text:
    Adel Louise Watkinson v. Howard Watkinson.
    [Submitted March 21st, 1904.
    Decided March 29th, 1904.
    Filed December 23d, 1904.]
    1. A decree of divorce, made in a cause where the defendant was not within the territorial jurisdiction of the court, and was not served with process and did not appear, and the complainant had no domicile within the territorial jurisdiction, is absolutely void and incapable of being ratified by the acquiescence of the defendant.
    2. A decree of divorce against a defendant wife, who does not reside within the jurisdiction and who does not appear, based upon her adultery, which had been fully and completely condoned by the husband, but which condonement was concealed from the master, will be set aside on a bill of review by the wife.
    3. A delay of about four years in bringing a bill to review a decree of ■divorce held not to be fatal where the wife was poor, in ill health and ignorant of her rights, and no copy of the decree had been served .upon her or other positive information brought home to her until more than a year after the decree was entered.

      Mr. james iSteen and Mr. William D. Tyndall, for the petitioner.

      Mr. John II. Baches and Mr. Willis P. Bainbridge, for the defendant.
   Pitney, V. C.

This is a bill of review filed by Adel Louise Watkinson against her husband, Howard E. Watkinson, to review and set aside a decree of divorce obtained by said Howard against her in this court on the 11th of December, 1896, and filed on the 17th of December, 1896.

The ground of the decree was adultery with one Rebholz.

That decree is attacked by the present bill on two grounds:

First. That after the adultery charged in the bill and after the commencement of the husband’s suit, and after the service upon his wife of process, and before decree, the husband returned to the wife and cohabited with her, and led her to believe that he had abandoned the suit,- thus bringing the case within the principle of Clayton v. Clayton, 59 N. J. Eq. (14 Dick.) 310.

Second. That at the time the suit of the husband against the wife was commenced and carried on,, and at the time the decree was signed, neither the complainant nor the defendant therein were residents or citizens of the State of Tew Jersey, and that the complainant herein did not appear in said suit, was not served with process in the State of Tew Jersey, but was proceeded against as an absent defendant and did not appear, and that the defendant herein imposed and practiced a fraud upon this court in swearing that he was a resident of Tew Jersey, and that for that reason the said decree is absolutely void for want of jurisdiction in -this court over the person of the complainant herein.

What may be termed the admitted, or at least incontestable, facts in the case, are as follows:

Complainant and defendant were married in the city of Trenton,'in Tovembef, 1889, and the parties lived there together until on or about the 1st of December, 1895.

Four children were born to complainant during that time, the youngest in the month of April, 1895. Of these, two have died.

The youngest was disowned by the defendant, and, according to his own account, he had good and sufficient reason to believe, at the time it was born, that he was not its father, and, as he swears, the complainant herein so admitted.' Tevertheless, he continued to cohabit with her as his wife from that time forward, until about the 1st of December of the same year.

He was and had been engaged in the business of a local expressman, but met with financial disaster in the fall of that year and his property was seized by the sheriff on a foreign attachment and his business entirely broken up.

There is no evidence to show that he ever had the least business of any permanent character in Trenton after that time.

On or about the day last mentioned (December 1st, 1895) he packed all his furniture and sent it to his wife in the city of New York. He also gathered out of his means $500 and sent it to her. She rented a flat in One Hundred and Thirty-fourth street, New York City, and established herself therein with her children and lived there, without her husband, until some time in January, 1896. About the first of that month, according to the husband’s account, and toward the last of the month, according to the account of one Yogler, his witness in the former suit, he and that witness went together to his wife’s flat in New York City, at night, and found Kebholz, her paramour, in the house, in her apartments; he had, manifestly, Just left her bed. Defendant charged his wife with adultery with Kebholz, and she admitted it, so he swears.

Notwithstanding that he knew that Kebholz was the father of the youngest child, and that he had then and there caught him almost in the act of adultery with his wife, he at once resumed cohabitation with her, and lived with her as her husband until the latter part of the month of May, 1896, when he, as he swears, obtained possession of a large number of letters written by Kebholz to his wife, and all dated, as I read the record, in the year 1894. The letters, I must presume — I declined to read them — tend strongly to show the improper relations which had existed between Kebholz and defendant’s wife. He then left his wife and went to Trenton and instituted the suit in question, wherein the bill was filed on June 13th, 1896.

The ordinary proceedings were had against the wife and order of publication against her, as an absent defendant, was made returnable on August 31sl, 1896. The affidavit of the solicitor, Mr. Bainbridge, is that he handed a copy of the usual printed notice to the complainant on the 9th day of July, at her place of abode, 976 East One Hundred and Thirty-fourth street, New York City. No other service was made upon her.

After his first visit to Trenton to institute these proceedings, the husband, as he swears, went back to his abode in New York and packed up his personal belongings, trunk, &c., and moved to Trenton. His father and mother lived in Philadelphia.

He stopped in the city of Trenton for a few days, and then, about the 1st or 4th of July, went out into Hunterdon county and stopped with two gentlemen by the name of Gary, who kept a littlé country store at a place called Eeaville. He engaged in no business, so far as appears, unless it was, occasionally, to render them a little assistance about their store or about the premises or farm. He remained there until the last of September. His wife did not appear to the suit.

Order of reference was made to Master Aitkin, and the hearing came before him on the 9th day of October, on which day the husband was sworn, and again on the 10th, on which day his father and the witness Yogler were’sworn, and again on the 16th, on which day two other witnesses were sworn.

About the last of September, or the first of October, the wife moved from the flat in One Hundred and Thirty-fourth street to one in One Hundred and Thirty-eighth street, where she lived until she broke up housekeeping, the next January (1897).

The husband, according to his account, shortly after the taking of the testimony before the master, went to his father’s house, in Philadelphia, and stayed there until Thanksgiving.

According to the wife’s account, he came to New York and assisted her in moving from One Hundred and Thirty-fourth street to One Hundred and Thirty-eighth street and in arranging her furniture in the latter place, and lived with her as husband and wife until the day before Thanksgiving. According to both parties, he did not live with her in her apartments after that day.

According to her account, he lived with her as her husband in the month of July, 1897, for about a-week, at-her mother’s flat in New York City, while her mother and some other members of her mother’s family were absent at the seashore.

He swears that on Thanksgiving day of 1896, while he was stopping at- his father’s house in Philadelphia, he received a telegram from- a firm engaged in business as private detectives in New York City, asking him to come there immediately, and that he went and engaged in the work of a private detective as an employe of that firm; that he had his lodging and home in New York Cityr for three years thereafter, and was all that time working there.

Although he swears that he spent the time between October 16th, 1896, and Thanksgiving of that year in Philadelphia, circumstances appear in the case tending to show that he was more or less during that time engaged in work as a private detective for the New York firm.

On this statement of the undisputed facts in the case it would seem that the husband had no residence or domicile in the State of New Jersey at the time he was carrying on his suit here for divorce. He certainly, for six months before the suit was brought, had abandoned his residence in New Jersey, and had no business or occupation here, and had been living for at least five months in the ordinary manner with his wife in the city of New York.

There is not a particle of evidence to warrant the idea that he came to the State of New Jersey in May, 1896, for any other purpose but to procure a divorce from his wife, and there is no evidence to indicate that he had the least intention to remain and make his home here. Everything in the case tends to show that he had the intention to return to New York City after he got his divorce. Whatever of residence he had in the State of New Jersey during the summer of 1896 was of the most temporary and ephemeral character. He had no business or employment here. The. very recent case of German Savings and Loan Society v. Dormitzer, 192 U. S. 125, is directly in point. That case affirms the same case in 23 Wash. 132. So much for the lack of jurisdiction in this court.

Counsel for defendant, in his written argument, complains that this matter of want of jurisdiction was not given prominence by'the complainant either in her bill or on the hearing of the cause.

The bill distinctly charges that prior to and during the pend-ency of the former suit the defendant was residing in the State of Now York and alleges that circumstance as one of the grounds of fraud in procuring the divorce.

This was clearly understood by the able counsel for the defendant, for at the very outset of the production of his evidence he attempted to prove his client’s residence in New Jersey before, during and after the suit, with the result above stated.

The next question is as to the condonation of the offence by cohabitation with his wife.

The master finds she was guilty of adultery in June, July, August and September, 1894, at Hunter’s Point, New York state, which is the place* where the husband swore his wife was stopping at the time the youngest child was begotten.

The master further finds her guilty of adultery with Eebholz in the months of May, June, July, August and September, 1895, at Trenton, which is the last summer they lived together in Trenton; and again on different days and different months of the years 1895 and 1896, until the filing of the bill of complaint, at No. 976 East One Hundred and Thirty-fourth street in the city of New York.

Now, there is not the least evidence in the case before the master in the former suit, except a general statement by the husband under oath, that the wife ever committed adultery with Eebholz after the time, in January, 1896, when the husband and his friend, Yogler, caught them, as previously stated, together in her flat in the city of New York, and that discovery was immediately followed by cohabitation between the parties hereto up to the last of May, 1896, and shortly before the petition was filed.

I shall state more in detail the evidence given by the husband before the master.

He swears that they lived together in Trenton until December 1st, 1895; that his wife “now [October 9th, 1896J resides in the city of New York with ’William G-. Eebholz — they were living together there, and I suppose they are now; they lived at No. 976 East One Hundred and Thirty-fourth street.” He swears, that before she left Trenton he found that she had been intimate in their house with Eebholz; that he charged her with it and “she left December 1st, 1895, and went to New York with Rebholz and has, as I understand, ever since lived with him in that place.”

He further states in his evidence before the master, that his first suspicion arose from letters from Rebholz to her which he opened; that he spoke to his wife about the letters and that she denied it at first and afterwards admitted to her husband “that Rebholz had been to the house in Trenton when I was out of town and stayed there over night. * * * She said he was at the house first in May, 1895, and stayed all night — two nights at that time; and then again in August and September, and in December of 1894 — Christmas.” He swore that she admitted these different times to him. He says that she made these admissions in December, 1895.

Be further states that, after she went to New York, he employed a detective officer and went with him to the house in East One Hundred and Thirty-fourth street, where his wife was living, and found Rebholz there. His wife said that he (Rebholz) was boarding with her at that time. His valise was in the room she occupied. She was not engaged in any business.

“I was there subsequently,” he swears, “and she admitted that Rebholz was living there with her; this was in January (1896) last; I was with the detective; I went there to see if I could catch them together; he was there when I went in, and was present when my wife admitted that they were living together.” He further says that when she left Trenton, in December, 1895, he told her to get out, and he gave her money and the furniture to leave at once. He sent her a certified check for $500. He further swears that in 1894 his wife boarded for three months, June, July and August and to the middle of September, at Hunter’s Point, New York; that when she went away from their home in Trenton she had 'her monthly courses, and when she came back she was pregnant. He did not see her once during those three months and had no connection with her, and that letters passed between her and Rebholz during that time. That is the date of the letters offered in evidence. That one of her children, named Osborn, was born April 1st, 1895. “I claim that the child is not mine; it looks like Rebholz.” • Further he says, “I reside in the city of Trenton; I have lived here for the last fifteen years.” It thus appears that he concealed from the master the fact that he left Trenton in the latter part of the year 1895 and took up his abode in the city of Tew York and had lived with his wife as her husband up to a few days before the bill was filed. And, as before remarked, the evidence before the master discloses no proof of any adulterous intercourse between the wife and Rebholz after the month of January, 1896; but, on the contrary, the husband’s evidence given in this cause shows clearly that he lived with her up to that time.

In the light of these admitted facts it seems to me that the ease shows that the husband imposed on the court not only in the matter of residence but also in the matter of swearing that Rebholz was still living with his wife in Tew York City and also in concealing the fact that he himself had been cohabiting with her up to nearty the first of June, 1896.

It is clear, from his 'own evidence, that he had full and complete knowledge of his wife’s misconduct when he lived with her from January to June, 1896.

This, it seems to me, is sufficient to dispose of the case without considering the evidence of the subsequent cohabitation.

But as considerable evidence was adduced in support of the wife’s contention in behalf of the condonation pendente lite I shall give the result of my consideration of it.

The husband asserts, and has corroborative proof, that he was spending the months of Juty, August and September with the brothers Gary in Hunterdon county. But he left there on one of the last days of September, and he says that between that time and the time of the hearing, the 9th of October, in the divorce case before the master, he was in the city of Trenton, living with the witness Yogler.

There is no corroborative proof given of this last statement, and the exposure of his falsehood in his evidence before the master tends very much to weaken the force of his evidence here.

His wife swears, and about this there is no dispute, that about the last of September she moved from One Hundred and Thirty-fourth street to One Hundred and Thirty-eighth street, New York City. She further swears that her husband came to New York and assisted her in moving, and from that time on, until the day before Thanksgiving, he cohabited with her in the ordinary way, being absent sometimes, but making his-home with her.

This is denied by him, and he attempts to set up an alibi.

So far as the first week or two in October goes, he is not corroborated. His father, who was sworn before Master Aitkin, October 9th, testified before me that about a week afterwards, or the next week, his son came to Philadelphia, to his house, and stayed there almost continuously until Thanksgiving day, and his wife testified to the same effect; but both admit that he was away for a day or two at a time on one or more occasions, and neither of them gave any particular reason why they have,'at this late day, so distinct a recollection of his continuous residence during that time.

But that evidence leaves an ample opportunity for him to have visited his wife for at least two weeks the first part of October, and afterwards again from time to time.

There is corroborating evidence of the wife’s story. He was seen in her apartments by her mother and one or two of her sisters, and there is evidence in support of the statement of the wife that he assisted her in laying down her carpets in her new flat.

I have carefully examined the conflicting evidence of the witnesses in that respect. The wife is, clearly, not to be implicitly believed, although I think she intended to speak the truth. She was twice examined — once de bene esse, in New York, and then in open court before me. Her sisters and mother were rather reluctant witnesses and were careful to testify to nothing that they did -not think was true.

Upon the whole, I think the clear weight of the evidence is in favor of the truth of the wife’s story that her husband did cohabit with her pending the divorce proceeding.

He admits that he visited his wife’s fiat on several occasions during that period to see his boy, but he denies the sexual intercourse.

How, it must be observed that at that time his wife had not put in any answer to the proceedings. lie had made a strong and conclusive case before the master. lie was entitled to a decree as soon as the practice of the court would permit, and there was little likelihood of his wife appearing against him at that late day to set up condonation. In fact, it does not appear that either of them was aware of the effect of his having sexual intercourse with her after suit brought; and his having such sexual intercourse is not incredible, when we consider that after he was fully satisfied that his wife had been unfaithful to him in the summer of 1894, and had borne him a bastard child in April, 1895, and had continued her adulterous intercourse during the summer, he continued to cohabit with her all the summer of that year; and after he had caught her in flagrante clelicto with Bebholz, in January, 1896, he cohabited with her for nearly six months.

Then it appears, too, by the evidence of both parties, that nothing was said about the divorce proceedings between them during the fall of 1896, and he never said to her, in so many words, that he had obtained a decree of divorce. He did not serve a copy upon her. He permitted his oldest child, whose custody was awarded to him, to live with her until she was forced to break up housekeeping, in January, 1897, and, in fact, neither the wife nor her family ever had airy direct information that the divorce had been granted, except what they learned through some sensational articles in the newspapers.

They all knew that the suit was commenced, and they all thought it strange, as they say, that he should come back and live with his wife after having sued her for divorce.

The wife says that she supposed, from his conduct,'that he had abandoned the proceeding, and never knew, positively, that he had a divorce until some time after she heard he was married to another woman.

The fact that he stayed with her for several days at her mother’s house, in the summer of 1897, seems to me to be established by the clear weight of the evidence.

If she had known, at that time that she was divorced, and had voluntarily cohabited with him under those circumstances, it could have had no effect upon the validity of the decree; but it does somewhat support her allegation that she, at that time, supposed the divorce proceedings had been abandoned.

I think, then, that the complainant has made out her case on both grounds, and it remains to inquire how far her right to relief is affected by the delay which occurred between *the time of the procuration of the divorce and the filing of the bill.

It is a well-proven fact that she became very poor.

In order to live at all, she put a chattel mortgage on her furniture, which was soon swept away, and she has been living from hand to mouth ever since.

She has the youngest child to support; her parents are poor. She is not either an intelligent or efficient woman. She says that she did not know, until she heard her husband was married, that he had got a divorce; she did not know that she -had any remedy; she did not know that anything could be done.

Her attention was first called to it in this wise: A judgment had been recovered against her, and, I believe, her husband jointly, in New York City, for medical services. She had been quite ill in the summer and fall of 1896. She was brought before a referee on supplementary proceedings, based on that judgment, by Mr. Tyndall, one of her counsel herein, and on that examination Mr. Tyndall learned some of the facts which have developed in this cause. He volunteered to inquire into the matter and consulted Mr. Steen, the other counsel.

Mr. Steen looked into it and presented to me, on November oth, 1900, a petition for an order opening the decree.

I called his attention to the case of Clayton v. Clayton, pointed out the proper practice, and later on (November 22d, 1900), after an order for leave to sue in forma pauperis had been granted, the bill was filed.

That was nearly four j^ears after the decree was signed.

A good deal of that time is accounted for by what I believe to be the truthful statement of the wife that she was not aware that the decree had been granted, and, in the next place, she ivas entirely ignorant of her remedy under the circumstances .and too poor to employ counsel.

In Clayton v. Clayton, I suggested that the time for filing a bill of review would endure at least three years, the time limited for taking an appeal. But counsel were unable to find any authority for any such limit. And then it must -be observed that the decree in Clayton v. Clayton was based on a jurisdiction arising out of the clear residence of both parties in New Jersejr, and upon a hearing in which the defendant appeared and had an opportunity to make her defence, and the only ground of review was adultery, committed between the time of the hearing and the decision by the judge that the acts of adultery against the wife were made out and before decree signed. That was a case where the wife had the absolute power to.waive the condonation, and it might be held that a positive duty rested upon her to move promptly if she intended so to do. She was excused for whatever of delay occurred on the ground of her extreme ignorance and poverty.

■ There is no proof here that the wife had any notice beforehand that her husband contemplated another marriage, so there is no reason to charge her with keeping silent while she was conscious that he was about to take another wife.

But without determining how far the delay might prove fatal if the case rested merely upon condonation by the husband of the offence by the wife after suit brought and service on the defendant in this state, as in the Clayton Case, I am unable to see how any delay on her part can, upon any known principle, affect her right to a declaration by this court that the decree was invalid and void ab initio by reason of the lack of jurisdiction in this court to proceed in the cause.

It is to be observed that where there is a lack of jurisdiction by reason of a want of residential domicile on the part of both parties combined with extraterritorial service, and the absence ■of any formal appearance by .the defendant, it must follow that the decree is absolutely void.

An action by way of bill to review it (like a suit by one of the parties to a marriage which is void by reason of one of them having a lawful spouse-in life) amounts merely to an action to-obtain a judicial declaration of a condition that airead}» exists.

The decree in the case of absolute disability to contract marriage is simply a declaration of nullity, as pointed out in Rooney v. Rooney, 54 N. J. Eq. (9 Dick.) 231, and in G— v. G — , ante p. 30. And the only object of the decree is to have that status judicially determined and established.

So here, an inherent lack of jurisdiction renders the decree void at all times and in all places and for all purposes, and a decree so declaring it does not vacate a valid decree, does not change the relation of the parties, but simply declares that the decree never was valid and that the relations of the parties have not been changed.

Prima facie, a court, however general its jurisdiction, has no power to acquire jurisdiction of a party defendant by service of process or notice outside its territorial limits. This is fundamental, and an ordinary judgment in personam, founded on such service of process, is absolutely void on its face to all intents and purposes, precisely as it would be if the record showed no service or appearance whatever. It is, indeed, no judgment whatever.

The single exception to this rule arises, and is everywhere recognized, where the court is dealing with some “matter or thing11 within its territorial jurisdiction, in which case extra-territorial service is permitted of necessity. Such a “matter or thing/1 it has been held, is the marriage state. If a spouse is a bona fide resident of the state, and the other spouse is absent, the court may acquire jurisdiction by extraterritorial service of process or notice.

This principle is fundamental, and it follows, and is entirely well settled, that all decrees of divorce, based upon extraterritorial sendee, without appearance, are on their face liable to have their validity attacked, on the ground that there was no' “res11 within the actual jurisdiction of the court to support them. The matter of the existence of a res within the jurisdiction is a matter which rests in pais, and it is well settled that an adjudication in the suit that the necessary res exists cannot avail. It is always open io question.

There are judicial utterances and a few authorities to the effect that where a court, exercising the jurisdiction, has determined that it has the jurisdiction, such determination is final and must be so accepted under the constitutional provision applicable to such cases. This proposition may be sound as to the question of jurisdiction of the subject-matter, but it cannot on any sound principle be maintained as to jurisdiction of the person, and whatever may have been thought or said on that subject in years gone by must now be considered as exploded.

The proposition goes to the length of holding that if the court shall, without actual service of process, either extraterritorial or infraterritorial, adjudicate that such service has been made, it is final. The proposition confutes itself on the simple principle that the party affected has either had no opportunity to contest it or was not obliged to contest it. The great weight of authority and reason is the other way.

' The authorities on this subject are numerous. They are Thompson v. Whitman, 18 Wall. 457; Price v. Ward, 25 N. J. Law (1 Dutch.) 225, and other cases cited in Elsasser v. Haines, 52 N. J. Law (23 Vr.) at p. 25; 1 Freem. Judg. §§ 116-126; Bell v. Bell, 181 U. S. 175; Streitwolf v. Streitwolf, 181 U. S. 179.

The highest court of this state has held that a tona fide domicile with residence in this state of one spouse is sufficient to maintain the jurisdiction of a divorce suit as against the absent spouse, on extraterritorial service, although there has never been any matrimonial domicile. But it is to be observed that the supreme court of the United States, which is the final arbiter on this question, has never yet, so far as I am aware, held that anything short of a matrimonial domicile is sufficient to support the jurisdiction of the court based upon an extraterritorial service of process.

I have said that the United States supreme court is the final arbiter on questions of this kind, and it is worthy of remark that a judgment which is void by the rules laid down by the supreme court of the United States is void, also, in the state whose court had rendered the judgment. See Elsasser v. Haines, 52 N. J. Law (23 Vr.) 15, per Beasley, Chief-Justice. He there says:

“Formerly a judgment entered in the way provided by the statute of a state was sometimes held to be enforceable in such state, even though the court officiating were not possessed at the time of jurisdiction over the person of the defendant according to the general principles of law and justice, as where such defendant was a non-resident and no process had been served upon him and no notice had been given except by way of public advertisement, at the same time it being conceded that such judgment would not be recognized extraterritorially; but now, by force of the addition to the federal constitution just adverted to, such judgment would be of no legal avail, either at home or abroad. In Pennoyer v. Neff, 95 U. S. 714, it was conclusively settled that a sale of land under execution by force of a judgment obtained in a state court, in conformity with the local statute, against a non-resident, who was not served with process and who did not appear, was a void act, so that no title passed.”

It is difficult to perceive how a decree for divorce which is absolutely void by reason of the want of jurisdiction of the person can be validated by any action or non-action of the party defendant, any more than can a marriage within the prohibited degrees. To hold that a defendant in such a-case can validate a void decree, is to permit parties to procure a divorce by agreement between them, which is contrary to first principles governing this subject.

It is perhaps possible that a female defendant against whom a void decree of the character just mentioned stands of record may be debarred by her conduct from having awarded to her affirmative relief against her husband, based on the fact that the decree is void. But, granting that her conduct may disentitle her to affirmative equitable relief or remedy, it cannot validate the decree.

• It is suggested that such a quasi estoppel arises in this case in favor of the defendant herein, not on account of any merit of Ms, but by reason of the fact that he has again married. But no act on the part- of the complainant is shown upon which the second spouse acted in going through the ceremony of marriage with the defendant herein. There is no proof that the complainant herein had the least knowledge or notice that her husband was about to marry again. She is not even guilty of standing by in silence. She was not present at the marriage. In fact, the existence of the new relation with the second spouse was not set up as a defence or directly proven. It was only mentioned incidentally in the production of the evidence. The date of the marriage or the circumstances attending it were not given.

I think at this day, with the light of common knowledge on the subject of obtaining divorces, based on unsubstantial residence and extraterritorial service of process, that the wholesome rule should be and is that a person who proposes to intermarry with another who has been divorced, should be held to be bound to inquire fully into the decree of divorce, and when it is based upon extraterritorial service of process to inquire carefully into the necessary basic fact of domicile on the part of the complaining spouse and require strict proof on that subject.

That burthen imposes no greater hardship on the proposed new spouse than is imposed on every person who proposes to make a purchase of land. Many of our titles to land depend entirely upon facts not appearing upon the record — matters strictly in pais, into which the purchaser is bound to inquire— and it is no greater hardship to put the same sort of burden on the person proposing to marry a divorced person.

Counsel for defendant, in his argument, relies on two cases in New Jersey, namely, first, Nichols v. Nichols, 25 N. J. Eq. (10 C. E. Gr.) 60. That was an action by the wife against her husband for a divorce from the bond of matrimony on the ground of adultery, and for alimony. The defendant set up in defence a decree of divorce of a court in Indiana. The allegation against the validity of this decree was that the court had no jurisdiction, and that it was fraudulent, and void.

The fact was that the suit was commenced there by the husband and process served on the wife'in Massachusetts, and she,appeared to the suit by attorney. That fact was found by the court against the denial of the wife. The chancellor held the decree valid, although collusive. Whether such ruling will stand the test of more modern cases, like McGowan v. McGowan, 57 N. J. Eq. (12 Dick.) 322, and other cases of that sort, may well be doubted.

But the chancellor put it distinctly on the ground that the parties to a collusive divorce are bound thereby.

In that case the husband married again immediately after the divorce, and had a child, and the first wife, with full knowledge of that, rested without action for about ten years. The distinction between that case and this is that the divorce was held, in the first case, absolutely valid between the parties.

The next case is Yorston v. Yorston, 32 N. J. Eq. (5 Stew.) 495.

•There the circumstances were somewhat similar to those in Nichols v. Nichols. The husband, before obtaining the divorce, made a provision for the support of his wife, and, after obtaining it, married again, with what amounted to a consent on her behalf, and continued to support her for several years, and the occasion of the present suit was that she feared he was going to withdraw the support which he had been giving her directly and indirectly.

The chancellor there stated, distinctly, that the bill of the former wife did not charge any lack of validity in the decree, and he says: . “Had the complainant desired to attack the decree she might have done so in her bill as originally filed, or she might have amended her bill after answer so as to question the decree, but she did neither.” And he held that her action amounted to connivance with the adultery which she charged and to condonation of it.

Several other cases cited by counsel for complainant sustain the view which I have hereinbefore taken.

The result is that I am of the opinion that the complainant liad no domicile or residence in the State of New Jersey at the time of the filing of the bill, which resulted in the decree herein attacked, or during the pendency of that suit; that the adultery on the part of the wife, the complainant herein, upon which the decree therein was based, had been thoroughly condoned by the husband; and the allegation of condonation pending that suit and before the decree therein, is sustained by the weight of the evidence; and that the complainant’s delay in asserting her rights has not been such as to bar her from relief.

I will advise a decree accordingly.


source: Caselaw Access Project

author: Pitney, V. C.

license: Public Domain

text:
    Grace L. Furniss and William P. Furniss v. William H. Leupp, trustee.
    [Decided June 22d, 1904.
    Filed December 23d, 1904.]
    A trustee of a fund made an unauthorized investment of a portion of it, which his successor recovered, with interest, from, his executors. The original trustee also made an unauthorized loan of a part of the fund, at their request, to the life tenants entitled to the income. The deed of settlement provided that the life tenants should have no power to encumber or anticipate income. — Reid, that the application of the interest recovered from the executors of the original trustee to the payment of the debt of the life tenants did not amount to an anticipation of the income, but was proper.
    On motion on petition and answer.
    ilir. Randolph Perkins, for the petitioners.

      Mr. Willard P. Yoorhees, for the respondent.
   Pitney, V. C.

The petitioners, Grace L. Eurniss and William P. Eurniss, are-tenants for life of a fund of about $100,000 in the hands of the respondent, William H. Leupp, who was appointed trustee thereof by this court as successor to the original trustee, Solon Humphreys, deceased.

Among the assets of the estate was an obligation of one Crosby for $5,700, which had been taken by said Humphreys for money loaned by said Humphreys as trustee under circumstances which rendered Humphreys personally responsible for the same.

The respondent, Leupp, recovered from the executors of Humphreys the principal sum of $5,700 and interest thereon from December 21st, 1899, amounting to $1,316.92.

The object of the petition is to compel the trustee to pay and distribute that sum of $1,316.92 among the petitioners.

The defence set up by the trustee in his answer is that the petitioner Grace borrowed of the trustee,- Humphreys, $1,500 in July, 1899, and secured it by a mortgage on property known as “Miacomet,” on the island of Nantucket; that subsequently, in 1894, she conveyed “Miacomet,” subject to the mortgage, to the petitioner William, who expressly assumed the payment of the mortgage; and subsequently, on September 30th, 1897, the petitioner William borrowed the sum of $350 of the funds of the estate from the trustee, Humphreys, and to secure the same executed to him a mortgage covering “Miacomet” and also another property in Nantucket, known as “Hertzruhe.” Respondent further avers that these investments were entirely unwarranted and the securities quite insufficient and were such a misapplication of the funds of the estate as to render both Humphreys and the petitioners liable to replace the moneys-in restoration of the estate. He further avers that, although these Nantucket mortgages were not specifically mentioned in the decree of this court, which decree is dated July 16th, 1901, which appointed him trustee, and were not accepted by him as available assets, yet they did in fact pass to him by virtue of one of the clauses of said order. And he asserts that it is his duty to insist upon the application of the arrears of interest, $1,316.92, to the reduction of the Nantucket mortgages.

In this I think he is clearly right.

(In order that there may he no mistake it is proper to observe that the petitioner Grace obtained from the trustee, Humphreys, two separate loans upon separate properties in Nantucket, of which one was paid off by her in cash to said Hum-preys and is mentioned in the above-mentioned order of July 16th, 1901. It was not suggested at the argument that the two mortgages herein first specifically mentioned were covered by the clause in the order of July 16th, 1901, which refers to the Nantucket mortgages.)

Eespondent, in his answer, further sets out facts, which it is not worth while to recite here, tending to show that there are other parties interested in the disposition of the present fund and that the proceeding should have been by hill, not by petition.

The matter was brought- on for hearing upon the petition and answer, and for the purposes of the hearing the facts set forth in the answer were admitted.’

The reliance of the petitioners, in answer to the defence of the respondent, was rested upon a clause found in tlie original deed of settlement, dated July 31st, 1882, by which the fund was vested by the petitioners in Mr. Humphreys in these words:

“Tlie said trustee, party of the second part, shall hold principal, increase and income of said fund, free from all claims, attachments, judgments, executions and lions of every nature by creditors against either of said parties of the first part, and the said parties of the first part shall not have, nor shall either of them- have,- any power to anticipate, charge or encumber the said principal fund or any part thereof, or tlie increase, interest or income thereof, or in any way defeat the intent of this instrument as herein expressed, which is to make provision for the support, maintenance and personal comfort of the parties of the first part, free from all liens and claims of creditors.”

The question for determination is whether the fund now in immediate dispute comes within the scope of that language.

The rule seems to he entirely settled that when a trustee malíes an unauthorized investment of trust funds at the request of and for the benefit of the cestui que trust for life of the income, such trustee, though himself liable to make good any loss arising therefrom, has the right to call on the cestui que trust, who has requested the investment, to make good that loss so far as his interest in the trust fund will suffice for that purpose. Z Ferry Trusts § 548, last clause; Lewin Trusts (8th Eng. ed., by Flint) *911.

It is equally well settled that where the deed of settlement, as here, contains a clause against anticipation, the remedy against the cestui que trust will not be so enforced as to work such anticipation.

The English cases are collected in 7 Chit. Eq. Dig. (4th ed., 1888) pp. 7078-7083.

But counsel for respondent contends, I think, rightly, that what the respondent here claims will not amount to an anticipation, and so is not forbidden by the clause in the settlement above recited.

He distinguishes between income which has accumulated for several years and has not been disposed of by the tenant for life and the income at present accruing and to accrue.

The forceful words of the clause are “anticipate, charge or encumber * * * the increase, interest or income” of the fund. I am unable to perceive bow the proposed action of the respondent will be in contravention of that language.

The precise question is not without authority. I refer to Moore v. Moore, decided by Vice-Chancellor Knight-Brace, and reported in 1 Coll. 54.

In that case a settlement was made by a husband upon his wife at their marriage and the fund was placed in the hands of trustees, who for many years paid the whole income to the husband. The wife sued the trustees to recover the interest which had been so misapplied, and a decree was made against them to make good the amount, which was afterwards ascertained at over £300. After the decree establishing the liability and before the amount was ascertained, Mrs. Moore mortgaged the fund to one Asprey to secure £308. The deed of settlement contained a clause which the vice-chancellor held to amount to a restraint upon anticipation, and the question arose upon the validity of the mortgage to Asprey, who applied by petition to have the sum due to him paid out of the fund when paid into court. The vice-chancellor, in rendering judgment, declared that it was quite clear that the income, which accrued before the assignment by way of mortgage, was not protected by the clause against anticipation, and Mr. Asprey seems to have succeeded in his petition.

Another case is Butler v. Cumpston, decided by Sir Richard Malins, November 4th, 1868. L. R. 7 Eq. Cas. 16.

There the trustee of a marriage settlement (consisting of ■funds which, before marriage, were the' property of the wife) for a wife, expressly without power of anticipation, had shares in a bank, involving personal liability, vested in him upon the trusts of the settlement; and at the request of the wife he took up and paid for an allotment of new shares in the same bank upon her promise that the purchase-money should be paid out of certain savings she had made of her separate estate. The bank failed and the trustee was compelled to pay .out of his own funds not only the price of the new shares so subscribed for by him at her request but also an assessment based upon his liability as a shareholder.

These payments, on account of the new shares, amounted to £1,540. The savings which the wife had made amounted in the aggregate to £2,676, of which £350 had been on deposit in the insolvent bank and £1,352 had been invested by the wife in the names of the trustees, but without any declaration, oral or written, that it should become subject to the deed of settlement.

It was held that all the savings of the wife which came out of the income of the trust estate, including that which had been invested in the names of the trustees, was liable to make good the loss which the trustees had incurred by the new allotment of shares. This was done on the ground that the wife’s promise to repay the trustees the purchase-money of those new shares was binding upon her separate estate under the laws of England, and also that her request to the trustees to prrrchase and hold the shares included by implication an agreement on her part to indemnify the trustees against any liability arising therefrom, which was also binding upon her separate estate; that the moneys, which were made up of the accumulations of the savings which had been invested in the names of the trustees, did not become subject to the terms of the settlement and continued to be a part of her separate estate, and that all of the accumulations of savings were freed from the effect of the provision against anticipation found in the deed of settlement.

I think the present ease is within the authority and reasoning of the two eases just cited.

In Moore v. Moore, supra,, the accumulation of the income was the result of an improper application by the trustee of the income and was not assented to or acquiesced in by the tenant fox life, yet, when they had accrued and been adjudged to be due to her they were held to be at her disposal, notwithstanding the clause against anticipation.

In the later case of Butler v. Cumpston, supra, the accumulations were the voluntary act of the wife, the life tenant, and they were held to have become her separate estate freed from the effect of the restriction against anticipation and liable to answer for her contracts.

Here the indebtedness of the petitioners to the estate is the result of a misapplication by the former trustee of the. body of the estate made at the special instance and request ,of the petitioners, and the present trustee is clearly entitled, and it is his duty, acting in the interests of the persons in remainder, to enforce and collect that indebtedness, if practicable.

He asserts it by way of set-off against the claim of the petitioners for a fund in. his hands, which is the result of accumulation for many years of income of their estate which arose and has come to his hands precisely as did the income of the estate in the case of Moore v. Moore, supra.

I am of the opinion that justice and equity require that the defendant should be declared -to have the right to apply (a portion of) the sum of money here involved ($1,316.92) toward the reduction of the indebtedness of the petitioners to the estate.

The working out of this right will be subject to certain considerations arising upon the petition and answer not necessary-now to be mentioned.


text:
    Mary Collins, a lunatic, by James H. Love, her next friend, v. Robert O. Babbitt, administrator of Martin Collins, deceased, and Mary Bolger.
    [Decided June 22d, 1904.
    Filed December 23d, 1904.]
    1. The statute of limitations does not apply as between husband and wife.
    2. Where a wife lets her husband have money to continue as a deposit to aid him in carrying on his business, and with profits therefrom he buys valuable real estate, and has it conveyed to them as tenants by the entirety, with the right of survivorship, she should not, on his death, be allowed interest on the deposit prior to his death.
    3. Where the husband received the rent of property owned by him and his wife as tenants by the entirety, declaring that when they amounted to $5,000 he would have it applied on the mortgage on the property, she, surviving him, is entitled to have the amount so accumulated applied as she shall direct.
    4. Where the husband receives the rents of property owned by him and his wife as tenants by the entirety, and holds the money for the declared purpose of applying it, when it amounts to $5,000, on the mortgage on the property, she is not entitled to interest thereon from his estate on his death.
    On final hearing on bill, answers and proofs.
    The suit was originally commenced by a bill by Eobert Davis, as assignee of Mary Collins, against Eobert O. Babbitt, as administrator of Martin Collins, deceased, and Mary Bolger, to which separate answers were filed, and the cause brought to issue and hearing on the 4th day of February, 1903. In the meantime, it came to the knowledge of the court in the course of the trial of the cause of Collins against T'oppin, and was an admitted fact herein, that the assignee, Davis, held the title derived under the assignment wholly in trust for Mrs. Collins. Whereupon, by consent of all the parties, the bill was amended by substituting as complainant Mary Collins, by her next friend, James II. Love, and the hearing proceeded and the testimony was taken.

      Mr. Thomas F. Noonan, for the complainant.

      Mr. David W. McOrea and Mr. Robert Lawrence, for the administrator.

      Mr. Leon Abbeit, for the defendant Mary Bolger.
   Pitney, V. C.

This is a suit by a wife against the administrator of her husband. The object of the suit is to recover (1) moneys which, it is alleged, were loaned by the complainant to her husband in his lifetime; and (2) to recover in the first place certain moneys received by the husband in his lifetime for rents of certain real estate of which he and the complainant, his wife, were joint owners; and (3) for moneys received by the defendant administrator for rents of the same premises which accrued in the lifetime of the deceased but were collected by his administrator after his death; and (4) for rents which accrued after the death of the husband and also collected by the administrator.

There is a claim for a peculiar equity with regard to rents collected by the husband, which will be noticed further on.

Separate answers were filed by the administrator and by the defendant Mary Bolger, who is made a party defendant because she is the sister and the sole next of kin by blood of the complainant and as such entitled to a share of his net personalty.

One defence set up is that the administrator obtained from the orphans court the usual series of rules to bar creditors; and that the complainant filed her sworn claim against the estate in due time; that the administrator served the usual notice upon her; that a portion of the same was contested; and that she must bring her suit within three months, and that this suit was not brought -within that time.

The notice to bring suit was dated on the 25th of July, 1901. The precise time when it was served, I think, does not appear by the proof, but the complainant produces a stipulation, signed by the solicitor of the administrator and by the solicitor of Mrs. Bolger, which states that the notice "was served on the 2d of August, 1901, and that the time for the commencement of the suit might be extended to the 22d of November, 1901. The original bill was filed November 2d, 1901. An amended bill was filed on the 16th of January, 1902, which, by the written consent of the several solicitors of the defendants, was to stand in the place of the original 'bill.

I am unable to perceive under this state of facts how the plea of the bar of the decree of the orphans court can apply.

Besides, it abundantly appeared in the course of the production of the evidence in the case of Collins v. Toppin, 65 N. J. Eq. (20 Dick.) 439, which was heard and submitted before the hearing in the present case, but decided afterward, that the complainant was during the latter part of the month of August and the whole of the months of September and October, 1901, and from then to date, so far mentally diseased as to be incapable of attending to her business. No proof of this was made in this cause; but, as I recollect it, it was assumed by counsel on all sides to be within the knowledge of the court, and if necessary for the purposes of this case. I would open the proofs for the purpose of permitting it to be formally proven herein.

Moreover, there has been no settlement of the accounts of the administrator. The bar of the statute is not set up by the administrator but by the next of kin, and the suit is substantially against the next of kin, and even if the bar -were effectual in favor of the administrator, it is by no means certain (although I wish at this moment to express no definite opinion on the subject) that it could under the circumstances be availed of by the next of kin. I am therefore of the opinion that this defence fails.

The question, however, whether it does not apply to a certain portion of the complainant’s claim for money lent, hereafter to be mentioned, still remains.

It is well settled (Wood v. Chelwood, 44 N. J. Eq. (17 Stew.) 64) that this claim could not be enforced by a suit at law. It is based upon a contract, express or implied, between husband and wife and must be brought in equity. Hence the filing of the bill is the commencement of a suit within the equity of the statute and is sufficient.

One part of the whole claim, as I have said, consists of money loaned by tire wife to the husband. The facts are these:

It appears that on the 17th of April, 1888, complainant drew from an account which she had in the Provident Institution for Savings of Jersey City the sum of $1,000; and that on the 18th of April, 1888, she drew from an account which she had in the Emigrant Industrial Savings f^ank, $1,100; and it appears that on the 20th. of April, 1888, the defendant deposited to his account in the First National Bank of Jersey City the sum of $5,000 in currency, and the argument therefrom is that the wife loaned to the husband at that time $2,100, and that is the basis of that part of the claim for money loaned originally presented to the administrator and stated in this wise : “April 17, 1888, $1,000 loaned and advanced to Martin Collins by Mary Collins, his widow; April 18, 1888, $1,100 loaned and advanced — total $2,100.” These drafts and the deposit of moneys are the only evidence, except admissions made by the deceased husband, offered in support of that claim. Whether any en-. tries thereof were made in the books of account of Martin Collins, who was engaged in business in Jersey City, does not appear, for all his books of account prior to about 1893 were accidentally burned at that time.

At the hearing the complainant was permitted to amend her claim by adding thereto $1,000 for money loaned and advanced by her to her husband in or about the year 1892, and in support of that she relies upon an entry, or series of entries, in the books of account of Martin Collins to her credit of $1,000, moneys loaned at that time, and that entry was carried forward from year to year in his books of account by his directions down to the time of his death, October 11th, 1900.

The excuse given by counsel for not putting that $1,000 in the original claim was that the wife was unaware of its entry in the books. The sworn claim to the administrator was made by the wife oh the 29th of April, 1901, and it is a fair matter of argument that if, as claimed at the hearing, her husband ■owed her $3,000 instead of $2,000, as claimed by her, she ought to have known it and so instructed her counsel. I think the excuse made by counsel for this omission is wholly insufficient. It satisfactorily appeared that one, if not tire main, object of the assignment to Mr. Davis was to enable the present complainant to be a witness in the suit to be brought by him, and in that case her evidence could as well include the $1,000 loaned in 1892 as the $2,100 loaned in 1888.

But here again the state of her mind comes in. It was known to the court that she had previous to that time been on two separate occasions incarcerated as a lunatic in the Morris Plains hospital; and that she was released therefrom against the protest of the physicians as fit to be at large on the 27th of January, 1901, just three months previous to. the time of her making her sworn claim; and that the assignment to Mr. Davis was dated a day or two after her release. And if it was not understood by the counsel for Mrs. Bolger that these facts were in the mind of the court at the hearing of this cause, I should feel disposed to open the proofs to enable the complainant by her next friend to prove them as an explanation of the failure to include the whole claim now made in the written claim made on the 29th of April, 1901.

Eeliance for proof of the whole of this claim for money loaned is had upon several admissions made by Martin Collins in the early part of the year 1900 to his wife and others that he •owed her $3,000. The proofs of these admissions, though somewhat suspicious under the circumstances, are so clear and abundant that I do not see my way to refuse them probative force, and I nlust accept as a proven fact in the case that he did. admit on two or three occasions in 1900 to his wife and to another person i-n her absence that he owed her $3,000, and it is fairly to be inferred from the'language used that it was for money lent. And one witness swears that he specified the origin of the debt as $2,100 borrowed when he commenced business, in 1888, and $1,000 when he was-in financial distress, in 1892, or thereabouts. A payment of $100 on account of the indebtedness on or about February 13th, 1901, is relied upon to take the case out of the operation of the statute of limitations. Proof of this payment is given by a female friend of the husband and wife, Miss Lottie Toppin, a sister of the defendant in Collins v. Toppin and a witness in that suit.

Her testimony satisfies -me that the deceased did, on the occasion testified about, hand to his wife the sum of $100, but it fails to satisfy me that it was made on account of any indebtedness from the husband to the wife. The proper inference, as I think, to be drawn from the evidence of this witness is that it was handed to his wife by her husband precisely as any husband would hand money to his wife for her use as spending money. But one witness, perhaps two, do swear that subsequently the deceased admitted that he had owed his wife $3,100, and that he had recently paid her $100 on account thereof, and I am unable to sajr that I do not believe the truthfulness and accuracy of those witnesses, although, as before remarked, the evidence is given under very suspicious circumstances, especially in view of the fact that the original claim, made up on the 30th of April, shortly after these admissions wore made, was confined to the claim for the money advanced in the year 1888.

I come, then, to this conclusion upon the facts, viz., that the complainant did loan or hand to her husband the sum of $2,100-on the 17th and 18th of April, 1888; that she did loan to him the further sum of $1,000 in the year 1892, and that- he admitted in the early part of the year 1900, on.two or three occasions, that he owed his wife the sum of $3,000, and to one person lie admitted that that indebtedness was founded on the items just stated.

I find, as a further fact, that he did hand to his wife, on or about the 12th or 13th of February, 1901, the sum of $100, but that the proof does not show that at the time it was treated by either party as a payment on account of an existing indebtedness, but that he subsequently admitted in connection with an admission that he had owed his wife $3,100 that he had paid her $100 on account thereof. The proof, then, is an admission of an indebtedness in prcesenii, based on money loaned and advanced more than six years previously and an admission of a payment made on account thereof within one year, and the question is whether the claim is barred by the statute of limitations, and, if so, whether an exception exists as to the $1,000 loaned in 1892, which was carried forward from year to year on the books of the deceased to the credit of his wife.

The case has been in substance twice argued. At the first argument counsel for complainant put his case upon the vitalizing effect of the payment of $100, above mentioned.

I examined this question carefully and came to the conclusion that as the proofs showed satisfactorily that such payment was not in fact a payment on account of an indebtedness, the subsequent admissions of the deceased that it was so paid was not sufficient to avoid the effect of the statute of limitations.

On- a reargument counsel for complainant put his case upon ilie ground (1) that the suit being in effect by wife against husband was of necessity brought in equity; (2) that the statute of limitations did not by its terms apply to a suit in equity; (3) that it was to be applied here by analogy, and in such a manner as to advance and work equity; (4) that the transaction, in point of fact or in substance, was a mere deposit by the wife with the husband of moneys to enable him to start and prosper in his business, and was not b]>- either party expected to be withdrawn suddenly, and hence that no action would lie for it until after a positive demand made and a reasonable time afforded for payment; and (5) that the considerations of the relations existing between husband and wife had led to the judicial conclusion that the statute of limitations did not operate as between husband and wife, and he pointed to authorities on that subject which I must consider as binding on me. They are Gray v. Gray’s Administrator, 39 N. J. Eq. (12 Stew.) 512, in the court of errors and appeals; Yeoman v. Yeoman’s Administrator, 40 N. J. Eq. (13 Stew.) 495; Rusling v. Rusling’s Executors, 42 N. J. Eq. (15 Stew.) 594, and Alpaugh v. Wilson, 52 N. J. Eq. (7 Dick.) 424.

In the last case the subject is discussed and decided b3r Vice-Chancellor Bird, relying on the cases I have just cited, and his ■decree was affirmed by the court of errors and appeals, 52 N. J. Eq. (7 Dick.) 589, for the reasons given by him in the court below.

The action there was based upon a promissory note and the element of a deposit in the nature of a trust was lacking.

That decision binds me, and I must, therefore, find that the complainant’s claim must be allowed to the extent of $3,100.

The next question presented is the claim for interest for all the intervening years upon the two sums, viz., $2,100 from 1888 and $1,000 from 1892.

I think that the complainant’s contention that the transaction amounted to a quasi deposit, which was to continue in order to aid the husband in carrying on his business, is entirely in consonance with the circumstances of the case.

Other circumstances are, first, that there were no offspring of the marriage; and second, that some time before he died the husband procured the conveyance of valuable real property to himself and wife as tenants b3^ the entirety with the usual right of survivorship. The cost of that property was paid out of the earnings of the business of the husband, which was maintained in part by the money of the wife. The wife was, cognizant of the situation and acquiesced in it. Besides, she was all the while maintained in decidedly comfortable, if not luxurious, style by her husband.

There is nothing in the evidence or circumstances upon.which it may be determined whether any interest, as such, was ever paid on this indebtedness. The witnesses,' who testify to the husband’s admissions, do say that he expressed a willingness that his wife should have interest on this large sum. But it is significant that in the carrying forward from year to year of the credit on his books of account of $1,000 no mention is made of interest, and'the admission just referred to was made at a time when his wife had been recently, if she was not then, suffering under mental disorder, and manifestly it was his desire to soothe her excitement and produce as much calmness of mind as possible. Taking all these considerations together, I .do not think that justice and equity require that interest should be allowed upon this claim up to the time of the husband’s death. I think that justice will be done by decreeing that she should have such interest from the time of his death.

The next question arises out of the joint ownership of the husband and wife of certain real estate in Jersey City, which real estate, at her husband’s death, was subject to a heavy mortgage and occupied by tenants paying rent to an agent in charge.

The husband received these rents and kept a separate account of them under the head of “Bent. Account.” He credited “rent” with all receipts for rent and charged it with the expenses, viz., the interest on the mortgage, 'taxes, insurance, water rates, and' with any serious repairs. It appears that he ordered his bookkeeper to charge small repairs to his own account. At the time of his death there was a balance of $3,814.08 standing to that account.

There was also a small amount of rent, which accrued before his death, not received by him in his lifetime; and there was interest in arrear and unpaid on the encumbrance.

As I interpret the evidence of the agent, there was an item of $2.60 of rent which had accrued before October 1st, and rents amounting to $171.92, which accrued between October 1st and decedent’s death on October 11th, in all $174.52, less five per centum commissions, amounting to $8.72, leaving $165.80 net rents accruing in the husband’s lifetime which were collected by the agent in charge of the property and paid over to the administrator, and with that accruing and collected after his death amounting to $1,483.

The claim of the wife is, first, as to $3,814.08, that there was an understanding between her and her husband that the net receipts for rents over and above the outgo for interest, taxes, &c., should be applied to the reduction of the principal of the mortgage, and her right to enforce that arises out of the fact that at her husband’s death she became seized of the whole title and will be benefited by such application.

It is trae that shortly after she made her claim to the administrator she made a conveyance of the premises to a Miss Toppin, who is the defendant in the suit of Collins v. Toppin, above referred to, and that conveyance was set up in the answer of Mrs. Bolger, and the question seemed to arise at the hearing as to what effect that conveyance had upon the equity set up by the complainant.

It was understood at the hearing of this cause that the suit above named was pending and under ’consideration by the court. Since that time a decree has been made therein in favor of the complainant and setting aside the conveyance. That decree has been affirmed by the court of errors and appeals.

An attempt was made by the complainant to prove an express agreement or contract between her and her husband that the net rents, as they accrued, should be applied to the reduction of the principal of the mortgage.

In support of this contention the directions of Mr. Collins to his bookkeeper to keep the rent account separate were relied upon, and also his declarations from time to time that he intended, as soon as the net amount'reached the sum of $5,000, to make a payment thereout upon the mortgage, and the expression “agreement” was used in connection with the relation between husband and wife in that matter. But, upon a careful review of the evidence, I am not satisfied that any such agreement in the strict sense of the word ever did exist. No doubt the husband did intend, and so stated to his wife, that he would reduce the mortgage by the accumulation of the income, but it never rose to the dignity of a contract. At the same time the evidence on that subject is of value in connection with the legal relations between the parties.

It seems to be well settled that the effect, and only effect, of the Married Women’s act of 1852 upon the peculiar estate in land held by a man and his wile under a conveyance to them jointW is to entitle the wife to an equal right with the husband to the usufruct of the land so held during their joint lives. At the common law the husband had the right, during his lifetime, to the exclusive usufruct of the lands held by him and his wife jointly as well as of the lands held solely by the wife, but that right was taken away by the statute. The subject was considered by the court of appeals in the case of Buttlar v. Rosenblath, 42 N. J. Eq. (15 Stew.) 651. At p. 656, Judge Van Syckel, speaking for that court, said: “In virtue of the married relation the husband took possession and deprived the Avife of the enjoyment of her estate or interest in the lands during their joint Haus. In my opinion the object and effect of the Married Women’s act is to extinguish this right.” And, at p. 657, he says: “I think, therefore, that the just construction of this legislation and the one in harmony AAdth its spirit and general purpose is that the wife is endowed with the capacity, during their joint lives, to hold in her possession as a single female one-half of the estate in common with her husband, and that the right of survivorship still exists as at the common law.”

The supreme court, speaking by the late Mr. Justice Depue, in Vunk v. Raritan River Railroad Co., 56 N. J. Law (27 Vr.) 395 (at p. 398), says:

“The effect of the act of 1852 upon estates conveyed to husband and AA'ife after that act Avent into operation Avas to endow the Avife Avith the capacity during the joint lives to hold in her possession, as a single female, one-half the estate in common with her husband and the right of survivorship subsisting as at common law.”

The complainant, then, was entitled to the equal undivided one-half of the net proceeds of the property in question, and the language and conduct of the husband with regard to the rents, as detailed in the evidence, must be construed accordingly. As I have said, she had the right actually to receive and to devote to her own purposes one-half of the rents, or she could permit her husband to retain them upon such terms as she chose. Now, it appears clearly that her husband did retain them, but he kept an account of their net accretion, and he declared that the object of that was to malee a payment on the mortgage, and I think the evidence proves that such intention was known by the wife. Now, the application of the rents to the reduction of the mortgage was a proper and equitable disposition of them and just to both parties, and upon the whole case I am led to the conclusion that the wife had a right, under the circumstances, to conclude that her husband would so apply them, and that she permitted -them to be retained by him for that purpose. She therefore had the right in his lifetime to have those moneys so-applied.

.It follows that when she survived him and the whole estate became vested in her she had the right to have the amount so-accumulated in his hands applied by his personal representative-as she should direct.

Primarily the right was to have it applied to the reduction of the mortgage, but at his death that right became a personal one with her to apply it or not to the reduction of the mortgage, as she chose.

This view simplifies some of the questions which would otherwise arise out of the receipt and disbursements of rents collected by the administrator. '

There was a considerable arrear of interest due on the mortgage at the death of the husband, October 11th, 1900. These arrears were paid by the administrator, or the agent who collected the rents by the request of the administrator, out of the rents collected by the agent, as well as those that accrued between the 1st and 11th of October, as those which accrued afterward.

I should have said that all the rents, except $2.60, which accrued up to and including the 1st of October, had, as I understood the evidence, been turned over to the deceased in his lifetime and are included in the $3,814.08. The balance of the rents which, were received by the administrator, after paying the interest, &e., is small, and amounts, as I recollect, to between $100 and $200. The exact amount is not in dispute and can be settled between counsel.

If I am wrong in holding that the complainant is entitled to the whole of the rent fund ($3,814.08), then she is entitled, of course, to one-half, and a serious question arises as to whether the administrator can be credited, as between him and the complainant, with the whole amount of the interest paid by him. In such case it seems to me that so much of the. interest as accrued before the death of the husband should be paid out of his estate at large, and not out of any rents which accrued after the death of the husband. Those rents belong wholly, of course, to the wife, and she was not bound to pay more than one-half of the interest which accrued before his death.

The remaining question in this cause is as to interest.

With regard to the sum of $3,814.08, it appears- that the husband held that money for a particular purpose, viz., to allow it to accumulate until there was enough to make a solid payment of $5,000 on the principal of the mortgage. There is no proof to show what benefit he derived from it. He did mingle it with his own 'funds, but upon the whole case, and considering that they were living together as husband and wife, and the husband was supporting his wife, I do not think it could have been contemplated between them that the husband should pay interest on that sum.

I will advise a decree according to these views.


text:
    August Seastream, Charles C. Alexander et al., v. The New Jersey Exhibition Company.
    [Decided July 22d, 1904.
    Filed December 23d, 1904.]
    1. The proofs, on application for preliminary injunction against Sunday ball games as a nuisance, held to show facts as to disturbance from noises authorizing the relief.
    2. Owners of land adjoining an enclosed ground, to which admission is charged to see ball games, are not estopped to seek injunction against Sunday ball games thereon as a nuisance because for several years before the enclosure persons taking possession 0f the grounds without let or hindrance played Sunday ball games in the presence 'of all choosing to look, and the same class of noises had been made, without attempt at relief against the same by such onlookers and persons alighting at the same place from electric cars and going for amusement to the river and the woods in the vicinity.
    3. Any misjoinder in a suit for injunction against Sunday ball games as a nuisance because of some of the complaints alleging injury from the noises on the ball grounds and others from the noise of those in the street, may not be urged against a preliminary injunction, as this may be remedied later by requiring an election and striking from the record the names of complainants not affected by the kind of injury on which it is elected to rely.
    On bill to restrain a nuisance.
    On motion for preliminary injunction. Heard on bill and affidavits on the part of the complainants, and also on the part of the defendant.

      Mr. William II. Speer and Mr. Elmer W. Demaresi, for the complainants.

      Mr. Robert S. Hudspeth, Mr. James P. Northrop and 2lr. Peter Bentley, for the defendant.
   Pitney, V. C.

The object of the bill is to restrain the playing of baseball games on Sunday on a plot of ground called the “Eastern League Park,” situate in the westerly part of the city of Bayonne, in the county of Hudson. This park comprises the greater portion of three blocks situate .between the Hudson Boulevard, on the west, and Avenue B, on the east, and West Eorty-sixth street, on the south, and West Eorty-ninth street, on the north. Eortyseventh and Eor^-eightli streets, as laid out on paper, traverse the park, but are not open on the ground. The park is about four hundred feet wide and five hundred feet long, and is enclosed with a board fence about fourteen feet high. Avenue C is about seven hundred feet east of Avenue B, and the more densely 'built part of the city lies to the east of it.

The complainants, of which, as the bill now stands, there are some twenty, own or occupy lands in the vicinity.

Persons visiting this park reach it by a trolley line which connects the Pennsjdvania ferry, in Jersey Gityr, with the extreme south end of Bergen Point, on the banks of the Kill von Kull, and which is laid through Avenue C. Those persons alight from and board the cars in Avenue 0, at the corners of Eorty-ninth, Eorty-eighth and Eorty-seventh streets.

The complaint of the complainants is twofold:

First. That the advertisement of the baseball games brings large numbers of persons, running into the thousands, on such occasions into the locality by the trolley conveyances; that they alight in such congested numbers in Avenue C that the sidewalks and streets do not. accommodate them, and that they do not hesitate to encroach upon the private grounds and trample the lawns of the residents of that neighborhood; that they make a great deal of noise and clatter and use vulgar and obscene language, not only in alighting from the trolley cars and going to the park, but also in returning therefrom and scrambling for seats for the return to the cities, and indulge generally in rough and boisterous and disorderly conduct.

Second. That while viewing the ball games they become hilarious and excited, and shout and applaud in such a manner and to such a degree as to disturb the neighbors for a considerable distance therefrom.

It is not alleged or shown by the affidavits that each of the complainants suffer from each of the two classes of annoyances, and hence it was urged at the argument that there had been a misjoinder. I shall refer to that later.

As originally presented the bill was filed by August Sea-stream, who, with his family, occupied á house immediately nadjoining the park on the northeast, and who, it is alleged, suffers from the noise of the spectators of the game,, and by Charles C. Alexander, who lives on the comer of Avenue C and Forty-seventh street, over seven hundred feet away from the park, but immediately adjoining that part of the trolley line where the visitors to the park alight from and board the cars. He represents the persons annoyed by the first class of injury.

The bill, however, in addition to naming the two persons just mentioned as complainants, declared that it was filed “on behalf of themselves and numerous other residents of said city, among whom are those whose affidavits are annexed to this bill of complaint.”

Several, affidavits were so annexed, and on the presentation of this bill, on May 7th, 1904, an order to show cause, with interim restraint, was advised by me,'returnable May 16th, with leave to complainants to procure and serve further affidavits.

Further affidavits were made and served on both sides in great numbers and volume.

On the return day, May 16th, the hearing was adjourned by consent until May 23 d. On that day, after the hearing was reached and proceeded with, and additional affidavits had been read on- the part of the complainants, counsel for defendant, being called upon to proceed on its part, arose and said that it was admitted by them that complainants’ affidavits made out a prima facie case under the doctrine of Gilbough v. West Side Amusement Co., 64 N. J. Eq. (19 Dick.) 27, and Cronin v. Bloemecke, 58 N. J. Eq. (13 Dick.) 313, but that they had, not only a complete answer on the merits, but also a written request, directed to the solicitors of complainants and signed by Messrs. Seastream and Alexander, requesting them to discontinue the suit.

As the signatures to this paper were not verified by affidavits, I stated that I could act upon it only after notice to complainants; that its present effect rested entirely with the solicitors of complainants. They declined to act upon it, and immediately moved for, and, by consent, obtained, an order amending the bill by adding numerous other complainants by name. (The action of Mr. Alexander in signing the request to discontinue was afterwards explained by an affidavit made by him and filed by his counsel, and his desire was there expressed that the suit be continued.)

The defendant then commenced the reading of its affidavits, which were continued on that day and May 26th. Among these affidavits was one of the complainant Seastream, contradicting all to which he had testified in his former affidavit annexed to the bill, which affidavit was, later on, met by counter affidavits on the part of the complainants.

I then, on my own motion, took measures, which were heartily acquiesced in by counsel on both sides, to investigate the circumstances under which Seastream made the two conflicting affidavits.

That investigation is still pending, but the complainants’ counsel has not stricken his name from the list of complainants.

I shall, however, disregard his affidavit in considering questions of fact.

I think both classes of injury sufficiently established by the affidavits.

The proof tends to show that some five or six of the complainants, who reside in the neighborhood of the park, have been disturbed by the noise of the shouts and applause from the grounds on the two Sundays when ball games had been played, to wit, on April 24th and May 1st, 'and several others of the complainants have suffered from the noise and unruly conduct of the great crowds alighting from and boarding the trolley cars in front of their residences and going to and from the park and the trolley.

Tlie affidavits on the part of the defendant show that great pains were taken to prevent the spectators from making any noise while on the grounds. They seem to have been aware and to have borne in mind that many of the persons who usually attend Sunday baseball games are very likely, if not almost certain, to indulge in noisy demonstration during the progress of the game, and thereby create a nuisance to the dwellers in the vicinity.

To ameliorate, if not entirely to prevent this result, they caused cards to be printed, as follows:

“THE MANAGEMENT
Respectfully requests every one present to refrain from SHOUTING AND APPLAUSE and to maintain a gentlemanly demeanor at all times, especially WHILE APPROACHING AND LEAVING the grounds.”

These cards were handed to every person who entered the park, and in addition personal requests were made and repeated to the spectators to refrain from noise. While the defendant’s affidavits tend to show that there was certainly much less noise than, as a matter of common knowledge, usually results from such exhibitions, they do not satisfy me that the affiants, who testify to being disturbed by such noises, -are untruthful.

Besides, there is proof on the part of the complainants of much noise on the street in going to and from the park, and, in one instance, of extremely obscene language used by a man where it could, be heard by females.

There are also among the affidavits of the defendant statements that on the two Sundays in question the spectators were unusually quiet and orderly in their use of the streets.

But this I found on pretty close examination was in many cases a mere favorable comparison with the character of the crowds, admittedly boisterous and unruly, which had infested the neighborhood on previous occasions, of which I shall speak later.

On the other hand, the affiants, on the part of the complainants, characterize the generality of the people attending the ball games as rough and boisterous and as rendering it extremely disagreeable, if not unsafe, for women and children to meet them on the street.

With regard to the law covering the case, so far as noise is concerned, I do not care to add anything to or to repeat what I said in Gilbough v. West Side Amusement Co., supra. With regard to the cumbering by the crowds of the sidewalks, that aspect was dealt with by Vice-Chancellor Emery in Cronin v. Bloemecke, 58 N. J. Eq. (13 Dick.) 313 (at p. 314), where he says:

“The third nuisance complained of is the collection of large numbers of idle and disorderly persons in the neighborhood of the grounds and of complainant’s house while the games are in progress, which crowds, by their noise, vile language and behavior disturb the peace and quiet of the neighborhood and subject complainant and other residents to insults and abuse if they venture from their homes.”

In dealing with it on p. 318, lie says:

“The other objection which is urged specially against any injunction, based on the collection of disorderly persons outside of defendant’s grounds, is that the nuisance is a public nuisance only and cannot be reached by injunction at the suit of complainant. But the right to relief in behalf of one who suffers private injury or annoyance from that which is a public nuisance is well settled. The only question is as to the character of the relief or remedy, and the right to relief by injunction against the special nuisance to one’s dwelling-house by reason of crowds of disorderly persons upon the highways, drawn there by entertainments given by a third person upon his own lands for pecuniary profit, is based upon fundamental principles which have been recognized and enforced wherever they have been called in question. In Rex v. Moore, 3 Barn. & A. 184 (which was an indictment), Lord Tenterden says: 'If a person collects together a crowd to the annoyance of his neighbors, that is a nuisance for which he is answerable.’ In Walker v. Brewsler, L. R. 5 Eq. Cas. 25 (where an injunction was granted), it was held that a case of nuisance was established by the collection of a crowd on the highways in the neighborhood of grounds upon which entertainments, with music and fireworks, were given continuously for profit. In Bellamy v. Wells, 39 W. R. 158, cited in Barber v. Penley, 2 Ch. 457, 458 (1893), an injunction was granted against holding boxing or prize fight entertainments, which had the effect of collecting large and noisy crowds in the streets outside of the premises.”

I need hardly say that I concur in this.

The affidavits on both sides dealt with the question of values of real estate; those on the part of the complainants asserting that the result of the permanent establishment of Sunday playing of baseball games would be to depreciate the value of the real estate in that neighborhood; and those on the part of the defendant asserting precisely the contrary.

In answer to the latter it was shown by counter affidavits that many of defendant’s affiants were keepers of houses of entertainment in the neighborhood, and others were directly or indirectly interested in the success of the defendant’s enterprise.

The well-known Hudson Boulevard, as already stated, bounds the ball park on the west, and, as I understand the evidence, though ihe whole region is laid out in streets, none have been opened or worked between the Hudson Boulevard and Newark bay and not all immediately to the east of the Boulevard have been opened or worked, and most of the improvements to the east and between that and Avenue B have been of cheap and moderate character, but it clearly appears that all the improvements that have been made are of a residential character.

I am, therefore, inclined to think that the result of the establishment of the Sunday baseball games will, in the long run, be detrimental to the value of real estate in the neighborhood.

The defendant raises another point by his affidavits which I feel constrained to mention, which is, that this immediate neighborhood has for a long time been subjected to the nuisance of baseball games on Sunday played on the very ground now occupied by the defendant corporation, and that such use of the ground has been acquiesced in by the dwellers in the ■ neighborhood, and that only a slight distance to the west is Newark bay, which for many years has attracted great crowds of people on .Sundays. That these people are attracted to its shores for amusements on Sundays, consisting of boating, crabbing, fishing .and general picnicking in the woods, which are found between the ball park and the river, and that, quite independent of the baseball playing, a large crowd of persons has habitually, on Sundays, resorted to the neighborhood by means of the trolley, alighting at the very same part of the avenue and creating precisely the same nuisance as has been complained of in passing from the trolley cars to the base ball park and the woods and the shores ■of the bay.

The affidavits on the part of the defendant tend strongly to support this view. It appears that the grounds, which for the first time, in April last, were fenced and occupied by the defendant, had previously laid open in common, and had for several years been used on Saturdays and Sundays by baseball players who came there on those days and took possession of them without the let or hindrance of the owners, and played their games in the presence of all who chose to look on, and that the non-paying onlookers formed a most undesirable, boisterous and noisy crowd, and were undoubtedly a nuisance to the neighborhood; also, that great crowds visited the woods lying between the ball grounds and the bay and its shores, attracted by the boating, crabbing, fishing and ability to divert themselves in the shaded commons and to refresh themselves in the numerous houses of entertainment which they found in those parts.

The reading of the affidavits on this subject fully accounts for the fact that the value of real estate between Avenue B and TTewark bay is much depressed and lots difficult of sale, and that the thriving, populous city of Bayonne has practically stopped in its growth at Avenue B.

But does that state of affairs estop- these complainants from asserting their rights as against this defendant?

In considering this question, it must be observed that the ease shows that there were no particular persons or corporation who could be held responsible for or proceeded against for those annoying practices. In fact, it clearly appeared by the proofs in this case that prompt application was made to the municipal authorities by the complainants herein, as soon as they learned of the intention of the defendant to enclose the park in question and establish baseball playing on Sundays, to prevent the same, and that their appeals were in vain.

The only'place in which the complainants could obtain any efficient relief was in this court. But’in order to obtain relief in this court, there must be some person against whom to proceed. No responsibility, cognizable in this court, attached to the owners of the vacant lots, who simply permitted any parties who chose to come along and play baseball there, without any pecuniary profit to anjrbody except the common carriers who-transported them.

So with the numerous persons who let out boats on Newark bay and kept houses of entertainment there; they could not be-proceeded against by injunction. Hence, the complainants were practically without remedy.

But, even if there had been an available remedy, I by no-means admit that it would have affected the equitable standing of the complainants herein. The state of affairs, however, was entirely changed when the defendant, a corporation, obtained exclusive possession and fenced in the old ball ground, erected accommodations in the way of seats and a grand stand, and fitted it up and made it attractive to that part of the public which enjoys such sports, and invited baseball clubs to come-there on Sundays to play matches, and placed around this ball ground a high fence to exclude spectators, except such as should pay an admission fee for the benefit of the defendant.

That action afforded an opportunity for the complainants to-assert their rights in this court, and I am of the opinion that they are entitled to relief by way of interim restraint upon the-case as made.

There only remains to consider the question of misjoinder.

This question has been considered in many cases in this state. The last one, so far as I am at present advised, is Rowbotham v. Jones, decided by Chancellor McGill, and reported in 47 N. J. Eq. (2 Dick.) 337, and affirmed, on his opinion, 48 N. J Eq. (3 Dick.) 311.

The hardships attending the old rule were ameliorated by the rule adopted by Chancellor Zabriskie, May 8th, 1869 (No. 132 of the present series).

Chancellor McGill, in 47 N. J. Eq. (2 Dick.) 339, states the rule thus: “It may be said that it is the established rule in this state that several owners of distinct tenements may join in a suit to restrain a nuisance or other grievance which is common to all of them, affecting each in a similar way, but may not so join when the object of the suit is to restrain that which does a distinct and special injury to each of their .properties.”

Applying that rule here, it is probable- — I do not say certain— that this court would feel obliged, when properly moved thereto, to hold that the injury arising from noises by spectators of the games while in the ball park, and that arising from the crowds of semi-disorderly persons alighting from and mounting the trolley ears, and going to and from the ball park, will be so dissimilar as not to be capable of being enforced in the same suit by several persons joining therein who are not suffering, or liable to suffer, from each of those injuries. Be that as it may, I think it has no effect upon the present question. No demurrer has been filed. The defendant has not been embarrassed in presenting its defence to the present application.

The two different styles, so to speak, of injury, as shown by the affidavits, run into each other and interlace. They are both the result of the defendant’s action, and the only effect, that I can at present see, will be, at some stage of the proceeding, to compel the complainants to elect on which kind'of injury they will rely, and for the court to strike from the record the names of all complainants not affected by that kind of injury.

At present, I do not see how the right of those complainants rvho are injured by noise emanating from the baseball park to interim restraint can be affected by the circumstance that other complainants are affected by the misbehavior of persons on the street, outside of the baseball park,'and vice versa.

I will advise.an order restraining the playing of baseball on Sundays ponding the suit.