restriction, the property is to bring less than the price paid by the present owner plus carrying charges and the usual five per cent, agent’s commission, someone [but not the town] will lose the difference, and that if they bring more, the excess will be given tc the board of education.
[Signed] U. N. Bethell.”

At a iater meeting the solicitor of the board, to whom it liad been referred, advised the board that he was of the opinion “that the whole proceeding is invalid, for the reason that the resolution passed by the board at the meeting of April 24th delegated to a ministerial officer, the secretary of the board, the duty of exercising a discretion in accepting a proposal for the Edgemont land,” and also that “if any member of the board [meaning, of course, Mr. Bethell] is interested, directly or indirectly, in the contract for the purchase of the Edgem'ont property, the contract is invalid,” and thereupon a resolution was passed canceling the Ames contract, and another was adopted to sell the property for $29,260, and upon a bid of that sum being submitted by one of the group, in the name of Mr. French, it was, on motion, accepted.

Now, to go back to the night of April 24th: When Mr. Bethell returned to his home after the meeting, he related to his son, Eichaxd, what had happened, and it was arranged that the son should buy the property, the father to finance the project. The next morning Mr. Ames, under instructions, submitted the proposal and gave his own check for $1,000, the initial payment on the purchase. Eichard borrowed a thousand dollars from a bank on his note, secured by collateral, which he deposited to Mr. Ames’ credit to anticipate the latter’s check. In order to finance the purchase, and according to the plan, as related by him, Mr. Bethell bought a company which was about to surrender its charter, and conveyed to it his unproductive real estate in Montclair, and securities sufficient to carry this unproductive real estate, taking in payment capital stock of the company. Some of the stock he gave to his three sons, and much of it was put in trust for them when they reached the age of twenty-eight years, to interest them in business. His personal holdings in the company, he says, are now slight. He then entered into a written agreement with the company and his son Bichard., that Bichard should hold the school site unimproved for two years, and if in that time the board of education should take it by condemnation at a figure in excess of cost, plus carrying charges and five per cent, commission, Bichard was to remit to the board the excess, and if the award was less, then the company was to make up the difference to Bichard. The company was to reimburse Bichai’d for the thousand dollars he had paid on the purchase price, and endorse his notes or lend him securities sufficient to raise the balance of the purchase price and all the carrying charges for four years. If the property was not taken by the board within two years Bichare! was to be at liberty to handle it as he pleased, he then to save the company harmless. For the doing of these- things Mr. Bethell agreed to pay the company $3,000. It was further stipulated that he rvas not to participate in any profit that might accrue nor be liable for any losses that might be incurred, and that “his sole obligation is the payment of $3,000 to realty (the company), and the sole benefit to him is to secure for a reasonable period to the board of education the opportunity to acquire Edgemont, if it desires to, for school purposes, without undue cost.” The company, of which Bichard became the treasurer, advanced to him securities, which he posted with a trust company as collateral for a loan to pay the balance of the purchase price.

The cancellation by the board of the Ames contract was by no means in conscientious discharge of official duty. The stage had been set for the group to buy, and the board being in no mood to be outwitted by Mr. Bethell, sought the opinion of its counsel, who pointed the way out of the dilemma. The first ground seized upon is not tenable. The authorization to its secretary to accept an offer binding the board was not an unlawful delegation of power. The price had been fixed and the exercise of the power involved neither judgment nor discretion. The secretary’s action was purely ministerial and perfunctory. Hutchinson v. Trenton, 42 N. J. Law 72; Harcourt v. Asbury Park, 62 N. J. Law 158. The other, insinuating that Mr. Bethell was interested in the sale, rested in suspicion, which was deemed enough to serve the purpose. That the board was not a.t pains to prove the charge is of no importance if it was well founded, and is now established.

Richard is a young man of twenty-three, unemployed, lives with his father who supports him, has no means worth while, had little or no business experience, and none in real estate. He has a rich and kindly disposed father. 'There is no room for the slightest-suspicion that Mr. Betheli’s activities in the matter are not entirety unselfish, and that he was not actuated solely by a desire- to serve his community and protect its interests, plus, perhaps, his determination not to be outdone by the group. But despite his 'sacrifices and the means he adopted to detach himself from the sale and from any possible profit and to remove all grounds for imputation of ulterior motives, and although he be justly entitled to his community’s appreciation and gratitude, his underhung interest in the contract is sufficiently material to influence a court of equity, in the exercise of a sound discretion, not to enforce it. For, and it cannot be, plausibly, gainsaid, in the final analysis the contract, its fruits and consequences, is dominated and controlled by him as absolutely as if it were in his own name to do with as he will. Good faith of his intention to be disinterested must be conceded, but his power to rule his son and the destiny of the sale makes for that infection of the contract, which forbids its enforcement. It is an inexorable rule of common law, and it finds expression in our statute, that public servants shall not be interested, directly ox indirectly, in any contract made with public agencies of which they axe members. Public service demands an exclusive fidelity. The law tolerates no mingling of self-interest. Crimes act § 32; Comp. Stat. p. 1755; Wharton v. Stoutenburgh, 35 N. J. Eq. 266; Stroud v. Consumer, &c., 56 N. J. Law 422; Sturr v. Elmer, 75 N. J. Law 443; Stewart v. Lehigh Valley Railroad Co., 38 N. J. Law 505.

The bill will be dismissed.


text:
    Diamond Wall Cement Company, a corporation, complainant, v. Board of Education of Ridgewood et al., defendants.
    [Decided January 5th, 1925.]
    On a claim under the Municipal Dien law, where the principal contractor was obliged to finish the work of a subcontractor, he is entitled to charge the expense of premiums on indemnity bonds which he was required to furnish, as proper claims against the subcontractor’s interest in the fund liened.
    On final hearing.

      Messrs. Goult & Smith, solicitors for and of counsel with Norman ICer Company.

      Messrs. Bilder & Bilder, solicitors for and of counsel with Samuel Strasburger and Francis L. Kohlman.

      Mr. Marinus Gonta-nt, solicitor fox and of counsel with the Truson Steel Company.

      Mr. Cornelius Doremus and Mr. Jehial G. Shipman, solicitors for and of counsel with the Board of Education of Eidgewood.
   Backes, Y. C.

The Norman Ker Company built the Eidgewood High School under contract with the board of education of the township of Eidgewood, Bergen county. McNulty Brothers, Incorporated, contracted with Norman Ker Company to do all the furring, lathing and plastering for $12,750, and after doing some abandoned the work June 26th, 1918, and three days later was petitioned into bankruptcy; receivers were appointed, and in July the corporation was adjudged a bankrupt. The Norman Ker Company finished the work to be done by McNulty Brothers, Incorporated, and charged the cost to its account. The receivers filed a lien claim under the Municipal Mechanics’ Lien act with the board of education fox $8,417.21, for work alleged to have been done by their bankrupt before it abandoned its contract. The Diamond Wall Cement Company, complainant, supplied McNulty Brothers, Incorporated, with material and filed a lien claim after the adj udication of bankruptcy, and brought this suit to enforce the claim. The receivers answered, setting up their claim to the fund. The Norman Ker Company answered that the cost of completing the McNulty Brothers, Incorporated, contract would exhaust what was left of the contract price, and that there was nothing coming to the receivers, and the hearing was brought on to settle that question.

The McNulty Brothers’ contract price was $12,750, with extras $290, a total of $13,040. There was paid to it on account, before the bankruptcy, $1,720, leaving a balance of the contract price when work was abandoned of $11,320. The Norman Ker Company claims to have expended in the completion of the contract for labor and material $9,219.35, and for premium on bonds $976.56. In addition, the Norman Ker Company claim $1,300 for supervising the MeNulty work, and ten per cent, of its outlay and charges for overhead expenses.

The outlay for labor and material is sustained by the authenticated records of the Norman Ker Company by check vouchers and receipts, and by the persons who disbursed the money. The fact is challenged indirectly, only by proof that before the abandonment McNulty Brothers, Incorporated, spent for labor and material $9,814.95 (Norman Ker Company used the unused material), and by an estimate to finish the work would cost $4,428.95. The argument on the one hand is that only the difference between the amount so spent and the contract price, plus extras, $13,040, viz., $3,125.05, is reasonably allowable to complete the work, and, at most, only the estimate of $4,428.95 should be allowed.

Neither proposition disturbs confidence in the claim that the cost to the Norman Ker Company was, as it says, $9,219.35. As to the former, it may be that McNulty Brothers, Incorporated, bid too low. And as to the estimate: that was made just before the hearing, four years after the work was done, and was made bjr one whose qualification for that sort of testimony was meagre, if not entirely inadequate. He was a workman, not an employer or contractor, and he calculated on smooth sailing, not the vicissitudes that usually beset employers of labor. His allowance for wages for laborers and their number was lower, and his estimate of the efficiency of mechanics, per man, per day, was higher than that actually experienced; and, moreover, his estimate was based on a given amount of work to be done, not on the actual amount, which was in serious dispute at the trial. There is often a wide difference between an estimate and the cost of performance. Any bankrupt contractor, and many who are not, can testify to that. The receivers have little cause to criticise. They were given the opportunity to do what Norman Ker Company was forced to do, and refused. If at that time work had progressed to the point they now claim, and their bankrupt had laid out, as they claim, more than three-quarters of the contract price, it is strange they did not undertake to finish the work themselves.

As to the charges of Norman Ker Company for supervision and for overhead: Mr. Roberts, the managing director, and, practically, Norman Ker Company, made fifty-two trips from New York to Ridgewood to inspect and supervise the Mc-Nulty job, as well as the rest of the operation, for which was charged, at the rate of $15 a trip, as the McNulty proportion, $780. The foreman on the job, Mr. Alexander, who supervised the labor, was paid a wage of $48 per week, and of this $20 per week for twenty-six weeks was charged against the McNulty account as its proportion.

The charges for supervision are not allowed as such/ but are taken into consideration in the allowance for overhead, to which supervision, like any other expense of maintaining a plant and business organization, is, it would seem, properly chargeable. Overhead expense is undoubtedly an important and proper item to be reckoned with in such rindertakings. It is not disputed that ten per cent, of the outlay is the customary charge, and, I think, it is reasonable.

As to the premiums for the surety bonds: The receiver’s notice of lien and that of the complainant, and those of other creditors of the McNulty Brothers, Incorporated, tied up more than $10,000 of the Norman Ker Company’s money, and to release it it was obliged to post bonds with the board of education, to save it harmless from the liens of the claimants, as authorized by statute. This predicament was brought about by the subcontractor’s failure to pay its debts and the unwarranted lien claim of the receivers, and from which the Norman Ker Company had the right to relieve itself at the, expense of those who occasioned it. The' premiums on the bonds are less than the interest on the sum impounded, and Norman Ker Company would otherwise have been entitled to interest had it not furnished 'bonds. Much stress was laid on the fact that premiums to the amount of $488.20 have not as yet been paid. I fail to see how this affects the matter. Norman Ker Compairy owes it and will have to pay.