source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Irwin P. Wolfinger, appellant, v. Dora McFarland, individually and as executrix of William McFarland, deceased, et al., respondents.
    [Argued March 7th and 8th, 1904.
    Decided June 20th, 1904.]
    1. Where all the proof leaves it in doubt whether an alleged agreement to convey lands was an obligatory contract or a declaration of a purpose to confer a benefit, specific performance will not be decreed.
    2. All the terms of the alleged parol contract must, in cases where specific performance is sought, be proven by the complainant with definite certainty or it will be refused.
    3. The complainant claimed to have a parol contract whereby a decedent had agreed to convey to him certain lands used for a foundry. The decedent devised those lands in fee to his widow, who had no notice of the complainant’s parol contract. The complainant persuaded the widow to continue the foundry business on the lands in question as owner thereof, to employ him as manager of the business for a long term, and to spend money in its conduct, without disclosing to her that he had any parol contract for the conveyance of the lands to him. — Mold, the conduct of the complainant above recited estops him from afterwards asserting his parol contract against the widow.
    On appeal from a decree advised by Vice-Chancellor Grey, who filed the following opinion:
    The bill of complaint in this cause is filed by Irwin P. Wolfinger to enforce the specific performance of a contract which, it is alleged, one William McFarland made in his lifetime with the- complainant, to convey a foundry property and its equipment, situate in Trenton, New Jersey, to the complainant, together with an accounting for the profits of the foundry business since the death of McFarland. The defendants are the widow of McFarland, who is executrix and sole devisee in his will, the next of kin and heirs of McFarland, and also Ellis E. Meeker, a lessee, who since the death of McFarland has received a lease of the premises in question.
    The bill alleges that in 1886 McFarland was carrying on the foundry business and had the complainant in his employ as a moulder, paying him as wages $15 per week, and that McFarland then agreed with the complainant that if the latter would remain in his employ he “would pay to the complainant the wages he was then receiving and would increase them from time to time as he might be able and at his death would give his foundry business with all tools, machinery, appliances, appurtenances and everything belonging thereto or used in connection therewith to the complainant absolutely.”
    The bill alleges that afterwards McFarland moved his foundry to another site, at the corner of Breunig avenue and Mead street (described by metes and bounds in the bill), and that the agreement between the complainant and McFarland was renewed that in consideration that the complainant would serve the best interest of McFarland in the foundry business as long as he should live, he (McFarland) would convey to the complainant the Breunig avenue and Mead street foundry lot and its equipment in addition to any other compensation which he might receive.
    The bill alleges performance by the complainant of his part of this contract.
    The bill admits that the complainant received from McFarland constantly increasing compensation as wages for his services; that in 1886 it was $16 per week; in 1887, $18 per'week; in 1889, $20 per week; and from 1898 to the time of McFarland’s death, on December 23d, 1900, at the rate of $25 per week.
    The bill further alleges that in August, 1899, McFarland executed a will, devising the foundry property and its equipment to the complainant “in recognition of his faithful services in the past and care for my interest.” On December 8th, 1900, McFarland executed his last will, and the bill alleges that through undue influence or fraud he attempted to give the foundry property to his widow, Dora McFarland; that this will was proven before the surrogate of Mercer county on January 9th, 1901, and letters testamentary thereon were issued to the defendant Dora McFarland, as executrix thereof; and that the widow, Dora McFarland, was informed of the alleged contract between the complainant and McFarland; that after McFarland’s death the complainant was greatly surprised and disappointed on learning the contents of the will, and being without any position by which to earn a living the complainant, on or about the 14th day of January, 1901, entered into an agreement with the defendant Dora McFarland to manage and operate the foundry for five years at a salary of $1,800 per year; that on April 15th, 1901, Mrs. McFarland leased the premises to the defendant Ellis E. Meeker for the term of five years and put Meeker into possession on the following day against the complainant’s protest, and that Meeker took his lease with full knowledge of the complainant’s right under the alleged contract; that the complainant has demanded from the devisee and next of kin and heirs of McFarland that they convey the premises in question to him in performance of the contract entered into by McFarland in his lifetime, and that they have refused to make such a conveyance; that he is ready to release Mrs. McFarland from any obligation to employ him under the contract dated January 14th, 1901, and return to her all moneys paid him by her upon terms that Mrs. McFarland and Meeker shall account to the complainant for the profits of the foundry business since McFarland’s death.
    The bill prays that the defendant may be decreed specifically to perform the agreement between the complainant and McFarland by conveying to the complainant the foundry property and its equipment; that the lease to Meeker may be canceled; that McFarland and Meeker may account for the profits of the business since the death of McFarland; that Mrs. McFarland and Meeker may be enjoined from disposing of the property, and for further relief, &c.
    A decree pro confesso has been taken against all of' the defendants who are heirs and next of kin of the decedent, McFarland. They appear to have no interest in the suit unless the will should for some reason be declared invalid.
    The defendant Dora McFarland, who is the widow of the decedent, McFarland, the executrix of his last will and the sole devisee of the property in question, files an answer to the bill of complaint, denying that McFarland ever made the contract set forth in the bill. She admits that the complainant was in the defendant’s employ and in the receipt of wages for services rendered, and that he continued in the service of McFarland to the time of his death; but she denies that the complainant’s services were rendered.in pursuance of any such agreement as is set forth in the bill; on the contrary, she insists that the wages received by complainant were in full compensation for the work and services by him done and rendered to McFarland. She leaves the complainant to the proof of his allegation that the decedent, in August, 1899, made a will, devising the foundry property in recognition of his faithful services.
    The defendant Dora McFarland further admits that the decedent, William McFarland, on the 8th day of December, 1902, made his last will, devising and bequeathing his real and personal property to the defendant Dora McFarland, which will she duly proved on January 9th, 1901, before the surrogate of Mercer county; and that on January 14th, 1901, the complainant entered into the written agreement named in the bill. She alleges that by that contract the complainant undertook to act for .her as manager of the foundry business for the period of five years, from January 14th, 1901, at a salary of $1,800 per year; that, with full knowledge of the decedent’s will, dated December 8th, 1900, devising the foundry business to her, the complainant thus recognized her as the owner of the foundry and business, and entered into her service as such owner, and conducted and carried on the foundry business for her until April 17th, 1901, receiving wages at the agreed rate named in the contract; that at the last-named date the defendant leased the foundry to Ellis R. Meeker, agreeing with him (Meeker) for the taking over of all contracts by him relating to the business with the option to purchase the premises.
    The answer of the defendant Dora McFarland sets forth the substance of the agreement between her and Meeker, and particularly this clause:
    “And this indenture also witnesseth, that for the consideration hereinbefore expressed, the said party of the second part shall and will continue in his employment one Irwin P. Wolfinger, mentioned in a certain writing, dated January 14th, 1001, purporting to be an agreement of hiring between the said party of the first part and the said Irwin P. Wolfinger, subject to the terms thereof (a copy of which the said party of the second part has already seen) until the expiration of the term of service therein in that behalf provided.”
    The defendant Dora McFarland further alleges, that this agreement was exhibited to the complainant, and that he then availed himself of the benefit of it by entering into Meeker’s service to manage for him the foundry and business in the same capacity and on the same terms as the complainant had agreed to work for the defendant Dora McFarland by the contract of January 14th, 1901, and that the complainant continued to work for Meeker, managing said foundry business for him, up to May 13th, 1901, the date of the filing of complainant’s bill.
    The defendant Dora McFarland insists that the complainant, by his making the contract of January 14th, 1901, to carry on the foundry business for five years as her manager of that business, and by his entering into the service of the defendant Meeker in the same capacity on the same terms, has waived and abandoned any rights, if any he ever had, under the supposed contract with the decedent which the complainant sets up in his bill and which he now seeks to have specifically performed under a decree in this cause.
    The defendant Dora McFarland denies the right of the complainant to any relief in equity and prays the same benefit as if she had demurred to the bill of complaint.
    The defendant Ellis E. Meeker also answers the bill of complaint. He denies all knowledge of the alleged contract with the decedent McFarland which the complainant seeks to have specifically performed, referred to in the bill, and charges that there never was in fact any such agreement. He admits the ownership of the foundry by the decedent, his death, that his will devises the foundry and its equipment to his widow, the defendant Dora McFarland. He alleges that the complainant, after he had knowledge of the decedent’s death and that by his will he had given the foundry and business to the widow, contracted with her to manage it for her for five years at an annual salary of $1,800; that learning this and that the will had been proven, the defendant Meeker, on April 17th, 1901, leased the foundry and business from Mrs. McFarland at an annual rental of $3,000 and agreed to continue to employ the complainant according to the terms of his agreement of January 14th, 1901, with Mrs. McFarland. The defendant Meeker denies that his rights in the foundry and business under his lease from Mrs. McFarland are in any way subject to any claim of the complainant; on the contrary, Meeker insists that if complainant ever had any such rights in the premises as he alleges in his bill of complaint, he has by his contract of January 14th, 1901, with Mrs. McFarland acknowledged her to be the owner of the foundry and business, and by his renewal of that contract, accepting emplojunent under Meeker, has acknowledged the efficiency of the latter’s lease of the foundry and business from Mrs. McFarland and that the complainant is thereby now estopped, to assert his supposed rights in that foundry and business, as he seeks to do by his bill of complaint.
    The defendant Meeker amended his answer, reciting the complainant’s claim by his bill of complaint that he became entitled to the foundry and business upon William McFarland’s death, and that it appears on the face of the bill that since McFarland’s death the complainant entered into a written contract with Dora McFarland, who is William McFarland’s devisee of that property, whereby the complainant agreed to -manage and operate it for the said devisee for the period of five years from January 14th, 1901, which written contract appears to be yet in full force and effect. The defendant Meeker claims that the complainant cannot, in view of these facts, have a decree that he became the owner of the foundry and business upon McFarland’s death, as he prays in his bill, and for this reason the defendant Meeker asks the same benefit as if he had demurred to the bill of complaint.
    Issue was joined on these pleadings and the cause came to final hearing on the testimony offered by the respective parties.
    The contract which the complainant in this cause seeks to have specifically performed is stated by him in his bill of complaint as follows: He alleges that the decedent, William McFarland, in 1886, agreed with him (the complainant) that if the latter would remain in his employ he would pay the complainant the wages he was then receiving, and would increase them from time to time as he might be able, and at his death would give his foundry business (then carried on upon Taylor street, Trenton) with all tools, machinery, appliances, appurtenances and everything belonging thereto or used in connection therewith to the complainant absolutely; and that afterwards this agreement was renewed and applied to a lot of land, described in the bill by metes and bounds, situate on Breunig avenue, Trenton.
    The alleged contract is not claimed to have been reduced to writing. All of the evidence which is offered to show that any contract was ever made consists of the casual parol statements made by the decedent, McFarland, to various persons to whom he talked about his business relations with the complainant. In the absence of proof of an agreement, which would be forceful against the statute of frauds, the complainant alleges that he has fully performed his part of the alleged agreement and is therefore equitably entitled to have those who represent the decedent decreed specifically to perform his part thereof.
    No testimony is offered which attempts to directly prove the making of the contract set up in the bill of complaint. Nobody testified that he was present when any such contract was made, either at its inception (in 1886) or at the time of the alleged renewal, applying the contract to the Breunig street property. Some fourteen witnesses testify to statements made by the decedent, McFarland, regarding his business relations with the complainant, and it is these statements of the decedent which are relied upon to show that any contract ever was made by him with the complainant whereby the complainant was to receive a conveyance of the lands and business in question. Hone of these witnesses testify that any of these statements of the decedent, McFarland, were ever made to or in the presence of complainant. No two of these witnesses testify with precision to the same statement by the decedent. The language said to have been used by him, as it is repeated by more than two-thirds of the witnesses, is entirely consistent with the declaration of a purpose to make a gift, and does not convey the idea that the decedent declared that he had made a contract. Most of the witnesses testify that the decedent, McFarland, made statements such as these: “He told me at the time that Mr. Wolfinger [the complainant] should get the foundry.” “I expect Irv. [the complainant] to succeed me here.” McFarland said “He proposed to give that business to Irv.” “I have arranged to let Irv. Wolfinger continue the business on his own account.” “I am going to give him the foundry.” “He had decided to turn over the factory and business to him [Wolfinger] wdien he was dead.” “He had promised Irv. the factory,” and the like.
    There are, however, several witnesses who testify that the decedent, McFarland, had, in casual conversations with them, made admissions which have color of recognition of a contract between himself and the complainant. The first witness who refers to any admissions of a contract was a man named Lafetra. He testifies that McFarland said “the foundry business here is for Irv., my business manager, but not this, showing me with his finger along in this direction that the new power building didn’t go with the foundry building. * * * He had told me perhaps a dozen times that this property he proposed to give to his business manager for extra services rendered. That is about the way he expressed himself.”
    These statements of the decedent are rather the talk of an intending benefactor than of a party bound by a contract. But there is a further statement by this witness that in July, 1899, the decedent, McFarland, said to him that there was an agreement “whereby Wolfinger was to have extra compensation. What that extra compensation was might be construed in a. good many ways,” &c.
    Testimony touching the essential point of the case, which it is declared by the witness who gives it “might be construed in a great many ways,” is of very little aid in deciding what the contract in fact was.
    A Mr. Pattison testifies to a statement by the decedent, more in the nature of an admission of a contract, in which he said “Wolfinger had made an agreement- with him to stay with him as long as he lives to run the foundry, and th'e foundry and business should be his when he either retired or died.”
    Mrs. Pattison also testified that McFarland said to her, VI cannot afford to pay Mr. Wolfinger just what I ought to pay him —not just now;” and he said, “We have made an agreement between the two of us that Mr. Wolfinger should have the foundry if anything happens to- me, that is the only way I can pay him back for all he has done for me.” This language, it is to be observed, is not that of one who feels the obligation of a defined contract, but rather that of a friend who expects to arrange a grateful recognition of kindness received. At a later place in her testimony, in response to the probing of complainant’s counsel, the same witness said, “I think I do remember him [McFarland] saying something to me once about Mr. Wolfinger was going to leave him, and he asked him to stay with him, and he said that if he stayed with him the recompense would be the foundry and business — he would repay him in that way if he stayed with him as long as he lived.” Another witness, a Mrs. Pancoast, testifies that the decedent said regarding Mr. Wolfinger (complainant) that “if he stood by him the understanding was, that if he would stand by him and live up to his agreement as long as he lived, his foundry property and all pertaining was to be his after he was done with it.”
    Mr. Pancoast also testified that Mr. McFarland said to him that Wolfinger knew what he was going to get for his services, and that was the foundry, and in fact he took me out and showed me one day what was to be Wolfinger’s. lie said, “The bargain was, if he [Wolfinger] stayed with him and looked after ■the business as long as he lived, everything was to be Ms when he was done with it. * * * He told me that Wolfinger was to have it for the good work he had done, to pay Mm. * * * He was to get the foundry and everything connected with it; that was to be his.”
    These parol statements of the decedent, McFarland, are, it is claimed, admissions of the existence of a contract, which are sufficient to support a decree for the specific performance of the undertaking to convey, set forth in the bill of complaint.
    It appears to be an accepted rule that verbal admissions ought to be received with great caution. It frequently happens that the witness, by unintentionally altering a few expressions really used, gives an effect to the statement completely at variance with what .the party actually did say. 1 Greenl. Evid. § 200. Words which are used in a sense expressing grateful appreciation of kindness received, and an intention to requite them, are not admissions of an obligatory contract. A mere promise to confer a benefit, though made in explicit terms, is not a contract. Even if the promisor declares that the in-inducements which led Mm to make the promise were the valuable services which the beneficiary was rendering him, the transaction is yet not a contract.
    Mr. Justice Dixon, speaking for the court of errors and appeals, illustrated this difference in the case of Eggers v. Anderson63 N. J. Eq. (18 Dicle.) 268.

    In order to prove a contract it must be shown that the parties were mutually bound, each to the other, by consideration moving both ways. To prove an alleged contract for services it is not enough to show declarations by the party receiving them of a purpose to confer a benefit for the services received. A contract must be proven whereby the party doing the services agreed to render them in consideration of values which the other party agreed to give for them.
    The witnesses who testified to the above statements of Mr. McFarland, which have some appearance of acknowledgment of a contract, gave no impression in delivering their testimony that they were repeating his words with accuracy. They had no especial reason to remember the expressions he used. They heard them in mere casual conversations. A very slight change would vitally alter their significance. Their testimony varies from that of the great majority of the witnesses who heard Mr. McFarland speak on the subject of his intentions regarding the foundry. These show that his language was that of one who, without any sense that he had contracted to transfer property in payment for services, yet in grateful recognition of kindly help, proposed to reward a faithful employe by a gift. The complainant’s own conduct, which will be hereafter discussed, strongly supports the view that there was no contractual undertaking by Mr. McFarland to give the foundry property to the complainant.
    Taking the most favorable view for the complainant, it must be said there is a failure to show, by satisfactory proof, such a contract as will be specifically enforced by decree.
    . In addition to the doubtful character of that evidence, which comes nearest to exhibiting some contractual undertaking by Mr. McFarland, it does not (when the statements of the different witnesses are compared with each other) show that the terms of the contract alleged to have been admitted by Mr. McFarland were in each instance the same, and in none of them do the terms stated agree with those alleged in the complainant’s bill of complaint.
    The only attempts to show any written recognition by Mr. McFarland of the alleged contract to convey or devise the foundry business to the complainant are a clause alleged in the bill of complaint to have been part of a will made by Mr. McFarland on May 4th, 1900, “in pursuance of such an agreement and for the purpose of carrying out the same,” and a letter written by McFarland. The clause regarding the will is as follows:

      “Eighth. I do give, devise and bequeath to Mr. Irwin P. Wolfinger, of Trenton, New Jersey, in recognition of his faithful services in the past and care for my interests, the foundry property now owned and operated by me in the city of Trenton, New Jersey, together with the buildings and appurtenances, comprising the six city lots upon which said buildings are erected, located in the said city of Trenton, and also all the tools and contents of said foundry as the same shall stand at the time of my decease, to him, his heirs and assigns, absolutely.”
    It is extremely likely (although it was uot proven) that Mr. McFarland did, at some time before his last marriage, make some such provision in a will as is above quoted, which he subsequently revoked by a later will, made after his second marriage. But the quoted clause contains no recognition of any contract. Its phrasing is that of one who is making a gift to a faithful servant, not of one who is performing an obligation.
    The other written reference is contained in a letter by Mr. McFarland to one William II. Thomas, on December 15th, 1899. In the letter occurs this phrase : “Business is good yet and I have arranged to let Irv. Wolfinger continue it on his own account when I am done with it.” Hot a word in this letter indicates that the writer was mentioning an arrangement entered into because of any contract to give the business to Wolfinger. The reference is obviously to the whole of the decedent’s business, and not to the foundry and its business, which is the present claim of the complainant. It does not even declare a purpose to make a gift of the property to complainant, but simply to permit him to carry on the business on his own account.
    The relations between Mr. McFarland and Mr. Wolfinger were such that it may readily be believed that Mr. McFarland, in the statements made by him, referred to an intended disposition of his property which was, in his conception of it, voluntary, and not obligatory. The complainant was his managing foreman. The decedent was paying him wages which had been increased from $15 per week, at the beginning of his employment, to $25 a week during the last two years, with corresponding advancement in the character of the work required. They were upon friendly, almost affectionate, terms. Each expected from the other the most kindly consideration. Neither saw any reason for a hard and fast bargain as to the future, and there is therefore less likelihood that any such bargain was in fact made.
    The probability that Mr. McFarland’s consideration for the complainant was voluntary and not obligatory, is cogently supported by the complainant’s own conduct, when it was made known to him, after Mr. McFarland’s death, that he had by his last will given all his property to his surviving widow. Mr. McFarland died on December 23d, 1900. On the day of the funeral the complainant asked Mrs. McFarland if he should go on with the business at the foundry, and accepted orders from her to go right on with it. About a week after the funeral he asked Mrs. McFarland if she was going on with the business, and accepted directions from her to take charge of it. He suggested to her, as he would have to look after everything now, whether she did not think it was worth more money than he had been receiving. He fixed his own salary, naming to Mrs. McFarland a sum not quite $1,800 a year, and she said “make it $1,800.” He declared to her that he would do his best to' please her and would keep her posted as to everything that was going on. He said nothing whatever to her intimating in any way that he had any claim to be the owner of the business. Nothing was said about Mr. McFarland’s will until about the 14th or 15th of January, 1901, when Mrs. McFarland, having-brought it to the office of the foundry, the complainant asked her if she had it, and when told that she had, he said, “Would you mind letting me see it?” The will gave all the decedent’s property to Mrs. McFarland, including, necessarily, the foundry and business which the complainant now claims. Upon reading it the complainant said, “Well he has blackballed me; he has forgotten all about me; I thought he would remember me.” Mrs. McFarland said, “Perhaps he would have, if he hadn’t married again.”
    At this time the complainant knew by the will itselt that Mr. McFarland had disposed of the foundry property as if he were under no contract to convey it to the complainant as compensation for services. With this knowledge before him, the complainant gave no hint by any expression or protest that he ever had any contract with Mr. McFarland that the latter should convey the business to him. On the contrary, the words he used indicated his disappointment, not that the will had broken a contract, but that the testator had not remembered him as he had expected he would.
    From the time of Mr. McFarland’s death, on December 23d, 1900, the complainant continued to accept wages from Mrs. McFarland for the conduct of the very business which he now-claims the decedent had agreed to • convey to him. He knew that Mrs. McFarland, believing herself to be the owner of the foundry and business by the gift under the will, was paying the weekly wages of the men and advancing the money necessary to carry on the business.
    This situation of affairs continued until the 14th day of January, 1901. It then came to the complainant’s knowledge that different parties were seeking to purchase the foundry and business from Mrs. McFarland, and that her counsel had advised her to give it up. He knew that there was pressure on her to have her sell out and he was afraid that she would do so. He was not content with the verbal assurances of Mrs. McFarland of his continued employment, and wanted a contract in writing that he should be emploj^ed for five years. He dictated the terms of such a contract to Mrs. McFarland, knowing that her counsel disapproved of it. She, at his suggestion, wrote the contract and signed it, and he added an acceptance and signed it, and procured witnesses to attest its execution and retained the paper. It is in the following words and figures.:
    “Trenton, N. J., January 14, 1901.
    “I do hereby engage Irwin P. Wolfinger to manage and carry on the foundry business for five years at a salary of $1,800 a year.
    “(Signed) Dora McFarland.
    “I accept the same. (Signed) Irwin P. Woleinger.
    “Witness— ■
    “D. Grant Frye.
    “Louis Gerlach.”
    On the hearing, strenuous efforts were made by the complain-1 ant’s counsel to minimize the effect of the making of this agreement, and it has been energetically argued that-it has little significance, because made by the complainant in ignorance of his rights and without the previous advice of his counsel. It may be doubtful whether the advice of his counsel had been received on the subject-matter of this contract prior to its making, but it is impossible to read the cross-examination of the complainant himself on this point without being convinced that this contract was of his own uninvited suggestion, contrivance and proeurance. His manner, when testifying as to the drafting and execution of this contract, showed that he sought to convey an impression contrary to the fact as it happened. He induced the widow to make the contract and dominated the whole transaction.
    If the agreement to convey set up in the bill of complaint was ever in fact made between the decedent and the complainant, the latter would have disclosed it to Mrs. McEarland before entering into their contract of January 14th, 1901. No advice of counsel was necessary to explain so evident a duty. The complainant, at that time, had known for several weeks that the decedent had by his will given the foundry and business to Mrs. McEarland, and that he had thus, in substance, denied that he had contracted to give them to the complainant. The latter also knew that Mrs. McEarland had accepted the gift, and that she was proceeding to act as owner of the foundry and business, spending money, incurring debts and making contracts in the conduct of its affairs, and he had no reason to believe that she had any knowledge of his alleged claim to the property — in fact, she had no intimation of his claim. The complainant not only kept silence, but he invited her to act as owner by a contract which for five years fixed an obligation upon her as owner, operating in his favor as an employe under her ownership.
    The complainant contends that Mrs. McEarland declared that this contract of January 14th, 1901, was made for a purpose, and that her counsel could readily defeat it. There is some testimony on the point, but the impression I have received from all the proofs is that there is not the slightest probability that she ever said anything of the kind. She for a time forgot that she made that contract, but when reminded of its existence by the complainant, who asserted its protecting force, Mrs. McFarland at once acknowledged it. Neither she nor her counsel ever attempted to defeat it. On the contrary, its obligation was recognized and imposed by Mrs. McFarland upon Mr. Meeker, to whom she leased the foundry, and its benefits were accepted by the complainant from both Mrs. McFarland and Mr. Meeker, her transferee.
    Long after the complainant had enjoyed the advice of counsel, as late as Easter Monday of 1901, he and his counsel used this contract to compel Mrs. McFarland to continue the complainant in her employ. Pie continued so to use it while the bill in this case was being prepared, and kept on using it after the bill was filed on May 13th, and as late as July 2d, 1901, by a letter to Mrs. McFarland, the complainant tendered himself ready to perform his part of it.
    Other conduct of the complainant is entirely inconsistent with the idea that Mr. McFarland ever made a binding contract to give the foundry and business to the complainant. On February 10th, 1901, the complainant, as sworn appraiser, helped to make the inventory, which enumerated the foundry, tools and equipment as part of Mr. McFarland’s personal estate. On the 15th of February, 1901, the complainant suggested to Mrs. McFarland that he needed a power of attorney to enable him to conduct the business for her, and she, as owner of the foundry, gave him one, authorizing him to carry it on for her in the name of the “Estate of William McFarland.”
    She continued to furnish funds to the complainant and to direct the conduct of the business which he carried on for her. She wrote to the complainant on the 13th day of March, 1901, stating that someone had applied to her to see if she would sell the foundry. She received applicants for the purchase of it, who were shown over the premises in the presence of Mr. Wolfinger without a suggestion at any time that he claimed any rights in the property. Wolfinger spoke to Mrs. McFarland of these possible purchasers of the foundry, and said that it was foolish for her to sell it. He was extremely desirous that she should make no sale of it, and that he should be continued in her employment as manager.

      Ill the month of March, 1901, Mrs. McFarland had caused an examination to be made of the books at the foundry and became dissatisfied with Mr. Wolfinger’s method of conducting the business. She forgot the contract of January 14th, 1901, and on Easter Monday (the 8th day of April, 1901) she attempted to discharge him by a summary notice. He and his counsel at once confronted her with that contract, by which, as owner of the foundry and business, she had contracted to employ Mr. Wolfinger as her manager for the term of five years. Wolfinger and his counsel threatened Mrs. McFarland with a suit for damages if she persisted in her attempts to discharge him. They used the contract, which they now insist Mrs. McFarland led Wolfinger to make, to compel her to continue' to act as the owner of the foundry and business and to retain the complainant as her employe in that business. Mrs. McFarland accepted the inevitable. She withdrew her notice of the discharge of the complainant and continued him in her employ at the wages provided for in the contract.
    For three months after Mr. McFarland’s death and for more than two months after Wolfinger knew Mr. McFarland had given the foundry and business to Mrs. McFarland, Mr. Wolfinger had seen Mrs. McFarland continue to act as the owner of that property; had himself contracted with her as the owner; had compelled her to recognize that contract; had participated in transactions based on her ownership, which necessarily called for expenditures of money and the assumption of contractual obligations by her; and he never, in all that time, in any way asserted that he had any such claim as he now sets up in his bill of complaint.
    I am presently considering the complainant’s attitude not with relation to the working of an estoppel because of his silence when he should have spoken, but as to its indications that in truth there never was any contract between him and the decedent, Mr. McFarland, whereby the latter agreed for a consideration to convey or devise the foundry and business to the complainant. If there was in fact any contract between the decedent, McFarland, and Wolfinger'to that effect, the latter must have been aware of it during all the transactions in which he recognized Mrs. McFarland as the owner of that property. Had there been such an agreement it would have been the most reasonable and natural thing for Mr. Wolfinger, in his own defence, to have disclosed it to Mrs. McFarland.
    I am constrained to believe that the reason Mr. Wolfinger did not mention any such claim to her was, that in truth there never was any contract between himself and Mr. McFarland. What had taken place between them was merely a promise to make a gift, and Wolfinger, on finding that Mr. McFarland had changed his mind, obtained from Mrs. McFarland the contract of January 14th, 1901, as the best thing he could do to take care of his own interests. He had relied upon Mr. McFarland’s kindly consideration for him. He believed and expected that he would be remembered by way of gift in his will, and when he found he was not, he accepted the disappointment as conclusive.
    The complainant’s subsequent claim is an afterthought, encouraged by the discovery that Mr. McFarland had told many people that he intended to give the foundry and business to him. Mr. McFarland is dead; he cannot state his side of this controversy. It is not to be presumed, without proof, that he deliberately perpetrated a fraud upon a faithful employe by breaking his contract with him. But it can readily be believed that his desire to care for his new wife might have led him to change his previous purpose to make a generous gift to such an employe.
    Giving to all of the evidence, affirmative and negative, its full significance, it is not sufficiently shown that Mr. McFarland made any contract to convey or devise the foundry and business to the complainant to entitle the complainant to a decree for specific performance.
    In' addition to the failure to prove the undertaking of a contractual obligation, the complainant’s evidence is too uncertain, in defining the terms of the alleged' agreement, to be the basis of a decree for specific performance. It is entirely settled that in order to enforce specific performance of a contract which is within the statute of frauds on the ground of part performance, the parol agreement relied on must be certain and definite in its terms. Brown v. Brown, SS N. J. Eq. (6 Stew.) 651 (Court of Errors and Appeals).

    In the present case it has been shown that Mr. McFarland, in his lifetime, conducted a machine shop and' foundry business. The machine shop and the foundry adjoined each other. The bill of complaint alleges that the decedent agreed to give the complainant “his foundry business, with all tools, machinery, appliances, appurtenances and everything belonging thereto or used in connection therewith.” The bill assumes that this alleged contract affected not only the foundry business and its equipment, but also the lot of land and real estate upon which it was conducted. A metes and bounds description of the Breunig street lot of land is recited in the bill. Some of the witnesses say that Mr. McFarland stated that he was to give the complainant the “foundry,” some of them that it was the “business,” some of them the “factory and business.” Nothing that Mr. McFarland said in the repeated admissions mentioned any land as intended to be included in his gift to the complainant, except as the word “foundry” might mean land. Nothing in his alleged admissions defined what land was included in -the foundry. There has been no proof of anything said by Mr. McFarland which fixed a defined line where the machine shop and the foundry (admittedly located immediately adjoining each other) separate. It has not been shown what was included within the word “business,” as alleged to have been used by the complainant. It is indeed one of-those things, as the witness Lafetra described it, “which might be construed in a good many ways.” These definitions of the alleged subject-matter of- the contract are too uncertain.
    In the foregoing review of this ease I have not considered the element of estoppel, which is insisted upon by the defendants with great force, to the effect that the complainant is estopped by his own conduct from asserting himself to be the purchaser of the foundry.

      As this point is presented by the defendant Meeker, it appears to have less strength than as put forward by the defendant Mrs. McFarland. It is shown that before Mr. Meeker had entered into any binding contract for the purchase of the foundry, and before he had paid any part of the purchase-money, he was fully notified of the complainant’s claim upon the foundry and business. Mr*. Meeker, in subsequently -leasing and taking an agreement to purchase, took the risk that the complainant’s claim mig-ht be successfully asserted. Mr. Meeker, however, alleges that as to him the complainant has waived and abandoned his claim by accepting service under his five-year contract with Mrs. McFarland after it had been transferred to Mr. Meeker. It is in proof that Mr. Wolfinger, having contracted with Mrs. McFarland, as owner of the foundry and business, to work for her for five years as her employe in that business, did in fact accept Mr. Meeker as his employer in the foundry under the five-year agreement in Mrs. McFarland’s place, while at the same time he was prosecuting the present suit which seeks to compel Mrs. McFarland and Mr. Meeker to convey the foundry and business to him as purchaser by a contract obligatory upon them. The two positions thus assumed by the complainant seem to be quite irreconcilable, but Mr. Meeker was in no way misled by anything done by the complainant in the premises. Mr. Meeker knew of the impending suit when he took his lease and option to purchase, and when he continued Mr. Wolfinger in his employ. The complainant has' ever since, to Mr. Meeker’s certain knowledge, actively prosecuted this suit, and, far from waiving or abandoning his claim, has diligently pushed it. Mr. Meeker has predicated no action upon Mr. Wolfinger’s supposed waiver of his claim.
    The complainant’s relation to Mrs. -McFarland on the charge that he is estopped is much more forceful. Assuming, for the moment, that there was in fact a contract between the complainant and Mr. McFarland in his lifetime that the latter should convey or devise the foundry and business to the complainant, it was necessarily within the complainant’s knowledge. Immediately after Mr. McFarland’s death the complainant became acquainted with the fact that by Ms will Mr. McFarland had repudiated this contract, and had given the subject-matter of it to Mrs. McFarland. The complainant knew that she had accepted the gift and he had no reason to believe that she had any knowledge of his claim to that property — in fact she did not know of it. ■
    With all this information the complainant, without disclosing his claim to Mrs. McFarland, advised and induced her to undertake the foundry business as owner of it, to spend money on account of it, to make contracts in the conduct of it (one of them with himself), and to change her position in a way which it is impossible to believe she would have done had she known that he claimed that he was himself the owner of the property. He actually accepted a power of attorney given by her as owner to carry on the business for her.
    The complainant’s counsel, recognizing the awkwardness of this situation, offer in the bill of complaint to release Mrs. McFarland from her contract (as owner) to employ the complainant for five years as manager, and to return what money she had or might pay him on account of that contract, upon terms that she should convey the foundry and business to him and account to him for the profits of the business up to that time. But the conduct of the business w;as not solely between Mrs. McFarland and the complainant. Her contract to employ him is but a small incident of the business. She took the property, it is true, as a volunteer, but the proof is that, believing herself to be the owner and knowing nothing of the complainant’s claim, she, by the complainant’s contrivance, advanced money and entered upon the conduct of the business. She may have, and it is entirely reasonable to believe that she has, in the conduct of the business, entered into other outstanding contracts than that with the complainant, possibly losing contracts. From these matters, the complainant makes no offer to relieve her.

      If it be assumed that the complainant had the contract with Mr. McFarland alleged in his bill of complaint, he should be estopped to assert it as against Mrs. McFarland, after he had persuaded and induced her to enter upon the conduct of the foundry business without disclosing to her the fact that he had a contract which would take that business away - from her. There is no difference, in principle, between his action and that of an intending purchaser who has obtained from an owner of lands a private contract to convey to him, and who, secreting the fact that he has such a contract, induces the heir or devisee of the owner to build on the lands.
    The complainant has failed to present a case which entitles him to a decree for specific performance, as prayed for in his bill of complaint.
    I will advise a decree that the bill ,be dismissed, with costs.

      Mr. Carroll Robbins and Mr. Robert S. Woodruff, for the appellant.

      Mr. James Buchanan, for the respondents.
   Per Curiam.

The decree in this cause is affirmed, for the reasons given by Vice-Chancellor Grey in the court below.

For affirmance — Dixon, Garrison, Fort, Hendrickson, Pitney, Swayze, Bogert, Vredenburgi-i, Vroom, Green, Gray —11.

For reversal — None.


text:
    Ferdinand Titus, respondent, v. John McGloskey and Hattie McGloskey, appellants.
    [Argued July 6th, 1904.
    Decided December 9th, 1904.]
    The mother of a child died when she was three months old. The child, who was sickly, was committed by her father to the custody of her mother’s parents, with whom she has remained until now, her father contributing nothing to her support. Having married again, he asks that his child, now nine years old, be restored to him. It appearing that he is a man of good habits; that he has steady employment; that the lives- and means of support of the grandparents are precarious and that their income is inadequate to the proper care and nourishment of the child — Held, that it was for her welfare that she should be restored to him.
    On appeal from an order advised by Vice Chancellor Stevens, who filed the following memorandum:
    In this case, I think that Euth Titus should be delivered into the custody of her father. She is now nine years old and sickly. Her mother died about three months after she was born, and her father committed her to the custody of her mother’s parents, with whom she has remained ever since. He seems to have manifested but little interest in his only child’s welfare until within the past three years, and although the grandparents were poor, he contributed nothing to her support. He remarried in 1899, and in the next year, or the year following, he asked for his child. The grandparents, who live in Phillipsburg, refused to surrender her. He and his wife now desire to take her to their home in Morristown.
    John McGloskey, the grandfather, is sixty-nine years of age and very infirm. He is a carpenter by trade, but has been unable to work for the last eight years. He served in the civil war and receives a pension of $24 per month. He owns the house in which, he lives. It is worth about $2,000, and is mortgaged for $600. Pie rents a part of it for $5 a month. These sums, with the money which his wife, who is sixty years old, earns at times, by washing, &c., is all that the family has to live upon. The grandparents are very fond of the child, and the evidence demonstrates that they have done what they could for her with their narrow means.
    Ferdinand Titus, the father of Ruth, is thirty-two years old. He is a bartender; a man of good habits and reputation. He has steady employment; receives $16 per week, and has a comfortable home. He says that he has money in the savings bank, which he is willing to devote to his daughter’s good. The child is afflicted with scrofula, and her eyesight and hearing are both impaired. It is said that proper nourishment and care will greatly benefit, if not cure, her.
    Considering how precarious are the lives and means of support of the grandparents, I cannot doubt but that the welfare of the child will be promoted by giving her to her father. He is her natural guardian, and it is his duty as well as his wish to take care of her. The case is quite different from Richards v. Gollins, 45 N. J. Eq. (18 Stew.) g‘88.

      Mr. Bartlett G. Frost, for the appellants.

      Mr. John II. Condon, for the respondent.
   Per Curiam.

The order appealed from in the above cause is affirmed, for the reasons given in the court of chancery.

For affirmance — Dixón, Garrison, Pitney, Swayze, Reed, Bogert, Vredenburgi-i, Vroom, Green, Gray — 10.

For reversal — Hone.


author: Pee Cueiam.

text:
    Traugott Wirsching, respondent, v. Grand Lodge of Free and Accepted Masons of New Jersey, appellant.
    [Argued June 24th and 27th, 1904.
    Decided April 8th, 1905.]
    1. A deed may be corrected on the ground of mistake where the mistake is mutual. If unilateral, the. remedy is rescission.
    2. Complainant, seventy-one years of age, physically infirm, a German unable to read or write English, applied for admission to defendant’s Masonic home. One of the rules of the lodge was that an applicant should, before admission, execute to it a deed of all his property. Complainant, at the time of his application, had a vested interest in a legacy of $3,000, payable at the death of his brother’s widow. At the time he executed the deed (which was in English) he was informed by an attorney that his interest in the legacy did not constitute property, and would not pass. 1-Ie had, before executing it, stated in his application that he was without property, real or personal, and he was received into the home oh this understanding, the lodge being then in ignorance of the existence of the legacy. He remained nine months and then, the widow dying and the legacy becoming payable, and the lodge insisting that the legacy belonged to it, he left the home and sued to rescind, offering to pay a reasonable sum for his board and lodging.' — Held, that he was entitled to relief.
    On appeal from a decree of the court of chancery advised by Yice-Ohaneellor Stevens, who filed the following conclusions:
    The proofs in this case appear to present a case of mistake. The facts are, briefly, these: The complainant was for fifteen years in the employ of the Singer Sewing Machine Company, as a laborer. He is seventy-one years of age, and owing to a physical infirmity became incapacitated for work. Some of his friends suggested that he apply for admission to the home of the grand lodge, in Burlington. He had been a member of the Herman lodge, 'a subordinate society, for thirty years. Accordingly, he made application for admission. The papers wore filled out by one J ansen, a member, but not an officer, of the grand lodge. Whether he was the agent of the grand lodge, or whether he merely acted as Wirsehing’s agent, does not very clearly appear. The application, dated March 18th, 1902, is in the printed form commonly used by the lodge. One of the questions was as follows: “What property have you, real or personal?” and the written answer, in Jansen’s handwriting, was “None.” This answer was, in point of fact, incorrect, for the complainant had at that time a vested interest in a legacy of $3,000, payable at the death of his brother’s widow. Pie was a German of not much intelligence, unable to read or write English. He may have thought that because he had no right to the present possession of this legacy, and because he might never come into possession of it, if the widow should survive him, the answer was correct. With this application there appears to have been sent a paper, entitled “Regulations for the Masonic Home,” one of which required the applicant, before his admission, to execute a deed of conveyance to the grand lodge of all his property, real and personal, then owned or that might thereafter come into his ownership or possession, or to which he might become entitled. Although in his. application complainant said, in answer to one of the printed questions, that he had read these rules, there is no evidence, outside of the answer itself (which is in Jansen’s handwriting), that he had done so. He could not have read them himself, for he could not read English, and there is no affirmative evidence that they were translated to him. The application, as filled out and as signed in German character by the complainant, was sent to the secretary of the grand lodge, who sent back a form of deed containing the usual vacant space for the description of the property to be conveyed. It was worded in conformity with the above-mentioned regulation. As it was necessary to acknowledge this latter paper, Jansen took complainant to the office of Louis Graff, an attorney, in Elizabeth. They were neither of them' his clients, and Graff had no connection with the lodge. Their recollection of what took place at his office is vague, and if the case depended on their testimony alone it would fail. Its vagueness is largely attributable to their unintelligent comprehension of what they were doing. Had the lodge been represented by an intelligent agent, there would have been no misunderstanding. Mr. Graff, however, has a clear recollection of what occurred, and, as he is an intelligent and disinterested witness, I see no reason to doubt his statement, corroborated, as it is, by facts and circumstances which are not and cannot be denied. Complainant, so Graff states, told him that his brother had given him the legacy in question, but that- he did not intend ,to transfer -it to the society; that he wanted it to go to his children. Graff, like Jansen, appears to have thought that this legacy was a mere contingency; that it did not come under the designation “property,” and that as the complainant had no property other than this, it was unnecessary for him to sign any deed. He thereupon drew an affidavit, in which it was stated that complainant was “in indigent circumstances, without property, either real or personal, wearing apparel excepted.” This the complainant swore to, and then Graff sent it, with a letter, as he thinks, to the superintendent of the home. He says that he received a reply (which he has mislaid), telling him that the signing of the deed was a mere form. While the superintendent denies writing such a letter, it is clear that the affidavit-reached one of the eompanjr’s officers, for it was produced from their custody on the trial. It is an undeniable, and, as it seems to me, an important, fact in the case, that Wirsching did not gain admission to the home by any representation that he possessed property. His denial that he possessed any is found not only in his affidavit, but also in his answer to the printed question, to which I have already alluded. On receipt of the reply, whether it came from the superintendent or some one else, Jansen and complainant went again to Graff’s office. The subject of the legacy was again referred to and Graff told complainant that he could sign the deed without transferring it. He did not translate the deed verbatim, but merely stated the effect of it as he understood it, viz., that it was a conveyance of such property as was coming to complainant; as might be sued for at the time he entered the home! He told him that the legacy would go just as he desired. How, in this, Mr. Graff seems to have been laboring under a confusion of ideas, but, in point of fact, there can, I think, be no reasonable doubt that the deed was signed and acknowledged under a misapprehension of its effect. On its receipt by the lodge, a permit, dated June 6th, 1902, was sent, admitting complainant to the home. He remained there about nine months. On December 26th, 1902, the widow of complainant’s brother died, and in March, 1903, he was first informed that the society claimed the legacy. He thereupon left the home, and, after consulting counsel, immediately commenced this proceeding.
    On this state of facts, I think the complainant i-s entitled to relief. To correct or cancel deeds on the ground of mistake, when the mistake is clearly shown, is one of the familiar duties ,of a court of equity. Loss v. Obry, 22 N. J. Eq. (7 G. E. Gr.) 52; Waldron v. Letson, 15 N. J. Eq. (2 McCart.) 126; Firmsbone v. Be Gamp, 27 N. J. Eq. (2 O. E. Gr.) $27; 'Zingsem v. Kidd, 29 N. J. Eq. (2 Sieio.) 516. There is a distinction, however, between such mistakes as are mutual — that is, shared in by both parties — and such as are unilateral — that is, made on the part of one of the parties only. In the former case the remedy is reformation; in the latter, rescission. Green v. Stone, 51¡. N. J. Eq. (9 Diele.) $96. The ease in hand is somewhat peculiar in this regard: The grand lodge was distinctly informed, both by the answer to the printed question and by the affidavit, that complainant had no property. It does not pretend to have had any information to the contrary. It must, therefore, have been under the impression that Wirsching was penniless. It admitted him to its home on this assumption, and their error was one of fact. On the other hand, the mistake of Graff was one of law. He knew the fact, but he mistakenly supposed that the deed did not, in terms, transfer the legacy. The mistake of the complainant himself was one of. fact, though not one of the same fact as to which the grand lodge was mistaken. Being unable to read and write English, he relied upon Graff to make known to him the contents of the paper, and Graff misinformed him, not intentionally, but because he himself misapprehended its legal effect. Had Graff translated the paper literally, then the complainant’s mistake would have been one of law; but he did not; he merely told him, in substance, that the paper purported to convey such property as might be sued for when he entered the home, and did not transfer the legacy; and so the complainant was misinformed, not merely as to the legal effect of the paper, but as to its contents. This was a mistake of fact, just as much as it was in Loss v. Obry, supra, where the grantor’s scrivener inserted a description of an entire tract, instead of the part of the tract which it was intended to convey; or just as much so as it was in Waldron v. Letson, supra, where the scrivener failed to include in the mortgage all the land that it was intended to encumber. Under the facts as they appear in the case at bar, the minds of the parties cannot be said to have met. The remedy is therefore rescission, and this relief can be given without any injustice to the defendant, for it took the complainant into its home on the supposition that he had nothing; that he was a proper object of its care, because he had been for thirty years a Mason in good standing, and not because he was able to pay for or contribute toward his board and lodging.

      Fivey v. Pennsylvania Railroad Go., >67 N. J. Law- (88 Vr.) 627, was relied upon to defeat this action. That was a suit at law, in which the agreement set up in bar of the action was attacked for fraud. The court found that there was no fraud. The case is manifestly inapplicable.
    I do not think it necessary to decide whether Jansen was the agent of the lodge or the agent of complainant. If the latter, then some of the evidence of conversations admitted in evidence on the assumption that proof that Jansen was defendant’s agent would be given, may not have been competent. On the assumption that Jansen was complainant’s agent and not defendant’s, and without the aid of the doubtful evidence, the complainant has established his title to relief.
    In his bill complainant offers to pay a reasonable sum for board and lodging while in the home. This will put the defendant in even a better position than it supposed it occupied at the time it received him. ■
    The bill charges fraud. Of this there is no evidence. I think that under the circumstances each party should pay his or its own costs.

      Mr. Willimn D. Wolfslceil, for the appellant.

      Mr. Samuel Schleimer, for the respondent.
   Pee Cueiam.

The decree in the above cause is affirmed, for the reasons given by Vice-Chancellor Stevens in the court of chancery.

For affirmance — The Ci-iiee-Justice, Dixon, Foet, Pitney, Swayze, Vredenburgh — 6.

For reversal — Garrison, Vroom, Green, Gray — 4.


author: Per Cubiaj\i.

text:
    Emma W. Cook, executrix, &c., respondent, v. William W. Weigley et al., appellants.
    [Submitted July 12th, 1904.
    Decided December 9th, 1904.]
    Where a conveyance of mortgaged property contained no covenants of title whatsoever, and at the time of making the mortgage for a part of the price the parties had knowledge that the state claimed that the mortgagee’s title was defective, a suit to foreclose the mortgage should not be stayed until the conclusion of a pending action by the state claiming an outstanding title in a part of the mortgaged premises.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Eeed, who filed the following conclusions:
    This is a s-uit to foreclose a mortgage upon propert]r known as Oyster island and Bobbins reef, lying in New York harbor, in the county of Hudson. It is admitted that the mortgage was duly executed, and that by its terms the amount of the principal sum, with interest, is now due.

      The defences interposed are — first, that the mortgage was given in pursuance of a scheme in which all the parties were concerned, the purpose of which was to sell the mortgaged property as a speculative enterprise and to pay the mortgage out of the moneys realized when the sale occurred and not until then; second, that an action is pending by the State of New Jersey, claiming an outstanding title in a part of the mortgaged premises, and that this being a purchase-money mortgage, this court should stay this suit until the other suit is determined; third, that an agreement was entered into that no proceeding should be taken to foreclose the mortgage until the suit of the state was ended; and fourth, misrepresentations as to the title to the property mortgaged and failure of consideration.
    In support of the first of these defences the defendant produced in evidence a history of the dealings of the parties respecting the mortgaged property. Eobbins reef and Oyster island appear to- have been the subject of discussion between Mr. William M.- Force, the registrar of the board of proprietors, and Professor George Cook as early as 1878. The point discussed was whether these islands were upland and so were the property of the board of proprietors. In 1880 they were surveyed and a return made to Professor Cook. In 1887 Professor Cook entered into an arrangement with one Ezra A. Hayt, by which the latter was to secure a sale of the property. By an agreement, dated August 31st, 1887, Hayt was to have an option to purchase the said property for the price of $100,000, the option to end October 1st, 1887. By another agreement of the same date between the same parties, Professor Cook agreed to pay Hayt a commission on said sale of fifty per cent, or $50,000 of the consideration money. Ho- sale having been made within the time limited, another agreement was entered into between Professor Cook and B. A. Hayt on May 1st, 1888, similar in terms to- the preceding agreement of August 31st, 1887, excepting that the price was to be $250,000. By another agreement of the same date, Hayt was to have fifty per cent, or $125,000 commission. These agreements were extended to September 25th, 1889.

      By an agreement of June 24th, 1889, the preceding agreements were extended to September loth, 1890, the consideration of which extension was the sum of $10,000, to be paid by Hayt on or before September 15th, 1889, which said $10,000 was to be credited as part of the purchase-money. Similar agreements were entered into between the board of proprietors and Mr. Hayt.
    All this time I-Iayt had been trying to effect a sale of the islands and had engaged the services of Colonel Weigley, the defendant, to assist in making a sale. A formidable obstacle in the way of any sale was the fact that the board of proprietors, claiming that the location in favor of Professor Cook was void, had made a new location in favor of one Charles E. Noble. The parties had also projected and incorporoated a railroad, which was to run from the main land to the island. On September 24th, 1890, Colonel Weigley conveyed ten acres of Oyster island to the New Jersey Terminal Railroad Company. The State of New Jersey raised another obstacle in the way of selling the property by asserting that the land sold to the railroad belonged to the state previous to the execution of the deed to Weigley, viz., in February, 1889, who later had an interview with Hayt, who broached to him a proposition fo; the sale of the property to the Pennsylvania Railroad Company. On March 22d, 1889, Mr.. Hayt and Colonel Weigley entered into an .agreement, fixing the commissions which Colonel Weigley should receive for his services in making the sale. On August 14th, 1889, Mr. Hayt wrote to Colonel Weigley concerning a prospective sale to the owners of the Inman line of steamers, and tells Weigley that he (Hayt) had arranged to have deeds made and deposited with a trust company, to be delivered' on payment to the trust company of a certain sum of money. It appears that Mr. Jacob Weart, who seems.to have been the New Jersey counsel for all the parties, had advised the sale of the property to someone and the execution of a purchase-money mortgage back to the vendors, the Cooks. Such a deed, under date of September 9th, 1889, was prepared on September 13th, 1889, and an agreement was signed by Professor Cook and Colonel Weigley, reciting this deed and declaring that the intent of the parties was that the deed should be delivered to Weigley or to his assignee, provided he pay, or cause to be paid, to the said trust company, for the use of said Cook, the sum of $10,000 on or before September 29th, 1889, and the .sum of $90,000 on or before September 15th, 1890, and in default of said payments the deed should be returned to the Cooks.
    On September 15th, 1890, Mary H. Cook, individually and as executrix of George II. Cook, he having died, executed a deed for the two tracts to William W. Weigley.
    On September 25th, Colonel Weigley wrote to the American Loan and Trust Company, enclosing $5,000 in cash and a note, made by Appleton to the order of Hayt. Mr. Weigley stated in this letter that the $5,000 in cash was for the Cooks, and that Hayt, who-, under the agreement between him and Professor Cook, of May 1st, 1888, was entitled to one-half of the consideration money obtained on said sale, had agreed to accept the note of Daniel S. Appleton and authorized the company to deliver the note to Mr. Hayt, and to place the cash to the credit of Professor Cook’s representatives.
    On October 30th, 1889, Mr. Hayt wrote to Mr. Weigley that the State of New Jersey intended to set up a claim to Oyster island through the attorney-general, and proposed a plan by which the state and Mr. Hayt, with the consent of the other shareholders, could improve the flats.
    On December 22d, 1903, Colonel Weigley executed a declaration of trust, in which he recited the execution of the deed from the Cooks to himself, the execution of his deed to the New Jersey Terminal Eailway Company, and the execution of a deed by it to the Atlantic Terminal Eailway, the execution of a bond and mortgage back to him by the said company to secure $1,500,000; that he (Weigley) had previously executed several declarations of trust, and then proceeded to declare that he held the title to said property and to the mortgage upon the following trusts: three-eighths part for the benefit of the executors of Daniel S. Appleton, three-eighths part for the use of Hayt, and two-eighths for himself; he reserved a right to sell the property and mortgage, while Appleton held a beneficial interest in it at a price to be mutually agreed upon by the parties in interest; and then declares that out of the proceeds of the sale he was to pay himself, for services as trustee, the sum of $25,000, and then the amounts agreed upon by a schedule attached to an agreement dated in January, 1892. The amounts to be paid, according to this schedule, were $25,000 to Mr. Weigley; $40,000, and interest thereon, to Mrs. Cook, and various sums to Mr. Playt, Mr. Force, Mr. Appleton and others for services of different kinds. It is to be remarked that Mr. Force, by an agreement with Professor Cook, had had a one-half interest in the property. Force retained a one-half interest in the mortgage to Mrs. Cook, and by an agreement with Mr. Hayt, unknown to the Cooks, retained a one-half interest in the proceeds of the sale of the property, when made. The property is still unsold.
    From this bare statement of the skeleton facts of the transaction, supported by the testimony of Mr. Jacob Weart, the counsel of the parties, and supported by the details of the transaction, too numerous and minute to be displayed at length, it appears to me clear that the first point of the defences is without foundation.
    At the time the mortgage was executed to Mrs. Cook, it was undoubtedly the expectation of Mr. Force, Mr. Hayt and Mr. Weigley that the property would be sold before the maturity of the mortgage. It was therefore expected that the mortgage should be paid out of the proceeds of the sale. This was expected with such confidence that no agreement that the mortgage should await the sale of the property was made, either in writing or verbal. While this was expected, there was no' contract of that sort entered into. The whole transaction shows that it was intended that the interests of Cook thereafter in the premises should be limited to the amounts fixed by the mortgage, and in the speculative interest in the equity of redemption the Cooks thereafter should have no interest whatever. The contingent interest of the Cooks in the proceeds of any sale was changed into an absolute right to be paid, in addition to the cash received by her, the sum of $40,000, secured by the mortgage. Of course, on tliis simple bill for foreclosure, and not for reformation, no parol evidence would be of the least service in varying the terms of the mortgage; but if it were available, it is sufficient to say that there is not a scrap of testimony to show that the mortgage was not intended to be exactly as it is. Nor is there any agreement shown after the execution of the mortgage for its extension, except those that appear in writing. These various written agreements for extensions — one obtained by the payment of a money consideration — are utterly inconsistent with any understanding otherwise entered into that the mortgage was not to be paid until the property was sold.
    Nor do I find any substance in the second point of the .defence, viz., that there is a suit pending between the State of New Jersey and the terminal railway company — a grantee from Weigley — in which the state asserts a title paramount to that of the Cooks, and in which suit an injunction restraining the railway company from constructing its road is pending.
    It appears that on November 24th, 1890, the State of New Jersey, by its attorney-general, filed a bill against the railway company, obtained an injunction restraining the railway company from taking possession of Oyster island, and the injunction is still in force. The deed by Mary II. Cook to Colonel Weigley contained no covenants for title whatever.
    It is one of the most settled principles of the law of vendor and purchaser that the purchaser, who has received no covenants which cover a defect or encumbrance, can neither retain the purcliasc-monoy nor recover it back if already paid. Unless there has been fraud, he is absolutely without relief against his vendor, either at law or in equity. Baivle Gov. Tit. 607.

    The rule in such instance is caveat emptor, and the vendee has no remedy for failure of title, except such as may be provided for by covenants in the conveyance. Phillips and Sheddon v. Gity of Hudson, 31 N. J. Law (2 Vr.) '143; Slocum v. Seymour, 3>6 N. J. Law (7 Vr.) 138-14-1■ Where there is no mistake or misrepresentation as to facts, and no-fraud and no warranty of title, the purchaser has no redress at law or in equity. Hampton v. Nicholson et al., 123 N. J. Eq. (8 G. E. Or.) 428-427.

    For .these reasons, on foreclosure of a purchase-money mortgage, a defence that there is an outstanding paramount title to all or a portion of the property sold, in the absence of fraud, must rest upon the covenants in the conveyance to the mortgagor. Jones Mort. § 1501. It follows, therefore, that the pendency of the injunction suit is no reason for staying the present suit.
    In respect to the third point, namely, that an agreement was entered into with Mr. Weigley that no proceedings would be taken to foreclose this mortgage until the injunction suit was ended, it is sufficient to say that Professor Cook never entered into such an agreement with Mr. Weigley; indeed, Mr. Weigley says that he never saw the Cooks.
    Mr. Iiayt was the one with whom Mr. Weigley says the arrangement was made, but Mr. I-Iayt possesses no power to bind the Cooks, after the property was conveyed to Mr. Weigley and the mortgage was executed.
    ■ Lastfy, it is insisted that the sale to Mr. Weigley was induced by false representations or fraudulent concealment of facts respecting the property sold. It is clear that Mr. Weigley knew of the Noble survey at the time he gave the mortgage. He had been notified by the board of proprietors of the Noble survey on July 8th, 1890. .As to the claim of the state, Mr. Weart wrote to Colonel Weigley, under date of September 20th, 1890, concerning the mortgage, which seems not then to have been actually executed, and telling him that it would block the proprietors and State of New Jersey. After he had knowledge of these claims he raised no question respecting the validity of the deed to- him and his mortgage to the Cooks. He proceeded to get extensions of time for the payment of the mortgage — in fact, Colonel Weigley himself held the title only for the accomplishment of the speculative purposes of Iiayt, Force and Appleton. They all knew the character of the title to this property, and it was because of their knowledge that the deed and mortgage were executed, under advice of counsel. The result of the execution of the deed and mortgage was, as already remarked, to eliminate the Cooks from participation in the prospective results of the speculation, amounting to $1,500,000, and to secure them absolutely by the payment of $40,000, or their share of it under an agreement with Force.

      It is to be observed that the charge of fraudulent representations or concealment is referable only to the existence of the Hoblc survey and the claim of the state.
    In respect to any alleged representations that the islands were mainland or that the Cook survey constituted a paramount title, there is nothing to show that such was not believed by all the parties and nothing in the case to show that such is not the fact.
    Hor do I see any defence arising out of tire fact that the representatives of Force have a half interest in the mortgage under foreclosure.
    If anyone has cause to complain of the conduct of Force, it seems to be the Cooks. Force was obviously influential in shifting the entire interest of Professor Cook in the property to an interest in the mortgage,- while he (Force) retained an interest in the equity of redemption. But in respect to Colonel Weigley, nothing appears to show that he was influenced in taking his deed and executing his mortgage by any false representations or fraudulent concealment by Force.
    As already observed, he knew, or had knowledge sufficient to put him upon inquiry, of the condition of the property which he took for the purpose of effecting a sale.
    I conclude that there should bo a decree for the complainant.

      Messrs. Vroom, Dickinson & Scammell, for the appellants.

      Mr. Frank Durand, for the respondent.
   Per Cubiaj\i.

The decree is affirmed, for the reasons given in the court of chancery.

For affirmance — Dixox, Garrisox, Fort, Garretsox, Pit-key, Swayze, Bogert, Vredexbttrgi-i, Vooriiees, Greek, Gray —11. ' . ■

For reversal — Hone.


text:
    Joseph H. Bruere, executor, &c., respondent, v. Charles Cook et al., appellants.

      [Argued March 9th and 10th, 1903.
    Decided July 20th, 1903.]
    On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in S3- N. J. Eq. (IS Licit.) >68%..

      Mr. Linion SaUerihiuait, for the appellants.

      Mr. William M. Fanning, for the respondent.
   Per Curiam.

The decree in this cause is affirmed, for the reasons given in £he court below.

For affirmance — Van Syokel, Dixon, Garrison, Fort, Hendrickson, Swayze, Green — 7.

' For reversal — Pitney, Bogert, Vroom — 3.


text:
    Hattie G. Murray, respondent, v. Veronica Pannaci et al., appellants.
    [Argued November 17th and 18th, 1903.
    Decided February 29, 1904.]
    On appeal from the court of chancery.

      Mr. Charles L. Corbin, for the appellants.

      Mr. John T. Bird and Mr, A, Gordon Murray (of the New York bar), for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion of Yice-Chancellor Eeed, filed in the court of chance^, reported in N. J. Bq. {19 Bide.) 1J7.

For affirmance — Ti-ie Ciiiee-Justice, Dixon, Garrison, Port, Hendrickson, Pitney, Swayze, Bogeet, Yredenburgh, Yroom, Green, Gray' — 12.

For reversal — None.


text:
    The Supreme Council, Catholic Benevolent Legion v. Kate Murphy et al.
    [Argued March 7th, 1904.
    Decided June 20th, 1904.]
    On appeal of Mary J. Bauer from a decree advised by YiceChancellor Pitney, whose opinion is reported in 65 N. J. Bq. {20 Bide.) 60.

      Mr. Louis G. Morten, for the appellant.

      Messrs. Vredenburgh, Wall & Van Winkle, for the respondent Mrs. Murphy.
   Per Curiam.

The decree in the above cause is affirmed, for the reasons given in the court of chancery.

For affirmance — Dixon,-Gabkison, Pobt,-H-endkiokson, Pitney, Swayze, Bogeet, Veedenburgh; .Veoom, Geeen,- Geay —11.

For, reversal — -None.


text:
    John P. Manning, administrator, &c., appellant, v. Walter P. Lindsey, executor, &c., respondent.
    [Argued March 15th, 1904.
    Decided September 30th, 1904.]
    On appeal from a decree sustaining demurrer to bill of complaint advised by Vice-Chancellor Emery, whose opinion is reported in'65 N. J. Fq. (20 Diclc.) 1061

      Mr. Joseph D. Gallagher, for the appellant.

      Mr. Malcolm MacLear, for the respondent.
   Pee Cueiam.

The decree appealed from is affirmed, for the reasons stated by Vice-Chancellor Emery in his opinion in the court below.

For affirmance — Dixon, Gaeeison, Poet, Swayze, Bogeet, Vbedenbubgh, Veoom, Geeen, Geay — 9.

For reversal — None.


text:
    Elsie M. Folwell, respondent, v. Thomas G. Folwell, appellant.
    [Argued March 16th, 1904.
    Decided September 30th, 1904.]
    On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in 65 N. J. Eq. (20 Bide.) 526.

      Mr. John F. Earned, for the appellant*.

      Mr. Norman Grey, for the respondent.
   Per Curiam.

The decree of the court of chancery is affirmed, for the reasons given in the opinion of Vice-Chancellor Reed.

For affirmance — Dixon, Garrison, Port, Pitney, Swayze, Bogert, Veedenburgi-i, Vroom, Green, Gray — 10.

For reversal — None.


text:
    Wesley B. Porch v. The Agnew Company.
    [Argued March 17th, 1904.
    Decided March 21st, 1904.]
    On appeal of Joseph Thompson, purchaser at receiver’s sale.

      Mr. Clarence L. Cole, for the appellant.

      Mr. David J. Pancoast, for the respondent.»
   Pee Cueiam.

The order appealed from is affirmed, for the reasons stated in the opinion of Vice-Chancellor Grey, rendered in the court of chancery; reported in 6d N. J. Eq. {21 Dick.) 282.

For affirmance — The Ci-iiee-Justice, Dixon, Garrison, Hendrickson, Pitney, Swayze, Bogert, Vredenburgh, Vroom, Green — 10.

For reversal — None.


author: Pee Cubiam.

text:
    Samuel L. Lederer v. John Yule, Sr., et al.
    [Argued June 28th, 1904.
    Decided December 9th, 1904.]
    On appeal of Nellie McCrea, from a decree advised by Vice-Chancellor Pitney.

      Mr. Jacob W. De Toe and Mr. Guslav A. Humilcer and Mr. Miller (of the Pennsylvania bar), for the appellant,

      Mr. William J. -Briody and Mr. William B. Qourley, for the respondents.
   Pee Cubiam.

The decree appealed from is affirmed, for the reasons set forth in the opinion of Vice-Chancellor Pitney, reported ante p. 65.

For affirmance — Poet, Pitney, Veedenbuegh, (>Veoom, Gbeen, Gbay — 6.

For reversal — Dixon, Gaebison, Bogeet — 3.


text:
    Christian Buttlar, respondent, v. Mina Buttlar, appellant.
    [Argued June 28th, 1904.
    Decided December 9th, 1904.]
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported ante p. 136.

      Mr.' John I. Weller, for the appellant.

      Mr. Marshall Van Winkle, for the respondent.
   Pee Cubiam.

The decree appealed from is affirmed, for the reasons given in the opinion of Vice-Chancellor Pitney in the court below.

For affirmance — Dixon, Gaebison, Poet, Pitney, Bogeet, Veedenbuegh, Vboom, Geeen, Geay — 9.

For reversal — None.


text:
    In re Collateral Inheritance Tax against the Vineland Historical and Antiquarian Society.
    [Argued June 29th, 1904.
    Decided April 28th, 1905.]
    On appeal from a decree made by the ordinary, whose opinion is reported in 66 N. J'.E'q'. {21 Bide.) 291.'

      Mr. Charles K. Landis, for the appellant.

      Mr. J. Hampton Fithian, for the respondent.
   Per Curiam.

Decree affirmed.

For affirmance — The Chief-Justice, Fort, Pitney, Green, Gray — 5.

For reversal — Dixon, Garrison, Bogert, Vredenburgh, Vroqm — 5. .


text:
    Abraham Anderson, appellant, v. Anderson Food Company, respondent.
    [Submitted July 11th, 1904.
    Decided December 9th, 1904.]
    On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in '66 N. J. Eq. {21 Bide.) 209.

      Mr. Schuyler O. Woodhull, Mr. Samuel T7. Beldon and Mr. David J. Pancoast, for tlie appellant.

      Mr. John P. Earned and Mr. Joseph E. Gaskill, for the respondent.
   Pee Cueiam.

The decree appealed from is affirmed, for the reasons given in the court of chancery.

F.or affirmance — Dixon, Gabeisox, Poet, Gaebetson, Pitney, Sivayze, Eeed, Bogeet, Yeedenbubgii, Yoobhees, Yeoom, Gbeen, Gbay — 13.

For reversal — None.


author: Pee Curiam.

text:
    Richard DeGray, appellant, v. Monmouth Beach Club House Company et al., respondents.
    [Decided February 26th, 1894.]
    On appeal from a decree advised hy Yice-Chancellor Green, whose opinion is reported in 50 N. J. Fq. (5 Dick.) 829.

      Messrs. Oortlandt •& R. Wayne Parker, for the appellant.

      Mr. Fdward Q. Keasbey and Mr. Anthony Q. Keasbey, for the respondents.

       This case was omitted from its proper place. — Rep.

   Pee Curiam.

Decree affirmed, for the reasons given in the court of chancery.

For affirmance — Abbett, Depue, Dixon, Garrison, Lippincott, Reed, Yan Syckel, Bogert, Smiti-i — 9.

For reversal — None.


author: Magie, Chancellor.

text:
    William J. Magie, Chancellor.
    Henry C. Pitney, John R. Emery, Frederic W. Stevens, Martin P. Grey, Eugene Stevenson, James J. Bergen and Lindley M. Garrison, Vice-Chancellors.
    William Bettle, commissioner of banking and insurance of New Jersey, v. The Republic Savings and Loan Association.
    [Filed October 25th, 1904.]
    1. Upon the decreed insolvency of a building and loan' association the receiver becomes entitled to enforce the rights acquired by such association by a deed made to it by a borrowing member for a loan, accompanied by defeasance stipulating for a reconveyance, upon the performance of the borrower’s agreements and the maturity of the shares of such member, according to the scheme of the association. The borrowing member may redeem his lands and procure a reconveyance thereof upon payment of such amount as may be determined by the contract between them and the equities arising out of the abortive scheme to be due.
    2. Where such a conveyance was made subject to a prior mortgage, which' is assumed by the association; redemption will, hot be' permitted unless the liability of the -fund in the receiver’s hands is wholly- discharged, either by the payment of the prior mortgage or by a complete release from the holder thereof.
    3. In determining the amount to be paid for redemption, premiums actually paid by the borrower are to be credited to him, upon the authority of Weir v. Granite State Provident Association, 56 N. J. Eg. (11 Dick.)

    On petition of tbe Atlantic City Turn Verein.

      Mr. John J. Crandall, for the petitioner.

      Mr. Foster M. Voorhees, receiver, pro se.

   Magie, Chancellor.

By a decree in the above-mentioned cause, dated1 September 19th, 1902, tbe Republic Savings and Loan Association was decreed to be insolvent, and Foster M. Voorhees was appointed receiver.

By an order in tbe cause, made December 22d, 1903, petitioner was granted leave to file a petition to be permitted to redeem certain lands which it had conveyed to tbe insolvent corporation,, and to have a reconveyance thereof to it by the receiver under the order of this court, and such a petition was filed.

An answer to the petition was filed by the receiver on January 19th, 1904, and the matter was brought to hearing on May 19th, 1904, upon the petition and answer, no facts being disputed.

The only contest made was as to the amount which, upon the facts, ought to be paid to the receiver before the reconveyance should be directed.

The material facts are these: On August 15th, 1895, the petitioner became the owner of seventy-nine shares of the lpngterm capital stock of the insolvent corporation, which will hereafter be called the association. On August 19th, 1895, petitioner applied to- the association for a loan of'money. Petitioner was then the owner of lands in Atlantic City which had been convejred 'to- it on May 9th, 1895, and on which it had given a mortgage for $3,000, bearing six per cent, interest.

The application contained the following:

“Cash to be advanced by the association......... $4,000 00

Mortgage to remain on the property........... 3,000 00

Gross premium paid for advance.............. 840 00

Total indebtedness to association...-....... $7,840 00”

The petitioner therein stipulated that if the association agreed to purchase its lands it would execute a bond and a contract to repurchase the same at the price of $7,840. It also agreed to •pay the association, monthly, $78.70, made up as follows: Interest on $7,840, $39.30; premium on seventy-nine shares of long-term stock, $19.75, and dues on said shares, $19.75.

By a deed executed by the association, and also by the petitioner, the latter conveyed to the association the land-in question for an expressed consideration of $7,840, subject to the mortgage for $3,000, which the association assumed as part of the consideration. By an indenture of the -same date between the parties the association agreed that, upon the performance of all petitioner’s covenants up to the time of the maturity of the shares of stock, it would reconvey to petitioner the land, free from all encumbrances.

It thus appears that the deed from petitioner to the association contained or was accompanied with a defeasance whereby, upon the maturity of the scheme of the association and the performance by the petitioner of its obligations, the land was to be reconveyed to the petitioner, free from all liens.

The insolvency of the association has intervened, - and the scheme can never be carried out. The receiver is bound to call in all the assets of the association -and to enforce its rights in winding up the concern. - .

Under such circumstances mortgages of such associations become immediately enforceable.by the receiver, and a co-relative right arises in each mortgagor to redeem his lands from the mortgage thereon. Weir v. Granite State Provident Association, 56 N. J. Eq. (11 Dick.) 234. The conveyance of lands to such an association, with a defeasance of the nature of that disclosed in this case, is a pledge of the land as security for the performance of such obligations, and when they can no longer be performed the above doctrine will apply. The receiver may enforce Hie rights the association acquired thereby and the grantor may redeem the land by making proper payment for the same. What payment must be made is to be determined by the contract between the parties and the equities arising out of the abortive scheme.

The receiver does not contest the right of petitioner to a redemption of his lands, but he does not agree as to the terms upon which the petitioner claims to be entitled to redeem.

At the argument counsel for petitioner urged that it should be allowed to redeem the land subject to the first mortgage of $3,000, and upon payment of whatever sum should be deemed due in addition thereto. The receiver made no objection to such a redemption if it could be effected without detriment to the trust he is administering, and submits, by his answer, to such a redemption, if the same ought to be directed. The association having assumed payment of that mortgage, the holder thereof is entitled to enforce that covenant against the receiver and against the assets of the association. Under such circumstances the petitioner ought not to be permitted to redeem the land unless it pays that mortgage and so releases the fund from any liability upon the assumption by the association, or unless it secures from the holder of the mortgage a complete release from that liability.

It has not been made to appear whether the association before its insolvency, or the receiver since, has paid the interest accruing upon the first mortgage. It does appear that the petitioner has made all monthly payments for interest up to the time of the insolvency, and of course those payments included interest upon the first mortgage. So much of the interest thus paid by the petitioner as has been applied by the association to the payment of interest on that mortgage cannot be considered in any calculation of the amount now due and required for redemption. If the petitioner cannot procure a release of the liability upon the assumption of the mortgage, or is obliged to pay off that mortgage, interest paid by the petitioner which has not been applied by the association and paid upon that mortgage must be taken into account. At present the case is not presented so as to permit any direction in respect to the interest.

The matter has been argued as if the redemption could be decreed subject to the first mortgage, and the controversy is as to the amount which petitioner should be required to pay for redemption under those circumstances. On the part of petitioner it is claimed that in the calculation of the amount to be paid it should be charged only with the money which it actually received in the transaction and legal interest thereon, and that it should be credited with all interest paid by it and all premiums allowed by it.

It will be observed that there were two sorts of premiums, one a gross premium of $840, included in the consideration of the conveyance, and the other a monthly premium, exacted monthly, under the contract.

By the receiver it is claimed that it will be improper to allow all the interest paid by the petitioner, because part thereof was paid upon the first mortgage, and that all the premiums paid or allowed should not be credited, but only a proper proportion thereof. His contention is twofold, viz., that premiums were paid for the privilege of borrowing, and that thereby petitioner obtained that privilege and enjoyed it for a time, and that for the privilege so enjoyed the premiums should be considered as paid fro tanto; or that, looking at the whole scheme, which contemplated borrowing and non-borrowing members, the premiums should be apportioned and not be all applied in satisfaction of the claim against the petitioner, which was a borrowing member.

With respect to the application of interest, the claim of petitioner is too broad, if the association has paid the interest on the first mortgage. So much as the association has paid upon the first mortgage ought not to be again allowed to petitioner. Whatever was not paid upon the first mortgage may be allowed.

With respect to the allowance for premiums, if the matter were res nova I should find it difficult to resist the contention of the receiver, but I am concluded from adopting that contention by a pertinent adjudication of this court upon the very question presented. In Weir v. Granite State Provident Association, ubi supra, it was decided that all payments for premiums in such cases should be allowed to the borrower. This was followed by Vice-Chancellor Grey, in Hoagland v. Saul, 53 Atl. Rep. 704. The doctrine of that case, in this respect, was deemed by Vice-Chancellor Pitney not to be involved in the case decided by him in Whitehead v. Commercial Building and Loan Association, 64 N. J. Eq. (19 Dick.) 24. In Harris, Receiver, v. Nevins, infra p. 183, Vice-Chancellor Emery, in an opinion not yet reported, but which I have had the benefit of examining, expresses the views which occasion doubts in my mind as to the correctness of the doctrine of the Weir Case, but such doubts ought not to require an antagonistic ruling. If erroneous, the correction should be made by an appellate court.

It results that in computing the amount due by the petitioner it should be charged with the amount of money actually received by it, with legal interest thereon from the times it was received, it having been paid in installments. It should be credited with all the interest paid by it, including interest paid on the gross premium and interest on the monthly premiums, except interest which the association has paid upon the first mortgage, and it should also be credited with the monthly premiums paid, with interest, as aforesaid.

In considering the amount of the first mortgage petitioner should be charged with unpaid interest thereon, and taxes, assessments and insurance premiums, if any have been paid by or are chargeable to the association. If petitioner pays off that mortgage, or procures a complete release from the liability assumed by the association, the mortgage may be left out of the calculation of the amount to be paid for redemption, otherwise the amount due thereon is to be included.

Petitioner should also be charged with such share of the expenses of the association as was payable by it under the articles of association.

By an orde^ of this court the receiver was directed to pay a dividend to all shareholders. The dividend upon petitioner’s shares has not been paid to it, and it is conceded that petitioner is entitled to an allowance therefor in the calculation of the amount to be paid for redemption.

As it does not appear what amount of interest has been paid by the association on account of the first mortgage, it will be necessary to refer the matter to a master to report thereon, unless petitioner and the receiver can agree thereon. There must then be an account stated of the amount which, upon the principles above set forth, petitioner should pay to redeem its lands and procure a reconveyance thereof. If petitioner and the receiver cannot agree thereon the matter will be referred to a master to state such an account.