text:
    Edward H. Garcin v. Helen Spiers Garcin.
    [Filed October 4th, 1901.]
    1. Where a wife left her husband because he accused her of antenuptial unchastity and threatened to put a detective upon her past life—Held, that without satisfactory evidence of' some degree of physical violence by the husband, his conduct was not such cruelty as made him and not his wife the deserter.
    2. It has been the rule in this court never to grant a divorce upon the uncorroborated testimony of a party.
    On petition and cross-petition for divorce.

      Messrs. Beasley & Walker, for the petitioner.

      Mr. Robert 8. Woodruff and Mr. James J. Cahill, for the defendant.
   Reed, Y. C.

Edward H. Garcin, a widower with three children, at Washington, District of Columbia, on June 1st, 1898, was married to Miss Helen Spiers.

From Washington they went to New York City, where they stayed about ten days at the Hoffman House; thence they came to the Windsor Hotel, Trenton, where Mr. Garcin had made his home; thence, somewhere about July 1st, they moved to the Columbia Hotel, at Belmar, New Jersey, where they remained during the months of July and a part of August; thence they returned to the Windsor Hotel, at Trenton, for a brief period; thence she went to Washington and Culpepper, Virginia, until he returned from Chicago, and finally, about September 10th, they began housekeeping on North Clinton street, in Trenton. They lived there—he being absent a part of the time on business trips and she on visits to her mother, in Washington, and both on a visit together to Niagara Falls—until November 5th of the same year (1898). On that day both left Trenton together, stopping at Washington. Upon their arrival at Washington, they took a carriage and drove to the Raleigh Hotel, where he alighted, and she was driven to the apartment house in a fiat in which her mother and sister lived.

She thereafter refused to return to him. After the expiration of two years he filed this petition for a divorce upon the ground of desertion.

She filed a cross-petition for divorce on the ground that, by reason of his cruel conduct, she was justified in refusing cohabitation.

The incidents of their brief marital life which led to this separation, as detailed by each of the parties, radically differ. The stories told by husband and wife are so contradictory in regard to circumstances about which there could have been no mistake that the testimony is affluent of perjury.

His account is to the effect that soon after their marriage he became suspicious that his wife was not a virgin when married. This suspicion, he says, was caused by her revelation of a knowledge of matters concerning which a virgin should have been ignorant and by her immodest behavior in his presence. The suspicion thus provoked led him, he says, to ask her if she had been guilty of intercourse with men prior to her marriage. He says that he had so asked her several times, and she, while at the Columbia Hotel, Belmar, told him that she had been intimate with men. This confession was followed by unpleasant relations between them for three or four days, when matters were smoothed over. Some time during the latter part of August—the wife having gone to Washington to visit her mother and Mr. Garcin being about to make a trip to Chicago—he telegraphed her to meet him at the Continental Hotel, Philadelphia. She met him, and they spent the night there. While there the matter of her antenuptial impurity was again brought forward by him. He says:

“I told her that if she did not tell me the full extent of these things that I would find out for myself; it was easy enough to- get a detective to find out.”

She went back to Washington and he went to Chicago, leaving her to suppose that he was going to employ a detective to look up her past life.

When he returned from Chicago his wife had gone to Culpepper, Virginia, her old home, where he joined her. There he produced a letter, purporting to be written to him by a Chicago detective, and also a folded paper, upon which was endorsed a pretended detective’s report upon his wife’s previous life. He admits that both were fabricated by himself. He says that he exhibited these papers to her and said:

“Now, if you want to confess this whole thing do so now, or otherwise I will read these papers and find it all out. * * * She said that she would tell me all if I would give her those papers and not read them.”

He says that she then confessed to her antenuptial connection with two men, and he then destroyed or gave the papers to her to destroy. This alleged confession was followed by a frenzy von his part. Peace followed, for this was before they began housekeeping. He says' that they had another unpleasantness in October over the confessions, but it was adjusted, and they thereafter made a trip to Niagara Falls together. He says that on November 4th they had a recapitulation of the whole business, with an additional confession. He says:

“She was very contrite and I did not know what to do about it. We decided there should be no scandal and that I would take her to Washington to her mother and sister and come back and see her and see whether it was possible for me to forgive her and live with her again.”

He went with her to Washington, left her there, but afterwards urged her to return to him, which, as I have observed, she refused to do. This is the husband’s account of the incidents which led to their separation on November 5th.

The wife sets up that she was compelled to leave him because of his cruelty. She is a lady of fragile physique and manifestly of a nervous temperament. She says that he had no consideration for her in the exercise of his marital privileges; that by his excessive indulgence, regardless of her physical condition, her health was impaired, and that he made comparisons between her and his first wife, which were very painful to the defendant. She says that he was a habitual drinker of liquor and was sometimes drunk; that he was coarse in his treatment of her, using profane language, and that he was guilty of physical violence— i. a., slapping, striking, choking, kicking and dragging her by the hair; that the last occasion was just before she went to Washington with him on November 5th. She says that he was jealous of her, and accused her of intimacy with other men; that he .threatened to put a detective upon her past life; that he presented a pretended report, which he afterwards destroyed. She denies that she ever made any confession to him, and insists that the sole cause of her refusal to return to him was his cruel treatment. He, on the other hand, denies that he was guilty of sexual abuse or that he ever struck, choked or kicked her. Indeed, he denies every charge, except that he accused her of (inquired of her about, as he puts it) antenuptial unchastity.

The testimony respecting his physical cruelty, whether sexual or otherwise, is that of the wife alone. She says that the first time that he ever struck her was after their return from Culpepper. They had been driving during the day; Mr. Garcin had been drinking heavily, and at night began behaving badly, when she said to him:

“Tour conduct to-day has been ungentlemanly, and it makes me miserable to think that you can be so unkind and behave so badly and so ungentlemanly. ■ When I said that, he said, ‘Look out, I am going to choke you.’ X said, ‘Ned, you would not hurt me,’ but his eyes were looking so wild and with such a gleam in his eyes that I was beginning to be afraid of him; and he rushed up to me and caught me by the neck and held me so that my tongue hung out of my mouth, and at last he dropped his hands and then he seemed to repent it, for he said, ‘I don’t know what made me do it.’ Just then I tried to escape from the room and go upstairs, but he forced me back; he got hold of me by the shoulders and threw me down in the bay window, and all the time he was calling me low, indecent names; such names you cannot repeat. After throwing me on tiie floor in the bay window he kicked me by the side here; and then I think he took me by the hair and dragged me from the library window to the threshold of the door by the hair. I screamed and lay there almost unconscious. When I came to myself again, I picked myself up and went up the steps and went to bed. I don’t know how long it was before Mr. Garcin came upstairs, but when he did come he was very repentant and called himself a coward and a brute for striking a little woman like me; and because he was so drunk that night X forgave him for what he had done.”

One night, she says, he brought some man home with him. She proceeds to detail what occurred substantially as follows:

“I heard Garcin say to him, ‘come in,’ and then I heard him say, ‘wait there and I will see.’ I was on the back stairs and saw Garcin go into the cellar, and when he came up the man was gone. Garcin was drunk and was in a rage because the man had gone without saying ‘good-night.’ He exclaimed, ‘I will kill him!’ and then turned on me and said, ‘Madame, it is your fault that the man left the house without saying “good-night it was your fault.’ He kept on raving and saying the most horrible words, and grabbed me by the hair and hurt me so I screamed. Miriam [Mr. Garcin’s daughter] rushed out and said, ‘Mamma, what is the matter?’ and I said, ‘Go back to bed, Miriam, I have eaten too much supper.’ I did not tell the child What was the matter. He begged of me not to tell anybody about it, not to tell my brother. When he would do that he would always beg my pardon and call himself a brute.”'

She says that while he and she were staying at Barlow, Virginia, he, while drunk, dashed her against the bedpost. The last episode of this kind, she says, occurred shortly before they separated. This is her account of it, in substance, reduced from the examination and cross-examination:

“It was early in the morning. He had kept me awake as usual. I was-not feeling well. He accused me of being a woman without virtue. -I denied it, and then he said something exceedingly repulsive. I told him that he had brought these accusations against me and that they were all false, and I got excited and called him a beast. Then he struck me on the cheek and said, ‘Now, what do you think of me?’ I said, ‘You are a coward.’ Then he began to strike me all over the body—not over the face—over the head and over the body. I think I screamed. I told him that that ended it; that I would never be his wife again, and I would make his case public, and he told me that if I did not shut my mouth he-would choke me, arid he dashed up to me and began choking me. I think this was two days before I left him.”

These are the incidents related by the defendant where physical violence was used by the petitioner. The petitioner denies that he ever used physical violence. It appears that these scenes occurved, if at all, while they were living on North Clinton street. A Hiss Heaclspeth, employed as governess for the children, was a member of the family during this period. She says she never witnessed any scenes of the kind, and that the Garcins were loving and affectionate. She says that on the morning of November oth—the day of their last trip to Washington—Mrs. Garcin came around the breakfast table and sat on the arm of his chair, with her arms around his neck. Miss Headspeth had a room next to the room of these parties for the first two weeks they were housekeeping. After that her room was at the back of the house, with a room intervening. She usually retired about ten o’clock. As already remarked, the defendant’s case so far rests upon her testimony alone. No one else testifies that he witnessed or heard .anything which indicated a rupture between the parties or saw upon the defendant any indication of physical violence. The charge of sexual abuse rests also entirely upon her. testimony— denied by his.

Leaving this phase of the case for the moment, I will turn to its other remarkable feature. It is undenied that Mr. Garcin, beginning shortly after their marriage and ending just before their separation, repeatedly accused Mrs. Garcin of antenuptial impurity. Did he think these charges true? This involves a solution of the question whether she did or did not confess to him that she had been unchaste before her marriage. The answer to this question is important, also, in ascertaining whether a confession, made just before November 5th, was the cause of her departure for Washington on that day.

The burden of proof is upon him, in the face of the denial of the defendant that she ever confessed.

His account of what he styles her first confession, made at Belmar late in July or early in August, is as follows:

“I asked her certain questions regarding certain men that she had been •engaged to or been with—had been to balls, dances and parties, driving and other excursions of like nature. I think she had been engaged to two. I asked her why it was she knew so much about things that I did not think came within the province of a virgin to know. For one thing I asked her whether she was or was not a virgin when I married her. X did not ask about any man. She said that she had been guilty of indiscretions. I don’t know that she said she had been guilty of indiscretions at first, but she told me if I would tell her the name of the man, she would tell me whether it was or not. She said she was a'good woman, and she said, ‘If you will tell me the name or the names of the man, I will tell you whether it is so or not.” These are her exact words.’?

He thus details, on cross-examination, the words of his wife, which, upon his examination-in-chief, he has styled a confession.

The next episode he details respecting the alleged confessions occurred when he threatened to put a detective upon her past life. He first says that he cannot fix the time or place. Subsequently he says it was on the occasion (already mentioned) when she, at his request, met him at the Continental Hotel, and fixes the date as about August 20th. What he said to her has been already detailed. He threatened, he says, that if she did not tell him all he would employ a detective. He then says:

“I think she told me ‘that was all,’ or if I could tell her the name of the man and she would tell me whether it was so or not. I think she repeated that to me. There was no quarreling or disagreeing on that score at all.”

He then went to Chicago and she returned to Washington. While at Culpepper he received a letter, directed to him at Chicago and forwarded to him, in which letter she said, “Don’t let that man go spying around and asking about me and send sister •those papers and I will send them to you.” There is no date to this letter. On August 24th she wrote him a letter, which, he says, he received while still at Chicago. In it she said:

• “I have not heard from you since you have been in Chicago. Please write to me and if you have not already sent those papers, send them to me and not to sister.”

On August 25th he wrote to her from Chicago. He tells her he has bought her a watch, rallies her about having no time to answer his daily letters—he having received but three letters from her since the preceding Thursday. The next meeting was at Culpepper, where he went from Chicago. He says:

“I found her some time during the day and spent the night with her, and it was during that night that I told her that I had the report of the 'détective; upon which she gave me the balance of the confession and then I tore up the papers, after showing her that there was no detective business in it at all. The first thing I said was that I had found out the same of the man. She asked me what his name was. I told her that I did not know, but I have these papers here which I have not read yet, and I said. ‘Now, if you want to confess this whole thing do so now or otherwise I will read these papers and find it all out.’ She said that she would tell me all if I would give her those papers and Dot read them. Then she told me all.”

He then details her story of having been seduced by one man and intimate with another. He says that he then gave her the papers, which were nothing but blank papers folded and endorsed. He says that he himself destroyed the letter purporting to be from a’ detective, after reading it to her. The next day he drove her twenty miles in the country, and stayed with her there three or four days. He says that he did not feel jovial, but there was no recrimination going on. He says that they had a great unpleasantness in October, just before their trip to Niagara Falls, already mentioned. This arose, he says, from a reconfession of her intimacy with a man, she having at Culpepper confessed it, and afterwards at Culpepper retracted it. The unpleasantness was so bad that she went down to Washington and stayed there several days. He wrote her, stating that he would forgive her, and asked her to meet him at the railway station in Washington. She and her sister met him; she, against the wishes of her sister, returned with him, and then they went on the trip to the falls and the lakes.

They returned to Trenton, had another unpleasantness, resulting from another confession, already mentioned, and then she went to Washington on November 5th.

Mrs. Garcin admits that he told her at the Continental Hotel that he was going to put a detective upon her past life. She says that she was disgusted with him, and said to him, “Certainly, have a detective if you want one;” and that she received a letter from him while he was at Chicago, saying that he had some-papers.

She says that he came from Chicago directly to Culpepper, where she was staying at her grandfather’s home. He had been drinking heavily. The first night he showed her a paper, which he said was the report of a detective. He was drunk. He said that he had found out these things against her. He kept on saying so, and finally saw that she did not take much stock in it, and he acknowledged, very shortly after, that it was not a detective’s report—’that he had made it up himself.

She says that he tore up the pretended report—whether that night or not she does not know—but it was afterwards found by her brother and patched up. It is introduced in the cause as Exhibit P 8, 4, 5. It is not a blank paper folded and endorsed, but a report in the handwriting of Mr. Garcin.

The letter and report, upon their face, show conclusively that, up to that time, no confession of intimacy with any particular person had been made by his wife.

Nor does Mr. Garcin’s testimony otherwise show that any such confession was theretofore made. All that he details of the conversation is that she said, “Name the man and I will tell you whether it is so.;” and this remark, ho says, was coupled with her assertion, at Belmar, that she was a good woman.

I do not think it proved that she ever confessed to antenuptial impurity. It is, indeed, possible that she may have confessed to what was not, in fact, true. Mr. Garcin says that he did not, and does not, know whether they were true—that he did not know what to believe. Confessions by a wife are regarded by courts with the greatest circumspection, more particularly when made to, or in the presence of, the husband.

This circumspection is grounded upon experience. It rests upon the knowledge that these confessions have been so made, in instances when it was pressed upon the wife, that such a confession was desired and expected, and that if not made, she would be still considered guilty, but unrepentant; and if made, she would be forgiven and domestic peace would return. But it is not proved to my satisfaction that she confessed at all to having been unchaste. There is not a hint that she was ever even immodest in behavior. Her husband said she was modest, except with him. • The charges he made against her and her alleged confessions are probably the coinage of his fancy. Several considerations point to this conclusion. The testimony, I think, shows that Mr. Garcin had a low opinion of the chastity of women. It shows also that he was accustomed to use intoxicating liquors, and on occasions to use them freely; and on such occasions lie was inconsiderate and free in the expression of his views.

Neither of these propositions rest alone upon the testimony of the wife. Miss Mary D. Spiers, a sister of Mrs. Garcin, tells of a visit he made to Washington in July, when he invited her to' dine with him'at the Shoreham.

At this dinner lie drank, and gave her an account of his powers of fascinating women, and said that he did not believe there was a virtuous woman in the world, and told a story about his first wife’s sister.

• In August, at the invitation of her sister, Miss Spiers went to Belmar to visit the Garcins. At the close of the visit Mr. Garcin took’them, with others, on a trip to Manhattan Beach and New York City. Mrs. Garcin and her sister stayed at tire Imperial Hotel. After they had dined in the evening, and—as they both say-—Mr. Garcin had drank deeply, he came into their room and began a tirade directed against Mrs. Garcin. He called her foul names, and said that he had-married two women of the same kind. Miss Spiers said that she insisted on leaving the hotel- early in the morning, and they did leave for Trenton. When at the Windsor Hotel, in Trenton, he said that all that he had said about his first wife was a lie.

Nor does the evidence of his drinking habit rest upon the testimony of Mrs. Garcin alone, nor upon that of her sister. Mr. Garcin admits that he has been accustomed to drink. He says that, as a rule, he never drinks before twelve o’clock. He is not a drinker who exhibits his intoxication on the streets, or in his business conduct,- or even at home, except upon occasions. But upon occasions he drank freely. There is in the testimony an account of a visit he made late at night to the apartment house where his wife was staying with her mother and sister. This was, he thinks, on November 7th. .Mrs. Garcin says that he was drunk. He admits that he had several drinks that evening with a customer. She says that he was drunk at Culpepper. He denies it, but admits that at Barlow he and a friend went back in the mountains and got a bottle or jug of whiskey, which they drank—taking several drinks a day. He was seen to enter a saloon in Culpepper several times a day.

On cross-examination he was told that he had said that he was never drunk any night during his married life. He replied, “■When did I say I was never drunk any night during my married life?” He did not deny that he had been. Now, the result of .his occasional overindulgence, coupled with his low opinion of the ability or inclination of women to resist the importunities of men, was probably that, upon these occasions, he felt and expressed a desire to know her former relations with men. She was young and attractive—her portrait having been published as one of the beautiful women at Belmar. He knew that she would have naturally received attentions from gentlemen. He speaks of one or two to whom she had been previously engaged, although .there is nothing to show that she had been previously engaged, except his account of what was said at the time of the -alleged confessions. His vanity and his' suspicious nature, excited by-drink, led him to be inquisitive about her former suitors and acquaintances, and to hint at, if not directly accuse her of, previous unchastity. Hpon such an accusation, she would naturally inquire, “With whom do-you charge me with being intimate? Name him or them.” Her questions he then or later tortured into a confession, for the purpose of exhibiting a cause for her separation from him.

Apart from the wife’s emphatic denial that she ever made the-alleged confessions, there are two or three things to be mentioned.

Mr. Garcin says that he told his wife’s mother and sister that his wife had confessed. When asked why he told them, he has no answer. The mother was not sworn, because of illness, but the sister denies that he ever said a word to her about it. Miss Spiers says that the first she knew of the charges and of the detective business was from her sister, who told her about if when she received a letter from Chicago. Her sister then said that Garcin had put a detective on her, and that she had written to him to send the papers to me.

Again, Miss Spiers testifies that she saw him at the Washington railroad station, at the time in October when he wrote to his wife to meet him. His wife had gone to Washington, he says, because of her confessing a matter which she had once confessed and then recalled. .Miss Spiers, as already observed, had been told of the detective business, and of what else does not appear. She was set against her sister’s resumption of her married life. Miss Spiers says that Garcin came in the waiting-room and kissed his wife and nodded to witness. He said to his wife, “Did you bring your trunk?” and she said, “No.” Witness said, “She shall not bring her trunks until I know you will treat her better,” and told him he was “a scoundrel, a coward and a moral leper.” He coaxed her to come back, and said it would never be his fault again if she left. After considerable talk the sisters went back home, and Mrs. Garcin got her trunk and went with her husband. According to Miss Spiers’ account of the interview nothing was said about the wife’s confession. His account of this scene is this: He says—after telling how incensed Miss Spiers was at something he did not know what—that he said to her, “Has Helen told you about such and such things?”

She said, “Yes,” and then broke out:

“You have no right to bring up these things against my sister; you are no better than she is; a woman has as much right to do this sort of thing as a man has, and you are as bad as she is and all men are bad, and you are one of the worst men X know.”

This, he swears, was said by Miss Spiers in the waiting-room at the railroad station. It contained a statement of woman’s rights hardly consistent with Miss Spiers’ appearance and breeding, and is, I am satisfied, a distortion of what she really said.

Again, he says that he never dreamed of such a thing as putting a detective at work, and when asked what was his purpose in forcing a confession, said that he hoped, to establish the fact that she was not as bad as she said she was; but again said that he thought there was more in her past life than she had revealed. Again, he said that the last trip to Washington was the result of her last confession—her recapitulation, as he styles it. He said, on his cross-examination, as already stated, that she was to stay there, until he decided whether he would forgive her. He had already said, “I did not know she was going to remain down there; I did not know what she was going to do; I thought she was coming back to Trenton—back to me.”

After November 5th he says that he wished an interview with his wife apart from the presence of her mother and sister. This was because he knew, he says, that they were inimicable to him. Yet, by his theory of the separation, he himself sent her into this inimical household to await his sentence.

Again, the note he wrote her on November 7th, asking her to send him a flask, and her reply, does not indicate that she was awaiting his forgiveness. On the other hand, the query arises, Why did the wife, if not guilty, write fond letters to him after he had accused her and told her that he intended to put a detective upon her past? After their meeting at the Continental Hotel she wrote to him, telling him what a noble man he was and how insignificant she was, but knew her love would compensate for it all. She asks him to stop the man’s spying and questioning people about her. She tells him, first, to send the papers to her sister, and then, not to her sister, but to herself. Why all this gush to a man who had abused her sexually, swore at her, accused her of unchastity, and finally put a detective upon her, if she was not afraid that there was something to discover ?

I do not think it essential to assume her guilt, for the purpose of finding a reason for these letters.

She was put in a very trying dilemma. It was far from agreeable to her to think that someone was inquiring—perhaps in the neighborhood where she had lived—concerning her maiden life, and was, by the nature of the inquiries, provoking suspicion, gossip and scandal. She naturally wished to prevent it, and so wrote the gushing letters to placate him and induce him to forego his purpose. If, however, he did get a report, she, like any other person in her- place, would be curious to see it.

Considering all the circumstances, it is not proven that she ever confessed to him that she had been unchaste.

Therefore, the ease stands thus: He had, during the period of their cohabitation, when intoxicated, repeatedly charged her with antenuptial unchastity, which charges led, undoubtedly, to painful scenes between them. Even if she had confessed this, as he insists, it is impossible to justify his repeated revival of the subject, after repeated forgiveness and reconciliations. It would still have been unmanly and cruel. But these repeated charges, based upon his suspicions alone, can with difficulty be adequately censured. The humiliation and torture thus inflicted were calculated to make cohabitation almost unendurable to a woman of sensibility and self-respect.

But such charges alone seem liot to bring the husband’s conduct within the definition of extreme cruelty.

Mr. Bishop observes that a groundless and malicious charge by a husband against his wife’s chastity, though not ordinarily deemed quite sufficient standing completely alone, is, when the foundation • for its admission is so laid, deemed a gross act of cruelty almost enough of itself. 1 Bish. Mar. & D. 726.

In Smith v. Smith, 13 Stew. Eq. 566, the husband. charged his wife with incest, and a divorce was decreed to her; but the charge was accompanied with slight acts of personal violence. In Graecen v. Graecen, 1 Gr. Ch. 459, there were threats and menances of personal violence, calculated to put the wife in dread of personal injury. In Close v. Close, 10 C. E. Gr. 528, the husband had repeatedly applied to the wife the most revolting-epithets—among others, bitch, sow and whore; but there were also acts of personal violence. It was left, as a query in the court of appeals, whether relief would be granted in a case of extreme hardship, without actual or apprehended violence. There may be an instance, as in Milner v. Milner, 4 Swab. & T. 240, where the husband publicly branded his wife as a prostitute; ox-other instaxxces where the husband, by verbal taunts and accusations, so tortured his wife as to lead to mental and physical illness, which would, in themselves, amount to cruelty.

The present is xxot such a case.

Nevertheless, if it is proved that, in additioix to his accusations, he visited upon his wife physical violence, although the latter might not alone amouxxt to extreme cruelty, both together may.

Said Chancellor Zabriskie, in Thomas v. Thomas, 5 C. E. Gr. 97, 99: “The actual violence in this case is not very great—not such as, if repeated, would cause danger to life or limb.” But inasmuch as the husband had spit iix his wife’s face axxd aectised her of a waxxt of chastity, he granted a divorce.

In Smith v. Smith, supra, a charge of incest, with slight acts of violence and reasonable apprehension of bodily harm, were held to be sufficient ground for a divorce.

If the acts sworn to by the defendant are established by legal evidence her case is proven.

The question is whether such acts of physical violence are proved.

As I have already observed; the evidence of their occurrence rests entirely upon the word of the defendant. In addition to this, there is testimony that she so acted and spoke as to refute"the facts to which she testified. Her acts are those mentioned by the governess and the petitioner, namely, that on the very morning of her departure she manifested her affection for her husband by sitting on the arm of his chair, putting her arms- around his neck and kissing him. Her words were those spoken-to Mr. Lowthorp, who, with her husband, visited her at her brother’s, in Philadelphia, on November 12th. In response to a question by Mr. Lowthorp she said that her husband had never been cruel to her. She admits this, and explains it by saying that she had promised her husband, before leaving him, not to expose the particulars of their marital differences. Her alleged conduct on the morning of-November 5th she denies. Then, again, it is to be remarked that the governess must have been in the house when the acts of physical violence occurred, and she says that she heard nothing of them.

The occurrences narrated by the defendant might have occurred without arresting the attention of the governess in her room. The fact that the defendant made no complaint, and did not make an exhibition of any bruises, is explicable on the theory that she had not then resolved to finally separate from her husband, and so did not wish, from motives of pride, to publish her marital troubles. If the question -were one of moral conviction merely, I would say that it is more probable that these scenes occurred than that the defendant fabricated the -details of the account which she gives. If they are invented, it is strange that she did not place one or more during the period when her sister was visiting her, so as to have corroborative testimony.

They were scenes which were not unlikely to occur. Take a husband intoxicated, suspicious, jealous, accusative, and a high-spirited wife, and the occurrence of these acts were not at all improbable.

Her reticence when questioned by Mr. Lowthorp was not strange. He was a stranger to her, to whom she did not wish to air her grievance.

When she went to Washington on November 5th I do not think that she had finally determined to separate from him.

Only five months before she had married a man of good family, ■of means and of supposedly high character. In spite of her marital troubles, it was a serious thing to leave him, and become the target of the gossip of her acquaintances.

The position of a married woman who lives apart from her husband is a very unpleasant one.

So she undoubtedly hesitated to take the step, and while still undetermined, did all she could to disarm his suspicions. She finally determined upon a separation, I think, after consultation with her mother and sister, and was strongly urged to do so by them.

The fact that she concluded to take this step, under the conditions, indicates that something in her married life made further c'ohibition more painful to her than the mortification of ■separation.

But while her unaided story of his physical violence may create a moral conviction of its truth, it does not, under the rule established in this state, amount to legal proof.

So far as appears, no other person saw these acts of violence, heard any threats or excited language, saw any marks upon her person, or heard any confession from him or complaint from her. It lacks corroboration in any material point.

Elsewhere divorces have been granted upon the uncorroborated testimony of a party.

In Pennsylvania a jury found a verdict in favor of a divorce upon the testimony of the plaintiff, contradicted by that of the defendant, and it was permitted to stand. “Sometimes,” said Mr. Justice Gray, in Robbins v. Robbins, 100 Mass. 150, “no other evidence exists or can be obtained. The parties are made competent witnesses by statute, and there is no law to prevent tlie finding of a fact upon the testimony of a party whose credibility and good faith are satisfactorily established.” For the-same reasons a marriage was annulled for impotence upon- the uncorroborated testimony of the wife, the husband not appearing, in F. v. D., 4 Swab. & T. 86.

“Yet,” says Mr. Bishop, “looking to what is practically just and safe in the administration of our divorce laws plainly, the-circumstances must be rare in which a court or jury ought to find what will divorce the parties, even on the testimony of both, where nothing in any degree confirmatory of it appears.” lie-further says: “Some courts, particularly in New Jersey, have an inflexible rule never to grant a divorce on the mere uncorroborated testimony of a party.” 2 Bish. Mar. & D. 284.

The accuracy of this statement is apparent in the following' line of cases: Woodworth v. Woodworth, 6 C. E. Gr. 251; Palmer v Palmer, 7 C. E. Gr. 88; Tate v. Tate, 11 C. E. Gr. 55; Shafto v. Shafto, 1 Stew. Eq. 34; Doughty v. Doughty, 5 Stew. Eq. 32; Sandford v. Sandford, 5 Stew. Eq. 420; Franz v. Franz, 5 Stew. Eq. 483; McShane v. McShane, 18 Stew. Eq. 341; Herold v. Herold, 2 Dick. Ch. Rep. 210; Weigel v. Weigel, 15 Dick. Ch. Rep. 322; Moak v. Moak, 48 Atl. Rep. 394.

It is true the cruel treatment by her husband is set up by the wife, not merely as a ground for a divorce a mensa, but it is set up as a ground for a divorce from him a vinculo, upon the theory that he, by his abuse, compelled her to leave him.

The same kind of testimony, however, of such abusive treatment is requisite in the one case as in the other; and the extreme cruelty must be established by evidence of the same degree of probative force. In the absence of corroboration, I do not think it legally proved by the defendant’s testimony alone that he deserted her.

I am therefore constrained to advise a decree for the complainant upon the ground of desertion.


source: Caselaw Access Project

author: Stevens, V. C.

license: Public Domain

text:
    Elijah R. Craft v. Richard R. Latourette et al.
    [Submitted December, 1900.
    Decided June 28th, 1901.
    Filed July 9th, 1901.]
    Complainant purchased three building lots under an executory contract by which he was to pay in monthly installments, and, when half was paid, deed should be delivered. After nearly half was paid, the vendor died, and her executors refused to accept further payments, on the ground that the vendor did not own two of the lots. They also refused to obtain title and complete the contract or to refund the money paid, on the ground that the estate might be insolvent.—Held, that complainant is entitled to a lien on the lot which the vendor owned, to the extent of the money paid by him, but not to a lien on other land belonging to her at the time of her death, and, if there is a deficiency, it must stand as other claims against her estate.
    On bill and demurrer,

      Mr. Miner IF. Demarcst, for the complainant.

      Mr. Willard C. Parker, for the demurrants.
   Stevens, V. C.

This case comes up on demurrer. The bill alleges that on November 3d, 1898, Juliet L. Brown entered into a written agreement to convey to complainant certain building lots, known as lots 30, 31 and 32, in block 41'2, in the city of Bayonne, for the price of $930. Of this price $30 was to be paid on the delivery of the agreement and $30 on or before the 15th day of each month ensuing its date, until fifty per cent, of the price should be paid, when the vendor was to convey by warranty deed and take back a purchase-money mortgage for the balance due.

It is further stated the complainant had paid, pursuant to the terms of this agreement, the sum of $393, together with a 5'ear’s taxes, when the vendor died. After her death he tendered to her executors another installment of $30, but they refused to take it, because they had found that two of the lots did not belong to the vendor, and they could give no title to them; that, on request that the executors either obtain title or refund the money, they refused tó do either, and based their refusal on the ground that “it was questionable whether the estate was solvent or insolvent.” The complainant alleges that a single lot is of no value to him for the purpose for which he made his purchase. He asks, inter alia> for a decree that the executors return the purchase-money and charge it upon the one lot which Mrs. Brown in fact owned at the time of her death.

The question argued in the briefs is whether the court will, under the circumstances detailed, give to the vendee a lien for the money paid by him upon so much of the property agreed to be conveyed as the vendor or her devisees have title to. The precise question does not appear, to have been decided in any reported decision of this court, but I have no doubt that the lien exists. The leading case is Rose v. Watson, 10 H. L. 672. Lord Cranworth there uses the following language: “There can be no doubt, I apprehend, that when a purchaser has paid his purchase-money, though he has got no conveyance, the vendor becomes a trustee for him of the legal estate, and he is in equity considered the owner of the estate. When, instead of paying the whole of his purchase-money, he- pays a part of it, it would seem to follow, as a necessary corollary, that to the extent to which he has paid his purchase-money, to that extent the vendor is a trustee for him; in other words, that he acquires a lien exactly in the same way as if, upon the payment of part of the purchase-money, the vendor had executed a mortgage to him of the estate to that extent.” The same view, annunciated as far back as 32 Geo. II. (1768), by the master of the rolls, in Burgess v. Wheate, 1 W. Bl. 123, 150, is adopted by the text-writers. 2 Washb. Real Prop. 93, 94 (4th ed.); Pom. Eq. Jur. § 1263; 2 Jones Liens §§ 1105, 1106. So far as the New Jersey cases go, they tend to support this view. In Copper v. Wells, Sax. 10, it was held that where a specific performance has become impossible, the party aggrieved has a lien for the value of beneficial or lasting improvements made on the faith of an agreement which conld not be executed because of a default in the opposite party. To the same effect is Berry v. Van Winkle, 1 Gr. Ch. 269.

The complainant is entitled to a decree adjudging that he has a lien upon the lot covered by the agreement to convey, to the extent of the money paid by him, and that the lot be sold to satisfy that lien. He is not entitled to a lien upon any other land belonging to the vendor at the time of her death. No order can be made in this suit with respect to the relative priorities of this lien and of a mortgage lien alleged to rest'upon the entire tract, for the reason, among others, that the mortgagee is not a party to the controversy. The defendants cannot be directed to pay out of the assets of the estate in their hands any deficiency existing after the lien shall have been exhausted. The complainant, obviously, stands oar aro more favorable footing in other respects than any other unsecured creditor of an estate that, as the bill suggests, may be insolvent.


author: Stevens, Y. C.

text:
    Arthur W. Moore v. Ida R. Baker.
    [Filed July 16th, 1901.]
    A vendor may bring a suit for specific performance against the vendee to recover purchase-money.
    On bill and demurrer.

      Mr. Edward M. Golie, for the complainant.

      Mr. Charles E. A. Thorn, for the defendant.
   Stevens, Y. C.

The only question raised by the demurrer is whether a vendor may bring a suit for specific performance against vendee to recover purchase-money. This question was answered in the affirmative by Chancellor Green, in Hopper v. Hopper, 1 C. E. Gr. 147. The decision in Miller v. Cameron, 18 Stew. Eq. 96, is to the same effect, and the rule seems thoroughly settled. Brown v. Hoff, 5 Paige 240; Sugd. Vend. & P. *244 ch. 5 § 4; Pom. Eq. Jur. §§ 1402, 1405, 1407; Story Eq. Jur. §§ 723, 790, 796. In Fry Spec. Perf. *10 § 23, the grounds upon which the court proceeds are fully stated.

I think the demurrer should be overruled.-


text:
    Martha Slater Smith v. William Baxter.
    [Filed July 25th, 1901.]
    The effect of a declaration of trust in the case stated defined, and the meaning of the word “assigns” in that instrument construed.

      Mr. John Whitehead, for the complainant.

      Mr. Thomas W. Randall, for the defendant.
   Stevens, Y. C.

The question arises upon the language of a declaration of trust made by .Harriet Slater in favor of the complainant. Harriet and complainant were sisters. Their father’s estate, real and personal, was being divided. In the course of the division it was agreed that Martha should convey her undivided half interest in the homestead to Harriet, who already had title to the other half, and that Harriet should execute a declaration of trust to Martha. This was done. The controversy is over the meaning of the following clause in the trust deed, which, after providing that Harriet might use, occupy and enjoy the homestead for life, and might, if she saw fit, rent the same, and that, if she survived Martha, she might have the fee-simple free from trust, proceeds as follows: ,

“And also upon the further trust and for the further use and purpose, that in case the said Martha Slater should survive me, then that my heirs or assigns shall sell and convey the whole of the said lot of land and premises to the said Martha Slater, her heirs and assigns, in an estate of fee-simple.”

Harriet died and devised all her property to her husband, the defendant. The brothers of Martha executed a conveyance of the homestead to Martha, and she then brought ejectment against the devisee. She was' defeated, on the ground that the devisee had the legal title. No doubt, under the operation of the rule stated in Perry Trusts § 336, a general devise of real estate will pass an estate vested in the testator as trustee, unless a contrary intention can be collected from the will or from the purposes to which the devised lands are subjected.

The question now is whether the devisee thus taking the legal title will be compelled to convey it to complainant. The declaration of trust is inaptly worded, but I think that it contains enough to justify the conclusion, in accordance with the general rule for construing trusts stated in Janes v. Falk, 5 Dick. Ch. Rep. 470, that it was Harriet’s intention that the survivor of the two sisters should take the fee beneficially. The word “assigns,” used in the paragraph quoted, is broad enough to include “devisee.” In Jac. Dict. it is defined as follows:

“Those who are assigned, deputed or appointed by the act of the party or the operation of law, to do any act or enjoy any benefit on their own account or risk. * * * Under the word ‘assigns’ shall be included the assignee of an assignee in perpetuum, the heir of an assignee or the assignee of an heir, so the assignee of an assignee’s executor and a. devisee.”

Looking at all parts of this declaration, it seems to me that the word “assigns” was intended to have the broad meaning ascribed to it by this definition.

First, it is declared that, although the deed from Martha to Harriet of her undivided half was, in its terms, absolute and unconditional, yet it was made “upon the trusts” in the declaration contained. It was, therefore, Harriet’s intention to create a irusi in favor of Martha.

Secondly, it is expressly provided that, outliving Martha, Harriet should hold only for life; and so carefully is the interest restricted that it is expressly declared that no lease shall exceed the term of Harriet’s life.

Thirdly, it is stipulated that Harriet might sell, but that if she did, she should purchase other real estate of equal value, which should be held upon the same trusts. This stipulation is very significant.

It shows that, by the word “assigns,” testator did not mean ■ assignees for value, because they take free from the trust, which is thereafter imposed upon the purchase-money and the other real estate purchased therewith. There are left, therefore, only ■voluntary assignees, and it is hard to believe that Harriet had in mind only such assignees of this class as she might constitute in her lifetime and not such as she might constitute by will. The very frame of the clause indicates assignees of this latter class. She is making provision for the event of Harriet surviving her, and while contemplating this event she uses the word ■“assigns” in connection with heirs, as to whom the maxim is ■nemo est haeres viventis.

In Titley v. Wolstenholme, 7 Beav. 425, R. T. devised his real and personal estate to his wife and two sons, “their heirs, executors, administrators and assigns ” upon trust. The surviving trustee devised the trust estate to A, B and C, upon the trusts of the first will. Lord Langdale said: “We have in this will expressions which clearly show that the testator intended the trusts to be performed by the ‘assigns’ of the surviving trustee, and in construing the will we must, if practicable, ascribe a rational and legal effect to every word which it contains. We cannot, consistently with the rule of this court, consider the word ■‘assigns’ as meaning the persons who may be made such by the spontaneous act of the surviving trustee, to take effect during his life, but there seems nothing to prevent our considering it as meaning the persons who may be made such by devise and bequest, and if we do not consider the word ‘assigns’ as meaning such persons, it would, in this will, have no meaning or effect whatever.”

It is hard to believe that the parties intended that Harriet should defeat Martha’s interest by the simple expedient of making a will; a will which, on the construction contended for,would relieve even heirs, if they took in the character of devisees; and this is the harder to believe, because it appears, from the deed itself and another deed executed contemporaneously, that the trust was upon valuable consideration.

Again, the language is mandatory—“my heirs or assigns shall sell and convey”—indicating that she contemplated a conveyance at her death in all events. By giving to the word “assigns” its broad meaning, it is easy to carry the direction into effect.

It may be argued that the use of the word “sell” implies a conveyance for valuable consideration, and that as no consideration is named, the declaration is imperfect; but I think that the consideration in the contemplation of the parties was the transfer by Martha to Harriet of her undivided half interest. This is fairly inferable from the previous clause, which recites that, although the deed from Martha to Harriet was, in its terms, “absolute and unconditional,” yet it was, in fact, made upon the conditions and for the trusts thereinafter mentioned.

It was argued that the paper was testamentary in its character, and therefore void, because not made with the proper statutory formalities. But there is nothing ambulatory about it. It gives, for valuable consideration, an irrevocable interest, contingent only on the decease of Harriet before Martha.


text:
    Alfred Mills et al., executors, v. Charles L. Kelley et al.
    [Filed September 25th, 1901.]
    The relative rights of several owners of mortgaged premises as among themselves, in the case stated explained, and their liability to discharge the mortgage indebtedness out of their respective parcels defined.
    On bill and cross-bill, &c.

      Mr. Alfred E. Mills, for Peter S. Conover.

      Mr. Edivard M. Co'lie, for Charles M. Lum et al.
   Stevens, Y. C.

The bill is filed to foreclose eight mortgages held by the com.plainants as trustees of the estate of Stephen Yail. There is no dispute as to their validity or as to the amount due thereon. The question in the cause arises on the cross-bill filed by Frederick II. Lum and others, owners of a part of the mortgaged premises, against Peter and John Conover, owners of other parts thereof. It is whether the land of the Conovers is primarily liable to satisfy the mortgage indebtedness, or whether all the land is equally liable. The property, which lies in Chatham township, Morris county, belonged originally to Nancy Kelley. She deeded it, in several parcels, heavily encumbered, to her two sons, and they, in turn, having become insolvent, deeded it to an assignee in insolvency, who, on November 16th, 1896, at public auction, sold part of it to Charles M. Lum and part of it to the Conovers.

The question raised is twofold—first, what are the relative rights of the above-named defendants, so far as they depend upon the deeds given by Nancy Kelley to her sons, and second, have those rights been varied by what is alleged to have been said by Charles H. Lum at the assignee’s sale.

Nancy Kelley obtained title by descent in the year 1869. The property was then subject to two of the mortgages now held by the complainants, one for $2,350 and the other for $1,650. On September 24th, 1873, she made two deeds, one to her son Charles L. Kelley and another to her son Harvey Kelley. The lot deeded to Harvey Kelley and another lot which she conveyed to him in 1886 are the premises purchased by Charles L. Lum at the assignee’s sale. The claim of the Lums is that, by making these conveyances, Mrs. Kelley threw the burden of the mortgages primarily upon so much of the mortgaged property as she retained for herself.

There are certain rules of equity on this subject which are entirely settled by the course of decision in this state: (1) Where a mortgagor, for valuable consideration, conveys away part of the mortgaged premises, the portion retained is, in general, primarily liable for the payment of the mortgage debt. Hoy v. Bramhall, 4 C. E. Gr. 569. (2) Where the consideration is not valuable, but the deed contains the usual covenants, the same result obtains. Gaskill v. Sine, 2 Beas. 400; Harrison v. Guerin, 12 C. E. Gr. 222. But (3) where the conveyance is voluntary and there are no covenants, the part conveyed remains liable for its proportionate share of the mortgage debt. Gray v. Hattersley, 5 Dick. Ch. Rep. 210; Jackson v. Condict, 12 Dick. Ch. Rep. 522. These rules are founded upon equitable grounds. They are based upon the presumed intention of -the parties, and will not be applied when there is competent proof of a contrary intention.

In the deed of September 24th, 1873, Nancy Kelley recites that Harvey Kelley is her son, and she then states that she conveys “for divers considerations and for * * * the sum of twenty-five dollars.” Under the evidence, this conveyance was voluntary. It would not, therefore, without more, throw the burden of existing mortgages upon the remaining land. But it contains a covenant against the acts of the grantor, and it is the effect of this covenant that calls for consideration. As I have already stated, at the time the deed was executed the land was encumbered by two mortgages, neither of them made by Mrs. Kelley. As she did not make them, their existence did not constitute a breach, of her covenant. It seems clear, therefore, that the lot conveyed to Harvey remained subject to its proportionate share of the charge. The ground upon which equity throws the burden primarily upon the land that remains is either that the grantee, having paid' full value for what he buys, ought not to pay any more, or, where the consideration is not valuable, that the grantor, having covenanted by deed of general warranty that there are no encumbrances, is bound to make that covenant good; in other words, that the grantee, and consequently the grantee’s land, ought not, as against the grantor, to satisfy that which the grantor is, by a valid stipulation, under an obligation to pay. But where the conveyance is voluntary and there are no covenants, then equality is equity. There is no reason why the voluntary grantee should not take the land with any charge that may rest upon it, except in so far as the parties themselves have otherwise stipulated. In the case in hand there is no stipulation, expressed or implied, that the land granted will be relieved from any burden, except that which the grantor has herself imposed upon it; hence, as to the mortgages in question, she stands in the situation of one who has not covenanted.

When the deed of November 11th, 1886,was made by Mrs. Kelley to her son Harvey for the adjoining piece of land, the situation had somewhat changed. The two mortgages I have mentioned still subsisted, but Mrs. Kelley had, in the interval, put four other mortgages upon her property, three of $3,000 each and one of $5,000. As to the three made by her alone, there can be no doubt that the covenant in the deed of 1886, which is similar to that in the deed of 1873, extends to them and throws the burden of them primarily upon the remaining property.

As to the mortgage of 1876, however, the case is different. It was executed, as I have said, by Mrs. Kelley and also by Harvey and Charles Kelley. The bond which it secured was the joint bond of all, and in the absence of evidence to the contrary, it is to be presumed that all of them were the principal debtors, thereon. As to this mortgage, the covenant in the deed to Harvey Kelley was broken as soon as made; but it is, at least, a question how far equity would permit Harvey to take advantage of the breach. He was as much bound to pay the debt as his mother, and if it remained unpaid, he was equally in default. On the face of the paper her share was only one-third. It is obvious, therefore, that it would, if there was no other fact in the case, be inequitable to throw the burden of more than one-third of the mortgage debt upon the land which then remained to Mrs. Kelley.

But at this point another factor enters into the problem. On November 17th, 1886, a few daj^s after the last conveyance to Harvey was made, Mrs. Kelley conveyed to him and to Charles the entire residue of the mortgaged premises by a deed which recited “natural love and affection and also $17,000'v as its consideration. This deed, after stating that the property .was conveyed subject to six mortgages (which it specifies), reads as follows:

“Which said several mortgages, amounting in the aggregate to the sum of $15,100, with all arrearages of interest due thereon, the said parties of the second part hereby assume and the same agree to pay off, satisfy and discharge; the said amount thereof having been taken and treated as a payment of so much of the consideration money hereinbefore in this conveyance expressed.”

Two of the mortgages mentioned were the two which existed before Mrs. Kelley acquired title, and one (securing $3,000) was the mortgage which secured the joint bond of herself and her two sons.

It seems to me that this assumption clause did not have the effect of shifting that part of the burden of the first two mortgages which had theretofore rested on the lots conveyed to Harvey Kelley. In the first place, the assumption as to them was simply nugatory. Nothing is better settled in this state than the doctrine that an assumption by the grantee of the payment of a mortgage which the grantor is under no obligation-to pay docs not create any equity in favor of the mortgagee; and if the grantor conveys all the mortgaged premises, so that the clause does not in anywise operate to protect or relieve any interest that he (the grantpr) may have, it is obvious that it gives him no substantial right of action.

In the second place, the question being one of intention, there is nothing in the transaction which shows that the grantor and grantees were consciously dealing with any other subject-matter than the land which was then being conveyed and with the burden then resting upon it. The intention, so far as appears or as may be reasonably conjectured, was to -shift the burden, just as it then stood, from the grantor to the grantees—not to shift a burden resting upon other land which the grantor was not conveying and which was no longer hers. As the doctrine is purely equitable, it ought not to be so applied as to produce inequality where-inequality is not deducible, either from the legal effect of the covenants or from the proved intention. The fundamental rule is that equality is equity, and this rule will only give away where either positive stipulation or some other rule of equity requires that it should. There seems, therefore, to be no ground for shifting the burden of the encumbrances so far as they rested upon the TIarvey Kelley land.

This reasoning does not apply to the bond and mortgage made by Mrs. Kelley and her two sons. Assuming that a third part of the burden of that mortgage rested upon so much of the Harvey Kelley homestead as was conveyed by the deed of 1886, the assumption clause worked a substantial change in the legal relations of the parties. It relieved Mrs. Kelley of any claim to contribution in case her sons paid the debt. It operated to make them the principal debtors. They became personally and jointly bound to pay all that was due, and this being so, it would seem that the land which they jointly acquired became, in equity, chargeable with the payment, of the debt before the land held in severalty by Charles and Harvey.

The result is that the Harvey Kelley homestead must bear its share of the $3,450 and $1,650 mortgages.

The evidence taken in the cause is nearly all directed to the question whether Charles M. Lum, at the assignee’s sale, said, in the presence of the bidders there assembled, that, “in his opinion, the Harvey Kelley property would bear between $3,000 and $4,000 of the mortgages—say $3,500.” This is the testimony of the defendant Peter Conover, the purchaser of the larger part of the property, and upon this evidence he bases a claim of estoppel. It is unnecessary to analyze the conflicting evidence on this subject. I think it clear that no estoppel is established. Mr. Hineh'man’s testimony shows that Mr. Lum did not, at the time of the sale, know the dates of the respective deeds. It is improbable that what he said was, or was intended to be, anything more than the expression of an opinion as to what was the limit of liability resting on the Harvey Kelley tract. It is still more improbable that Mr. Conover bid upon and bought in the other tract because of that which was casually said by one who was at the time an entire stranger to him.

Mr. Runyon, the attorney of the assignee, testifies that a number of people, including the Conovers, asked about the amount of the encumbrances that the Harvey Kelley tract would bear, and that he told them publicly that he could not tell, and that the assignee could not tell what amount of the mortgage burden would fall upon the different pieces of laird; that the purchasers were left to the public records in the county clerk’s office, and must draw their own conclusions. In view of this official announcement, it is hard to believe that Mr. Conover relied upon what he ’admits was stated as opinion merely, by one who was not only a stranger, but who was actually bidding against him. Mr. Hinchman, one of Mr. Conover’s witnesses, a lawyer employed in the office of his own counsel, testifies that, during the bidding upon the Harvey Kelley tract and after the alleged declaration by Mr. Lum, he (Hinchman) went to John Conover and told him that" he thought he might bid more than $3,000 on the Harvey Kelley tract, because there was a possibility that the property would escape all the mortgages. Mr. Conover practically admits that even if the land bid in by Mr. Lum should be entirely relieved of all burden, he would still have a good bargain. I do not think any estoppel is proved.

If there are any other questions raised by the view of the relative rights of the parties taken in this opinion, they may be presented on the application to settle the decree.


text:
    The American Bible Society v. The American Tract Society et al.
    [Filed October 2d, 1901.]
    An unincorporated charitable society is capable of taking a devise of real estate.

      Mr. Chauncey G. Parker, for the complainant.

      Mr. Egbert J. Tamblyn, for the defendants Nelson Reeve et al.
   Stevens, V. C.

Aaron S. Day died on March 1st, 1854. He left, a will, by which he devised to his wife, during widowhood, his real estate. On her decease, or as soon as she should cease to be his widow, he gave the residue of his estate to certain charitable societies and, among others, to the American Home Missionary Society and to the American and Foreign Christian Union. These societies were unincorporated at the death of testator, but became so between his death and the death of his widow, in March, 1897. The only question argued was whether an unincorporated society is capable of taking a devise of real estate.

That a bequest of personal estate to such a society is good is beyond dispute. Hadden v. Dandy, 6 Dick. Ch. Rep. 155; affirmed, 6 Dick. Ch. Rep. 330.

It is contended, however, that a devise of realty differs from a bequest of personalty—first, because, in the case of a devise, there is no person in' whom the legal title may vest, and second, because, in the case of land, the statute of frauds requires that all declarations and creations of trust or confidence shall be manifested and proved by some writing signed b3r the party, or by his last will in writing.

The first point seems to be ■without substance, for the reason that, assuming the devise to be in other respects valid, the legal title, if it cannot vest in the society, descends to the heir-at-law charged with the charitable use.

The second point seems to be also untenable. It is true that, in the case at bar, there is in the will itself no specification -of the use to which the land devised shall be applied. Its language is:

“The residue of my estate * * * shall be disposed of as follows, that is to say, to * * * The American I-Iome Missionary Society X give, &c., * * * to the American & Foreign Christian XJnion, I give,” &c.

But, by necessary implication, a gift to the society is a gift in trust for its proper objects. Had the gift been, in terms, a gift in trust for those objects (not specifying them), it would have come directly within the authority of De Camp v. Dobbins, 2 Stew. Eq. 36; S. C. on appeal, 4 Stew. Eq. 671; for there extrinsic proof was received of what those objects were, with a view of showing that they were charitable. The gift was

“to promote the religious interests of the [North Reformed Dutch] Church and to aid the Missionary, educational and benevolent enterprises to which the said Church is in the habit of contributing,”

and the extrinsic proof was that all its benevolent enterprises were charitable. On this proof the gift was sustained. In Norris v. Thompson, 5 C. E. Gr. 489, it was held that a bequest to promote benevolent enterprises was void, as being too broad. In Livesey v. Jones, 10 Dick. Ch. Rep. 204; S. C., 11 Dick. Ch. Rep. 453, it was held that a bequest, inter alia, to promote the social welfare of the people was also void.' If therefore the bequest in De Camp v. Dobbins had stood on the words of the will alone, it would have failed. But the chief-justice, in the court of appeals, said: “When therefore this will declares the trust and directs the property to be used to aid the missionary, educational and benevolent enterprises to which the said church is in the habit of contributing, the will itself provides a standard by which the word ‘benevolent’ is to be measured. The fund is not to be used to aid any benevolent enterprises, but only benevolent enterprises of a certain defined character—and they are charities. The word ‘benevolent’ is thus, by the context and the subject-matter, cut down into legal proportions.” So here, if, as I have said, the devise had been to each society by name in trust to promote its proper objects, it would have been competent to show by extrinsic evidence what those objects were, and if it appeared, as from the constitutions of the societies it does appear, that those objects were exclusively religious, the devise would be held good. But to say that where the devise is, without more, to the society, it is invalid, but that where it is to the society to promote its proper objects (without specifying them), it is valid, is quite at war with legal principle and common sense. And for this obvious reason: The society is bound to use the property given to it for such objects, and for such objects only, as are mentioned in its constitution. Any other use would be illegal. Hence, to give to the society, is to give in trust for the objects of the society. This i§ the view taken by Mr. Justice Sharswood, in Yard's Appeal, 64. Pa. St. 98. He says, speaking of a devise to an unincorporated society by its name merely: “Though the purposes are not expressed, they must necessarily be intended to be applied to the benevolent objects for which these institutions were created, and they are all of them good charities,” and he refers to the previous case of Evangelical Association's Appeal, 11 Casey 318, a case of a legacy, in which Judge Strong had said: “No one can doubt that the design of the testator was to consecrate his bounty to the uses to which the association has in view. His intent is as plainly manifested as it would have been if he had expressly declared that the legacies should be applied to the very uses for which the association was created and for which it exists. * * * Their own character determines the character of the gift.” Other cases of devise in which this view prevailed are Bartlett v. Nye, 4 Metc. 378; American Bible Society v. Wetmore, 17 Conn. 182. I have been referred to some New York eases in which the contrary is held, but they are not in harmony with our decisions, and cannot be regarded as authoritative. It is held in. New York that a bequest no less than a devise to an unincorporated society is void. This view has been repudiated by our court of appeals.

It may be remarked that the statute of wills, no less than the statute of frauds, requires the' entire scheme of the charity to be in writing. Smith v. Smith, 9 Dick. Ch. Rep. 1; S. C., 10 Dick. Ch. Rep. 321. The chancellor, in deciding that controversy, was careful to distinguish between cases in which the reference in the will is either to existing schemes for the promotion of learning or religion, or to previously pronounced religious doctrines and to the ideas or plans of the testator himself— whether those ideas or plans were or were not embodied in some existent writing of his own (dehors the will). Under the statute of wills the trust must be indicated as completely in the case of personalty as of realty, and therefore, if it be held that charitable legacies to unincorporated societies are valid, for the reason that the name itself is a declaration of the use, on what ground can this implication be denied to the name in the case of charitable devises?


text:
    Ida L. Sutcliffe et al. v. John C. Eisele et al.
    [Filed October 7th, 1901.]
    1. Preliminary injunction denied in case stated.
    2. Qucere. What constitutes a “bay window” to a dwelling?

      Mr. Walter J. Knight, for the complainants. ,

      Mr. Michael T. Barrett, for the defendants.
   Stevens, Y. C.

The bill was filed to prevent the erection of the front of a dwelling-house on Hillside avenue, in Newark, on the ground that the defendant Lehman was constructing it in violation of one of the covenants which it was agreed by the grantors of complainant should be inserted in deeds given by them as the owners of a tract which had been divided into building lots. One of these lots had been purchased by complainant, another subsequently by Lehman. The covenant is as follows:

“That any such private dwelling-houses which may be erected as aforesaid shall cost not less than $4,000; that the front of such dwelling-house which may be erected shall not be less than twelve feet from-the street line of Hillside avenue aforesaid, and not less than fifteen feet from the street line of Clinton avenue aforesaid, but bay windows and piazzas may extend beyond the said twelve and fifteen feet limes respectively.”

The part of the structure complained of is a semi-circular front, two stories high, having a radius of eight feet. It extends beyond the prescribed line, at its furtherest point, eight feet, and its extreme width at the point where it intersects the front line of the house is sixteen feet.

It will be observed that this covenant does not limit the size of the bay window or piazza. They are excepted from its operation, and, so far as its words go, they may extend indefinitely to the street line. This the complainant admits. He puts himself, however, upon the ground that the structure in question is not a bay window, but a semi-circular tower. In the peculiar situation in which he stands, his ground of objection to the character of the structure is confined within narrow limits. He himself, two years before, had erected a dwelling-house on the adjoining lot, having a front similar to that complained of. Like the defendant’s, it is semi-circular in form and two stories high. Like the defendant’s, it projects over the twelve-foot line. Even the construction between the glass windows is as solid and wall-like in the one case as in the other. It springs from the walls in much the same way. The only substantial difference is in its size. The complainant’s front, where it intersects the house line parallel with the street line, is eight feet wide, while the defendant’s is sixteen; and it extends beyond the prescribed line only two feet four inches, while the defendant’s extends eight feet. Now, it is apparent that the complainant is not in a position to complain if, or in so far as, he has violated his covenant in the same way. But he says that he has not. He contends that his structure is strictly a bay window and that his neighbor’s is not. Differentiating them, however, only by their respective dimensions, he is unable to say when a structure of that kind ceases to be a bay window and becomes something else. He cannot suggest any rule by which the court'can say to Mr. Lehman, thus far you may build and no farther. Undoubtedly, as a matter of good taste, it would seem that a bay window, like any other part of a house, ought to bear some proportion to its size and to the sizp of the room or rooms of which it is a part. But I suppose that even architects would differ as to what would constitute a bay window of ideal size for a room of given dimensions. Its size and position would generally vary with the character of the house and its surroundings and with the taste or prejudices of the owner. I am quite at a loss to decide, size alone being considered, when such a structure- ceases to be a bay window and becomes something else. If it was the intention of the grantors to put any size limit upon either bay windows or piazzas, how easy it would have been to have done so in the deed. In the case in hand several carpenters, sworn for the complainant, have given it as their opinion, based on differing and not very satisfactory reasons, that the structure is not a bay window, while several architects, sworn on the part of the defendant, have said that in their opinion it is. The vagueness of the covenant is fatal to the complainant’s case. As was said by Lord Westbury, in Low v. Inness, 10 Jur. (N. S.) 1037, “the first duty of the court, in granting an injunction of this kind, is to lay down a clear and definite rule.” But how can any rule be here laid down which will not interpolate into this covenant a restriction which it does not itself contain.

In Mann v. Stephens, 15 Sim. 379, A, being seized in fee of a house and of an adjoining piece of land, conveyed the house to B, and covenanted that the piece adjoining should forever thereafter remain and be used as a shrubbery or garden, and that no house or other building should be erected on any part of it, except a private house or ornamental cottage, * * * "so as to he an ornament rather than otherwise to the surrounding property.” The chancellor, on appeal, struck from the injunction order the-words I have italicized.

In Taylor v. Portington, 7 De G. M. & G. 328, an agreement by lessee to take a lease of a house “if put in thorough repair and the drawing-rooms handsomely decorated according to the present style” was held too uncertain to be specifically executed. Bernard v. Meara, 12 Ir. Ch. 389, is in the same direction.

While the specific performance of building contracts will sometimes be enforced (Gregory v. Ingwersen, 5 Stew. Eq. 200), they will not be if too uncertain to enable the court to carry them out. Fry Spec. Perf. § 48; Pom. Eq. Jur. § 1405 and note; Story: Eq. Jur. § 728.

The only case cited in support of the jurisdiction (Gawtry v. Leland, 4 Stew. Eq. 385) is clearly distinguishable. The structure there objected, to (a pavilion extending across the entire front of the lot) was different in kind from the bough-house permitted by the covenant, and there was, besides, a plain violation of its expressed purpose, which was to secure an unobstructed view of the ocean.

I think that, in the peculiar situation of this case, the complainant’s front being like the defendant’s, except in point of size, the complainant has not shown himself entitled to the injunction sought. Of course, any structure confessedly not a bay window would stand in a different situation.


author: Grey, Y. C.

text:
    Samuel P. Hunt et al. v. The West Jersey Traction Company et al.
    [Filed May 24th, 1901.]
    1. By joining issue on a plea, a complainant admits the sufficiency of th.e facts stated as a defence, if they are proven to be true.
    2. If their truth be established by the evidence, the complainant’s bill) must be dismissed as to the defendant who files the plea, even if the-matters stated in the plea do not constitute a valid defence to the suit. 3. If the defendant fails to prove the truth of the facts pleaded, the plea will be overruled as false, and the complainant will be entitled to a decree according to his case as stated in the bill.
    4. A trolley company, if it desires to locate its railway upon a turnpike road, is not, under the act of March 14th, 1893 (Gen. Stat. p. 32J/1 § 135), compelled to acquire that privilege by lease. It may acquire a mere use of part of a roadway by consent of the turnpike company under section 130 of that act. Gen. Stat. p. 3238.

    On bill and plea and issue joined thereon.
    The bill is filed by a minority of stockholders of the Haddonfield and Camden Turnpike Company, as complainants, against' that company and the West Jersey Traction Company and the Camden and Suburban Eailway Company, as defendants.
    The bill alleges the incorporation of the turnpike company, its location and construction of its turnpike, the incorporation of the other defendant companies under the act'entitled “An act to authorize the formation of traction companies for the construction and operation of street railways, and to regulate the same,” approved March 14th, 1893. It alleges that, in October, 1894, the West Jersey Traction Company commenced to lay a railway track, changed its gauge and set trolley poles on the turnpike roadway, and thereby kept the turnpike in an untollable condition until May, 1898; that the Camden and Suburban Eailway Company has been operating a trolley road at various times over portions of the turnpike road and supplying power therefor to the West Jersey Traction Company; that the West Jersey Traction Company was licensed by the municipal bodies through which its trolley railway was laid; that its licenses were not •transferable, and that the operation of the trolleys of the West J ersey Traction Company by the Camden and Suburban Eailway Company is without authority of law and without the necessary consent of the several governing bodies of the said municipalities, and is in violation of the rights of complainants, because, as complainants express it,
    “a use of the property and rights of your orator and of the said turnpike company, for a purpose contrary to the purpose for which said turnpike company was incorporated and organized, and to the destruction of the property and rights of your orator without compensation.”

      The hill further elaborately alleges injury to the interests of the turnpike company and its stockholders, by the manner in which the trolley tracks have been located in the roadway of the turnpike company and by the mode of their construction and operation, and charges that the Camden and Suburban Railway Company is using the property of the turnpike company for a competing business, without permission of, or compensation to, the complainants or to the turnpike company, whereby irreparable damage has ensued. '
    The bill further charges that the West Jersey Traction Company has, without authority of law, purchased and had transferred to itself a majority of the shares of the capital stock of the turnpike company, and has elected a majority of the board of directors of the turnpike company; that the board of directors has not leased the roadway, turnpike road and other property of the turnpike company to the said traction company or said railway companjr, or in any lawful manner permitted the said traction company and said Camden and Suburban Railway Company to use the property of the said turnpike company, without tolls or other compensation as aforesaid; that the turnpike company is bonded for $é0,00’0, and has issued eight hundred shares of capital stock, of which complainants hold thirty-three shares, and that the conduct complained of has involved the turnpike company in litigation and expense, and is endangering its franchises, by using its roadway for purposes different from those authorized, and making the turnpike company liable to insolvency proceedings.
    The complainants pray that the turnpike company may be decreed to sue the traction and railway companies for damages; that the latter may be decreed to account to the turnpike company for their use of its roadway, and to pay tolls therefor; that the complainants may, by decree, be allowed to use the name of the turnpike company to sue at law for the tolls, &c.; that the traction company and railway company may be enjoined from further using the turnpike roadway, and decreed to restore the same to a tollable condition; that the turnpike stock held by the traction company may be decreed to be canceled, and for further relief.

      ' Tho defendant the Haddonfield and Camden Turnpike Company has filed its plea to the whole bill, alleging that under the act of March 14th, 1893 (Gen. Stat. ¶. SZS5), that the defendant company did, on February 19th, 1894, consent and agree that the defendant the West Jersey Traction Company, its successors and assigns, should, at any time thereafter, have the use of its roadway for the purpose of constructing, maintaining and operating its line of railway, &c., as then or thereafter located, not more than two lines of tracks, and poles and other appliances for the operation of trolley or horse cars; that such consent was ordered by the directors at their meeting on October 3d, 1893. and was reported executed and delivered at their meeting of March 10th, 1894; that the stock held by the complainant Alfred W. Clement was transferred to him January 30th, 1900, and that held by complainant Samuel P. Hunt was transferred to him May 6th, 1900; that since the said consent there have been numerous annual stockholders’ meetings of the turnpike company; that at none of these meetings has any objection ever been made by the persons holding the stock now held by the complainant, or by the complainants, or by any of them, although the said action of the directors fully appeared on the minutes of the company, and it pleads the laches of the complainants and those under whom they claim title to their stock in bar of their right to file their bill of complaint for the injuries alleged.
    The complainants have replied to the plea by joining issue upon it, and the cause has been brought to a hearing upon this issue alone.

      Mr. Herbert A. Dralce, for the complainants.

      Mr. Charles R. Stevenson and Mr. Thomas F. French, for the Haddonfield and Camden Turnpike Company, defendant.
   Grey, Y. C.

It appears to be a settled rule in equity pleading that when a complainant replies to a plea, taking issue on it, the determination of that issue is a final disposition of the suit as between the party filing the plea and the complainant who joins issue thereon. Flagg v. Bonnel, 2 Stock. 84, citing cases. The court does not inquire into the materiality of the facts set up in the plea. If their truth be established by the proofs, the complainant’s bill must be dismissed as to the defendant who files the plea, although the matters stated in the plea contain, in fact, no valid defence 'to the suit. If the defendant fails to prove the truth of the plea at the hearing, the plea will be overruled as false, and the complainant will be entitled to a decree according to his case as stated in the bill. Ib. 85; Miller v. United States Casualty Co., 16 Dick. Ch. Rep. 101.

The inquiry in this ease has, by the pleadings of the parties themselves, been limited, so far as the complainants’ right to relief against the defendant the Haddonfield and Camden Turnpike Company is concerned, to the ascertainment whether all the allegations of fact set forth in the plea have been shown by the evidence to be true.

The testimony submitted was wholly on the part of the turnpike company, the complainants offering nothing in contradiction. The question is, therefore, again limited to the inquiry whether the testimony submitted by the turnpike company sufficiently shows that the facts alleged in the plea upon which issue has been joined are true.

The complainants, by joining issue on the plea, have'themselves chosen to test their right to relief against the defendant turnpike company by the truth or falsity of the facts set up in the plea. The secretary of the defendant the Haddonfield and Camden Turnpike Company was called as a witness, and produced the minute-book of that company. Hpon these minutes it appears that at an adjourned stated meeting of the board of directors of the company, held October 3d, 1893, the turnpike company gave its consent for the use of its turnpike road to the West Jersey Traction Company and its assigns, and the president and secretary of the turnpike company were authorized to execute, under the seal of that company, an agreement to that effect, which is set forth at length in the minutes of that company produced in evidence. The minutes also show that the president of the turnpike company reported to a stated, meeting of its board, held March 10th, 1894, that the contract of eon-sent had been executed and delivered in accordance with the direction given at the meeting of October 3d, 1893.

The contract itself was produced in evidence. It is dated February 19th, 1894, and by it the turnpike company agreed that the traction company, its successors and assigns,

“shall at any time hereafter have the use of the said road or highway, for the purposes of constructing, maintaining and operating its line of railway, with proper turnouts and switches, as now located, or as may be hereafter located, of not more than two lines of track, and of erecting, maintaining and using poles, wires and other devices and appliances for the transmission or application of motive power for the operation of trolley or horse cars.”

The testimony of the secretary of the company also shows that the stock of the complainants Clement and Ifunt was transferred to them at the dates narrated in the plea, and that since the making of the consent there have been a number of stockholders’ meetings of the turnpike company, and that neither the complainants nor those under whose transfer they hold their stock, at any subsequent stockholders’ meeting of the turnpike company, have ever objected to the action of the board of directors in consenting to the use of the turnpike road, as stated in the plea.

This recital of the evidence shows that all of the matters set up as.a defence in the plea have been shown, by the testimony, to be true.

The complainants insist that the plea fails as a defence upon two grounds—first, that the act of March 14th, 1893, did not authorize the agreement of consent set forth in the plea, because section 135 of that act (Gen. Stat. p. 3241) provides that the trolley corporations shall acquire the property of a turnpike company by lease, and the consent agreement is not a lease; secondly, because there is no proof that the West Jersey Traction Company, to whom and its assigns the consent was given, has ever assigned the privileges granted to the Camden and Suburban Railway' Company, who, the complainants allege, are now in possession.

As to the first ground, the plea upon which the complainants have seen fit to join issue, did not allege any lease, but did aver that there was a consent. If the complainants were of opinion that a consent was an insufficient defence, they should have sought to have the plea overruled. Having joined issue on it, the only question to be determined is its truth. See cases above cited. If, however, it be admitted that the sufficiency of the facts pleaded may be examined as a matter of law, it will be found that section 135 does not prescribe that a trolley company desiring to use the property of a turnpike company must acquire it by lease. The words of section 135 of the act are

“that any corporation created under this act may lease the property and franchises of any other corporation owning or operating any * * * turnpike or plank road,” &c.

This section authorizes a leasing, but does not require it. If there be a leasing, the trolley company may exercise the franchises of the turnpike company, and it would then be charged with the performance of the corresponding corporate duties of the lessor turnpike company. This section contemplates a complete transfer of the franchises and property of the turnpike company to the trolley company—a condition of things not alleged in the plea nor appearing by the proofs to have happened. The complainants appear to have overlooked the express provision of section 130 (Gen. Stat. p. 3238) of the Trolley act, which gives full power to a trolley company to use, for the purpose of its railway,

“so much of the area of any highway along which any turnpike or plank road shall be built and in use, as shall be necessary for such purposes; provided, that the consent of the corporation owning such turnpike or plank road * * * shall have first been obtained.”

It was under this section (130) that the consent of the Haddonfield and Camden Turnpike Company for use of part of its turnpike road was given, as set forth in the plea.

As to the second ground of objection to the defence made by the plea, that there is no proof that the West Jersey Traction Company has ever assigned to the Camden and Suburban Eailway Company, now in possession, the privileges granted it by the turnpike company, it is enough to say that there is no allegation in the plea that the West Jersey Traction Company did so assign the privileges granted. The defendant was therefore not called •upon to make proof of any such assignment in support of its plea. The objection is a challenge of the sufficiency of the plea, and not of its truth. The complainants have admitted the suffi•ciencj’ of the plea by joining issue upon it.

Upon the whole case presented by the issue joined on the plea •of the Haddonfield and Camden Turnpike Company, it must be held that the plea is sustained by the proof. The defendant turnpike company is therefore, in accordance with the doctrine laid down in the cases above cited, entitled to have the bill dismissed, with costs, as to that defendant.

I will advise such a decree.