author: Gummere, Chief-Justice.

text:
    American Builders Corporation, appellant, v. Thomas F. Galligan et al., respondents.
    [Decided June 18th, 1923.]
    1. A testator gave his residuary real estate to his living brothers and sisters for their Jives as joint tenants, and provided that after the decease of the last survivor of them, what remained should go “to such persons as would by law inherit the same, to them and their heirs and assigns forever-.”—Held, that under such a devise the estate in remainder vests at the death of the testator in those who were at that time his heirs-at-law—that is, his living brothers and sisters and the children of a deceased bx-other, unless it is apparent from the language of the will itself that it was the purpose of the testator that the gift of the remainder should not vest until after the death of the last suxwiving joint tenant.
    2. The fact that life tenants are among the heirs-at-law of a testator does not of itself indicate a purpose to postpone the vesting of the estate.

      On appeal from a decree of the court of chancery advised by Vice-Chancellor Baekes, whose opinion is reported in 93 N. J. Eq. 51.

      Messrs. Harrison & Roche, for the appellant.

      Mr. Walter G. Brandley, for the respondents.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The bill in this case was filed by the American Builders Corporation to compel the specific performance of a written agreement for the sale of certain lands located in the borough of West Caldwell, the complainant being the vendor and the defendants the vendees. The defendants admitted the making of the agreement and their refusal to accept a conveyance of the lands described therein, but contended that they were under no legal obligation to perform the contract by reason of the fact that the title of the complainant was not a marketable one.

The agreed-upon facts are as follows: In 1888, one Owen M. Beach died seized of the lands involved in the present litigation, leaving a will, by which he disposed of these lands under the residuary clause thereof. By that clause he gave and devised unto his brothers, Erastus, Cyrus and Joseph, and his sisters, Jennie and Ella, all his residuary real and personal estate during their natural lives as joint tenants and not tenants in common, and provided that as each one died his or her share should lapse and become part of the estate and be divided among the survivors. He then provided that after the decease of the last survivor of his brothers and sisters and his mother (who died in 1889) what remained of the residuary estate should go “to such persons as would by law inherit the same, to them and their heirs and assigns forever.” His heirs-at-law at the time of his death consisted of his brothers and sisters named in the residuary clause, and also the children of a deceased brother, Augustus.

In January, 1912, all of the decedent’s heirs-at-law, except Joseph, executed a deed of conveyance to the latter of all the lands passing under the residuary clause, in trust, to market the property at such times and in such parcels as he should deem best for the interests of himself and of the grantors, and to divide the proceeds of the sales as they were made among the heirs in equal shares, per stirpes. In the execution of this trust, Joseph, in April, 1920, conveyed the lands to the complainant below; and the question for determination is whether this conveyance vested in the complainant a marketable title, the contention on the part of the defendants being that the testator, Owen M. Beach, by devising a life estate to his brothers and sisters, and then providing that the estate in remainder should pass, after the death of the last survivor of the life tenants, to such persons as would by law inherit the lands, intended that the estate in remainder should pass to those who should be his heirs-at-law at the death of the last life tenant, and not to those who were his heirs-at-law at the time of his own death. The learned vice-chancellor before whom the cause was heard took this view, and held that, as the estate in remainder did not vest until the death of the last life tenant, the parties entitled thereto could not be determined so long as the life estate existed, and that therefore the title of the complainant was not a marketable one. For this reason, he advised a decree dismissing the bill, and the complainant has appealed.

At the last June term of this court (In the matter of the Buzby Estate), we were called upon to determine the construction of a residuary clause somewhat similar in its language to that contained in the will now before us. 118 Atl. Rep. 835; 94 N. J. Eq. 151. In that case the testator gave his residuary personal estate to his wife so long as she remained his widow, and then provided that after the death or remarriage that estate should pass “to such person or persons as would by law inherit the same.” The conclusion we then reached was that the effect of the words used in passing the estate in remainder was to vest that estate at the death of the testator in those who were at that time his next of kin, considering that the general rule in cases of this kind, namely, that where the absolute property in an estate is bequeathed in fractional interests in succession during periods which must arrive, the interest of the first and subsequent takers will vest together, was applicable. We there pointed out, however, that this rule is not universal in its scope, and does not apply where it is apparent from the language of the will itself that it was the purpose of the testator that the gift of the remainder should not vest until after the expiration of the life tenancy. The question presently presented for solution, therefore, is whether, notwithstanding the use of the same words by each of the testators, in disposing of these estates in remainder, there is anything in the language of the present will which makes our decision in the earlier case non-applicable.

It is admitted that there is nothing outside of the residuary clause itself indicative of a purpose to create a contingent rather than a vested estate in remainder. This being so, does the fact that the life tenants are among the heirs-at-law of the testator indicate such a purpose—that is, that those of them who were nearest to him in blood should only take a life interest in his propertjr, and that after the death of the last survivor of them this property should go to those who at that time should be the testator’s heirs-at-law; in other words, to those of the children of the several life tenants who should be then living, and to those of the children of his deceased brother, Augustus, who should be living at that time ? To us such an intention seems an unnatural one, and it is not apparent from the language used. Nor, as we think, can it reasonably be inferred from the words of the devise. As we see it, the primary object of the testator was to insure to each of his brothers and sisters the user of that property so long as any of them might survive and desire to continue in the enjoyment thereof, and that such enjoyment should not be subject to interference by any one of them as against another. The language used by the testator is apt to express this purpose, but it is not suggestive of a purpose to prevent all of those who would be his heirs-at-law at the time of his death from disposing of the estate at their common will, by the drastic method of partially disinheriting them. The present case is somewhat like that of Dove v. Torr, 128 Mass. 38, where the testator devised his residuary estate to his two daughters and the survivor of them until death or marriage, and then provided that after the death or marriage of the surviving daughter the estate should descend “to those persons who may be entitled to take the same as my heirs.” A process of reasoning similar to that which we have indicated led the court to hold that, notwithstanding the fact that among his heirs-at-law at the time of testator’s death were the two daughters to whom the life estate was devised, the estate in remainder vested at that time, and that the two daughters were entitled to share therein. We are content to follow the doctrine of the cited case, and hold that the legal rule exploited In re Buzby Estate is equally applicable to the will now before us. This being so, we consider that the title of the complainant is a marketable one, and that the defendants should be decreed to specifically perform their contract.

The decree under review will be reversed.

For affirmance—Hone.

For reversal—The Ci-iiee-Justice, Trek chard, Parker, Bergeh, Mihturh, Kalis ch, Black, Katzehbach, White, Heppefheimer, Ackersoh, Yah Buskirk—12.


source: Caselaw Access Project

author: Bergen, J.

license: Public Domain

text:
    Magnolia Construction Company, complainant, v. Edward McQuillan, defendant.
    [Argued March 13th, 1923.
    Decided June 18th, 1923.]
    Complainant and defendant owned adjoining lots of land, the division line being indicated by a fence. Complainant desiring to erect a building on its lot caused it to be surveyed, the result of which fixed the division line at a point about one foot on defendant’s enclosure and beyond the fence, who, when his attention was called to the line established by the survey, removed the fence and a small shed, claimed by complainant to encroach on its lot. The defendant made no protest against the line thus established by the survey, but participated in locating it to the extent of holding one end of a measuring line from one monument to another along the proposed line. On the line thus indicated the complainant built one side of a large apartment house, the defendant having knowledge of the erection of the wall on the line thus established. Subsequently defendant procured another survey which disclosed that the first was incorrect and that complainant’s wall encroached on defendant’s land about one foot in front and a less distance in the rear. Defendant brought a suit in ejectment and complainant filed his bill of complaint to restrain the suit and praying that the outside face of the wall of the building be fixed as the line between the two lots. Held, that complainant was entitled to the relief prayed for on making equitable compensation to defendant for value of the land ’encroached on by complainant.

      Mr. Isaac Gross and Mr. Merritt Lane, for the appellant.

      Messrs. Collins & Corbin, for the respondent.
   The opinion of the court was delivered by

Bergen, J.

The complainant and defendant owned adjoining lots which were vacant, except that defendant had a small shed on his, and a fence on the supposed line between the two lots.

The complainant, desiring to build a large apartment house on its land caused it to be surveyed, which disclosed that the line ran about a foot east of the fence, and that defendant had encroached with his fence and shed to that extent on complainant’s lot. When defendant’s attention was called to the circumstance, he made no protest but removed the shed and fence, and participated in ascertaining the line according to the survey to the extent of holding a measuring tape along the line between the front and rear monuments established by the survey.

The complainant built its wall along the line thus established.

After the building was completed defendant caused another survey to be made by another surveyor, admitted to be more accurate than the first, which disclosed that complainant’s easterly wall encroaches on defendant’s lot to the extent of about one foot in front and a less distance in the rear, negotiations seem to have been had between the parties looking to the adjustment of the difficulty which failed, and defendant brought a suit in ejectment to recover possession of the land on which complainant had thus encroached, which, if successful, will require complainant to take down, substantially, the east wall of the building, which is four stories high. The complainant filled this bill to restrain the prosecution of the ejectment suit, and the establishing of the wall at the boundary line. The vice-chancellor, who heard the cause, advised a decree dismissing the bill,-’ and complainants have appealed.

The vice-chancellor held that the doctrine of mutual mistake did not apply because the complainant’s surveyor made the mistake on which defendant relied, and that he was not bound to have his land surveyed when complainant’s surveyor assured him that the dividing line was established by him. But this is not a fair inference from the facts. There is no doubt but that where complainant built its wall on defendant’s land it did so under a mistake as to the true line; and it was a mistake which the defendant entertained when he moved his fence. It does not make any difference how the mistake arose,, in the absence of fraud, and it is not pretended that complainant was guilty of any fraud, the only question is was there a mutual mistake as to the partition line. The defendant was told that complainant intended to build on the proposed line, and that the land -belonged to- complainant, and although he had it enclosed with his fence that it was not the correct line. In this he was mistaken. In other words, there was a mutual mistake as to ownership- of the now disputed strip of land, and that mistake continued until after the building was erected, manifested by defendant in that he made no- objection while it was in course of erection, and he knew that it was being built on land formerly within his fence enclosure. It is a clear case of mutual mistake and governed by the rule laid down by Chancellor Williamson in McKelway v. Armour, 10 N. J. Eq. 115, in which the chancellor said: “But it is proved, beyond all doubt, that the complainant erected his improvements on this lot by mistake; he' supposed it was the next lot that belonged to Armour.. Armour labored under the same mistake. He lived in. the vicinity; he saw the complainant progressing, from day to day, with these improvements.

“If he knew this to be his lot, his silence was a fraud upon the complainant; but this is not pretended.”

This case cannot well be distinguished from the instant case. The complainant was clearly mistaken as to the line, and defendant either knew or did not know where the line was, and if he knew then he was guilty of a fraud; and if he did not know, but supposed it was where complainant said it was, then he was mistaken, and h.is subsequent conduct in moving his fence and shed, and helping measure the proposed line, shows -that he was mistaken, and as Chancellor Williamson said in the McKelway Case, it would be unjust to permit defendant to take the wall, and send the complainant away remediless.

A similar result was reached in Anglescy v. Colgan, 44 N. J. Eq. 203, in which Chief-Justice Beasley, speaking for this court, referred to McKelway v. Armour, supra, with approval, as did Mr. Justice Reed, in Megie v. Bennett, 51 N. J. Eq. 281.

In the McKelway Case, where complainant built his house on Armour’s lot by mistake, Chancellor Williamson decreed that defendant have the option to retain the lot and improvements on condition that he paid complainant their value, or to release the land to complainant upon payment by him of the value of the land and if defendant declined both options then complainant’s grantor, who was a party, should convey to defendant another designated lot of equal value and that defendant release to complainant the lot on which the house had been erected. In the Anglescy Case the complainant, by mistake, had so built his house that it encroached on defendant’s lot two feet and eight inches, and defendant brought ejectment for the encroachment, which suit complainant sought to restrain by injunction,'and that being refused by the court of equity, complainant appealed to this court, where the decree below was reversed and injunction allowed.j' Chief-Justice Beasley, speaking for the court, saying: "If this were the final hearing, in my judgment, the appellant would be entitled to retain the land upon the equitable condition that he should be charged with its full value in the market.”

Equity, under the facts in this case, requires that defendant should be restrained from prosecuting his ejectment suit and decreed to release to complainant the land in dispute on payment to him by complainant its market value, to be ascertained by the court of chancery.

The decree appealed from will be reversed and cause remanded to the court of chancery for further proceedings not inconsistent with this opinion. The decree is reversed.

For affirmance—Hone.

For reversal—The Chiee-Justice, Teen-chard, Parker, Bergen, Kalisch, Black, Katzenbach, White, Heppen-HEIMER, ACKERSON, VAN BüSKIRK-11.


author: Bergen. J.

text:
    Sarah Burhans, respondent, v. John Burhans, appellant.
    [Submitted March 28th, 1923.
    Decided June 18th, 1923.]
    1. A husband conveyed real estate to his brother in trust for grantor’s use, the wife not joining in the conveyance, and after her husband’s death his widow filed a bill to have her dower assigned, which was done, and its value ascertained as at the time of the death of her husband. Held, that under the statute giving a widow dower in all lands whereof her husband, or any other to his use, was seized of an estate of inheritance, the widow, was entitled to dower, in lands held in trust for the use of the husband, if she had not released them.
    2. A subsequent section of the statute provides that a widow may recover the value of her dower from the time of her husband’s death, if he die seized, or from the time of demanding dower, if the husband was seized, but did not die seized, until date of recovery. Held,, that the two sections should be construed with reference to one another, and that under the first, the trustee held for the use of the husband and the widow entitled to dower, and that under the second, the widow was not limited as to value from the date of demand, unless the husband was divested of his seizin during his lifetime, by means not affecting the wife, and, therefore, did not die seized, although seized during coverture.
    3. Section 3 of the act relating to dower does not limit the right of the widow to dower given by section 1 of the act, when another is seized for the use of the husband at his death.
    On bill of assignment of dower.

      Messrs. Humphrey & Sumner and' Mr. Merritl Lane, .for the appellant.

      Mr. Michael Dunn, for the respondent.
   The opinion of the court was delivered by

Bergen. J.

The bill in this case was filed by complainant, the widow of Charles Burhans, to have assigned her dower in lands which her husband, Charles, has conveyed to his brother John, and which John held according to a declaration of trust made by him “for the use and benefit of the said Charles Burhans, his heirs, executors, administrators and assigns, and that I have no beneficial interest therein, and upon further trust to convey the same to Charles whenever he should thereto be requested, discharged from all liens, and that he or his heirs would not do, or knowingly permit, any act or thing whereby the premises should be encumbered.”

John was joint owner of the land and after the conveyance to him he collected the rents and had general management of the property. Charles died and his widow filed this bill, which resulted in a decree in her favor, with reference to a special master to state an account showing what was due to the widow as the value of her dower, and the damages she had suffered by the detention. The master made a report, to which exceptions were filed by the defendant, and on the hearing the vice-chancellor sustained some of the exceptions and overruled others, and from that decree this appeal was taken. It appears that there was a mortgage of $17,000 on the property made before the marriage of Charles; that $7,000 of this mortgage was paid, the money being raised by another mortgage on the same property which was not signed by the complainant.

The decree holds the defendant accountable for the rents and profits from the date of the death of Charles Burhans, and the first point argued by the appellant is, that interest should only run from the time of demand by the complainant to have her dower assigned, because Charles, the husband, was not seized at the time of his death of the land, but the title held by his trustee. This is not sound in law because the statute gives the widow dower in all the land and real estate, “whereof her husband, or any other to his use, was seized of an estate of inheritance, at any time during the coverture, to which she shall not have relinquished or released her right of dower, by deed executed, and acknowledged in the manner prescribed by law for that purpose.” (Section 1 of “An act relative to dower.” Comp. Stat. p. 2044. The property in question was certainly held by another, his brother John, to the use of the deceased, and, therefore, the latter was seized to the use of Charles at the time of his death. But defendant argues that section 3 of the same statute (Comp. Stat. p. 2045) provides that a widow “may sue fox and recover the same with- damages; that is to say, the value of the whole dower to her belonging, from the time of her husband’s death, if he died or shall die seized, or from the time of demanding dower, if the husband was or shall be seized, hut did not or shall not die so seized, unto the day that she shall recover seizin of her dower by judgment of the court,” and that as her husband did not die seized of the title the value of-the dower is to be ascertained, not at her husband’s death, but from the time of demand. It is our opinion that the two sections mentioned must be construed with reference to each other. The first fixes dower when the husband is seized at death, either in person or by another for his use, and the second where he has been seized during coverture, but has been deprived of the seizin by some means not affecting the dower of the wife, such as conveyance by the husband in which she did not join, or transfer by virtue of a judicial sale by a proceeding in which the wife was not a party.

The next point which appellant makes is that in the accounting the plaintiff ought not to have been allowed over one-half of the mortgage of $7,000. We do not think so. The money was raised, and the mortgage paid off out of the proceeds of another mortgage of like amount given by Charles and John, which the widow did not sign, so that her. estate in dower is only subject to the mortgage of $10,000, and with that she was charged.

The next point made is that the widow should have been charged with the interest on the mortgage of $10,000, which was allowed to accumulate and which John paid. There is nothing in this point, for as soon as the interest was paid the dower was relieved. This mortgage was given by both Charles and John, and both were bound to pay the interest; Jolxn collected the rents for many years, the amount of which was largely in excess of the interest, but he refused to pay the interest at maturity. It was his debt, and its non-payment, if he is right in his present claim, cast an improper burden on the complainant’s right of dower, of which his subsequent liquidation of the interest relieved it.

The next point is that the decree did not allow to the defendant two items which he had paid, one of $63.56, and also another item of $37.20. 'The $63.56 was expended for legal services, in a case affecting the land, and the other item is for stenographer’s fees in the orphans court, which arose out.of the hearing of a contest over the will. Both of these items were properly rejected. The $63 was expended by John after he became trustee for the protection of the land and in no way affected the dower right of the widow. As to the other item, if the widow is bound to pay it, it is a personal debt, which was no lien on the property, and cannot be properly set off in the present accounting.

The last point is that the complainant was allowed by the decree her costs to be taxed, and also a counsel fee. She was the successful party and entitled to her costs, and the court of chancery had the power to allow the counsel fee. The decree will be affirmed, with costs.

For affirmance—The Chief-Justice, Trencpiard, Parker, Bergen, Minturn, Kalis ch, Black, Katzenbach, White, Heppenpieimer, Ackerson, Yan Buskirk—12.

For reversal—Hone.


text:
    Joseph Ovsiovitch, complainant-appellant, v. Federal Tool and Manufacturing Company, defendant-respondent.
    [Submitted March 26th, 1923.
    Decided June 18th, 1923.]
    A chattel mortgage made by a corporation is an executed obligation not subject to the defence of usury under the statute. P. L. 1902 p. 459; Comp. Stat. p. 5706.

    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 94 N. J. Eq. 85.

      Mr. Harry Oreen, for the appellant.

      Mr. Bussell Fleming and Mr. James L'. Handford, for the respondent.
   The opinion of the court was delivered by

Bergen, J.

Complainant loaned to defendant $2,000, for which defendant gave him its several,' promissory notes aggregating $2,500, and at the same time executed and delivered to complainant a chattel mortgage conditioned that it should be void on the payment of’ $2,500, in installments on certain fixed periods. It is admitted that this mortgage was usurious, and the question presented is whether it is an obligation to which the statute entitled “An act relating to usury” (P. L. 1902 p. 450; Comp. Stat. p. 5706) applies. The mortgage encumbered certain chattels, which were sold free of complainant’s mortgage, by an order of the court of chancery in insolvency proceedings against the defendant corporation, and the lien of the mortgage continued on the proceeds of the sale, which were to the extent of the mortgage debt deposited in court, that the right of complainant to the fund in satisfaction of his mortgage might be determined. The complainant filed his petition to be paid the whole amount of the mortgage debt, which the chancellor, on the advice of a vice-chancellor, refused, and made an order limiting the complainant’s right to $2,500 and interest because, in the opinion of the vice-chancellor, the statute relating to usury above mentioned did not apply to complainant’s mortgage, and, therefore, the corporation could plead usury as a defence.

The statute reads: “No corporation shall hereafter plead or set up the defence of usury to any action brought to recover damages or enforce a remedy on any obligation executed by said corporation.” Mr. Justice Eeed, in speaking of this statute for this court, in Lembeck v. Jarvis, 70 N. J. Eq. 757, said: “It is obvious, however, that the statute was passed to protect those that had made loans of money and had taken the paper or bonds of a corporation. As to such creditors it was doubtless intended toi abolish the defence of usury in toto."

But the vice-chancellor, in the instant case, rested his conclusions on the opinion of Mr. Justice Garrison, speaking for the supreme court, in Mazarine v. Hudson County R. E. B. Co., 80 N. J. Law 35, in which he said that in view of the uniform legislative policy of the state in the matter of usury, the words “obligation executed” by a corporation refers to corporate obligations in the sense of bonds, mortgages, debentures, and the like, that go on the market and into the hands of the public, and refused to make “obligation executed” apply to an agreement to pay a usurious commission to a broker in a suit based on a contract to pay for procuring a loan, holding that the promise to pay was a usurious contract, and that, in that suit, the statute did not apply.

The case last cited has never been reviewed by this court, but whether it correctly expresses the character of the only obligations of a corporation against which usury cannot be set upon as a defence by a corporation is not necessary to determine in disposing of this case. The statute in unmistakable terms prohibits a corporation from pleading usury as a defence to any action brought to. enforce a remedy on any obligation executed by a corporation, and this chattel mortgage, executed under seal by a corporation, is clearly an obligation executed, and if the complain ant had filed a bill in equity to foreclose his mortgage the corporation would not be permitted the defence of usury. The fact that the court of chancery deprived him of that right, and, in substance, foreclosed it for him by directing a sale of the chattels free from its lien, but retaining it against the proceeds, does not change the legal status of the complainant, for if the defence could not be set up against the foreclosure of the mortgage, it cannot be when it is sought to be enforced against its proceeds held subject to the lien. But it is argued that the notes the mortgage was given to secure are not “obligations executed,” and, therefore, subject to the defence of usury. Assuming, but not deciding, this is so, it would make no difference in the result of the instant case. The mortgage, which we hold was an obligation not subject to the defence of usury, was given to secure an admitted debt payable in installments at stated periods, “as evidenced by promissory notes of even'date herewith,” which is the only reference it contains concerning the notes; it contains no covenant to pay the debt, as in Lembeck & Betz Eagle Brewing Co. v. Krause, 94 N. J. Law 219.

Mr. Justice Kalisch, speaking for this court in that case, said: “The fact that the remedy by action on the promissory note was barred by statute did not have the legal effect to extinguish the obligation created either by the note or the covenant in the chattel mortgage. The debt could only be discharged by payment,” and by analogy this complainant will not be deprived of his remedy to enforce his chattel mortgage, although his remedy to recover at law on the notes might be barred by the statute until the mortgage debt has been paid. Wagoner v. Watts, 44 N. J. Law 126; Borst v. Corey, 15 N.Y. 505.

There is abundant authority for the proposition that a mortgagee may foreclose his mortgage even if the obligation it was given to secure is barred by the statute of limitations, so long as he can show that the debt is not paid, and the remedy to enforce the mortgage is not barred by a statute. Therefore, it is of no consequence, in this case, whether the notes are or not enforceable at law. In our opinion, complainant’s mortgage is an “obligation executed” by a corpora tion within the terms of the statute, and the corporation barred thereby from pleading usury as a defence to an action to enforce it, and the court of chancery having in effect foreclosed the mortgage and empounded the proceeds of the sale until that question was disposed of, the complainant is entitled to be paid out of the fund his mortgage debt and interest.

The order appealed from will be reversed.

For affirmance—Hone.

For reversal—The Chief-Justice, Trenchard, Parker, Bergen, Minturn, Kalis ch, Black, Katzenbacii, White, Heppenheimee, Ackerson, Van Buskirk—12.


author: Minturn, J.

text:
    Roy H. Knibb, petitioner-appellant, v. Modesta H. Knibb, defendant-respondent.
    [Submitted March term, 1923.
    Decided June term, 1923.]
    1. It is not a good defence to an action for divorce on-the ground ■ of desertion ’that the reason why the deserter persists in the desertion is that the petitioner, who was married to the defendant by a civil magistrate, refused to- go through another marriage ceremony according to the rites of the Roman Catholic Church, he being a Baptist and she a Roman Catholic.

      2. Article 1, section 4 of the state constitution inhibiting the denial of a civil right to any person on account of his religious principles extends its inhibiting force to a decree denying to petitioner a divorce because he had refused to accede to his wife’s demand for the performance of a remarriage by a priest of her church as a condition of her return to. petitioner as his wife under their prior civil ma-rriage.
    3. The constitutional inhibitions concerning the passage of legislation, or the holding .of public office based upon religious conditions and qualifications, extend their inhibitive force e® propria -vigore to the promulgation of public decrees by a state agency or a judicial tribunal.
    On appeal from a decree of the court of chancery.

      Messrs. Heine, BostivicTc & B'radner, for the appellant.
   The opinion of the court was' delivered by

Minturn, J.

When the parties to this suit were married on October 6th, 1919, in New York City, by a civil magistrate, the civil and moral necessity for the marriage was urgently apparent to both. Ror some time they had been engaged, and their indiscretion during that period made marriage at the call of defendant a matter of duty, upon the part of the petitioner. The marriage having been performed, the petitioner was ready to assume cohabitation and the domestic relations and the incidents which attend the relationship of husband and wife. But at that moment the father-in-law and not the mother-in-law intervened, as the hete noir, and declared to petitioner at the wedding meal: “You know that you are not to live with my daughter unless you agree to another marriage by our faith—by the Catholic faith.” The defendant assented to that situation, and on more than one occasion during conversations with petitioner, in which he sought her for the purpose of inducing her with their child to assume her place as his wife in his household, she took the same stand. His witnesses testify to. the same result as a sequence of their visits; and thus time ran its course for the statutory period, when the petitioner, feeling that he should have either his wife or his liberty, filed this petition for divorce upon the ground of his wife’s continued and obstinate desertion.

The learned advisory master advised against the decree, upon the ground of non-corroboration as well as upon the ground that the request of the defendant for a remarriage in her faith was not unreasonable.

Our examination of the ease satisfies us that the essential jurisdictional facts are amply supported by the corroborative proof contained in the record. ' It is not essential under our cases that specific corroborating witnesses be produced to support the petitioner’s allegations, for as was stated by Judge Vroom, speaking for this court in Foote v. Foote, 71 N. J. Eq. 273: It is sufficient “if the circumstances as shown by the expressions and conduct of the defendant, together with the letters of the parties, corroborate the testimony of complainant.” The mental attitude of the defendant in support of the petitioner’s contention is indicated by her letter to the petitioner, written about June 6th, 1921, and received by him at Roanoke, Virginia: “It will,” she says, “take only a couple of minutes to be married by a priest. We won’t have to be talking about religion.” This admission would seem per se to be sufficiently corroborative of the truth of the petitioner’s insistence that a religious chasm only separated them from the marital duty of cohabitation. This admission is fortified by two visits made to defendant by the petitioner’s friend, Mr. Bradner, who saw her in the autumn of 1921. The father, as on the marriage day, again intervened and maintained his original attitude that this daughter could not live with petitioner without the performance of the religious ceremony of 'her church. If this testimony were in conflict with' the defendant’s consistent attitude, as expressed in her letter, and expressed again upon a later visit by Mr. Bradner when he saw defendant’s father, it might be properly treated as hearsay and not legally corroborative. But upon a subsequent visit Mr. Bradner saw the defendant personally, and as a friend of her husband entreated her to assume her legal relationship as the petitioner’s wife in his own household. She, 'however, repeated her father’s view of the situation, and insisted as a condition to compliance upon a marriage in accordance with her religious views. Throughout the record is the petitioner thus corroborated by the substantive and circumstantial testimony in the case. Nor can we overlook the fact, in this connection, that although the defendant Was within easy access of the trial court, she was neither present nor-represented by counsel, and while that fact per se does not supply the requisite jurisdictional proof, it may be noticed as a corroborating factor, however slight, where the substantive proofs presented lend credence to the correctness of the claim of the petitioner concerning the mental attitude of the defendant.

In such a situation, where it becomes manifest that entreaties and supplications will be of no avail, the duty imposed upon the husband of maldng consistent overtures to the wife to return to him is not a condition precedent to the institution of the suit. We dealt with that question in Hall v. Hall, 60 N. J. Eq. 470, where the present chief-justice, speaking for the court, said: “Where it is manifest from the circumstances under which the desertion took place, or from her temper and disposition, or from any other fact in the case, that honest efforts on the husband’s part to terminate the separation would be unavailing, or if successful in bringing the desertion to an end, would be so only temporarily, the duty of maldng it does not exist.”

One question only remains, and that probably the most important in the case. Does the duty imposed by law upon the husband, and to which we have referred, of seeking the wife and making reasonable overtures for her return cast upon him also the duty of acceding to demands by her which he cannot conscientiously fulfill?

The learned advisory master thought that the petitioner should have acceded to the wishes of the defendant, and submitted to the performance of the religious ceremony demanded by her, as sine qua non to her assumption of the duties of a wife. This conclusion involves the assumption that the petitioner’s religious views and scruples were not as important and sacred to Mm in foro conscientice as were those of the defendant to her. The relative religious importance of these views manifestly we cannot attempt to determine, since one’s religious views are entirely a matter for the individual conscience, and not for the courts to pass upon, unless the views, reduced to action, are of such, character as to contravene the law of the land. Indeed, the defendant recognizes this fundamental personal right when in her letter she frankly informs the petitioner: “If you do what your conscience tells you, you can’t help but be happy, and the same with me.” He was a Baptist by choice, and his early training and religious environment hadjfashioned his mind to believe only in the teachings and tenets of that communion. She was a Catholic, and to her from early training and environment her faith was the correct summation of all religious thought and ceremony. To him, as a dissenter from the early established church, marriage in essence was as under the Roman law, a civil contract, subject to all the vicissitudes and infirmities of a civil obligation, in which the fundamental maxim was a concensus et non concúbitos facit matrimonium. To her, marriage was a contract plus a sacrament, which, in its origin was a contract established by the founder of the Christian dispensation, the bond of which, in the absence of fundamental canonical defects, could be dissolved only by death.

According to the ordinances of her faith, no one but a duly ordained priest of the church could administer -the sacrament to members of her communion, and hence her frequently expressed desire to ¡have the contract of the civil law elevated religiously to the status of a sacrament by the only person capable of administering it, thus imposing upon both parties to the contract, in foro conscientice, an indissoluble union, terminable only by death.

The petitioner refused to accept this religious status, and being a free agent, religiously as well as civilly, no civil tribunal could compel him to accept it as a condition to granting him a decree of divorce, to which he was otherwise legally entitled. Such is the spirit of our law, and such was the fundamental conception of civil and religious liberty, which, after the inane feuds and contentions of centuries in other lands, brought together our forefathers of all religious persuasions upon common ground, and consecrated this land and its institutions to the indestructible ideals of civil and religious liberty. So intensely vivid in tire colonial period was the recollection of the sanguinary feuds, based upon religious differences in other lands in an endeavor to worship God, according to the dictates of one’s conscience, that the constitutional compact of our national life, attested by the intelligent and patriotic resolve of the Puritan from New England, the Quaker from Pennsylvania and Delaware, the Dutch Reformer from New York, the 'Presbyterian from New Jersey, the Episcopalian from the Old Dominion, the Catholic from Maryland, and the Baptist from Rhode Island, contains this quondumjhradical basic provision as the touchstone of our legislation and the administration of our law: “No religious test shall be ever required as a qualification to any office of trust under the United States.” {Section S.)

Thus happily as a result of this fundamental conception of a free religious life upon this virgin soil, there arose from the wrecks of religious empires, from the interminable vitrolic conflicts of centuries of religious pogroms and persecutions, our present harmonious and cherished design of national existence, the idealic conception of Webster: “An indestructible union of indestructible States.” Esto perpetua.

In pursuance of the power conferred upon it by the fifth article of the constitution, the congress shortly thereafter buttressed that keystone of the constitutional arch by providing in the first amendment to the basic law that “congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

y/"Our state constitution shortly thereafter, guided by the inspiring influence, provided: “No person shall be deprived of the inestimable privilege of worshipping Almighty God, in a manner agreeable to the dictates of his own conscience, nor under any pretence whatever he compelled to attend any place of worship contrary to his faith and judgment.” {Article 1, section S.) “There shall be no establishment of one religious sect in preference to another; no religious test shall be required as a qualification for any office or public trust; and no person shall he denied the enjoyment of any civil right merely on account o f his ¡¡religious principles.” (Section 4-) Manifestly the spirit of our law, upon this important subject, could not be more adequately, emphatically or frankly expressed.

Commenting upon this phase of our constitutional life, Professor Cooley appropriately observes: “Persons- of every religious persuasion should be made equal before the law, and questions of religious belief and religious worship should be questions between each individual man and his Maker. Of these questions, human tribunals, so long as the public order is not disturbed, are not to take cognizance, except as t'he individual by his voluntary action in associating himself with a religious organization may have conferred upon such organizations a jurisdiction over him in ecclesiastical matters.” Const. Lim. 659.

Manifestly, therefore, a judicial provision, or requirement, which would make the promulgation of a decree of divorce, to which the petitioner is entitled, as a “civil right,” conditioned upon his consent to- supplement the legally recognized civil contract by a religious ceremonial marriage, according to the rubrics of a church of which he is not a member, and whose religious tenets he is conscientiously unwilling to accept, is tantamount to the denial of due process of law, as well as in contravention of the constitutional inhibition which insures to him the protection of his “civil rights,” regardless of his “religious principles.”

Quite obviously, therefore, the constitutional inhibitions forbidding legislation and official tenures to be based upon religious qualifications and conditions. extend ex proprio vigore their beneficent and all pervading potency to the decrees of a state agency or judicial tribunal, which would invoice a similar condition or qualification, as a basis for administrative or judicial action.

The decree appealed from will, therefore, be reversed, and the prayer of the petitioner will be granted.

For affirmance—None.

For reversal—The Chiee-Justice, Trenchard, Parker, Bergen, Minturn, Kalisoh, Black, Katzenbach, White, Heppenheimer, Ackerson, Van Buskirk—12.


author: Kalisch, J.

text:
    Harry L. Schwarz, complainant-appellant, v. Charles H. Munson, John F. Shupe Company, Inc., Clarence C. Grover and Martha E. Grover, defendants-respondents.
    [Argued March term, 1923.
    Decided June 18th, 1923.]
    1. In a suit for specific performance of a contract for sale of lands where the defence of a Iona fide purchaser is set up in bar of the complainant’s claim that he was entitled to specific performance of the contract, the defence can only succeed by proof of the actual payment of the whole purchase-money, and where the subsequent purchaser has accepted a conveyance and paid part of the purchase-money in good faith before notice of the prior contract, he is entitled to be indemnified by receiving out of the purchase-money which normally would be paid by the vendee to the vendor such sum as will indemnify him against loss which otherwise would result from the payment of a part of the purchase-money.
    2. Haughwout v. Murphy, 22 N. J. Eq. 531, approved and followed.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder. .

      Mr. Merriit Lane, for the appellant.

      Mr. Oliver E. Day, for the respondents Clarence C. Grover and Martha E. Grover.

      Messrs. Eing & Yogi, for the respondents Charles H. Mun-son and John E. Shupe Co.
   The opinion of the court was delivered by

Kalisch, J.

The complainant filed his bill of complaint in the court of chancery for specific performance of a contract for the sale of lands in Dover; which lands one Charles H. Mun-son had agreed to sell to complainant. The facts are briefly these: Munson, the owner of the lands, gave an exclusive option of purchase thereof to Schwarz. The option bears date March 3d, 1921, and has a stipulation that the option is “to stand until March ,8th, 1921.” On March 8th, a stipulation in 'writing was entered into between the parties that the option be extended ten days from the 8th day of March. On the 10th day of March, two days after the signing of the extension, the complainant, by letter of the last-mentioned date, accepted the option, which option and letter of acceptance constitute the contract which the complainant seeks to enforce. With the letter of acceptance Schwarz sent his certified check for $100, payable to Munson on account of the purchase price, to Munson, and further stated in the letter that the balance of the purchase price would be paid upon the delivery of the deed which was to be delivered on or before March 18th.

Before the date fixed for the closing of title, Munson sent a surveyor to make a survey of the propérty, and according to the latter’s testimony he made a survey of the property indicated by the description in the option of purchase, because there was a difference of opinion between the parties as to the location of certain lines, but this difference was settled by them and the location of the lines agreed upon. Subsequently, there was correspondence between the parties, (by their respective attorneys, which culminated in a letter written by Munson’s attorney, to the complainant’s attorney on April 9th, 1921, notifying him on behalf of Munson that all offers, verbal or written, which Munson made to sell the “Pine Terrace Inn Property,” at Dover, or any part thereof to the complainant were revoked and withdrawn. Rour days later Mun-son’s attorney wrote to complainant the following: “Dear Sir: Having surrendered to Mr. Munson your option and all rights in his property at Dover, we are returning you herewith Mr. Munson’s check of $100 deposit you made thereon.” The complainant, upon receipt of the letter, replied to it, sending the reply to Munson, and enclosing the check which was sent to complainant by Munson’s attorney, accompanying it with a complete denial of Munson’s attorney’s assertion, as to any surrender by complainant to Munson of the option or of any rights under it.

It appears that on April 11th, 1921, Munson conveyed to John R. Shupe & Company, Inc., for a consideration of one dollar and other valuable consideration, the lands for which the complainant had the contract of purchase. On April 14tb, three days later, the Shupe company, for a consideration of “one dollar and other good and valuable consideration,” conveyed the same lands purchased by it as above mentioned to Clarence C. Grover, and on the same day there was recorded a mortgage made by Clarence C. Grover and his wife to Charles H. Munson for $10,000, dated April 14th, 1921, payable in three years from date.

The learned vice-chancellor held that the complainant had not surrendered his option, and in that result we concur. He further held that the conveyance from Munson to the Shupe company was bona fide, and that the latter took the property without notice of any claim, right or lien of Schwarz, and, therefore, it was entitled to convey to Clarence C. Grover good title irrespective of the fact whether or not the latter had knowledge of such right or lien, and concluded that Grover was a purchaser from the Shupe companjr, which was a purchaser in good faith, and for value, and therefore dismissed complainant’s bill.

Of course, if the Shupe company was a bona fide purchaser, without notice, we could readily agree with the result reached by the learned vice-chancellor. But we cannot accept his finding in view of the evidence in the cause, that either the Shupe company or Grover was a bona fide purchaser for value.

The facts, practically undisputed, are that the Shupe company bought the property for the benefit of John P. Shupe, its president; that immediately after the purchase he concluded that the property was too large for his purpose; that he thereupon entered into a contract with a Mr. Hummer to sell it for him; that Hummer then, on April 14-th, 1921, sold it to Grover for $14,000. Shupe paid no cash to Mun-son upon the delivery of the deed to him, but.gave his note therefor of $14,250, dated April 11th, 1921, and payable in one month. The life of the note became extinct almost suddenly by reason of what followed. Por after being the owner of the property for three days, Shupe, as stated, sold it to Grover, who gave Shupe a check for $4,000 and a mortgage which was made direct to Munson for the sum of $10,000. Shupe turned over the mortgage to Munson, and gave him a check for $3,000, the difference between that amount and the $4,000 check from Grover being retained by Shupe to satisfy a debt which Munson owed him.

These facts raise the question whether such a transaction rendered either Shupe or Grover a bona fide purchaser for value and entitle them for this reason to be protected against the complainant’s claim.

In the ease of Haughwout et al. v. Murphy, 22 N. J. Eq. 531. Judge Depue, in speaking for this court, declared that where the defence of a bona fide purchaser was set up in bar of the complainant’s claim that he was entitled to the specific performance of the contract for the sale of lands, the defence could only succeed by proof of the actual payment of the whole purchase money, and that, where the subsequent purchaser has accepted a conveyance and paid part of the purchase money in good faith before notice of the prior contract, he is entitled to be indemnified by receiving out of the purchase money which normally would be paid by the vendee to the vendor such sum as will indemnify him against loss which otherwise would result from the payment of a part of the purchase money. These views have received uniform approval by this court. Cranwell v. Clinton Realty Co., 67 N. J. Eq. 540; Leonard v. Leonia Heights Land Co., 81 N. J. Eq. 491.

Since it appears that Shupe paid no cash for the property conveyed to him and all that Grover paid in cash for the transfer of the same, to him was the sum of $4,000, by the light of the foregoing decisions he did not become a Iona fide purchaser for value, but under the equitable doctrine applied in such a situation he is entitled to be indemnified to the extent of the amount in cash paid by him out of the purchase money to be paid for by the complainant for the property.

Respondents’ contention that the contract was too uncertain to be enforced in a court of equity, because one of the boundary lines was not definitely fixed in the contract, is of no importance, since after the discovery of the uncertainty of location, the parties agreed upon the location. The further contention that the complainant abandoned his agreement to purchase is without merit, for the preponderance of the evidence negatives such a claim.

We have reached the result that the decree of the court below dismissing complainant’s bill must be reversed, with costs, and with, the direction that a decree be made in favor of the- complainant against the defendant Munson for specific performance; that the defendant Munson be required to return to Grover the purchase money mortgage of $10,-000 which the former received from him, and that Grover should receive from the complainant out of the purchase money to be paid by him to Munson, the $4,000 in cash, which amount he, Grover, had paid to Shupe.

For affirmance—Hone.

For reversal—The Chiee-Justice, Tbenchabd, Parker, Bergen, Kalisch, Black, Katzenbach, White, Heppen-HEIMEE, AcKERSON, VAN BuSKIEK—11.


author: Katzenbach, J. White, J.

text:
    Montice L. Scull et al., complainants-respondents, v. John F. Eilenberg, defendant-appellant.
    [Submitted March 21st, 1923.
    Decided June 18th, 1923.]
    1. Prior to 1887, the C. B. Co., owner of a tract of land in Atlantic City, divided it into blocks and lots. It then conveyed lots subject to -the restriction, among others, that no building should at any time be erected within twenty feet of the front- .property line of any street or avenue, except oni Atlantic avenue. Subsequently, the C. B. Co., in 1S89, passed a resolution to the effect that the above restriction on Atlantic avenue lots was null and void and that the restriction should thereafter be that no building should at any time be erected on a corner lot on Atlantic avenue within five feet from the side street property line. Subsequent deeds made by the C. B. Co., contained this modified restriction. S., an owner of a lot on Montpelier avenue, a side street, which had been sold under the earlier form of restrictions, filed a bill in the court of chancery against E., owner of a lot at the southwest corner of Atlantic and Montpelier avenues, also sold under the earlier form of restrictions, to enjoin E. from erecting a building within twenty feet of the side line of Montpelier avenue. Held, that in view of the fact that the C. B. Co. did not obligate itself to insert the same restrictions in all its deeds, or did not sell the lots on the representation that all lots would be conveyed subject to the same restrictions, and subsequently altered the restrictions relating to corner lots on Atlantic avenue, that it was inequitable to enforce against E. by injunction, the restriction requiring a building upon his lot to stand back twenty feet from the side line of Montpelier avenue, when buildings on other corner lots on Atlantic avenue had been erected within twentv feet'of the side street property line.

      2. A neighborhood scheme of restrictions must be universal and reciprocal. .The same restrictions must be imposed upon all lots similarly situated. If the restrictions upon all lots similarly located are not alike, or some lots are not subject to restrictions, while others are, then the neighborhod scheme falls.
    3. In a neighborhood plan of restrictions the burden follows the benefit. If the restrictions are so altered that the benefit is destroyed or impaired, equity will refuse to impose the burden.
    4. When a proposed neighborhood plan of restrictions has been changed by altered restrictions contained in subsequent deeds for lots similarly located so that the enforcement of the original restriction will be a burden upon the restricted property without conferring any appreciable benefit on the property of the one seeking to enforce the restriction, a court of equity will refuse to enforce the restriction.
    On appeal from a decree of the court of chancery.

      Messrs. Bourgeois & Coulomb, of counsel with the appellant.

      Messrs Cole & Cole, and Mr. Norman Greij, of counsel with the respondents.
   The opinion of the court was delivered by

Katzenbach, J.

This is an appeal from a decree of the court of chancery. The complainant below, Montice L. Scull, is the owner of a lot of land in the city of Atlantic City, fronting fifty feet on the easterly side of Montpelier avenue and distant two hundred and seventy-five feet from the southerly line of Atlantic avenue. The defendant below and appellant, John F. Eilenberg, is the owner of a lot of land located at the southwesterly eorner of Atlantic and Montpelier avenues, which has a frontage of forty-two feet on Atlantic avenue and extends along the westerly side of Montpelier avenue one hundred and thirteen feet.

Prior to the year 1887, a corporation, known as the Chelsea Beach Company, owned a large tract, of land of which the complainant’s and -defendant’s lots were a part. This company caused the entire tract to be plotted and divided into blocks and lots (both numbered) and a map thereof to be made, which was filed in the Atlantic county clerk’s office. The lot of the complainant, Scull, was conveyed by the company by deed dated May 28th, 1887, and the lot of the defendant, Eilenberg, was conveyed by the company by deed dated March 16th, 1887. The deeds by which the title to these -two lots passed from the Chelsea Beach Company, contained certain restrictions and covenants. Among these are the following, which are the ones pertinent to this case: “Under and subject nevertheless to the following covenants and conditions which are hereby made a part of the consideration of this conveyance: That no building shall, at any time, be erected within twenty feet of the front property line of any street or avenue, except on Atlantic avenue, nor within five feet of the side lines of said lot, except where a party may own two or more contiguous lots, then a building may be erected on any part of the lot or lots the owner thereof may desire, without regard to the intervening line or lines, provided the same is not built within five feet of the outside lines of the “said lots, nor within twenty feet of the front property line thereof, and also, that no building of less value than $500 shall be erected thereon.” * * *

“And also under and subject to the covenants and conditions, that no stores, except drug and confectionery stores, shall be allowed on any part of the Chelsea Beach Company’s property except 'on Atlantic avenue * *
“And it is expressly understood and agreed, that the said several .covenants on the part of the said party of the second part, above specified, shall attach to and run with the land, and it shall be lawful not only for the said Chelsea Beach Company, and their successors and assigns, but also for the owner or owners of any lot or lots adjoining in the neighborhood of the premises hereby granted, deriving title from or through the said Chelsea Beach Company, to institute and prosecute any proceedings at law or in equity against the person or persons violating or threatening to violate the same, it being- understood, however, that this covenant is not to be enforced personally for damages against the said party of the second part, his heirs or assigns, unless he or they be the owner or owners of the said premises or of some part thereof at the time of a violation of the said covenant or of a threatened or attempted violation thereof; but the said covenant may be proceeded in for an injunction of and for a specific execution thereof against the said party of the second part, his heirs or assigns, and for damages against the .party or parties violating the said covenant, they or their heirs, executors or assigns.
“The object of these covenants being to secure the health, beauty, ornamentation) and value of the premises.”

In the deeds to the complainant and defendant these restrictions and covenants are referred to.

It is apparent from the working of the restrictions and covenants above set forth that the purpose of the Chelsea Beach Company was to create a general neighborhood scheme or plan which would, if carried out, result in the increased enjoyment of the lots by the users, and a greater value to the owners. The restrictions and covenants state the purpose in the words “the object of these covenants being to secure the health, beauty, ornamentation and value of the premises.”

It is also apparent from the restrictions that Atlantic avenue was placed in a different class than the other streets and avenues in the tract. The restrictions provided that no stores, except drug and confectionery stores, were to be permitted on any of the streets or avenues except Atlantic avenue. This permitted stores for business of all kinds to be erected on Atlantic avenue. The restrictions also provided that “no building shall at any time be erected within twenty feet of the properly line of any street or avenue, except on Atlantic avenue.” This restriction also recognized that Atlantic avenue was destined to be in this section a business streel as it then was to' the east of this locality.

A neighborhood scheme of restrictions to be effective and enforceable must have certain charactertistics. It must be universal, that is, the restrictions must apply to all lots of like character brought within the scheme. Unless it be universal it cannot be reciprocal. If it be not reciprocal, then it must as a neighborhood scheme fall, for the theory which sustains a scheme or plan of this character is that the restrictions are a benefit to all. The consideration to each lot owner for the imposition of the restriction upon his lot' is that the same restrictions are imposed upon the lots of others similarly situated. If the restrictions upon all lots similarly located are not alike, or some lots are not subject to the restrictions while others axe, then a burden would be carried by some owners without a corresponding benefit. “The burden follows the benefit,” as was said by Judge White in the case of Sanford v. Keer, 80 N. J. Eq. 240. When there is no benefit there should be no burden. If the benefit be destroyed the burden should end. The requisite universality of the neighborhood plan was referred to by the late Vice-Chancellor Green in the case of DeGray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329, in the following language: “The law, deduci'ble from these principles and the authorities, applicable to this case, is that where there is a general scheme or plan, adopted and made public by the owner of a tract, for the development and improvement of the property, by which it is divided into streets, avenues and lots, and contemplating a restriction as to the uses to which buildings or lots may be put, to be secured by a covenant embodying the restriction, to be inserted in each deed to a purchaser, and it appears, by writings or by the circumstances, that such covenants are intended for the benefit of all the lands, and that each purchaser is to be subject to and to have the benefit thereof, and the covenants are actually inserted in all deeds for lots sold in pursuance of the plan; one purchaser and his assigns may enforce the covenant against any other purchaser and his assigns, if he has bought ■with knowledge of the scheme, and the covenant has been part of the subject-matter of his purchase.

“The right of action from this would seem to be dependent as much on the fact of the general scheme as on the covenant—a very important consideration in a case in which the' question arises whether certain threatened acts are in violation of the covenant, if any ambiguity exists as to its scope and meaning.”

Where the restrictions are not universal or after frequent violations of the restrictions have been permitted, then the neighborhood scheme will be considered abandoned.

About two years after the deeds were made by the Chelsea Beach Company to the complainant’s and defendant’s predecessors in title, some question evidently arose as to whether or not the restriction “that no building shall at any time be erected within twenty feet of the front property line of any street or avenue, except on Atlantic avenue," applied to lots located at the corners of Atlantic avenue and intersecting streets so as to require buildings erected on these lots to be located twenty feet from the property line of the side streets. On April 30th, 1889, the Chelsea Beach Company made a deed to Charles R. Myers, which contained the usual restrictions, and at the end of the restrictions a copy of a resolution purporting to have been passed by the company reading as follows: “By resolution of the board of directors of the said Chelsea Beach Company, the above restriction on the Atlantic avenue lots is rendered null and void and the following restriction is hereby made a part of this conveyance,; that no building shall at any time be erected on a corner lot on Atlantic avenue within five feet from the side street property line, but may be erected to full party line of adjoining lot; and all other Atlantic avenue lots may be erected to full party line of adjoining lots."

Thereafter, in its conveyances the Chelsea Beach Company after the restrictions recited this resolution, so that after 1889 the restrictions did not require buildings erected on the corner lots on Atlantic avenue to stand back twenty feet from the property line, of side streets. In the tract of land of the Chelsea Beach Company there are on Atlantic avenue sixteen corner lots. On ten of these corners buildings are now erected within less than twenty feet of the property line of the side streets.

On July 27th, 1922, Scull, having learned that Eilenberg proposed to erect on his lot at the southwest comer of Atlantic and Montpelier avenues a building which would come within less than twenty feet of th,e property line of Montpelier avenue, served a notice on Eilenberg, warning him that such contemplated building construction would be in violation of the restrictions contained in his deed from the Chelsea Beach Company. On July 29th, 1922, Scull filed a bill in the court of chancery to enjoin the construction of the proposed building within less than twenty feet of the property line of Montpelier avenue.

Eilenberg, in his answer, admitted his intention of building within less than twenty feet of the property line of Montpelier avenue, and claimed the right to do so upon the ground of passage in 1889 of the resolutions by the board of directors of the Chelsea Beach Company above set forth and the subsequent conveyances of the remaining corner lots on Atlantic avenue with the changed restrictions, the abandonment and waiver of the restrictions by numerous violations thereof, and the violation of the restrictions by the complainant. The case came on for hearing before a vice-chancellor, who decided the questions raised in the answer adversely to the defendant and advised a decree enjoining the erection of the proposed building on the defendant’s land nearer than twenty feet to the “front property line of Montpelier avenue,” and directing the removal of so much of the building already constructed as is nearer than twenty feet to the “front property line of Montpelier avenue.” The learned vice-chancellor based his decision upon a case involving the same restriction and decided by the court of chancery on December 5th, 1895, and later affirmed by this •court without an opinion or per curiam. This ease is entitled Waters v. Collins, and is only reported in 70 Atl. Rep. 984. Waters owned a lot on Montpelier avenue. Collins owned the lot on the northeast corner of Atlantic and Montpelier avenues. Collins started to erect a building about seven feet from the line of Montpelier avenue. Waters filed a bill in the court of chancery to enjoin Collins from erecting the building. The deeds of Waters and Collins had in them the restrictions and covenants above set forth. Collins set up in his answer that the restriction did not apply to the side line of his lot on Montpelier avenue; that this restriction upon his lot was nullified by the 1889 resolutions and later conveyances of the Atlantic avenue corner lots with modified restrictions, and that there had been a practical construction of the restrictive clause limiting the restriction on the side lines of the Atlantic avenue corner lots to a five-foot space. In the case of Waters v. Collins, the learned vice-chancellor, in disposing of the defences set np in the answer, held that the lot of Collins fronted on two streets, namely, Atlantic avenue and Montpelier avenue, and was within the restriction, providing that a building on streets other than Atlantic avenue must stand back twenty feet from the front property line. He also held that the 1889 resolution and subsequent conveyances could not affect the contractural rights to the parties to the deeds. His language on this subject was: “The company could not sell lots, holding out to the grantees a restrictive scheme intended to advance the value of the property sold, at the expense of property to be yet sold, and afterwards receive an enhanced price for subsequent lots, by a removal in whole or in part of the restriction bargained for. To the point that a party cannot be absolved from such a restriction by a subsequent agreement or resolution is the ease of Coudert v. Sayre, 46 N. J. Eq. 386; 19 Atl. Rep. 190.”

The ease of Waters v. Collins presented the same facts and the same question as the ease under consideration. Notwithstanding the decision in Waters v. Collins, which was affirmed, in 'the manner mentioned, by this court, we are of the opinion that this case was wrongly decided and that-the acts of the Chelsea Beach Company in altering in its deeds executed subsequent to the passage of the 1889 resolutions the restrictions with, reference to the Atlantic avenue comer lots brought about a situation which makes it inequitable to enforce the restriction contained in the deed for the Eilenberg lot forbidding the erection of a building upon this lot within twenty feet of the property line of Montpelier avenue.

The decision in Waters v. Collins is rested, as stated in the opinion, upon the case of Coudert v. Sayre. In this case the covenant under consideration was a restrictive covenant reserved by a grantor of lands in favor of the lands retained by him upon lands which he conveyed to the covenantor. The respective obligations of the parties were fixed by one instrument, the single deed of conveyance. The grantor and the grantees to whom he later might convey all or any part of the retained lands in favor of which the covenant was reserved could enforce the restriction although such retained lands were never subjected to any restriction. Any subsequent grantee, upon delivery of his deed, obtained the right to enforce the restriction or covenant against the lands of the covenantor, that no subsequent action of the common grantor could in anywise affect. Such a covenant as considered in Coudert v. Sayre does not partake of any of the essential characteristics of the neighborhood scheme of restrictions and covenants which have been referred, to., In the restrictions and covenants inserted in the deeds of the Chelsea Beach Company there was no reciprocal covenant made by the company that it would insert like covenants in all deeds for the remaining lots similarly located for the common benefit of all of the grantees and their assigns. There was no offer by the Chelsea Beach Company of its lots for sale, subject to restrictions and covenants alike for all lots in the same locality, so that purchasers with notice would be bound thereby. In view of the fact that the company did not obligate itself to insert the same restrictions and covenants in all its deeds for lots similarly located, or did not sell its lots on the representation that all' lots similarly located would be conveyed subject to the same restrictions and covenants, or did not embody in all its deeds for the corner lots on Atlantic avenue the same restrictions so that each lot which carried a burden would receive a corresponding benefit, we feel that in so far as the comer lots on Atlantic avenue are concerned, that an owner should not be required to erect a building farther back from the property line of the side street than five feet. The inequity in enforcing in the present case the restriction against the Eilenberg lot is apparent. The lot on the northwest corner of Atlantic and Montpelier avenues, which is directly opposite to the Eilenberg lot, was conveyed by the Chelsea Beach Company without the same building restriction as contained in the Eilenberg lot. On this lot is erected a building within twenty feet of the property line of Montpelier avenue. To enforce' the building restriction against the Eilenberg lot is to subject his lot to a burden when it is not correspondingly benefited, as Eilenberg’s lot is deprived by the failure of the neighborhood scheme from the benefit of having the building on the opposite corner stand back from Montpelier avenue the same distance as the building which would be erected upon the Eilenberg lot if the building restriction referred to were enforced.

The lot of Eilenberg is only forty-two feet in width. The enforcement of the twenty-foot building restriction would deprive Eilenberg of the use of fifteen feet of his lot on a street devoted to business where the land must be valuable; while others, owning similar lots, would have the use of the amount of land of which Eilenberg would be deprived. It is not a sufficient answer to say that this is what the predecessor in title of Eilenberg covenanted to do, and that therefore Eilenberg must take the consequences, because the complainant below was bound to know that in the absence of a covenant on the part of the Chelsea Beach Company to insert the same restrictions and covenants in the deeds for all lots, or in the absence of a sale of the lots upon the representation that lots similarly located would be subject to the same restrictions, the neighborhood scheme might fall, and a situation be created as in the present case in which it would be inequitable to enforce a restriction against an owner of a lot, although embodied in the deed of his predecessor in title of which he had full notice when he acquired the property.

The injury to the complainant in the present case is slight, if any. Iiis lot is nearer to the ocean than the lot of Eilenberg. The complainant by the erection of the proposed building by the appellant would be deprived of no ocean view or ocean breeze which he now has. The complainant’s lot is also on the opposite side of Montpelier avenue. The lot on the southeast comer of Atlantic and Montpelier avenues, which is on the same side of Montpelier avenue as the complainant’s lot, has erected upon it a building coming within twenty feet of the property line of Montpelier avenue. These facts seem to make the complainant’s damage negligible. Some thirty-five years have passed since these restrictions were inserted in the deeds mentioned. The character of the neighborhood has changed. Atlantic avenue has become in this section the business street which it was thought it would become. It does not seem reasonable that in a locality devoted to business, buildings used for business purposes, should be, in some instances, required to stand back twenty feet from the side lines of corner lots. Where restrictions have ceased to be reasonable, courts of equity’ are loathe to enforce them. Courts lay hold of circumstances evidencing a failure or abandonment of the restrictive scheme. The present case furnishes such abundant proof of the failure of the neighborhood scheme, so far as the corner lots on Atlantic avenue are concerned, to justify in our opinion the refusal of an injunction to the complainant. These views make it unnecessary to consider the testimony offered by the defendant to show an abandonment of the restrictions by numerous violations thereof. It also makes it unnecessary to consider the question as to whether the construction given in the case of Waters v. Collins of the twenty-foot restriction as set forth in the original deeds for the Scull and Eilenberg lots is correct. Eor the foregoing reasons, the decree of the court of chancery is reversed, to the end that the injunction decree ■may be limited to the portion of defendant’s lot lying within five feet of Montpelier avenue.

White, J.

(concurring).

I think the neighborhood scheme, whereby buildings on lots fronting on Montpelier avenue had to set back twenty-feet from the street line, did not become applicable to lots fronting also on Atlantic avenue except to the extent of the five feet prescribed in the modified restriction established by the resolution of the common grantor company passed in 1889 and embodied in all deeds made by that company after that time, several of which were for lots on Atlantic avenue, and one in particular "was for a lot at the northwest corner of Atlantic and Montpelier avenues, which lot is on the same side of Montpelier avenue as is defendant’s lot, and so close to it that defendant’s lot would have been dependent for an important part of its benefit from the twénty-foot restriction, upon such restriction being binding also upon such other lot.

It is true that in Waters v. Collins, 70 Atl. Rep. 984 (affirmed by this court without a per curiam or an opinion, and of which affirmance there is no published report), the court of chancery, citing Coudert v. Sayre, 46 N. J. Eq. 386, as authority therefor, said that this resolution of the Chelsea Beach Company abolishing all line restrictions on lots fronting on Atlantic avenue except the restriction requiring improvements to recede five feet,from side street lines, passed in 1889, and inserted in all deeds for Atlantic avenue lots and for all other lots deeded by that company after that date, could not affect the rights of the parties in that case as against each other, because their respective lots had been granted by the said common grantor in 1887, before the passage of that resolution in 1889; but in this I think the learned vice-chancellor failed to observe (because not there, as here, so pointedly involved) the essential difference in the nature of a neighborhood scheme restriction from that óf a bare restrictive covenant, reserved by a grantor in favor of his retained lands, upon lands which he conveys to the covenantor. In the latter case the grantor and his subsequent grantees of all or any part of such retained lands in favor of • which the covenant was reserved, may specifically enforce it (if such enforcement be equitable and reasonable in view of surrounding circumstances at the time such enforcement is asked), although sirch other lands were in fact never then nor afterward subjected to any restriction whatsoever, nor ever intended so to be. In such a case it is quite evident that the subsequent grantee of part of such retained lands has at once, upon receiving his deed, a fixed definite right' to reasonably and equitably enforce the covenant against the lands of the covenantor, and that no subsequent action of the common grantor can affect that right. Such was the case of Coudert v. Sayre, supra, which the vice-chancellor cited as authority for the position which he took in the case of Waters v. Collins.

A neighborhood scheme, on the other hand, depends for its potency upon its reciprocal universality as affecting all the lands intended to be and actually brought within the scheme. As was said by this court in Sanford v. Keer, 80 N. J. Eq. 240, in neighborhood scheme restrictive covenants, “the burden follows the benefit.” If this mutual reciprocal universal benefit intended to be conferred upon all by the scheme, fails by reason of one or more permitted violations of the covenant, whereby the benefit is destroyed, the burden ends with it, and the scheme is said to have been abandoned;” but if it fails because of the omission from the restricted lots of a lot essential to the existence of the scheme, so that improvements may be put upon or uses made of that lot contrary to the terms of the covenant, and which would destroy the benefit of the scheme to the other lots included therein, the neighborhood scheme has not been established as to, and is, therefore, not binding upon,' any lots which, because of such omission, may thus be deprived of the benefit of the scheme.

How, then, is a neighborhood scheme .of this character created ? The most complete way, of course, is by a reciprocal covenant, whereby .the grantor covenants to insert, in apt language, like covenants in all deeds of his remaining lots or lands for the common benefit of all of his grantees and their assigns. Another way is for him to offer his lots for sale, and to sell them, on the representation that all lots will be conveyed subject to like covenants for the common benefit, in which case purchasers with notice or knowledge will be bound by the covenant. But, in the absence of either of these methods (as was the case here), the courts will only spell out such a scheme from a plan of lots and sales therefrom where-all the deeds from the common grantor for the lots making up any particular neighborhood group of common benefit therefrom, are made subject to the common covenant. If, under these circumstances, the covenant is omitted from a deed of one lot so located that a violation on that lot of the provisions of the covenant would deprive the other lots of the benefit to be derived by them from the common observance of the restriction, there is, in the absence of knowledge or notice of the scheme on the part of the grantee in the deed for such omitted lot, a failure to make out a neighborhood scheme, at least as to that lot and as to such other lots as would lose the benefit of the scheme if it were violated on the lot not subjected to the covenant. Thus, in the leading case of DeGray v. Monmouth Beach Club House Co., 50 N. J. Eq. 529, Vice-Chancellor Green said: “The law, deducible from these principles and the authorities, applicable to this case, is that where there is a general scheme or plan, adopted and made public by the owner of a tract, for the development and improvement of the property, by which it is divided into streets, avenues arid lots, and contemplating a restriction as to the uses to which buildings or lots may be put, to be secured by a covenant embodying the restriction, to be inserted in each deed to a purchaser; and it appears by writings or by the circumstances that such covenants are intended for the benefit of all the lands, and that .each purchaser' is to be subjected to and have the benefit thereof; and the covenants are actually inserted in all deeds for lots sold in pursuance of the plan, one purchaser and his assigns may enforce the covenant against any other purchaser and his assigns if he has bought with knowledge of the scheme, and the covenant has been part of the subject-matter of his purchase.

Coming now to the case in hand, the language of the covenant speaks “neighborhood scheme,” and nothing else. It says -“oAvners of lots in the neighborhood and deriving title from the common grantor,” may enforce the restriction against each other, and that it is “to secure the health, beauty, ornamentation and value of the premises.” There is no covenant by the common grantor to. insert the common covenant in all the deeds, nor is there any proof in the record of any other verbal or written promise or representation so to do. We are therefore left to an examination of what was actually done, to spell out the neighborhood scheme in its various gradations as applied to different sections of the tract and in its territorial extent. Obviously, from the language of the covenant itself, there Avas to be a radical difference in the scheme as applied to Atlantic avenue lots. They might be used for store and business purposes of any lawful kind, barring saloons, whereas, all stores, except for the sale of drugs and candy, were prohibited on the other lots; and then also the twenty-feet restriction' was expressly omitted on the Atlantic avenue front.

Personalty, I have no doubt that this twenty-feet restriction was never intended to apply to the so-called side-avenue fronts of the lots shown by the filed plan as fronting on Atlantic avenue. Where Atlantic avenue lots were corner lots, I think it was intended that the five-feet-from-side-lines restriction would make them set back that distance from the side street, and that to the extent of this five-feet recession only, the neighborhood scheme to set buildings back from the street line, embraced in its territorial scope the lots fronting on Atlantic avenue. But the language used in the original restriction was not nearly as explicit as it might have been, and, while I think that the decision in Waters v. Collins, supra, indicates a failure therein to give full significance (1) to the express, in effect, dedication of the Atlantic avenue lots for stores and general commercial and business purposes, whereas, the provisions as to all other lots spoke “residential neighborhood;” (2) to the size of the corner lots, forty-two feet front, which, taking off the five-feet-side-line restriction on one side and the twenty-feet-so-called-side-avenue-front restriction on the other, would only leave seventeen feet to build on, whereas, the “inside” lots had thirty feet, thirty-five feet or forty feet available for building purposes according to their size after allowing for restrictions, although usually and property corner lots for business purposes should be larger than inside lots; (3) to the filed plan showing the comer lots in question to be fronting on Atlantic avenue and not on the side avenues; (4) to the. twelve-foot alley in the rear of the Atlantic avenue lots, which makes a natural or at least suitable, break for the ending of the twenty-foot restriction and the commencing of the five-foot restriction, and (5) to the policy of the law which does not favor restrictions upon the free and natural use of lands and does not adopt doubtful constructions to create them; nevertheless, that decision (as I think erroneously) interpreted the language used to mean that all buildings must recede twenty feet from the side avenue frontages of corner lots fronting on Atlantic avenue.

This interpretation, therefore, must, for the purposes of this discussion (assuming, although not conceding it to be here binding upon this court, Howland v. Andrus, 81 N. J. Eq. 175), be considered an essential part of the scheme here contended for, affecting the Atlantic avenue corner lots as such scheme was originally expressed in the 1887 deeds, and that brings us to the question: “Was this scheme in fact imposed upon all the lots properly falling within its territorial scope, so that its intended benefit could not be defeated by the violation of its requirements on a lot upon which it was not imposed?” I think the answer must be in the negative. In 1889 (for some reason best known to itself, very likely because some purchaser of a side avenue lot took a position contrary to the real intention of the parties and set up a claim that the twenty-foot restriction on the side avenue lots was applicable also to the so-called side avenue fronts of the Atlantic avenue corner lots) the common grantor, the Chelsea Beach Company, held a meeting of its directors and passed the following resolution, which was thereafter inserted in all deeds of lots thereafter sold by such common grantor, namely:

“By resolution of the board of directors of said Chelsea Beach Company, the above restrictions on the Atlantic avenue lots are rendered null and void, and the following restriction is hereby made a part of this conveyance; that no building shall at any time be erected on a corner lot of Atlantic avenue within five feet from the side street property line, but may be erected to the full party line of the adjoining lot, and on all other Atlantic avenue lots may be erected to the full party line of adjoining lot.”

If the language used in the original 1887 restriction meant what the Waters Case subsequently, in 1895, said it did, namely, a recession on Atlantic avenue corner lots of twenty feet from the Montpelier avenue line, that restriction was clearly not imposed upon the lot at the northwest corner of Montpelier and Atlantic avenues, except as to five feet of the twenty feet so specified. To the extent of fifteen feet, therefore, the twenty-foot restriction was not imposed upon a lot which was so located that the benefit of this feature of the scheme would certainly fail,- so far as defendant’s lot on the opposite side of Atlantic avenue and lipón the same side of Montpelier avenue was concerned. Consequently, I think, the scheme never became effective as to these two Atlantic avenue lots, beyond, or rather to a greater extent than, the five feet from the Montpelier avenue property line provided for in the resolution and restriction adopted in 1889. I think, therefore, that as applied to the present case, the learned vice-chancellor was clearly in error in saying in the Waters Case, supra, that the 1889 resolution and restriction could not affect rights between parties whose respective titles originated, as here, in deeds from the common grantor before the adoption of the 1889 resolution.

Whether the adoption of this view would result in a like modification of the twenty-foot restriction on the lots from the twelve-foot alley in the rear of the Atlantic avenue lots to the ocean lots is of course not before us in this case. Personalty, it seems to me, particularly in view of language of the original covenant and of the 1889 modifying resolution, that it might well be decided that the twenty-foot restriction as actually established was well established as to the side street lots from the twelve-foot alleys in the rear of the Atlantic avenue lots to the ocean lots, although not binding except for five feet on Atlantic avenue corner lots, but, as before stated, that question is not involved in this case.

Eor the reasons above stated, I do not find it necessary to consider the effect upon the restrictive burden on defendant’s property of any of the many violations on Montpelier avenue of the twenty-feet restrictive covenant scheme. I do not think the twenty-feet restrictive covenant is now, or ever was, since the 1889 modification, binding upon the defendant’s Montpelier avenue front beyond the line five feet from said avenue provided for in such modification, and certainly the proved violations were not sufficient to encroach upon his benefit from, and, therefore, to relieve defendant from the burden of such five-foot restriction.

But if all of this were otherwise, I am also quite clear, particularly in view of the abandonment of fifteen feet of the twenty-feet restriction on so many of the other Atlantic avenue corners, that there has been such a manifest and striking change in the character of the Atlantic avenue neighborhood as to make it unreasonable to specifically enforce as against any of the Atlantic avenue corner lots fifteen feet of the twenty-feet feature of the neighborhood scheme restrictions here contended for. These restrictions were imposed over thirty years ago when the whole tract, then on the outskirts of the resort, was unimproved and of comparatively no business value. Since that time the resort has so extended that the tract in question is substantially in its longitudinal centre and Atlantic avenue is the main business artery extending from one end of the city to the other. Extensive stores and business houses of various kinds abound on both sides of this principal business thoroughfare. The benefit to the lots shown on the plan as fronting on Montpelier and the other side avenues, from the Atlantic .avenue lots to the ocean lots, of having the full twenty-foot restriction enforced also against the Atlantic avenue corner lots has, in my judgment, ceased to be of sufficient relative value to justify the continued strict enforcement of the whole of the restrictive covenant as applied to the Atlantic avenue lots. These lots have a high market value per front foot and are very useful to the community for business purposes, and the injury to the side avenue lots in permitting the owners of the Atlantic avenue lots to build out to five feet from the side street property line is ver}- slight, if, in fact, there is any real injury. To this extent the restriction would seem to have ceased to be reasonable, and where that is the case, it is either fatal to an application to a court of equity to specifically enforce it, or at least the court will seize upon any circumstances evidencing its abandonment as a reason for refusing such enforcement. Such circumstances, so far as the Atlantic avenue lots are concerned, are here abundant. The part of the original restriction (an important feature in the residential neighborhood scheme) whereby a five-foot open space on each side of each lot, “inside” as well as “corner,” as well on Atlantic avenue as elsewhere, was provided for, has clearly become obsolete as to the Atlantic avenue lots, and is certainly no longer binding thereon; in fact, the record shows that it has long since been substantially abandoned and generally disregarded so far as Atlantic avenue is concerned. Counsel for the complainants in this case admit that this feature no longer forms a part of the general scheme as applied to the Atlantic avenue lots. The scheme claimed to be established by the Waters Case decision (supra), if established, seems to have been likewise frequently, if not generally, abandoned, as to the Atlantic avenue lots on most of the other Atlantic avenue corners, except as to the five feet prescribed by the 1889 resolution, and this, too, is so at the Montpelier and Atlantic avenues corner, where also one building has been erected out to the live-feet line. Certainly, I think, that it would be inequitable to now enforce the remaining fifteen feet of restraint on the side street lines of any of the Atlantic avenue corner lots in this tract.

As to the restrictions on the remaining live feet, the integrity of which I think has not as yet been successfully attacked by proved encroachments, if it is valuable to the owners of the other lots on the side streets to retain this feature of the scheme as applied by the resolution of 1889 to the Atlantic avenue corner lots, I think the way for those owners to accomplish that result for any considerable length of time, would be to induce the city to widen the side streets on the city plan to the extent of this additional five feet on each side throughout their entire length; otherwise, in a few years, with each property owner in turn encroaching a few inches or a fewr feet at a time, and his neighbors, for friendly reasons, loath to interfere, it will be but a comparatively short time when both this five-feet restriction on the corner lots, and also the entire twenty-feet restriction on the side avenue lots wall have practically disappeared. A neighborhood _ restrictive scheme has, like an aeroplane in the sky, a constant and ever-pnlling tendency to come down. The law of gravity pulls down always upon the aeroplane; the adverse policy of the common law, and the trait of human nature which prompts every one to step a little ahead of his neighbor, exert a constant like tendency upon the neighborhood scheme.

For the foregoing reasons I favor a reversal of the decree of the court of chancery, to the end that the injunction therein granted may be limited to the portion of defendant’s lot within a distance of five feet from the west line of Montpelier avenue.

For affirmance—None.

For reversal—The Chief-Justice, Teen chard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbach, White, Heppenheimer, Ackerson, Van Buskiric—12.