text:
    In the matter of the estate of Mary Jane Grattan, deceased.
    [Decided January 3d, 1911.]
    1. Where a policy on the life of a husband is taken out by him' for the benefit of his wife, and she dies before him, without having assigned it, her interest therein is a chose in action that belongs to her estate.
    2. Under the common law obtaining in Pennsylvania, on the death of a wife, intestate and without issue, her surviving husband succeeds to the sole beneficial interest in her personalty, subject only to payment of her debts.
    3. The right of the husband under the common law, on the death of his wife intestate and without issue, to her choses in action, is not contingent on his reducing them to possession during his lifetime.
    4. One’s personal estate is distributable according to the law of the state in which she is domiciled at her death.
    5. The agreement of a surviving husband for the assignment of all his interest in his deceased wife’s estate, which includes a policy on his life for her benefit, followed by payment of the consideration, is equivalent to an equitable assignment; so that on the policy afterwards maturing on the death of the husband the equitable right to the money collectible thereon is in such assignee, though the legal title be still in the estate of the wife; and, the money being paid by the insurance company to the administratrix of the wife, she receives it as trustee for the assignee.
    6. Where a fund, the proceeds of a life policy, the legal title to which is in a decedent’s estate, but the equitable right to which is in B„ as “representative of the heirs” of said decedent, being paid by the insurance company to decedent’s administratrix, is paid by her, pursuant to the decree of the probate court of the state in which deceased was domiciled, to B.. as such representative, thus uniting in him the legal and equitable titles, he, on being appointed administrator of the estate of deceased in another state, is not accountable for the money as administrator; his accounting as such being limited to the estate which comes to him as administrator, even though the heirs and next of kin of deceased be the same persons, and his accountability to the heirs being a matter of separate consideration.
    7. While ordinarily judgments against an administrator in one jurisdiction are not binding- on an administrator of the estate of the same decedent in another jurisdiction appointed in such other jurisdiction, this rule properly applies only to judgments that manifest an indebtedness of the estate or the administrator, and does not extend to a decree settling- the distribution of the surplus of the estate in the state of the domicile of deceased by the law of which the distribution is to be made; such decree being in effect an adjudication against certain claimants of distributing shares, and not involving the claims of creditors.
    S. Parties who affirm the validity of a decree of a court of another state to the extent of charging one with receipt of money paid to him pursuant thereto may not deny its validity with respect to the character in which it was awarded to him; it giving him no title to the money as administrator, but as “representative of the heirs.”
    9. Though an allowance of a counsel fee by the orphans court to one excepting to the account of an administrator because not charging himself ' with a certain fund be reasonable, yet, the decree holding such fund to belong to the estate being reversed, the fee cannot be charged against it, and must be postponed in payment, even if there be funds of the estate, to the administrator’s costs of his appeal.
    On appeal of Anderson Bourgeois, administrator, from a decree of the Atlantic county orphans court.

      Messrs. Bourgeois & Sooy, for the appellant,

      Messrs. Nelson B. Gaskill and Ralph W. E. Donges, for the respondent.
   Pitney, Ordinary.

The appellant, Anderson Bourgeois, as administrator of Mary Jane Grattan, deceased, late of Philadelphia, in the State of Pennsylvania, filed his final account in the orphans court of Atlantic county, whereupon Eva Smith, one of the next of kin, excepted thereto on the ground, among others, that the accountant had not charged himself with

“the sum of $505.09, which sum was ordered paid to him as the representative of the heirs of Mary Jane Grattan, deceased, by the orphans court of the county of Philadelphia, January Sth, 1903.”

After a hearing of the exceptions, the Atlantic connty orphans court surcharged the administrator with $438.91, which was the amount found to have been actually received by him under the order of the Philadelphia court; and awarded to the exceptant a counsel fee of $50, to be paid by the administrator out of the estate.

Other exceptions to the account were at the same time disposed of, but the matters therein referred to are not now in question.

Bourgeois, the administrator, appeals from so much of the degree as charges him with the sum of $438.91 received from the Pennsylvania administratrix, and from the allowance of a counsel fee to the exceptant.

The principal question is the propriety of the surcharge.

It appears that the evidence taken in the Atlantic county orphans court was not reported, or, if reported, was not preserved, and therefore the case was by consent of counsel laid before me without that evidence or any evidence to take its place; saving that an exemplified copy of the proceedings in the orphans court of Philadelphia county was submitted to me.

Eor the facts in the case I am referred to the account of Bourgeois, administrator, as originally filed; to his account as restated in accordance with the order of the Atlantic county orphans court; to the opinion delivered by the learned judge of that court; and to the proceedings of the Philadelphia court.

It thus appears that Mary Jane Grattan and her husband, Edward N. Grattan, were both residents of Philadelphia, in the State of Pennsylvania. He took out certain policies of insurance upon his life in the Aetna Life Insurance Company, payable to “Mary J. Grattan, his wife, her executors, administrators or assigns.” The wife died in 1899, and immediately after her death the husband made an agreement in writing with the present appellant (who, so far as appears, had not yet been appointed administrator of her estate), described as “Anderson Bourgeois, representing the heirs of Mary J. Grattan, deceased,” by the terms of which

“the said Edward N. Grattan agrees to sell and tlie said Anderson Bourgeois agrees to buy all the right, title and interest of the said Edward N. Grattan in the estate, both real and personal, of the said Mary J. Grattan, deceased, excepting the Sea Isle City property belonging to the said Mary J. Grattan, deceased, for the price or sum of $125, settlement to be made within ten days from the date hereof.”

The consideration money, $125, appears to have been paid by Bourgeois to Grattan twelve days later.

Subsequently Edward N. Grattan died, and after his death letters of administration upon the estate of the wife, Mary J. Grattan, were granted by the orphans court of Philadelphia to Alice Smith. It would seem that the only estate that came to her hands was the proceeds of the insurance policies. Before Edward Grattan’s death these policies had been assigned to one-Brush as collateral security for a loan; otherwise they remained the same as when originally issued; that is, there had been no change in the beneficiary. The insurance company paid the-amount due under the policies to Alice Smith, as administratrix of the estate of Mary J. Grattan, and to Brush, the assignee, and Alice Smith, administratrix, thus received $656.68, which was paid to her by the check of the company drawn to her order as. such administratrix.

Subsequently Alice Smith rendered an accounting as administratrix in the orphans court of Philadelphia county, and in the proceedings upon such accounting the question arose, to whom should the balance remaining in her hands be paid.

A certified copy of these proceedings was printed as a part of the state of the case upon the present appeal, under a stipulation signed by counsel, of which the following is a copy:

“It is objected by counsel of respondent that the adjudication upon the account of Alice Smith, administratrix of the estate of Mary Jane Grattan, deceased, filed November 14, 1902, and the opinion of Hanna, Judge of the Philadelphia Orphans Court, are irrelevant to the issues raised in the above cause; but if the Ordinary shall be of the opinion that the same are relevant to the issue, then and in that event it is stipulated and agreed that the same shall be considered as a part of the proofs in said cause.”

In my opinion the proceedings in question are relevant, and they are therefore to be dealt with as a part of the proofs.

It appears therefrom that on November 7th, 1902, the account of Alice Smith, administratrix of Mary Jane Grattan, deceased,. was called for audit before Justice Penrose, and that Alice Smith, the accountant; Martha M. Grattan, administratrix of Edward N. Grattan; Eva Smith, Anderson Bourgeois, Ira A. Smith, Ida Peterson and Hattie Smith were represented by counsel. The judge found that the decedent died September 10th, 1899, intestate and without issue, leaving a husband, Edward N. Grattan, who subsequently, viz., on September 30th, 1899, assigned all his interest in her estate, real and personal, except in certain property at Sea Isle City, to Anderson Bourgeois, “representing the heirs of Mary Jane Grattan,” the heirs so represented being Alice Smith and Rebecca Smith Estell, sisters, and Ira Smith, Ida Peterson, Eva Smith and Hattie Smith, children of a deceased brother, Daniel M. Smith. The account, as stated by the judge, showed a balance in the hands of the accountant amounting to $498.64, which balance, by the finding of the judge, “is awarded to Anderson Bourgeois, assignee of Edward N. Grattan, husband of the decedent.” The finding of the learned judge proceeds as follows: “Edward N. Grattan died, as represented to the court, July 2d, 1901, and letters of administration upon his estate were granted to Martha M. Grattan, his daughter, on whose behalf Mr. White asked that the balance as above be awarded to her. As, however, Mr. Grattan has assigned his entire interest in his wife’s estate before his death it is evident that the claim cannot be allowed. The balance was also claimed by Mr. Drovin on behalf of Eva Smith as assignee of Mary Jane Grattan, the decedent. There was an attempt to prove such an assignment, but the evidence offered utterly failed. * * * It was ordered and adjudged that the account be confirmed nisi on payment of clerk’s fees, and distribution be made as indicated.”

The exemplified record further shows that on January 8th, 1903, the matter came before another judge (Hanna, P. J.) upon exceptions to this adjudication. He held that there was no foundation for the claim that the balance in the hands of the accountant should be awarded to the administratrix of the deceased husband, saying: “It is in evidence and was not controverted that the husband of the decedent, who, under the intestate law, became entitled to all her personal estate, there being no issue, almost immediately after the death of his wife assigned all his interest in her estate, real and personal, except in a certain property at Sea Isle City, to Anderson Bourgeois, representing the heirs of Mary J. Grattan, the decedent. There is therefore no good reason why upon a settlement of the estate of the wife the balance of the personal estate to which the husband would be entitled if living should not be awarded to his assignee who stands in his place and stead. It was further contended that the award should be made to the administratrix of the husband for the reason that as he was heir to his wife he was entitled under the assignment to the balance of her personal estate. But the intention of the husband was clearly to assign his interest in the estate to those persons he recognized as the heirs of his dead wife, viz., her sisters and nephew and nieces. He is presumed to know he was the sole heir under the intestate law, and if he intended to include himself his assignment fails to disclose any such intention. The instrument is to be construed in the light of all the surrounding circumstances, and we think clearly indicates the intention to be that the next of kin of the wife should take. These exceptions are also dismissed. And the distribution is accordingly amended as follows: [here follows a restatement of the account, showing a balance of $505.74] ; which is awarded to Anderson Bourgeois, assignee, representing the heirs of Mary Jane Grattan, the decedent. And the adjudication as modified is confirmed.”

From the findings of the learned judge of the Atlantic county. orphans court it appears that of the amount thus awarded to Anderson Bourgeois as assignee, only $428.91 was received by the latter, and that this money was paid to him by Alice Smith as' administratrix of Mary J. Grattan.

The learned judge, however, held — first, that the money thus received was a part of the estate of Mary J. Grattan; that the husband, Edward N. Grattan, never had an intérest in the fund so as to assign it to Bourgeois; secondly, that the courts of Philadelphia had no occasion to pass upon and did not pass upon the question whether the money received by Bourgeois should be accounted for by him as administrator, or whether he was entitled to it as assignee of Edward N. Grattan; and thirdly, that if those courts did attempt to pass upon this question it is not res adjvr dicaia because all the persons who were interested in the event were not made parties.

He therefore concluded that Anderson Bourgeois as administrator should be held accountable for the $128.91 in question.

Dealing with the first point separately, and ignoring for the moment the effect of the adjudication in Pennsylvania, it seems to me that if the money in question was a part of the estate of Mary J. Grattan it must be because it was the proceeds of choses in action (the insurance policies) to which she was in her lifetime entitled, and upon which the right of action survived to her pérsonal representative. The policies are not in evidence before me, but such is the legal effect that all parties in interest have attributed to them; and because of this, indeed, the insurance company recognized liability to Alice Smith, administratrix of Mary J. Grattan, and thereupon paid to her the proceeds.

Accepting, as I do, that view of the insurance Contracts (and no other view is suggested in argument), it follows that the policies were assignable as well before as after maturity. Mrs. Grattan might have assigned them in her lifetime (assuming, that is, that the law of Pennsylvania is in accord with our Married Women’s act), although the event upon which they were to mature — the death of her' husband — had not yet occurred. She having died without assigning them, the policies were a part-of the assets of her estate, to be realized upon by her personal representative, either by composition with the insurance company before maturity of the contracts, by sale and assignment of the contracts,- or by awaiting their maturity and then enforcing them against the company.

In Olmstead v. Keyes, 85 N. Y. 593, where a policy of insurance was taken out by a husband for the benefit of his wife, her interest in the policy was held to be a chose in action that at her death passed to him; and he having then caused it to be assigned to his second wife, and having thereafter died, it was held that she alone was entitled to the proceeds. This decision seems to me to be clearly correct. It was cited with approval and followed in principle by Vice-Chancellor Stevens in Brown v. Murray, 54 N. J. Eq. (9 Dick.) 594, 599; but in this case, because the wife, who was named as beneficiary, left a will, it was held that her executors were entitled to the proceeds of the policy as against the administrator of the husband. See also 14 Cyc. 71.

But by the common law, which in this respect remains in force in this state (and, as is admitted, in Pennsylvania also), upon the death of Mrs. Grattan intestate, leaving her husband surviving, he not only became entitled to administer upon her estate, but succeeded to the sole beneficial interest in her personalty, subject only to the payment of her debts. In Admrs. of Donnington v. Mitchell, 2 N. J. Eq. (1 Gr. Ch.) 243, it was laid down by Chancellor Pennington that: “On the death of a wife the husband may administer on her estate, and in that character take'to himself, for his own benefit, jure marili, all her personal property ; and in ease he dies before he shall have fully administered on such estate, his representatives are entitled to the property. If letters of administration upon the wife’s estate are granted to the next of kin of the wife, they are deemed as trustees only for the representatives of the husband.” (Citing cases.)

We have several other decisions to the same effect. Nelson v. Nelson, 57 N. J. Eq. (12 Dick.) 118, 121; Tarbox v. Grant, 56 N. J. Eq. (11 Dick.) 199, 204; Wright v. Leupp, 70 N. J. Eq. (4 Robb.) 130, 133; Degnan’s Case, 75 N. J. Eq. (5 Buch.) 197.

The right of the husband to the wife’s ehoses in action after her death is not contingent upon his reducing them to possession during his lifetime. His right to administer upon her estate and to take to his own use the surplus of her personalty after payment of her debts is entirely distinct from his right at the common law to reduce to possession the living wife’s ehoses in action; failing his exercise of which right the choses in action survived to the wife at his death. Snowhill v. Snowhill, 2 N. J. Eq. (1 Gr. Ch.) 36; Vreeland’s Exrs. v. Ryno’s Exrs., 26 N. J. Eq. (11 C. E. Gr.) 162; Exrs. of Henry ads. Dilley, 25 N. J. Law (1 Dutch.) 302.

Mrs. Grattan having been domiciled in Pennsylvania, her personal property was distributable according to the laws of that state. 22 Am. & Eng. Encycl. L. 1355; Ennis v. Smith, 14 How. (U. S.) 400; Armstrong v. Lear, 8 Pet. (U. S.) 52, 73; Banta v. Moore, 15 N. J. Eq. (2 McCart.) 97, 100; Harrall v. Wallace, 37 N. J. Eq. (10 Stew.) 458; S. C., on appeal, sub nom. Harrall v. Harall, 39 N. J. Eq. (12 Stew.) 279; Normand's Admr. v. Grognard, 17 N. J. Eq. (2 C. E. Gr.) 425, 428; Jenkins v. Guarantee Trust and Safe Dep. Co., 53 N. J. Eq. (8 Dick.) 194, 202; Neilson v. Russell, 71 Atl. Bep. 286.

It is admitted, as I have said, that the common law is still in force in Pennsylvania so far as concerns the husband’s rights to have the personal property of the wife dying intestate, and to administer the same. And so the Philadelphia court apparently held in its consideration of the present case.

It is therefore clear to my mind that the husband not only had an assignable interest in the insurance policy after his wife’s death, but had the entire beneficial interest therein, subject only to the payment of his wife’s debts. As no rights of creditors are involved, we need not further refer to them.

The agreement made by the husband with Anderson Bourgeois (“representing the heirs of Mary J. Grattán, deceased”), for the assignment of all his interest in the estate, real and personal, of Mrs. Grattan (excepting the Sea Isle City property, with which we are not now concerned), followed by the payment of the consideration money, was equivalent to an equitable assignment, 'and included the interest of Mrs. Grattan’s estate in the insurance policies.

Therefore when the policies afterwards matured by the death of Edward N. Grattan himself, the equitable right to the money collectible thereon was in Bourgeois, the assignee, although we may assume the legal title was still in the estate of Mrs. Grattan. And when the insurance company paid the amount due upon the policy to Alice Smith, the administratrix of Mrs. Grattan, she received the money as trustee for Mr. Bourgeois. Her subsequent act in paying the money over to him, pursuant to the Philadelphia decree, recognized his equitable right to receive it, and had the effect of uniting in him both the legal and the equitable titles. He thus held the money “as representative of the heirs of Mary Jane Grattan, deceased.” The circumstance that he now happens also to be administrator of the estate of Mrs. Grattan in this jurisdiction is a coincidence that does not render him accountable for this money as such administrator. Her heirs may or may not be the same persons as her next of kin. Concerning this there is no evidence before me. But whether so or not, his accounting as administrator is properly to be limited to the estate that came to his hands as such. Plis accountability to the heirs is a matter for separate consideration, and the orphans court has no jurisdiction over it.

I entertain no doubt of the correctness of the result thus reached; but were there doubt of it, it seems to me the matter is, for present purposes at least, concluded by the adjudication in the Pennsylvania court.

That court assumed jurisdiction over the subject-matter, and presumably had such jurisdiction, including not merely the accounting by Alice Smith of her receipts as administratrix, but the disposition to be made of the balance in her hands. Nor can I agree with the court below that all necessary parties were no't before the Pennsylvania court. The record of the proceedings there, as introduced in evidence before me, is somewhat meagre, but it sufficiently shows that Alice Smith, the administratrix, was a party (and she may be taken to represent the next of kin of Mrs. Grattan as against Anderson Bourgeois' claim to a paramount title to the fund), and Eva Smith, the present exceptant and respondent, was a party; Bourgeois was a party, and also the administrator of Edward N. Grattan, with whose alleged rights, however, we have no present concern. The adjudication was in effect that while Alice Smith, administratrix, held the legal title to the fund in question, the beneficial interest was in Bourgeois, because of the assignment made to him' by Edward N. Grattan, and the decree was that the money should be paid to Anderson Bourgeois "representing the heirs" accordingly.

While ordinarily it is held that judgments against an administrator in one jurisdiction are not binding upon an administrator appointed in another jurisdiction, for want of privity between them (Story Confl. L. § 522; Freem. Judg. § 163; 23 Cyc. 1591), yet I think this rule properly applies only to judgments that manifest an indebtedness of the intestate or of the administrator, and does not extend to a decree settling the distribution of the surplus of the estate in the state of the domicile; such decree being in effect an adjudication against certain claimants of distributive shares, and not involving the claims of creditors. For, as already remarked, distribution is to be settled by the law of the domicile.

But there is a special feature that seems to conclude the present controversy, and that is that Bourgeois received the money in question pursuant to the very decree that is now sought to be overthrown. That decree gave him no title to the money as administrator, but, on the contrary, as “representative of the heirs.” And it does not seem to me to be permissible for the respondents, while affirming the validity of the Pennsylvania decree to the extent of charging him with the receipt of the money, at the same time to deny the validity of the decree with respect to the character in which it was awarded to him.

The decree of the Atlantic county orphans court, so far as it charges the administrator with the sum of $428.91 — the amount received from the Pennsylvania administratrix of Mrs. Grattan’s estate — will be reversed, with costs of the appellant to be paid out of the estate.

As to the counsel fee of $50 allowed by the court below to the exceptant, I consider it was reasonable, provided there was any fund out of which it could properly be paid. The $428.91 in question being no part of the estate, the counsel fee must not be charged against it, and must be postponed in payment to the appellant’s costs of this appeal.

CASES ADJUDGED IN THE COURT OF ERRORS AND APPEALS OF THE STATE OF NEW JERSEY ON APPEAL FROM THE COURT OF CHANCERY, AND THE PREROGATIVE COURT. NOVEMBER TERM, 1910.


source: Caselaw Access Project

author: Pitney, Chancellor.

license: Public Domain

text:
    Robert B. Ludy, complainant, v. John M. Larsen et al., defendants.
    [Submitted December 6th, 1909.
    Decided March 6th, 1911.]
    Successive stop notices having been served upon the owner of a building under section 3 of the Mechanics’ Lien law (P. L. 1898 p. 588), and one of the stop notice claimants having commenced suit against the contractors to establish his claim, a subsequent claimant, who had an interest in defeating the claim in suit, undertook and conducted the defence in the name of the contractors and with their consent, but for its own use and benefit — Held, that the party thus undertaking and managing the defence to the suit was concluded by the resulting judgment so far as it established the claim of the plaintiff against the contractors.
    On appeal from a decree of tbe former chancellor, advised by Vice-Chancellor Howell.

      Messrs. Bourgeois & Sooy, for the appellant.

      Mr. John C. Reed and Mr. Ulysses G. Styron, for the Atlantic City Lumber Company, respondent.
   The opinion of the court was delivered by

Pitney, Chancellor.

This is an appeal from a decree made in an interpleader suit, whereby the fund in court was disposed of. The ground of the appeal is that the claim of one John W. R. Maginnis (assigned to Rufus Booye, the appellant) was disallowed.

It appears that the complainant, Ludy, entered into a contract with a firm of Larsen & Son, whereby they agreed to furnish the materials and do the work of altering and adding to a building owned by the complainant; that the contract was duly placed on file, and that thereafter, while money was in Ludy’s hands due under the contract to Larsen & Son, sundry claimants served notices upon Ludy under section 3 of the Mechanics’ Lien law. P. L. 1898 p. 538. Ludy filed his bill of interpleader and paid into the court of chancery the sum of $2,314.15 as the amount remaining in his hands owing upon the Larsen contract and payable to the stop notice claimants. A decree was made in due course requiring the defendants to interplead, and after the hearing a decree was made establishing all the claims with the exception of that of Maginnis. Besides disallowing his claim, the decree settled the order of priority of the other claims, with the result that so much of the fund as would have gone to satisfy the Maginnis claim, if established, was awarded to the Atlantic City Lumber Company, the next claimant in order.

One ground upon which the Maginnis claim was disallowed was failure to prove the fact or date of service of the Maginnis stop notice upon Ludy. Upon this point Ludy’s bill of complaint, after setting forth that on or about March 14th, 1905, one B. served or caused to be served upon the complainant a written notice to the effect that the contractors were indebted to B. in the sum of $220, for work and labor done and performed and materials furnished in and about the premises of the complainant, that payment of said sum had been demanded of the contractors and payment refused, and that complainant was notified and required to retain the amount of money so due and claimed by B. out of the money owing by the complainant to the contractors, proceeded to set forth — “That on or about the twelfth day of May of said year a like notice was served by John W. R. Maginnis claiming the sum of $619.” The bill of complaint also sets forth that a few days later a like notice was served by the Atlantic City Lumber Company claiming the sum of $4,400, and that the lumber company had notified the complainant not to pay any persons claiming the fund who had served notices prior to the notice of the lumber company, upon the ground that the amounts claimed by them were in excess of the true amounts due.

To this bill the Atlantic City Lumber Company filed a cross-bill, setting up, among other things,

“That this defendant is informed and believes that one John W. R. Maginnis on or about May 12th, 1905, served or caused to be served upon said complainant a notice purporting to be under the authority and in conformity with the provisions of said section of said act, and by virtue of said notice claims to have a lien upon said fund and to be entitled to receive thereout the sum of $619 alleged to be due to him and to have been demanded from the said John M. Larsen & Son, contractors, for work done and materials furnished in and about the premises of the complainant, in pursuance of said contract; but this defendant avers that the sum claimed by the said Maginnis in his said notice was not due and payable at the date of the service thereof, but, if anything, a much smaller sum; that a part of the labor and material, payment for which is claimed and included in said notice, if performed or furnished at all, were not furnished in pursuance of said contract; that said Maginnis had not at the date of the service of said notice, and has not since, performed said work in such manner as to entitle him to any payment by said contractors, and that said notice is in other respects informal, defective and invalid as against the lien of this defendant upon said fund.”

Maginnis filed an answer to this cross-bill, in which he distinctly asserted the service of a proper stop notice upon Ludy on May 12th, 1905, for $619; that afterwards, and within five days thereafter, Larsen & Son served written notice upon said Maginnis to establish his claim by judgment; that in pursuance thereof Maginnis instituted suit against Larsen & Son in the Atlantic county circuit court; that the suit was defended, and that the trial resulted in a verdict in favor of Maginnis for the sum of $619, besides interest to date, and that judgment was entered upon the verdict for the sum of $647 and costs.

Upon the hearing before the learned vice-chancellor, the complainant, Ludy, testified that the Maginnis notice was served upon him, and identified a. copy thereof, which is dated May 12th, 1905. Being asked, “Q. Do you remember when that notice was served on you?” he answered, “I don’t remember anything except it says here May 12th, 1905.” He testified, however, without objection, that at the time of the filing of his bill of complaint he swore that May 12th was the date on which he received the notice. Being afterwards examined respecting a notice signed by one Gould, dated May 29th, 1905, and asked if that notice was served upon him upon the day of its date, he answered, “I don’t know any more than what I see here. All these notices were served on the dates they were marked.”

At this point, counsel for the Atlantic City Lumber Company, which was the only party opposing or interested in opposing the claims referred to, m'ade the following statement, to the court:

“He has already sworn through the bill, as I understand it, it has-been gone through here once, if your. honor please, that these papers-were served on the dates as designated therein. That won’t be required, again.”
“The Court: I put it to counsel to consider whether that is proof. You produce a witness for the purpose of proving the date on which a notice was served, and in order to prove it you call his attention to the-fact that he has sworn to it in an affidavit. Does that prove it?”
“Mr. Sooy: He afterwards says, refreshing his memory from that affidavit, he can now say it was served on that date.”
“The Court: That escaped me.”

From the entire record we think it clear that counsel for the-lumber company intended to concede, and was understood by opposing counsel to concede, that sufficient proof had been made* as to the dates of serving the notices in question, and that it was to be taken as proving (inter alia) that the Maginnis claim was served upon Dr. Ludy on May 12th, 1905. Appellant apparently relied upon that concession, and at any rate is entitled to the benefit of it, as settling in his favor the fact and date of the service.

The learned vice-chancellor also expressed doubt whether the evidence showed that Maginnis completed his contract with Larsen & Son before his stop notice was served upon Ludy, and whether the claim made by him in the stop notice was not for a larger sum of money than was actually due from Larsen & Son to him.

It appeared, however, that about two months after the service of that notice he commenced an action at law in the Atlantic county circuit court against Larsen & Son for the recovery of the same sum of money mentioned in the stop notice; that a plea was interposed by the defendants in this action, and that a trial by jury resulted in a verdict and judgment in favor of Maginnis for the entire amount of his claim. The record of this judgment was introduced in evidence upon the hearing before the vice-chancellor, counsel for the Atlantic City Lumber Company making no objection to its admission, but contending that it was not binding upon the lumber company because that company was not a party to the action.

There is no question that whatever was due to Maginnis when the action at law was commenced, was due when his stop notice was served, for the evidence upon the hearing in chancery shows beyond controversy that whatever he did about the performance of his contract was done before the service of his stop notice. As against Larsen & Son, therefore, the judgment conclusively settles in favor of Maginnis both points upon which the learned vice-chancellor doubted.

The question is, what is the effect of the judgment upon the Atlantic City Lumber Company?

Under the peculiar facts of the present case we are not called upon to consider whether in ordinary circumstances a judgment at law, recovered by stop notice claimant against contractor, is conclusive upon the owner or upon subsequent claimants. See Taylor v. Wahl, 69 N. J. Law (40 Vr.) 471. For the evidenee shows, and it is not disputed, that the lumber company, with the consent of Larsen & Son, undertook and conducted the defence of the Maginnis suit, employing the attorney and paying the expenses of the trial, including the expenses of Maginnis himself, who attended as a witness.

In short, it appears, as we think, that the defence of the Maginnis suit, while made in the name of Larsen & Son, was made by the lumber company, at its own expense and for its own use and benefit. That company having served upon Ludy a stop notice of its own after the service of Maginnis' notice, and its claim being sufficient in amount to more than exhaust the moneys remaining in Ludy's hands due to Larsen & Son, it manifestly had a legitimate interest in contesting the Maginnis claim, in order to show, if it could, that either nothing was due to him, or, if anything, a sum less than he had demanded in his stop notice.

Having thus, for reasons affecting its own interest, undertaken and managed the defence to the suit of Maginnis against Larsen, the lumber company is, we think, concluded by the result of that litigation. It is, of course, fundamental that personal judgments conclude only the parties and their privies. But the estoppel is not limited to such as are parties on the record. It includes those who are parties in fact. As Green-leaf well says:

“The rules of law upon this subject are founded upon these evident principles or axioms, that it is for the interest of the community that a limit should be prescribed to litigation; and that the same cause of action ought not to be brought twice to a final determination. Justice requires that every cause be once fairly and impartially tried; but the public tranquility demands that having once been so tried, all litigation of that kind, and between those parties, should be closed forever. It is also a most obvious principle of justice that no man ought to be bound by proceedings to which he was a stranger; but the converse of this rule is equally true, that by proceedings to which he was not a stranger he may well be held bound. Under the term parties, in this connection, the law includes all who are directly interested in the subject-matter, and had a right to make defence, or to control the proceedings, and to appeal from the judgment. This right involves also the light to adduce testimony, and to cross-examine the witnesses adduced on the other side.” Greenl. Evid. §§ 522, 523.

See, also, Id. § 535. And see, to the same effect, 1 Freem. Judg. (4th ed.) § 174; Big. Estop. (5th ed.) 113, 114; 1 Herm. Estop. § 148.

Numerous reported decisions have proceeded upon a recognition of this principle. Lyon v. Stanford, 42 N. J. Eq. (15 Stew.) 411; Davenport v. City of Elizabeth, 43 N. J. Law (14 Vr.) 149; Lovejoy v. Murray, 3 Wall. (U. S.) 1, 18; Robbins v. Chicago, 4 Wall. (U. S.) 657, 672; Valentine v. Farnsworth, 21 Pick. (Mass.) 176, 181, 182; Elliott v. Hayden, 104 Mass. 180, 182; Carleton v. Lombard, Ayres & Co., 149 N. Y. 137, 151; Stoddard v. Thompson, 31 Iowa 81; Montgomery v. Vicory, 110 Ind. 211; 11 N. E. Rep. 38; Thomsen v. McCormick, 136 Ill. 135; 26 N. E. Rep. 373; Potter v. Clapp, 203 Ill. 592; 68 N. E. Rep. 81; Parr v. State, 71 Md. 220; 17 Atl. Rep. 1020; National Marine Bank v. Heller, 94 Md. 213; 50 Atl. Rep. 521. See, also, Hale v. Finch, 104 U. S. 261, 265; City of Boston v. Worthington, 10 Gray (Mass.) 496; Andrews v. Gillespie, 47 N. Y. 487, 492; City of Rochester v. Montgomery, 72 N. Y. 65, 67; Heiser v. Hatch, 86 N. Y. 614.

The decree under review should be reversed, and the record remitted to the court of chancery to the end that a new decree may be made providing for the satisfaction out of the fund in court of the Magiunis claim held by the appellant, together with the appellant’s costs in this court and in the court of chancery, with priority over the claim of the Atlantic City Lumber Company.

For affirmance — None.

For reversal — The Chancellor, Chiee-Justice, Garrison, Swayze, Reed, Trenchaed, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Congdon — 14.


author: Gummere, Chief-Justice.

text:
    The McAndrews & Forbes Company, appellant, v. City of Camden, respondent.
    [Argued June 24th, 1910.
    Decided November 30th, 1910.]
    1. The jurisdiction conferred by the act of 1870 (Gen. Stat. p. SJ¡86) upon the court of chancery, to settle disputed titles to land by a suit brought for the purpose by the party in possession, is simply an extension of its function of entertaining bills quia, tvmet. For this reason when an issue at law has been directed in such suit and the verdict rendered thereon is attacked the court of chancery should follow the same practice which prevails when a similar situation arises in proceedings under a bill quia timet; viz., consider, among other things, alleged trial errors in order to determine whether the erroneous rulings (if they appear) iaore such as to destroy the value of the verdict as a means of satisfying the conscience of the chancellor.
    2. On an appeal from an order of the court of chancery denying a new trial of an issue at law, on a bill filed to quiet title, under the act of 1870, the question for determination is, whether a new trial was properly refused, and not whether the reasons given by the court for denying it were sound.
    3. Conveyances of lots by reference to a map made by the vendor, and publicly exhibited in the office of his sales agent, describing them as bounding on a designated street, shown on the map, constitute a dedication to public use of that street as laid out thereon.
    4. When a street has once been dedicated, the right of the public to appropriate it to their use at any time when their wants or convenience require it cannot be defeated or impaired by any subsequent act of the dedicator or of those claiming under him.
    5. A street delineated on a dedicating map as extending to a public navigable river will be continued to the new water front obtained by filling in by the owner under legislative sanction.
    6. Where the public rights in a dedicated street have been extinguished by a grant from the state to the dedicator or his grantees, a rededication of the street to public use is created by the subsequent making of conveyances, by the state’s grantee, by reference to the original dedicating map and describing the property conveyed as bounding upon that street.

      On appeal from an order of the court of chancery advised by Vice-Chancellor Walker, denying a new trial on an issue at law in proceedings had under "An act to compel the determination of claims to real estate in certain cases, and to quiet the title to the same.” 3 Gen. Stat. p. 3486.

      Mr. Edwin G. C. Bleakly, for the appellant.

      Mr. Sherred Depue, for the respondent.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The McAndrews & Forbes Company, the respondent herein, filed their bill to quiet the title to a tract of land in the city of Camden bordering upon the Delaware river. The fee of the land is vested in them, but the municipal authorities claim that one of the public streets of the city, known as Jefferson street, extends across it to the present water line of the river. The purpose of the litigation is to determine the validity of this claim.

The bill is filed under the act of 1870 (Gen. Stat. p. 3486), which provides a suit in chancery as a means whereby a person in peaceable possession of land in this state, and claiming to own the same, but whose title thereto is disputed, or whose estate therein is alleged to be subject to some lien or encumbrance, may have his title settled, or the validity of the alleged lien or encumbrance determined, when no action has been brought against him for this purpose. The defendants having filed their answer to the bill asserting the existence of their alleged easement, and the complainants having filed their replication thereto, the court of chancery directed an issue at law to be framed in the supreme court to try the validity of the city’s claim. Such an issue was thereupon framed and tried in the court designated, with the result that the validity of the claim was negatived by the verdict of the jury. Application was thereupon made by the city to the court of chancery to direct a new trial of the issue upon the ground that the verdict was against the evidence, and also because of trial errors asserted to have been committed by the law court. The vice-chancellor, to whom the cause had been referred, denied the application, stating that so far as the facts were concerned he concurred in the finding of the jury, and that so far as pure questions of law were concerned, they should be left to the law court to which the issue was sent.

The view of the learned vice-chancellor that it was not the function of the court of chancery, in deciding the application for a new trial, to pass upon alleged legal errors committed by the trial court was, we think, unsound. The fifth section of the act of 1870, which deals with the matter of issues at law, provides that the court of chancery shall be bound by the result of such issue, but may, for sufficient reasons, order a new trial thereof according to the practice in such cases. The jurisdiction conferred ppon the court of chancery by the statute is meretyj an extension of its function of entertaining bills quia timet to remove clouds from the title of persons in possession of real property. Brady v. Carteret Realty Co., 70 N. J. Eq. (4 Robb.) 751. The ordinary practice of the court on such bills, when an issue at law had been directed, and the verdict rendered thereon was attacked, was to consider alleged trial errors as well as the evidence reported to it by the law court, for the purpose of determining whether the erroneous rulings (if they appeared) were such as to destroy the value of the verdict as a means of satisfying the conscience of the chancellor. Basset v. Johnson, 2 N. J. Eq. (1 Gr. Ch.) 154; Trenton Banking Co. v. Rossell, 2 N. J. Eq. (1 Gr. Ch.) 512; Newark Plank Road Co. v. Elmer, 9 N. J. Eq. (1 Stock.) 785; Black v. Lamb, 12 N. J. Eq. (1 Beas.) 108, The act of 1870 being merely an extension of this jurisdiction, requires that the same practice should prevail under it; and this was the view taken in the celebrated case of American Dock and Improvement Co. v. Trustees of Public Schools, 39 N. J. Eq. (12 Stew.) 409, in which the chancellor considered and passed upon numerous errors alleged to have been committed by the law court during the trial of the issue which he had sent to it for determination.

But although this appeal raises questions of law which were not considered and determined by the court of chancery, we are not, on this account, debarred from considering them, for the real matter to be determined by this court is whether the order for a new trial was properly refused, not whether the reasons which moved the court to its decision were sound or otherwise. We therefore take up the consideration of the merits of the controversy between the parties.

On September 3d, 1874, the Manufacturers Land and Improvement Company became seized in fee of a tract of land in the city of Camden, containing about two hundred acres and bordering on the Delaware river. Shortly after acquiring this tract, and on December 28th, 1874, the company obtained from the riparian commissioners a lease for the land under water in front of a portion of the tract, and extending to the exterior wharf line theretofore established by the commissioners; with authority to exclude the tidewater therefrom by filling in or otherwise improving it, and to appropriate the same to its exclusive private use. On June 30th, 1877, the company acquired a further lease from the commissioners for the land under water in front of the remaining part of the tract also extending to the exterior wharf line above referred to, and with similar authority as to filling in and otherwise improving the tract.

In the latter part of the year 1874, or in the early part of 1875, the company laid out the tract of upland into streets and lots, and caused a map thereof to be made. Among the streets shown upon the map was Jefferson street, and it was delineated thereon as running to the water’s edge of the Delaware river. Subsequently, the company employed one John Dobbins, a real estate agent in the city of Camden, to make sale for it of these lots. The map was exhibited in Dobbins’s office; and between the years 1875 and 1884 numerous lots and blocks were sold and conveyed by the company by a reference to this map, and bounded on the streets delineated on it. In the latter year four entire blocks, each containing forty lots, and a portion of another block, containing fifteen lots, were sold and conveyed by the company to one Zeplian C. Howell. Two of these blocks, and the part of the block containing fifteen lots, are described in the deed of conveyance as bounding on Jefferson street. The conveyance of these lots by reference to the map which had been publicly exhibited in the office of Dobbins, the Compaq’s sales agent, constituted a dedication to the public use of Jefferson street as laid out upon that map — that is, to the high-water line of the Delaware river as it existed at that time. Pope v. Town of Union, 18 N. J. Eq. (3 C. E. Gr.) 282; State, Central Railroad Co. v. Elizabeth, 87 N. J. Law (8 Vr.) 432; Clark v. Elizabeth, 37 N. J. Law (8 Vr.) 120; S. C. on error, 40 N. J. Law (11 Vr.) 172, 174. The public right to appropriate the street thus dedicated, at any time when their wants or convenience required it, could not be defeated or impaired by any subsequent act of the dedicator, or those claiming under it. The land could only be released from the public servitude by the state itself. South Amboy v. New York and Long Branch Railroad Co., 66 N. J. Law (37 Vr.) 623.

In the years 188G and 1887 the company sold and conveyed to the Keystone Chemical Company and to the Asphalt Block Company two parcels of land (one to each grantee) made up in part of the original two-hundred-acre tract, and in part of the land under water leased to it by the state. These two parcels, by a series of mesne conveyances, became vested in the present respondent, the McAndrews & Forbes Compaq, and embrace the locus in quo.

Some time prior to the year 1885, but just when the case does not disclose, the Manufacturers Land and Improvement Company began filling in the land under water leased to it by the state. After it had conveyed the locus in quo to the chemical compare and to the asphalt company the filling in was continued by these grantees, and by subsequent owners, to such an extent that the high-water line in front of Jefferson street was shifted considerably nearer to the original centre line of the river. The claim of the city is that the effect of this filling in was to extend Jefferson street as originally dedicated to the new high-water line of the river.

In our opinion the city’s claim is well founded. It is settled in this state that a street delineated on a dedicating map as extending to a public navigable river (and the Delaware opposite Camden is such a river) will be continued to the new water front obtained by filling in by the owner under legislative permission. Hoboken Land and Improvement Co. v. Mayor, &c., of Hoboken, 36 N. J. Law (7 Vr.) 540; Seabright v. Allgor, 69 N. J. Law (40 Vr.) 641. It is contended on behalf of the respondent that the leases made by the riparian commissioners operated to extinguish the public easement so far as the reclaimed land is concerned; and City of Hoboken v. Pennsylvania Railroad Co., 124 U. S. 656, is relied upon to support this contention. It is true that, by force of that decision, a grant made by the state subsequent to the dedication of the land over which the street would be continued, if sufficiently broad in its terms, will extinguish the public easement over such land when reclaimed. In disposing of this contention, it may be conceded that the two leases made by the riparian commissioners contain words apt for that purpose, and that the commissioners were empowered by the state to extinguish such public easements by instruments of that character (an important question, the decision of which is not required by this case); but many of the conveyances by force of which Jefferson street was dedicated to public use were executed subsequent to the making of the second of these leases, and so, even if the original dedication preceded the state’s grants, and was, consequently, extinguished thereby, the subsequent conveyances operated to rededicate the street to public use, not only over the original tract delineated upon the Manufacturers Land and Improvement Company’s map, but also over the lands which it had then acquired through the state’s grant. Seabright v. Allgor, supra.

In the years 1886 and 1891 the leases of 1874 and 1877, so far as they covered the locus in quo, were attempted to be converted into grants by deeds of conveyance duly executed by the riparian commissioners. This was done at the request of the lessees. In the year 1900, a further conveyance of said lands was executed by the commissioners, the purpose of which was to correct an error contained in the description of the land in the one or the other of the earlier deeds, and thus confirm the title to the lands intended to be conveyed by them. These conveyances by the commissioners, however, do not operate to extinguish the public easement over the lands conveyed, for, both in that of 1886 and in that of 1891, it is expressly provided that the grant is made subject to the rights of the public, if any exist, to all easements or rights of way over the lands conveyed; and that of 1900, as has been stated, merely confirms the right, title and interest of the grantees in the lands intended to be conveyed by those of 1886 and 1891.

We conclude, therefore, that the verdict on the trial of the issue at law was contrary to the evidence. This being so, the errors alleged to have been committtd by the law court at that trial became immaterial, except .so far as they were based upon a theory of the law antagonistic to the views which we have expressed, and therefore have not received consideration from us.

For lire reasons indicated, the application to the court of chancery to direct a new trial should have prevailed, and the order under review must be reversed.

For affirmance■ — Yoorhees—1.

For reversal — The Chiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Bogert, YredenBURGH, CONGDON — 10.


text:
    John McMillan et al., respondents, v. Louis Kuehnle et al., appellants.
    [Argued June 27th, 1010.
    Decided November 14th, 1910.]
    1. On a bill by two citizens for injunction against the special nuisance to their respective dwelling-houses caused by the noises of the crowds who attended Sunday baseball games in a park close by, the affidavits of others, not parties to the litigation, showing annoyance to their homes by the noises complained of, are without special weight in determining the propriety of preliminary injunction, as such bill is not filed on behalf of the public to restrain a public nuisance.
    2. A preliminary injunction ought not to be ordered unless from the pressure of an urgent necessity, and unless the injury or damage to be prevented, during the pendency of the suit, is in an equitable point of view of a character to cause irreparable injury.
    3. Complainants, whose dwelling-houses were near a baseball park, filed a bill to restrain defendant from holding baseball games on Sundaj's, and filed affidavits to show that their peace and quiet on Sundays were disturbed by the noises of crowds attending the Sunday ball games, and by the confusion made by the crowds in coming to and going from the games. — Held, that the rule that a preliminary injunction should not issue unless the injury resulting from the invasion of complainants’ rights was irreparable was controlling, and that the disturbance of the peace and quiet of complainants’ dwelling-houses on Sunday by noises which on other days are not particularly objectionable to them did not constitute such an irreparable mischief or injury as to require the issuance of a preliminary injunction.
    On appeal from a decree of the court of chancery advised by Yice-Chancellor Walker, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 256.

      Messrs. Bourgeois & Sooy, for the appellants.

      Messrs. Bleakly & Stockwell, for the respondents.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The appeal in this case is taken from an order directing the issuing of a preliminary injunction restraining the playing of Sunday baseball in the city of Atlantic City. The complainants do not seek relief in a court of equity because the playing of such games on Sunday is prohibited by the act for the suppression of vice and immorality (the enforcement of the provisions of which is exclusively the function of other tribunals), but solely upon the ground that the noises made by the patrons of the games in going to and from them, and while they are in progress, “are so frequent, so loud, and of such a nature that they appreciably disturb the peace, quiet and rest of the complainants.” The bill is filed by John McMillan and John H. Goldsmith. The residence of the former is about two city blocks from the baseball park; that of the latter about a block and a half. McMillan, in his affidavit annexed to the bill, swears

“that large crowds attend such games, and in going to and returning from said games the loud noises made by the persons in the crowds are an annoyance to myself and to the neighborhood, and a disturbance to the peace and quiet of not only myself but of the neighborhood.”

The affidavit of Goldsmith, also annexed to the bill, states

“that the noises of those going to and coming from the games, and made in the park during the progress of the games, are all very annoying to myself and family, and disturb the peace and quietness of the neighborhood during the said time.”

An affidavit was also made by the wife of Goldsmith, and annexed to the bill. In it the affiant states

“that she has been greatly annoyed in her home, and her peace and comfort greatly disturbed, by the noises and confusion made by those going to the ball games and by those returning from said games, and by the cheering and screaming and yelling and hooting, and stamping of feet on the hoards, by those within the park attending said games; that previous to the playing o£ these ball games on Sunday our Sundays were such that we could enjoy the peace and quiet and comfort of our home, but since these games have been carried on there has been no such peace and comfort as formerly.”

Affidavits made by others, who are not parties to the litigation, are annexed to the bill, and show that the affiants, as well as the complainants and their families, are interfered with in the enjoyment of the peace and quiet of their homes by the noises complained of. These affidavits, however, are of no special value in determining the propriety of the order appealed from, for the bill is not filed on behalf of the public to restrain a public nuisance, but by two citizens to obtain relief by injunction against the special nuisance to their respective dwelling-houses caused by the noises of the crowds which attend these Sunday games.

We think the bill and affidavits of the complainants do not make out a case which entitles them to a preliminary injunction. Such a writ ought never to be ordered unless from the pressure of an urgent necessity. The damage which it is legitimate to prevent, during the pendency of a suit, must be, in an equitable point of view, of an irreparable character. So this court declared in the case of Citizens Coach Co. v. Camden Horse Railroad Co., 29 N. J. Eq. (2 Stew.) 299, 303, in setting aside an order for a preliminary injunction granted by the chancellor to restrain the unlawful use by the coach company of the tracks of the horse railroad company, to the injury of the latter both in the conduct of its business and in its profits. The importance of observing this rule is pointed out by this court in the later case of Hagerty v. Lee, 45 N. J. Eq. (18 Stew.) 255, in affirming an order of the chancellor refusing a preliminary injunction to restrain the defendant from erecting a building which would close up certain windows in the complainant’s dwelling. We there said: “It is impossible to emphasize too strongly the rule so often enforced by this court that a preliminary injunction will not be allowed when the injury which may result from the invasion of the complainant’s right is not irreparable.” To say that the disturbance of the peace and quiet of the complainants on Sunday, by noises which, when they occur upon other days, are not particularly objectionable to them, so far as their bill and affidavits disclose, constitutes an irreparable mischief, would be, in the language of the opinion in the Citizens Coach Co. Case, “mere hyperbole.” It is not necessary now to consider whether the disturbance of the complainants’ rights is of such a character as to entitle them to an injunction upon a final hearing of the cause. If this be conceded, the injury complained of is not so substantial as to warrant the issuing of a preliminary writ.

It is suggested that the rule to which we have called attention is not applicable in cases where the relief sought is the protection of a person’s dwelling-house against nuisances which render it uncomfortable, and Cronin v. Bloemecke, 58 N. J. Eq. (13 Dick.) 313, is referred to as an authority for the proposition. The cited case does not, as we read it, so hold. It was, in many respects, similar to that now under consideration, being an application for a preliminary injunction to restrain the playing of Sunday baseball, made by a person who claimed that the peace and quiet of his home was disturbed thereby. The application was heard on bill and affidavits, and answer and affidavits. The only reference to the case of Citizens Coach Co. v. Camden Horse Railroad Co. appearing in the opinion of the court is contained in the following excerpt: “It is objected that, inasmuch as the fact of nuisance is disputed, complainant is not, under the rule settled in the Coach Co. Case, 2 Stew. 299, entitled to a preliminary injunction pending the hearing. But the jurisdiction of a court of equity in relation to protection of one’s dwelling-house, against nuisances which render it uncomfortable, stands upon a different basis from the kind of injury considered in the Coach Co. Case, and this right is one which has been constantly protected in this court by preliminary injunction, in a proper case, even when the existence of the nuisance is disputed.” By a reference to the opinion of Chief-Justice Beasley in the Coach Co. Case it will be seen that, by the allowance of a preliminary injunction in that case, three rules belonging to the subject were considered to have been violated. The first was that which has already been recited. The second was that, when the right on which the complainant founds his claim is, as a matter of law, unsettled, the writ will not be ordered. The third was that “subject to but a, fern exceptions, if the facts constituting the claim of the complainant for the immediate interposition of the court are controverted, under oath, by the defendant, the court will not interfere at the initial stage of the cause.” Bearing in mind that the appeal of counsel in the Cronin Case to the protection of the rule laid down in the Coach Co. Case was rested upon the ground that the fact of nuisance was disputed, and that the conclusion of the learned vice-chancellor who heard the application was that, where the nuisance rendered the complainant’s dwelling-house uncomfortable, the case was not within the rule appealed to by defendant’s counsel, it seems quite evident that the rule which both court and counsel had in mind was the last and not the first of the three referred to in Chief-Justice Beasley’s opinion. And. this is made plainer by the fact that both the court of chancery and this court had already decided, in Haggerty v. Lee, supra, that the first of these rules was controlling when the issuing of the preliminary writ was sought for the protection of the complainant’s dwelling-house against a tortious act which produced discomfort to its occupants; for it is hardly to be supposed that the binding force of this decision would have been overlooked by the learned vice-chancellor. The probability is that counsel on both sides assumed that the interference with the Sunday peace and quiet of the complainant, in his home, constituted, in an equitable point of view, an irreparable injury, and that this phase of the case was neither suggested to nor considered by the court.

In our opinion the rule that a preliminary injunction will not be allowed when the injury, resulting from the invasion of the complainant’s right is not irreparable, is equally controlling where the writ is sought for the protection of one’s dwelling-house against nuisances which render it uncomfortable, as where it is sought for the protection of his other personal or property rights.

The order under review will be reversed.

For affirmance — None.

For reversal — The Chiee-Justice, Garrison, Trenohard, Parker, Bergen, Voorhees, Minturn, Bogert, Yredenburgh, Yroom, Congdon — 11.


author: Gummere, Chief-Justice. Garrison, J.

text:
    Helen K. Vreeland, respondent, v. Richard M. Vreeland, appellant.
    [Submitted December 5th, 1910.
    Decided March 6th, 1911.]
    . When the validity of a marriage is attacked upon the ground that one of the parties to it had a husband or a wife living at the time when it was contracted, the party asserting its invalidity must not only prove the former marriage, but also that the former husband or wife was living at the time of the contracting of the second marriage; and this latter fact is not proved by showing that the former husband or wife was alive at a time between three and four years prior to the solemnization of the second marriage.
    On appeal from a decree of the court of chancery advised by Yice-Chancellor Howell.

      Mr. Peter W. Stagg, for the appellant.

      Mr. Jerome D. Gedney, for the respondent.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

This is a suit for maintenance brought by the complainant under the statute, upon the ground that the defendant, her husband, has abandoned her without justifiable cause, and refuses and neglects to provide for her support. Two defences were interposed — first, that the complainant deserted hex husband without cause and went to live with her mother; and second, that the marriage between the parties was void, because the complainant had another husband then living and from whom she had not been divorced. The complainant had a decree.

We concur in the view expressed by the learned vice-chancellor before whom the case was tried, that, upon the proofs submitted, the complainant is entitled to the relief which she seeks, unless her marriage to the defendant was shown to be void. The parties were married on the 15th of April, 1875, and two children were born to them, who are now living. It was proved in the case, and not denied, that a little more than four years before the complainant and the defendant were married, to wit, in March, 1871, she went through a marriage ceremony with one James McGinn, and that the marriage was solemnized by a priest of the Roman Catholic Church. She declared, however, upon the witness-stand, that, at the time this ceremony was performed, she was only eleven years old; that, in conducting it, the priest used the Latin language; and that she did not understand that she was being married to McGinn, but supposed that she was being “made a Catholic,” that being what she was told by the priest and by McGinn. She also testified that she and McGinn separated immediately after the ceremony was performed, and that she never saw him afterward. The vice-chancellor accepted this story of the complainant as true, and held that as the marriage between her and McGinn had been contracted before she had reached the age of consent, it was null and void.

We are not at all convinced of the truth of the complainant’s story with relation to her marriage with McGinn. The unlikelihood of a Roman Catholic priest being willing to perform a marriage ceremony where one of the ¡parties was a little girl of eleven years, without knowing whether or not it met with the approval of her parents or guardians, is apparent. Equally apparent is the improbability that he would be guilty of so gross a fraud as is charged against him. in leading the child to believe that it was something other than a marriage ceremony which was being performed. We might, perhaps, be compelled to accept the complainant’s testimony upon this point, notwithstanding its improbability, if she appeared in other respects to be an entirely credible and trustworthy witness. But this is not the fact. There is much in the proofs which affects unfavorably the credit to be accorded to her testimony, and she is directly contradicted by the defendant upon the matter of her age; for her marriage with him followed four years and one month after that with McGinn, and he testifies that she was then twenty or twenty-one years old. Moreover, we consider it significant that, although contradicted upon this vital point, the complainant made no effort to support her statement as to her age by other proof, notwithstanding that her mother was living with her at the time of the trial, and, presumably, better than anyone else could have proved the exact date of her birth. We conclude that the contention of the defendant that his marriage with the complainant was void cannot be decided adversely to him upon the ground that the marriage of the latter with McGinn was a nullity.

Assuming, then, that by the solemnization of the marriage between the complainant and McGinn she became his lawful wife, is that fact a bar to the relief which she seeks? It was proved in the case that in June, 1874, a suit for divorce was instituted in the superior court of Fairfield county in the State of Connecticut (a court of competent jurisdiction), in the name of the complainant and against James McGinn; and that such proceedings were had therein that, at its August term of that year, a decree was pronounced by the court divorcing the parties and adjudging tire complainant to be single and unmarried. If full force and effect be given to this decree, the subsequent marriage of the complainant and defendant must, of course, be held to be entirely valid. The defendant, however, insists that it must be disregarded — first, because of the fact (which he claims has been shown by the proofs) that neither the complainant nor McGinn were residents of the State of Connecticut at the time of the institution of the suit, or during its pendency; and second, because the suit was not instituted by the complainant, or by her authority, but by her mother and brother without her knowledge, as she herself stated on the witness-stand. Assuming, for the purpose of deciding the case, that the contention of the defendant must prevail, and the decree of the Connecticut court must be disregarded, what is the situation ? There was no testimony, except hearsay, as to McGinn’s being alive or dead at any time later than ten months after his marriage with the complainant. He may have been dead at the time of the marriage of the complainant with the defendant,- or he may have been alive. What, the fact is we are not shown. The law presumes a continuation of life until seven years have elapsed after a person has been last heard of, and if this presumption is accepted as equivalent to proof of the fact, the marriage of the complainant and defendant is void. Not only is it void, but it is bigamous, and the complainant is guilty of the crime of bigamy, the defendant has (unwittingly) committed the crime of adultery, and their children are bastards. But it is also a maxim of the law that every person shall be presumed innocent of a crime until proved guilty thereof; and if this presumption is to prevail, the complainant has not been guilty of the crime of bigamy, and the defendant has not been guilty of the crime of adultery. The law also presumes that children who have been born as the result of a ceremonial marriage are legitimate. Sparks v. Ross, 75 N. J. Eq. (5 Buch.) 550, 552. All of these latter presumptions are absolutely antagonistic to the presumption of the continuance of the life of McGinn. Which is to prevail ? In the case of Rex v. Twyning, 2 Barn. & Ald. 386 (an appeal from the quarter sessions court of Gloucester county), the court of kings bench had before it a similar problem for solution. Justice Bayley expressed himself upon the point as follows: “The law presumes the continuance of life, but it also presumes against the commission of crime, and that even in civil cases, until the contrary be proved. There was a marriage of Mary Burns with Francis Burns which is prima, facie valid, but the year before that took place she was the wife of Richard Winter, and if he was alive at the time of the second marriage it was illegal and she was guilty of bigamy. But are we to presume that Winter was then alive ? If she had been indicted for bigamy it would clearly not be sufficient. In that ease Winter must have been proved to have been alive at the time of the second marriage. It is contended that his death ought to have been proved, but the answer is that the presumption of law is that he was not alive, when the consequence of his being so is that another person has committed a criminal act. I think, therefore, that the sessions decided right in holding the second marriage to have been valid unless proof had been given that the first husband was alive at the time.” Justice Best concurred, saying: “The sessions had a right to presume, that the woman had not committed a crime, and, if so, the second marriage would be valid, unless proof had been given of the first husband being then alive. The cases cited are very distinguishable; they only decide that seven years after a person has been last heard of you are in all cases to presume his death. But they do not say that where conflicting presumptions exist, you may not presume the death at an earlier period. Now these presumptions exist here, and I think the sessions were warranted in presuming the death of the first husband on the ground that they would not presume that the woman had committed bigamy.” Rex v. Twyning was approved and followed by the supreme court of Vermont in the case of Greensboro v. Underhill, 12 Vt. 604. In the later case of Lapsley v. Grierson, 1 H. L. Cas. 498, the case was commented upon and explained, but not overruled, Lord Campbell saying: “What is there said by Mr. Justice Bayley has been much misunderstood. He, who was one of the most learned, accurate and conscientious of judges, never laid down what in this argument has been attributed to him. All that he said was that there were presumptions of law on both sides, and that, as the quarter sessions had come to a conclusion upon the facts, the court of kings bench would not say that in fact they had come to a wrong conclusion.” With due despect to the learning and acumen of Lord Campbell, we cannot agree with him in the construction which he puts upon the language of Mr. Justice Bayley. The declaration of the latter that “the presumption of law is that he (the first husband) was not alive, when the consequence of his being so is that another person has committed a criminal act,” seems to us hardly equivalent to sajdng that as the quarter sessions had come to a conclusion upon the facts the court of kings bench would not say that its conclusion was wrong. As we read the Twyning Case, it establishes the proposition that where a marriage is solemnized between a man and woman it is prima facie valid, and (inferentially) that issue born of that marriage is prima facie legitimate; and, further, that when the validity of the marriage is attacked upon the ground that one of the parties to it had a husband or wife living at the time it was contracted, the party asserting its invalidity must not only prove the former marriage, but also that the former husband or wife was then living; and that such fact is not proved by showing that the former husband or wife was alive at a time less than seven years previous to the time of the second marriage. To this extent we consider the decision logically sound; that it establishes a wise public policy tending to safeguard the rights of children after the death of their parents, and when their ability to prove their legitimacy may be difficult, and makes more secure and stable property rights which descend to the heirs and next of kin, devisees and legatees of decedents. It further holds that, at the expiration of twelve months after the former husband or wife has been last heard of, the presumption that he or she is still alive ceases to be strong enough to overcome the antagonistic presumptions of the validity of the second marriage, the legitimacy of the issue resulting from it, and the innocence of crime on the part of the persons contracting it. It cannot be disputed that the presumption of continuing life grows weaker as time passes. It is stronger the day after a person disappears than it is a year after. Stronger after the expiration of a year than at the end of two- years. Stronger then than at the expiration of five or six years. At the end of seven years it has become so attenuated that the law terminates its existence. Whether the judges who decided Rex v. Twyning were right in considering that this presumption has become so weakened after the lapse of twelve months as to be compelled to give way to the conflicting presumptions therein recited, is a question not involved in the determination of the present case; for here the time which had elapsed between the disappearance of McGinn and the marriage of the complainant and defendant was between three and four years. We think that after the expiration of that period of time the presumption that he was still living had become so reduced in strength as to be overcome by those to which it was opposed, and that consequently the defendant has failed to establish his contention that the complainant had a husband living at the time of her marriage to him.

The decree appealed from will be affirmed.

Garrison, J.

(concurring).

I concur in the opinion of the chief-justice.

In Bower v. Bower, 78 N. J. Law (49 Vr.) 387, we pointed out that the fundamental characteristic of a presumption was that it affected the duty of producing further proof. Under this rule, the presumption, in the present case, in favor of innocence and legitimacy, cast upon the defendant, who was in effect asserting his own guilt and that of the complainant and the illegitimacy of their offspring, the duty of producing proof that should meet and overcome such presumption. This, as pointed out by the chief-justice, he did not do. It is not a question of what inferences of fact might logically be indulged in, but of a rule of law and of the defendant’s failure to bring his case with it, and such failure is not cured or helped by the common law rule as to the presumption of death or by our statutory substitute therefor.

For affirmance — The Chief-Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Yoorhees, -Minturn, Bogert, Yredenburgi-i, Yroom, Congdon, Sullivan — II.

For reversal — None.


author: Garrison, J.

text:
    James F. Walton, respondent, v. American Baptist Publication Society, appellant.
    [Submitted December 10th, 1010.
    Decided March 6th, 1911.]
    1. A tax title deed under the Martin act being within the provisions of the fifteenth section of the Sales of Land act (Gen. St at. p. 2982) is not subject to be questioned collaterally.
    2. Quare, whether the regularity of such a deed is cognizable by a court of equity.
    On appeal from a decree of the court of chancery advised by Yice-Chancellor Learning.
    This is a bill to quiet title filed by the holder of a tax title deed made under the thirteenth section of the Martin act.
    A decree pro confesso was entered against all defendants except the American Baptist Publication Society. It filed an answer setting up a mortgage upon the property held by it at the time of the sale, and claiming it to be still a valid lien.
    A general replication being filed, the matter was referred and an issue at law being demanded by the defendant, the vice-chancellor tried the preliminary jurisdictional question, and awarded an issue at law to try the validity of the claim of the American Baptist Publication Society.
    The issue framed thereon coming on for trial before Judge Endicott and a jury at the Camden circuit, counsel for appellant made an effort to attack collaterally the proceedings upon which complainant’s tax title was founded.
    Objection being made to this, the trial judge reserved his decision thereon and took the verdict of the jury upon the single question whether or not the notice to redeem was served on Dr. Eowland, the secretary and treasurer of appellant, on April 24th, 1903.
    A jury rendered a verdict that the notice was so served.

      The .trial judge then heard argument and determined that complainant was entitled to a verdict.
    On the coming in of the postea, an application for a new trial was made to Vice-Chancellor Learning, who denied the application and advised a decree quieting the title.
    This appeal is now taken upon the ground that a new trial should have been granted and that the court of chancery should have decreed the mortgage a good and valid lien.

      Mr. Edward Ambler Armstrong and Mr. Herbert A. Drake, for the appellant.

      Messrs. French & Richards, for the respondent.
   The opinion of the court was delivered by

Garrison, J.

The objections to the proceedings on which the complainant’s tax title deed was founded, raised upon the trial of the feigned issue and pressed before us by counsel of the appellant, have been considered only so far as was necessary to determine that, with the possible exception of the notice to redeem, they all relate to matters with which the legislature might have dispensed and with respect to which the legislature has provided that the deed “shall not be subject to be questioned collaterally.”

The legislative act in which this language appears was passed in 1869 as a supplement to “An act for the better security of titles to land sold by sheriffs and other officers” (P. L. 1869 p. 1238), and is now the fifteenth section of the Sales of Land act (Gen. Stat. 2982); it applies to all deeds theretofore or thereafter made under any public authority and clearly applied to a deed of the sort described given under a subsequent act. Smith v. Newark, 32 N. J. Eq. (5 Stew.) 1; Woodbridge v. Allen, 43 N. J. Law (14 Vr.) 262; Doremus v. Cameron, 49 N. J. Eq. (4 Dick.) 1; Belmar v. Kennedy, 53 N. J. Eq. (8 Dick.) 466; Flock v. Smith, 65 N. J. Law (36 Vr.) 224.

The statute therefore applies to a deed given under the Martin act, which, in its four hundred and seventeenth section, reiterates in effect the same provision. Gen. Stat. 3373.

The matters sought to be litigated in the present- ease before the jury under the feigned issue or before the court of chancery at all, upon a bill to quiet title, were solely cognizable by the supreme court in the proceeding set forth in this statute. The appellant is therefore not aggrieved by the refusal of the court of chancery to order a new trial of a feigned issue that was nugatory, or by the decree which in effect overruled the defence that was set up in that court. In each of these respects the result reached by the decree of the court below was correct.

This conclusion renders it unnecessary to consider or decide whether under the doctrine of Jersey City v. Lembeck, 31 N. J. Eq. (4 Stew.) 255, the court of chancery has by mere force of “An act to quiet title,” &c., jurisdiction to determine the regularity of a deed made by public authority in the collection of taxes.

The question whether or not the legislature might under the federal constitution have dispensed with the requirement that a notice to redeem be given, is purely academic in the present case, inasmuch as the Martin act makes a provision for such a notice and the jury, upon proof satisfactory to the trial court and to the court of chancery, has found that such notice was in fact given.

The contention that the Martin act is unconstitutional in that its title and body embrace more than one object is not well founded; it fails to discriminate between the object of an act and the means for the accomplishment of such object; the former must be single, the latter may be as many and as diverse as such object requires. The object of the Practice act is single, viz., to regulate the practice of law, but the means enacted to accomplish that end are many and various. It is the same with all tax laws including the Martin act. Moore v. Burdett, 62 N. J. Law (33 Tr.) 163.

The argument that the Martin act constitutes a taking of private property for public use is at least well founded in fact, for such is unquestionably both the object and effect of all proceedings for the collection of taxes which being required for the support of the government are not deemed to be without “just compensation” (Art. 1, 16); it is “individuals and private corporations” that are not authorized to take private property even for public use without just compensation first made to the owners. (Art. 4, § 7, p. 8.)

The .decree of the court of chancery is affirmed.

For affirmance — The Chief-Justice/ Garrison, Swayze, Reed, Trencitard, Parker, Bergen, Voori-iees, Minturn, Bogert, Vredenburgi-i, Vroom, Congdon, Sullivan — 14.

For reversal — None.


text:
    James F. Walton, respondent, v. Alfred Taylor, executor, appellant.
    [Submitted December 10th, 1910.
    Decided March 6th, 1911.]
    1. A tax title deed taken under the Martin act cannot be attacked collaterally.
    2. Whether or not an executor who was an unsuccessful defendant in the court of chancery should pay costs is within the discretion of that court.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.

      Mr. Edward Ambler Armstrong and Mr. Herbert A. Drake, for the appellant.

      Messrs. French & Richards, for the respondent.
   The opinion of the court was delivered by

Garrison, J.

Upon the merits this appeal is governed by our decision in the case of the same complainant against the American Baptist Publication Society. Tlie facts axe similar excepting that in the present case the service of the notice to redeem is not controverted.

The defendant below was, however, an executor and the decree orders that he pay complainant’s costs, and as to this portion of the decree the appellant contends that it is erroneous because he was defending a right that accrued to his decedent in her lifetime. For his immunity from costs in such a case appellant cites Kinney v. Central Railroad Co., 34 N. J. Law (5 Vr.) 273, and Bell v. Samuels, 60 N. J. Law (31 Vr.) 370, both of which were cases at law and hence under a statute (Practice act), which does not apply to the court of chancery at all or to unsuccessful defendants even in a court of law.

There are, however, equity cases that might have been cited, which show the existence in the court of chancery of a fairly well defined rule of practice respecting costs against personal representatives somewhat analogous to the statutory rule that arbitrarily controls the courts of law. Thus Chief-Justice Green, sitting for the chancellor, in the case of Gifford v. Thorn, 9 N. J. Eq. (1 Stock.) 702, said: “The general rule in equity (as well as at law) is, that persons suing in autre droit are not responsible for costs. An executor or administrator, complainant in equity, will not be ordered to pay costs unless the suit be clearly groundless or vexatious.”

This statement lacks the precision that ordinarily characterizes the language of this jurist and would be actually misleading if it were not that the case of Gelman v. Beardsley, 2 Johns. Ch. 274, which is cited as supporting it, states the correct rule. This is what Chancellor Kent said in that case: “Ordinarily executors do not pay costs. * * * They are not supposed to know as plaintiffs the imbecility of their own suit. This is the reason of the rule at law. But in this court where the costs are discretionary they seem to depend more upon the particular circumstances of each case.” This gives to the rule of practice its proper force. That such and none other is its status is shown by Chancellor Zabriskie in Shepherd v. McClain, 18 N. J. Eq. (3 C. E. Gr.) 128: “In this court costs by statute are in the discretion of the court. In general that discretion is exercised according to rules that have been fixed by practice. Courts of law by statute cannot award costs against executors and administrators when plaintiffs but must, if they are unsuccessful defendants. Courts of equity are not within that statute and have not adopted it in practice. It is an arbitrary rule and if this court adopts it, it cannot award costs as the act regulating its practice requires, i. e., according to its discretion.” This places the matter precisely upon its proper footing and is amongst other things a demonstration that whatever may be the force accorded by the court of chancery to rules adopted by it in the exercise of a discretion that by statute it is required to exercise, a departure from such rules, unless it amounts to an abuse of such discretion, is not ipso facto ground for reversal upon appeal. The statute to which Chancellor Zabriskie refers, by which costs in equity are in the discretion of the court of chancery, excepting where otherwise directed by the Chancery act or some other law, which is now section 84 of the act of 1902 (P. L. 1902 p. 538), is a very ancient one, having come into our law by the act of June 13th, 1799. Pat. L. 1799 p. 434. The present revision has substituted the words “some other law” for “some other act of the legislature,” whether for economy of words or for some other object does not concern us in the absence of any law, within or without the Chancery act, directing that the costs awarded by the chancellor shall not be in his discretion.

The provision of section 229 of the Practice act (Rev. 1903 p. 597), which gives costs to successful defendants “excepting against executors and administrators prosecuting in the right of their testators or intestates,” is even more ancient, having come in by the act of February 18th, 1795. Pat. L. 1795 p. 149.

These statutes, or to be more accurate, the Chancery statute, modified the general rule that a personal representative, if the title to the action came to him in that character, shall not pay costs if h% fail in such action. As to our courts of law the Practice act was in effect declaratory of the construction that had been placed by the English courts upon the statutes of 23 Hen., 8 Ch. 15, and 4 Jac., 1 Ch. 3, which did not in express terms save executors and administrators from paying costs where defendants succeeded against them. “The exception in our statute,” said Chief-Justice Hornblower in Norcross v. Boulton, 16 N. J. Law, (1 Harr.) 310, “is no broader than that made under the British statutes,” and he gives his reasons for this statement and the cases that support it.

Our Chancery act, on the contrary, by requiring the discretion of the chancellor, forbade the substitution therefor of the arbitrary rule laid down at law or of any fixed and invariable rule, as is pointed out by Chancellor Zabriskie. This, of course, does not mean that rules of practice, as to the normal exercise of such discretion, shall not spring up or that they may not be uniformly applied to similar situations; what it does import is that the departure by the court of first instance from such rules affords, of itself, no basis for interference by this court.

In reaching this result upon the general principles that control in cases of appellate review it has been assumed, in favor of the appellant, that the court below denied to him the protection afforded by its own established rules, for that is the gravamen of his appeal. The fact appears to be otherwise or at least to be unestablished by the appellant. He was not a complainant who was unsuccessful because the facts that constituted the infirmity of liis decedent’s case were unknown to him; on the contrary, he was not a complainant at all, but a defendant, charged with a knowledge of the law. Hence he was charged with knowledge that by statute the complainant’s deed was not subject to be questioned collaterally, and therefore his demand for a feigned issue in order to litigate before a jury matters that were foreclosed by the statute was a useless if not a vexatious proceeding. The court of chancery having, in the exercise of its discretion, visited him with costs such order will not be disturbed.

The decree of the court of chancery is affirmed.

For ajfimance — The Chibe-Justice, Garrison, Swayze, Seed, Trenchard, Parker, Bergen, Yoorhees, Minturn, Bogert, Yredenburgh, Ykoom, Congdon, Sullivan — 14.

For reversal — None.