text:
    Timothy W. Ashby et al. v. Amos K. Ashby.
    [Filed May 11th, 1900.]
    1. When a tenant accepts a lease of a fully-equipped grist-mill in active •use for that purpose, with an obligation to keep the property in good repair at his own cost, without exception of wear and tear, the elements, or other cause of dilapidation, and during his term takes the greater part of the equipment out of the mill, and so deals with it that it cannot be restored, and puts new machinery in its place, which thus becomes an essential part of the mill equipment, and cannot be removed without destroying the property for milling purposes, the tenant will he restrained from removing the new machinery and thus dismantling the mill.
    2. The equity of the owners to prevent the destruction of the mill is not impaired by the fact that the new machinery is better than that which it replaced, nor that it is not unchangeably fastened to the freehold, nor by the > ■claim that it was put in and might be removable as trade fixtures.
    3. The equity of the owners lies in their right to have their property, which was demised as an entirety for a grist-mill, remain in its entirety a grist-mill, and in fact that the tenant by the removal of the essential machinery of the mill and the substitution of other equally essential in its place, has irrecoverably made the latter a part of the mill beyond his right to remove it.
    4. Trade fixtures to be capable of removal by a tenant must be additions made by the tenant to the property of the landlord, and not substitutions for ■essential parts of it, which the tenant has irrecoverably removed.
    On bill for injunction, answer and proofs.
    The four complainants are the owners as tenants in common in fee, each of the undivided one-fifth part of a steam grist-mill property in Burlington, New Jersey. The defendant is the ■owner of the other undivided fifth part. This property was owned by Edward Ashby, the father of the Ashby parties, in his lifetime, and was by him by his will, dated the 19th day of June, 1886, and proven June 5th, 1888, devised to his widow for life, with a privilege to his son, Amos K. Ashby, the defendant, to continue in the occupancy of the mill, &c., “he paying all taxes and all needed repairs at his own proper cost,” and a further yearly rental of $425 in quarterly payments to the widow during her life, subject also to the same conditions and provisions as were in the will imposed upon another son, Timothy, regarding his occupancy of what the will describes as the Mansfield mill. One of these conditions was that he should “keep the said property in good repair at his own proper cost.” The testator gave the further privilege to his son, Amos, the defendant, to become the purchaser of the Burlington mill, at the price of $10,000, during the period of three months after the decease of the widow. After that period the executors were given a power to sell the properties and to convey them in fee-simple. The testator gave several bequests, among others one to the defendant of $1,000 debt which he owed the testator. Subject to the above disposition, the testator devised the residue of his estate to three of his sons and two of his daughters in fee, and in case any died without issue during the lifetime of the widow, the share of such decedent to vest in the survivors. One daughter, Mrs. Phares, has conveyed her share to the complainant Robert Ivins. The defendant is one of the residuary devisees to the extent of the fifth.
    The widow survived the testator. None of the children died during the lifetime of the widow. The defendant, Amos K. Ashby, continued in the occupancy of the Burlington mill, under the 'terms prescribed in the will, and has remained in possession ever since. On the death of the widow, in 1897, the defendant did not exercise his option to purchase the mill, and the executors, on the expiration of the three months after the death of the widow, advertised the property for sale.
    The defendant, Amos K. Ashby, had made certain repairs, &c., to the mill building, for which he insisted he ought to be-repaid before any sale should be made under the power, and he filed his bill in this court, in the case of Amos K. Ashby v. Timothy W. Ashby et al., seeking to restrain the executors’ sale of the mill until his right to compensation should be established, and his expenditures in repairing the mill building should be decreed to be paid him out of the proceeds of the sale. This matter has been disposed of in an opinion in that cause filed in May, 1900.
    On March 8th, 1898, when the executors were about to make-public sale of the mill, pursuant to advertisement, the defendant appeared and caused a notice to-be read, declaring that he claimed to be the owner of three roller mills, the purifier, smut mills, separators, two buhr mills, a flour packer, the bolting.machines, all the belting and other fixtures in the mill, and that he claimed the right to remove them from the mill when he surrendered the premises to any purchase!’. The effect of this notification was to defeat the executors’ sale, as no one would bid in view of the defendant’s claim to own in his own right substantially all the machinery necessary to the carrying on of the milling business'.
    The complainants, who are entitled to four-fifths of the proceeds of the executors’ sale, thereupon filed their bill in this cause against the defendant, setting up the foregoing facts, and insisting that the machinery and equipment claimed by the defendant are part of the mill and real estate, and necessary and indispensable to the use and running of the mill, and that they •were paid for by the widow and devisees in remainder; that their removal by the defendant who is in possession would be waste to the premises, and á destruction of the mill for its sole use, and a prevention of the execution of the power of sale by the executors. They pray that the defendant may be restrained from removing the above-named or any other fixtures from the mill, and from committing any waste thereon, and for further relief, &o.

    The defendant answered, asserting that he had placed the claimed articles in the mill as tenant. He denied that they were fixtures, and as such a part of the realty which could not be removed; he denied that they were paid for by the other persons interested in the premises, and averred that they were all put in the mill by himself, as tenant, for his own use and benefit. He insisted that he had a right to give notice of his claim, and that in doing so he had not unlawfully interfered with the executors’ sale; that beyond giving the notice he had made no threats to remove any fixtures or to do any waste; that his sole object in giving the notice was to preserve his rights, and not lose them by allowing an innocent party to buy the mill without notice of his claim.
    A preliminary injunction was allowed and the case has now come to final hearing.

      Mr. Clarence T. Atkinson and Mr. Mark R. Sooy, for the complainants.

      Mr. David J. Pancoast and Mr. Charles E. Hendrickson, for the defendant.
   Grey, V. C.

The complainants are entitled, as the owners by devise of four undivided fifth parts of the mill, to receive that proportion of the proceeds of the sale of the mill which the executors are about to make under the power given to them in the will of Edward Ashby, the father of the Ashby family.

The defendant is the devisee of the other undivided fifth, but ■originally came into possession of the mill in his father’s lifetime, under a lease from him. He continued in possession under the privilege given him in the will, and thereby assumed the obligations there imposed — that he would pay taxes, a named rent, and for all needed repairs, and keep the property in good repair at his own proper cost. His possession under that tenure began in 1888 and continued up to 1897, the time of the termination of the life estate by the death of the widow. He declined to purchase the mill under the option reserved for him in the will, and when the executors afterwards proceeded to sell he gave notice that he claimed to own all the above-named machinery.

The sole object of the complainants in this suit is to restrain the defendant from removing this machinery.

The defendant admits that he claims to own the articles named, and that he gave public notice at the executors’ proposed ¡auction sale of this claim, and insists that he had a fight to give such a notice of ownership, and was indeed bound to do so in order to save the risk of losing his property in case a purchaser should in good faith buy the mill in ignorance of his rights. He further contends that there is no occasion for an injunction to restrain his removal-of the things claimed, because lie declares he has made no declaration of a purpose to remove them.

The -whole burden of the defence has been directed to show that the defendant owns the articles in dispute and has the right to remove them. It is difficult to see what value such an ownership can havé unless it is to be protected by the maintenance of possession of the things owned. The defendant now has them in actual holding in the mill. It is proposed to sell the premises of which they are the essential equipment, and it can hardly be believed that the defendant, if he goes out of possession of the building, would leave what he strenuously insists is his property, behind him. Furthermore, the evidence of the defendant’s intention to remove is quite convincing. The-proofs, including his own testimony on cross-examination, indicate not only such a purpose but also a willingness on the part of the defendant so to use his claim of ownership and the proclamation of 1ns purpose to remove, that the disclosure, when made public to the attending bidders at the proposed executors’" sale, would prevent anyone but the defendant from bidding.

So far as any issue is made on the point of the defendant’s-purpose to remove the equipment of the mill, it is clearly shown that he' has claimed, and now asserts, a right to remove, and that it is his intention to do so whenever he deems it best for his own.interests.

The other point of dispute to which the greater part of the-proof and argument is directed, is the assertion by the defendant that he is the owner of the several articles in question and that he has a right to remove them from the mill.

It should be noted that the defendant asks no relief as tenant in common against the complainants by way of cross-bill. He sets' up no claim of a right to have the complainants, as co-tenants of the mill, reimburse him in whole or in part for his outlay in purchasing the new machinery. He stands for hisdefence solely upon his contention that he is the absolute owner in severalty of the equipment of the mill and that he has a right to remove it. ‘

This position of the defendant calls for an examination of the manner in which he came into possession of the mill. The evidence, with but little variance, shows that, after a preliminary tenancy of the mill under his father in his lifetime, the defendant continued in the occupancy under the terms prescribed by his father’s will above mentioned, among which was an undertaking that the defendant should keep the property in good repair and pay for all needed repairs at his own expense. Just prior to the father’s death the mill had been, refitted with new machinery, changing ifc into the more-modern roller method of flour making. A considerable expense had been incurred in making this change, for which the defendant had given his notes, one of which, at the time of the father’s death, was in the bank, and the defendant refused to pay it. After some dispute a compromise settlement was arranged for the express purpose of preventing any contention about the ownership of the equipment of the mill as distinguished from the mill property. The family voluntarily raised and paid $2,018.70, about one-half of the expense undertaken by the defendant in purchasing the roller machinery. This was in 1889, in the lifetime of the mother, during whose estate the defendant was, by the terms of the will, secured to be permitted to occupy the mill at a fixed rental, the payment of the taxes and keeping the property in good repair.

There is no dispute that immediately after this change was made the whole equipment of the mill belonged to the mill property, and constituted a part of the realty, and that the title thereto was in the owners of the land.

Nor is there any dispute that the building was orginally erected as a steam grist-mill; its machinery and equipment were fitted into it for that purpose, and became and were used as an entirety, a single thing, composed of various parts, but all appropriate for and used to accomplish a common purpose. It was this entire thing which came into the possession of the defendant at the inception of his tenancy, and has been held and used by him ever since as an entirety, an active, producing steam gristmill “plant.” The testator so dealt with it, speaking of it in his will as his “ mill property.”

The defendant continued to occupy the mill under the terms named in the will from this time (1889) up to the death of the widow,-in 1897, which terminated the life estate, and brought to an end the privilege of occupancy secured by the will to the defendant at the fixed rate therein named, and also necessarily thereafter relieved the defendant from further observance of the obligations imposed by the will, that he should repair, &c. After the death' of the widow he was, as to his co-tenants, an occupier, without contract expressed or implied, except such as would be imputed by the law to a tenant in common who held and enjoyed the exclusive use and profit of the common property.

All the disputes between the parties have arisen, touching matters which happened during the period between 1889 and 1897, while the defendant held under the terms imposed by the will.

After the mill had been refitted with the roller method as above stated, in 1889, the defendant claims that by the year 1895 the equipment of the mill had become much worn and worthless, and that the several machines used in the flour-making process were so inefficient as compared with those in competing mills, that he was unable to produce a standard flour or profitably to carry on the business without supplanting the old and worn out machinery with that which was of more modern invention. But all the witnesses agree that in 1895 up -to the very time the several machines, &c., claimed by the defendant were put into the mill, it was actually running in the production of flour and feed, and was stopped for the taking out of the machines then in use, and the introduction of the new ones (now claimed by the defendant) in their place. It is, therefore, an established fact that the defendant took out the machinery of an active running plant and put other in its place. It is also undisputedly shown that the machinery which he took out was indispensably necessary to the performance of some one or more of the functions of the mill in preparing the final product, and that which he put in supplied its place in these particulars. Though each machine may stand separate and apart from the others, it is yet so connected by spouting and elevators, and by the partial process which each contributes in grinding the grain, or in separating it into its several marketable forms, that all constitute but a single “ plant.” Each machine is but a-link in itself, but all are needed to form the chain which gives to the separate links as parts of the plant their only value. Take out but one link and the chain is destroyed. Every millwright who was examined declared in substance that if the machines, &c., claimed by the defendant were taken out of the mill there would be no mill left.

The contention of the defendant is that the machines he claims to own were trade fixtures brought by him upon the premises for the furtherance of his business, not permanently or incorporatively annexed to the realty, but only temporarily placed there for the convenient conduct of his trade.

The law considers favorably the right of the tenant to bz’ing upon demised premises such additions to the property, already there, as may aid him in the conduct of his business, and allows, during the period that he remains in-possession, the removal of those articles which the tenant brought on the demised premises, so far as they come within the definition, tz-ade fixtures.”

The instances in which such removals az’e permitted, of property which has for the time becozne a part of the realty, should, howevez’, be limited to additions made by the tenant to the property demised, and cannot be extended to include voluntary substitutions, whereby the tenant takes away from an equipped plant and destroys component parts essential to the single purpose to which the whole is devoted and for which the tenant rented it, and puts in their place new parts, which, when intz’oduced, become by their relation to the premises, so entirely parts of the realty that their removal would destz'oy the whole plant.

The defendant received a furnished and equipped steam gristmill as an entirety. Each piece of its machinery was but a component part of the entiz'e thing. When the defendant, while the plant was yet running, took out any of these component parts and destroyed them or used them to purchase new apparatus which he put in place of the old machinery, the new apparatus being also essentially necessary to the accomplishment of the common purpose of the plant, it became, by the defendant’s own act, a part of it, and he cannot afterwards be permitted to destroy the whole plant by taking away its several essential parts or any of them. The portions taken away were essentially ■necessary to the maintenance of the plant; the portions substituted are equally so. The renovated plant requires all the parts claimed by defendant, in order to be of any value as a mill. If they be taken away the premises will be worthless for the purpose for which they were constructed and used. Such a result would offend both the rules recognized as maxims as long ago as the time of Lord Hardwicke — first, that “ You should not destroy the principal thing by taking away the accessory;” and secondly, that “The thing proposed to be removed must be deemed to be part of the estate, because it cannot subsist without it.” Lawton v. Lawton, 3 Atk. 13.

The defendant claims that the new machines are only screwed or blocked upon the floor, and this simply to hold them in place, and that for this reason they have not been annexed to the realty; that their removal can be affected without serious damage to the mill building, and Blancke v. Rogers, 11 C. E. Gr. 566; Ames v. Brewing Co., 11 Dick. Ch. Rep. 309, and S. C. on appeal, 12 Dick. Ch. Rep. 347, are cited to support the claim.

This argument wholly ignores the undisputed fact that the defendant came into possession of the mill fully equipped with a set of machines which successively and continuously performed the single work for which the whole premises were constructed and used, namely, the grinding of grain. He has taken these out, sold them, exchanged them, or converted them into old iron, so that they are utterly useless as parts of a mill equipment. He has supplied their places by the new machines which he has so connected with the spouting, the elevators, the gearing and other equipment of the mill, that each now successively and continuously exercises its peculiar function in producing the single product for which the mill and its equipment were constructed and have always been used. The defendant, by his own uninvited act of removing the previous machines and putting the new ones in their places, has irrecoverably made the latter a part of the plant. Having so dealt with them, he has made them of the essence of the realty and the extent of the annexation is of little significance. In Erdman v. Moore, 29 Vr. 461, there was no such physical annexation as would alone have made the article a fixture, but there was a clear showing of an intention to do so, and the exhibition of this intent was declared by Chief-Justice Beasley to be controlling. In Feder v. Van Winkle, 8 Dick. Ch. Rep. 370, Mr. Justice Van Syckel, speaking for the court of appeals, declared that the fact that the articles in dispute might be removed and used elsewhere, was not decisive of their character. The fifth paragraph in the syllabus of that case might have been written for this case. The learned justice says: “ The chattels in this case were actually annexed to the freehold ; they were fitted for and applied to the use to which the real estate was appropriated, all being designed for and necessary to the prosecution of a common purpose. Thus the machinery and land became unified and incorporated together as a lohole,” &c. In Lee v. Hubschmidt & Co., 10 Dick. Ch. Rep. 627, Vice-Chancellor Pitney held that the acts of the parties in dealing with the machines in dispute justified an inference of intention to annex, which overcame their own testimony declaring the existence of a contrary purpose.

The circumstances of the case above recited show that the machines claimed by the defendant have become part of the realty and cannot lawfully be removed by him.

This result is reached irrespective of the obligation imposed upon the defendant by the terms of his father’s will that he should keep the property in good repair, and should pay for all needed repairs at his own cost. This obligation to keep the property in good repair applied to the whole property without exception — the building and the machinery, whatever constituted “ the property.” The defendant was obliged to keep it in good repair, without regard to the cause of the dilapidation. Th will makes no exception because of wear and tear or of the elements. The defendant’s own testimony (though disputed by others) is to the effect that most of the machines taken out by him, in 1895, had become so worn out as to be worthless. If that were true it was his duty to keep them in good repair at his own cost. If he thought he could most profitably do this by substituting new machinery in their places, he cannot thereafter take away the new machines put in by way of repair of those which were worn out.

This obligation imposed upon the defendant by the will, under which he continued in possession, rested upon him with the same force as would a covenant to keep in good repair. He received the bequest and devise provided for him in the will, and he was also secured in his continued possession at a fixed rent which the life tenant could not increase. Having accepted benefits under the will, the law will not permit him to disappoint the intent of the testator by avoiding the performance of the duties which the latter has by the will imposed. Bird v. Hawkins, 13 Dick. Ch. Rep. 229, and cases there cited.

The proposition of the defendant is to dismantle the plant which he received as a complete producing mill, under an obligation to keep it in good repair at his own cost, and to return to the owners not a mill, but a building having indeed an engine and boilers, but stripped substantially of everything which gave it character as a mill.

The complainants have, in my view, a clear right to prevent the defendant from such a course by restraining the removal of the machinery and equipment referred to in the bill of complaint.

I will advise a decree for the complainants, with costs.


source: Caselaw Access Project

author: Grey, V. C.

license: Public Domain

text:
    Amos K. Ashby v. Timothy W. Ashby et al.
    [Filed May 12th, 1900.]
    1. When a beneficiary under a will is also given the privilege to continue to occupy a mill under a requirement that he keep it in good repair at his own cost and pay for all needed' repairs, and continues to occupy as prescribed by the will, he cannot afterwards be permitted to charge the expenses of keeping the mill in good repair against other devisees of the will. He cannot accept the benefits conferred by the will and disappoint the intent of the testator.
    2. A provision in a will which requires a tenant to keep a property in good repair, which contains no exception relieving him from the duty to make repairs occasioned by wear and tear or the elements, or other named reason, obliges the tenant to maintain the property in good repair without regard to the cause of dilapidation.
    3. An obligation to keep a property in good repair and to pay for all needed repairs will prevent the obligated person from recovering for expenditures which were “ necessary for the proper repairs of the building,” whether they were of a permanent nature or not.
    4. When a tenant is in possession of a mill, paying a fixed rent, and is also a remainderman to the extent of one undivided fifth part, and in order to increase his means of extending his business, does work in repair or restoration of the property, against the wish of the other remaindermen, he cannot, in equity, charge their estate with the expense of the work as a bona fide improvement of the common property.
    5. The equitable rule granting relief against interested parties, who “stand by” without disclosing their rights, and see another do an act in ignorance, of them, cannot be invoked when the other does the act in spite of the open opposition of the interested party.
    6. Executors to whom is given no estate, but only a mere power to sell lands after a certain time, upon the failure of a certain person to purchase, have no authority to contract to charge the property with the expense of repairs.
    On bill, answer and proofs.
    The complainant, Amos K. Ashby, is the occupant of a gristmill and dwelling-house property situate on Delaware avenue, in the city of Burlington. The property was owned by his father, Edward Ashby, who died on the 15th day of May, 1888, seized of the same in fee-simple.
    Some four years before his death the testator had, on March 25th, 1884, demised the premises in question to the complainant by a written lease for the term of three years, at a yearly rental of $425, payable quarterly, with a covenant that if the lessee should have made
    “ material and substantial additions to the machinery of said mill at his own proper cost, and paid therefor, in case of his death during the continuance of this lease, his estate shall receive from said party of the first part such proportion of said cost as they then add to the value of and he worth to said premises. In case of the death of either of the parties hereto, then and in that case this lease shall cease and expire in six months from and following such death.”

      The lease also contained a clause'for re-delivery of possession of the premises in as good condition as to repairs as they were at the time the leasing, ordinary wear and tear and destruction by the climate only excepted, and also this clause, “ all necessary repairs to sd. mill property during the continuance of sd. lease to be paid for by sd. party of the 2nd part.”
    While the above-mentioned lease was in force, the testator, Edward Ashby, on Juné 19th, 1887, made his will hereinafter quoted, containing the two provisions regarding repairs, which are now the subject of dispute. There is an endorsement on the lease of March 15th, 1884, which indicates that it was intended to be continued for a year in addition to the term of three years demised by that lease.
    On March 25th, 1888, a new lease was made by which the testator again demised the premises to the complainant for a further term of three years until March 25th, 1891, terminable in six months after the death of either party, with the same covenants and clauses as to repairs as are above quoted from the lease dated March 25th, 1884. While this term was outstanding, the testator, Edward Ashby, died as above stated on May 15th, 1888. The complainant continued to occupy the Burlington mill property under the terms of the lease dated March 25th, 1888, up to November 15th, 1888, that being six months after the death of the lessor and testator, Edward Ashby.
    By his will the testator devised the residue of his real estate, including this mill, &c., to his wife, Lydia G. Ashby, during her life, with the following proviso :
    “ Provided, nevertheless, that my son Timothy W. Ashby shall be allowed to continue in the occupation of the homestead house, farm and mill property, in Mansfield township, if he elect to do so, and shall pay all taxes and keep the said property in good repair at his own proper cost and expense, and shall further pay the sum of three hundred dollars per year in four quarterly payments as a rental therefor during the life of my said wife; and it is my desire and request that my said son Timothy do so occupy the said premises On the terms aforesaid, but should he not elect to do so or should desire to vacate the said premises, then my said wife may rent the same to any other tenant on the best terms that can be obtained by her. And, provided also, that in like manner my son Amos K. Ashby shall be permitted to continue in the occupancy of my mill property, on Delaware avenue, in the city of Burlington, and the dwelling on the S. W. corner of York and Delaware St, he paying all taxes and all needed repairs at his own proper cost and expense, and a further yeai-ly rental of four hundred and twenty-five dollars to be paid in four quarterly payments to my said wife during her natural life, and subject to the same conditions, provisions and requests regarding my said son Amos as above made regarding my son Timothy. ’

    The testator further provided that upon the death of his said wife his property should be disposed of by various special legacies and devises, among others to Amos, a legacy of his own note for $1,000, and made this further provision as to the Burlington mill:
    “And as an additional provision regarding the mill and dwelling house on Delaware avenue, in Burlington, it is my will, and I direct that my said son Amos K. Ashby shall be privileged at the death of my said wife to become the purchaser of said properties for 'the sum of ten thousand dollars [Here he makes a like provision for Timothy to purchase the Mansfield mill for 5>8,000j, the said option and privilege to be theirs for the space of three months after the decease of my said wife, after which the said properties may be sold by my executors who are hereby authorized and empowered to convey the same in fee simple.

      “Eighth. The rest, residue and remainder of my estate wherever situate, ■whether real, personal or mixed, I give, devise, and bequeath to my sons, Timothy W. Ashby, Amos K. Ashby and David G-. Ashby, and my daughters, Mary G. Vandergrift and Anna S. Phares, one equal undivided fifth part to each of my said children (my other children having been hereinabove provided for) to their heirs and assigns forever, and in the event of the decease of either of my said children during the lifetime of my said wife without issue, him or her surviving, then the said estate shall vest in such of my said five last-named children as shall at that time survive. And to their heirs and assigns forever.

      “Ninth. I nominate, constitute and appoint my two children Timothy W. Ashby and Ella K. Ashby, and my friend, Henry S. Haines, of Burlington, N. J., to be the executors and executor of this my last will and testament.”
    The will was, on June 5th, 1888, proven by all the executors named, and they proceeded to settle the estate. The complainant continued to occupy the Burlington mill and house after his father’s death and until the present time.
    The complainant alleges in the bill of complaint that his occupancy of the Burlington mill was not “ upon the precise terms and conditions suggested in said will,” but as tenant of his mother, the life tenant, and that he made his payments direct to her up to the time of her death, on October 23d, 1897. He further states that the mill building had become greatly out of repair because of the sinking of the floors and bending of the girders, and that in November, 1894, at a meeting between the complainant and the executors — who, the complainant claims, represented all the tenants in common with him — the complainant called their attention to the tendency of the floors to sink and made efforts to induce the executors to authorize an expenditure of $500 by the complainant in “ making the required repairs,” to be paid out of the property when sold. The complainant insisted it would cost more, but was willing to undertake the repairs for that sum. The plan failed, as one of the executors refused to assent. In the following spring — 1895— the tidewater of the river rose so high as to cover the first floor of the mill several times, causing further damage to the foundation girders and floors. The city building inspector gave notice not to load the floors. The complainant alleges that the result was that Ella K. Ashby, one of the executors, finally authorized the work to proceed, agreeing with the complainant that if he would pay for the work as it went on, that what the estate did not pay for, her mother, the said Lydia G. Ashby, would have to see paid; that they would pay for all carpenter work and material, but if any repairs or changes were made to machinery, complainant would have to pay for that.
    The complainant proceeded and spent $2,039.51 in rebuilding piers which had settled and additional new ones, restoring floors and joists which had rotted and renewing the old roof and rafters, which had so settled that they had to be replaced, and the third floor had to be removed and made new. The complainant claims that all these repairs and improvements were of a permanent nature and “ necessary for the proper repairs of the building,” and have added to its permanent value ; that his co-tenants in common saw and knew of the work when it was going on and made no objection. He alleges that he has demanded that they consent to pay the expense he has incurred, but they have not done so, and that the executors have given notice of the sale of the mill property under the power given them in the will. He prays that his right to be repaid out of the mill property, or from the proceeds of its sale, the full amount of his expenditures in repairing and improving the mill may be established, and that the said amount may be decreed to be a lien on the mill, and the defendants required to pay the complainant their proper proportion of said expenditure, and for an injunction against any sale by the executors or a disposition or encumbering of the premises until final decree.
    The complainant has appended to his bill a list of the names of the persons to whom he paid money, and the amounts paid, with a few items showing for what the money was expended. This list he refers to as a copy of the items of his expenditures. It throws very little light on any other point than the amounts claimed to have been paid out by him. Nothing stated in the list shows for what portion or character of the work done the money was expended.
    The complainant makes the executors of the will, and the other tenants in common of the property, defendants in his bill.
    The tenants in common by their answer deny that they ever agreed with complainant to pay him $500 toward repairing the mill, and say that such an agreement was discussed but never reached. They deny any responsibility for the repairs made by complainant, and aver that he held and occupied the premises exclusively under the terms and conditions named in the will by which it was his duty to make all needed repairs to the mill; that the repairs made were such as natural wear and tear and his own overloading of the mill required to be made, and for which he was by the will required to pay without liability on their part to contribute.
    The executors by their answer also insist that complainant’s occupancy of the mill was in accordance with the exact terms and conditions of the will, and with no change whatever consented to by them, and they deny that the complainant occupied the premises as tenant of his mother, the widow of Edward Ashby. They allege that the threatened injury because of the sinking of the floors was the result of. the complainant’s overloading of.the mill. They admit the meeting and discussion of the' proposition to authorize the expenditure of the $500, but they deny there was any agreement. They admit that Timothy gave notice of his refusal to consent to allow the complainant anything for the proposed repairs, and that the latter was according to the will compelled to fix the property. They insist that the damage from the rising tides was a natural risk which the complainant voluntarily assumed. That the condition of the mill, touching which the building inspector gave notice, was caused by the complainant’s negligence in overloading the mill. They deny that Ella K. Ashby authorized thé work to proceed on any agreement with complainant to pay for it on behalf of the estate or of her mother, and aver that they refused as executors to obligate the estate for such repairs, or to depart from the terms of the will as to these matters. They deny that they encouraged the complainant by promise to make the expenditures for repairs, and insist that he did this under the terms imposed on him by the will under which he continued to occupy the premises. They admit the repairs made were necessary for the proper repair of the building as required by the will, and that they added to the permanent value of the building, as all such repairs would. They admit that they noticed the complainant to purchase or vacate, and that they proposed to sell under the power given in the will. They deny that the complainant has any equity in the premises, and aver that the annual rental, $425, is low, and that the testator intended that it should be so made in order that the additional sum necessary for repairs should be made a fair rental for the premises.
    The complainant applied for a preliminary injunction to restrain the executors from selling until his equities were determined. This was refused on the ground that the bill did not state a case as against the executors, which was free from doubt, and that the complainant had delayed his application to so late a day that the injunction might unduly oppress other parties interested, and the rights of the complainant, if he had any, might be as well "protected by retaining the proceeds of the executors’ sale under the control of the court.

      Mr. Charles E. Hendrickson and Mr. David J. Pancoast, for the complainant.

      Mr. Clarence T. Atkinson and Mr. Mark B. Sooy, for the defendants.
   Grey, V. C.

The first point to be determined in this case is whether the continued occupancy of the mill property, &c., after November 18th, 1888, by the complainant was under the terms prescribed by the testator in his will or under some special agreement with the life tenant, Lydia G. Ashby.

The status of the complainant, in his occupancy of the mill, is a most important factor in the settlement of the question whether he is entitled to be allowed for the repairs by him made to the mill. If he held the mill under the terms prescribed by the testator in the will, and the work done was within the class of repairs which he was by the will required to do at his own cost, then his expenses for repairs made cannot be charged against the defendants, who are his co-tenants in common. If the complainant held the premises as tenant of the widow, the expenses of repairs must be borne by the person who, under the terms of their agreement of letting, was obliged to meet them. If he occupied free from any obligation to do the work under the-terms of the will or of the lease from the widow, but simply as co-tenant, then expenditures for necessary repairs and proper betterments, if honestly made by him as tenant in common in good faith for the improvement of the property, may present an equitable claim.

By the operation of the testator’s will, the widow, Lydia G. Ashby, took an estate for life, in the premises, subject to a privilege permitting Amos to continue in the occupancy of the mill, &c., upon the terms prescribed by the testator, which were that Amos should “ pay all taxes and all needed repairs at his own proper cost and expenses” and a yearly rental of $425 per annum, payable to the widow in four quarterly payments, during her natural life. He was also, to quote the words of the will, to occupy the Burlington mill, “subject to the same conditions, provisions and requests * * * as above made regarding my son Timothy.” In the preceding part of the same paragraph Timothy was required, touching the Mansfield mill, to “keep the said property in good repair at his own proper cost.” Amos was therefore to hold the Burlington mill, charged by the testator with an obligation to keep that in good repair and to pay for all needed repairs. But should Amos not elect to continue to occupy, or should he desire to vacate, the premises, then the widow might rent the same to any other tenant on the best terms that could be obtained by her.

By the residuary clause the title in fee to the Burlington mill, &c., passed to the residuary devisees, but subject to an option given to Amos to purchase'it at the price of $10,000 within three months after the death of the widow, and if the option was not exercised during the period specified, then further subject to a power of sale, under which the executors were authorized, but not directed, to sell the property.

At the time of the testator’s death, May 15th, 1888, the complainant was a lessee in possession of the Burlington mill property. He continued in possession during the further six months to November 15th, 1888, after the death of the testator and lessor, as provided in the lease. He further continued in possession from that time to the death of the widow and life tenant, on October 23d, 1897, And up to the present time, and he did not, though notified so to do, exercise his option to purchase at the price of $10,000 fixed by the testator.

The complainant in his bill of complaint alleges that he did not hold the mill under the conditions prescribed by the will, and has sought to sustain this allegation by proof. That he did in fact continue in the occupancy of the mill after his term of his lease had expired, is not denied. He admits that he continued to pay $425, the same rental prescribed by the will. He attempted to show that he had declared that he-was not bound by the will, but his testimony was quite contradictory. He stated in one part that he told this to his sister Ella about September 22d, 1890, but to no one else. At this time he had continued in the occupancy of the mill for over two years after the will was proven, and about eighteen months after his 'lease had expired. In another part of his testimony he declared that when the will was'read he had stated that he would not abide by the will in the presence of all the heirs and of the executors. This was denied by several of the heirs, and the proof is undisputed that he continued in possession without any other arrangement than that fixed by the will. He attempted to show that he made an agreement to hold under his mother the life tenant. When probed, this supposed agreement was shown to have been a mere claim set up by the complainant that his mother had accepted a settlement of the rent due from him by which she allowed him for repairs made by him, and this he insists should be held to have been a recognition of his rights to such an allowance. The proof does not sustain his claim that any such statement was made, and if there were, it would, in the absence of some binding contract to allow for repairs, have been a mere gratuity. Furthermore, no agreement of the widow to allow for repairs could charge the estate of the remaindermen with such expenses.

The weight of the evidence goes to show that the complainant, ever since the expiration of his term as lessee, six months after the death of the testator, has “continued in the occupany ” of the Burlington mill by acceptance of the terms of the testator’s will in that particular. This, under the proofs, he did in actual fact. There is an entire failure to prove any refusal to accept the terms of the will, or that the complainant’s occupancy was under any other agreement.

The course of the defendant in continuing in the occupancy of the mill under the terms prescribed by the will, and accepting the legacy and devise therein given to him, have imposed upon him an obligation to perform the conditions prescribed by the testator. He cannot accept a benefit under the will and disappoint the intent of the testator. He might decline to occupy and vacate, but he might not continue to occupy, except upon the terms prescribed by the testator.

The benefit of the gifts conferred upon the complainant by the same will do not appear to have been in any way disclaimed by him. He was forgiven $1,000, which he owed his father’s estate, and received the gift of a one-fifth interest in the residue. His bill of complaint shows that he is now asserting rights of ownership in the Burlington mill which he claimed under this residuary devise. Having continued in the occupancy of the mill and accepted the benefits of the will, he must be held to have assumed the coincident obligations imposed upon him by the testator. Blake v. Bunbury, 1 Ves. Jr. 523; Bird v. Hawkins, 13 Dick. Ch. Rep. 229, and eases there cited. He was bound to keep the mill in good repair at his own proper cost, and to pay for all needed repairs.

There is nothing in the proofs to show that the complainant occupied the mill under his holding of a one-fifth interest in remainder. As remainderman he had no right of possession whatever during his mother’s life. He sought to induce the executors to approve of the expenditures for repairs, and to undertake to pay them out of the estate, but they made no agreement to that effect. His acts were not those of a remainderman, but of an under-tenant in possession, paying rent. He was willing, he wrote to Ella, one of the executors, to put the mill in proper condition to enable him to store a larger stock on the upper floors, if she said so, even if Timothy refused to consent. It was to facilitate his own means for doing a larger business as tenant in possession, and not to improve the property, that he did the*work.

There is some mention in the pleadings, and also in the testimony, of a meeting of the executors, and of an undertaking by them to arrange for the making of repairs to the mill. Several incidents of this sort are related, reciting the statements or action of Ella K. Ashby, who is one of the executors, but is not one of the tenants in remainder. She denies in her testimony that she ever did more than consider and favor the proposition to spend not exceeding $500 on the repairs, and this' was a suggestion only, expressly dissented from by Timothy, one of the remaindermen, and not shown to have been assented to by the others, nor to have been accepted by the complainant. The weight of the evidence goes to show that there was no agreement for these repairs at all, between any of . the parties, not even by the executors.

Irrespective of the actual conduct of the executors, the terms of the will clearly show that they had but a naked power of sale, to be executed upon the failure of Amos to purchase within three months after the death of the widow. Such a power confers no authority upon the executors to contract to charge either the general estate of the testator, or the estate of the life tenant, or of the remaindermen, with the expenses of repairs or improvements. The power of sale lay dormant, a mere possibility, until upon the failure of the complainant to take the property after the widow’s death, within the time prescribed by the testator, it became effective; but even then only to make sale of the premises as empowered by the will.

Upon all the proofs it is shown that the complainant continued to occupy the Burlington mill on the expiration of his lease six months after his father’s death, under the terms of his father’s will, which obliged him to “keep the property in good repair ” and to pay for “ all needed repairs at his own proper cost,” &c., and not as lessee under a special agreement with his mother, the life tenant, nor as remainderman.

It being established that the complainant continued in the occupancy of the Burlington mill under the provisions of the will, it is to that instrument we must look to ascertain what obligations the testator imposed upon his sons for the privileges there secured to them. The will offered to each son the choice either to continue to occupy upon the terms the testator named or not to occupy on those terms, and if he desired to vacate the widow might then let the property to some other tenant upon the best obtainable terms. The testator intended, for some reason satisfactory to him (possibly to prevent disputes in the family or imposition by the sons upon the widow), to dictate the things which each son should do if he continued to occupy his mill. They were given a preference of occupancy, but only on the terms prescribed by the testator. If they refused to accept these the widow was authorized to let to some other tenant on the best obtainable terms.

The words of the will, prescribing what the complainant should do touching repairs if he continued to occupy the Burlington mill,.are entirely clear of doubt, and there is no need to look into the surrounding circumstances to ascertain the testator’s intent.

It remains to be ascertained whether the repairs made were such as were within the terms imposed by the will.

The work that was done on the Burlington mill by the complainant, taking the showing of all the evidence, was occasioned' by the fact that in 1895 the mill had come to be in such a bad condition of repair that the complainant was unable to carry on in that mill as large a trade as he desired-and found to be necessary in order to make it profitable to himself as a miller conducting an active business. This dilapidation of the Burlington mill was caused by inherent defects of construction, by its loeacation on the river bank, by the action of the tides and of the elements, by non-repair for years when it had become necessary and by the complainant’s overloading of the mill beyond its capacity to bear the weight of the grain and machinery which he found it necessary to store in it in order that he might make the business profitable to him.

The terms imposed upon the complainant by his father’s will under which he continued to hold the property, and was in possession at the time the work was done, obliged him as stated to “ keep the property in good repair at his own proper cost,” and to pay for “all needed repairs.” These provisions contained no exceptions relieving the complainant from repairing the property to the extent that it might deteriorate by wear and tear, by the elements, or by any other cause. He had agreed by accepting the continued possession to keep it in good repair, without regard to the causé which occasioned the dilapidation. In Brecknock Co. v. Pritchard, 6 T. R. 750, there was a.covenant “ to uphold and keep in complete repair fbr seven years ” a bridge. Destruction was caused by a flood, and it was held in the absence of some exception covering this mode of loss that the covenantor must rebuild.

The complainant in his bill of complaint' has defined and characterized the nature of the work done; when having narrated the details of it, he alleges that “ all the repairs and improvements thus made were of a permanent nature and character, and were necessary for the proper repairs of the building, and have added to its permanent value.” By this averment the complainant himself places the work done within the class of needed repairs which, under the terms imposed upon him by the will, he was bound, while he continued to occupy, to keep up and to pay for at his own proper cost.

Assuming the work done to have been either in whole'or in part improvements, as distinguished from repairs, the complainant has failed to establish any equity which would justify a decree compelling the defendant to pay for them. The transaction differs radically from the claim by a tenant in common who in good faith improves the common property, to have that part where he has improved set off to himself, or the value of the improvement allowed to him.

The Burlington mill was an entirety; it was manifestly impossible to divide or to apportion it. The complainant knew this, and did nothing in any expectation that the part on which he spent his money could be set off to him. Nor did he do the work as a devisee, owning a one-fifth share, for the improvement of the property. His letter to Ella, and all the proofs show that he wanted an express agreement to indemnify him, and did not undertake to “fix the mill” under a claim of right to improve as a part owner.

The doctrine of “standing by” while improvements were made in ignorance of adverse claims has no application, and cannot be invoked against the defendants. The complainant was fully informed, before and at the time he made the changes in question, that the remaindermen affirmatively opposed the expenditures which he was making. He was in no way misled by their silence, and having acted with knowledge of their opposition, he cannot now set up an equity which is dependent upon his want of notice at the time he acted.

Again, under the terms of the will, the complainant was to be permitted to continue in occupancy of the mill, &c., during the life of the widow, he paying the named rent, taxes and keeping the property in repair. When he did the work in question he knew that he was secured by the will, until the end of the life estate, against any increase of rent, because of any greater value given to the property by the work done. His interest in the property as remainderman was but one-fifth, but his actual enjoyment as tenant in possession was an entirety. To authorize the complainant, under such circumstances, at his own choice and against the wishes of the tenants in remainder, who were out of possession, to make improvements of the common property, of which he had had full enjoyment, and to charge the expenses to the remaindermen, with no return to them for his continued use of the improvements, would be grossly inequitable. He might thus, during the life estate, have used up all the improvements, and yet have called on the remaindermen to pay for them.

The expenditures which the complainant made, considering all his relations to the property, when openly opposed by some of the other parties interested, and to the extent that he made them, by all, cannot be said to have been in good faith as tenant in common of one-fifth in remainder, but rather for his own benefit, as tenant of the entirety in possession during the life estate, with notice that the remaindermen would not be responsible for them. • •

The complainant, has shown no equity which justifies either a restraint of the exercise of the executors’ power of sale, or charge of the expense of the work done, upon the estate of the remaindermen or upon the proceeds of the executors’ sale.

The bill of complaint should be dismissed, with costs.


author: Magie, Chief-Justice.

text:
    The Inhabitants of the Township of East Orange, in the County of Essex, et al., appellants, v. The Suburban Electric Light and Power Company, respondent.
    [Filed November 20th, 1899.]
    The act entitled “An act relating to electric light, heat and power companies,” approved April 21st, 1896 (P. L. of 1896 p. 382), gives extensive power to the corporations referred to in the title to use the public roads, highways, streets, avenues and alleys in the state for the purpose of erecting posts or poles to sustain necessary wires, with the proviso that no posts or poles shall be erected in any street of any incorporated city or town without first obtaining from the incorporated city or town a designation of the streets in which the same shall be placed, and the manner of placing the same. — Held, that the municipal corporations referred to in the proviso are such as are called cities and towns eo nomine, and that townships are not included in such designation.

      On appeal from decrees advised by ’Vice-Chancellor Pitney, who delivered the following opinion in Suburban Electric Light and Power Co. v. East Orange:

    The complainant is a corporation organized under the General Corporation act for the purpose of supplying electric light and power, and in the exercise of its corporate rights has strung certain electric wires along a street known as Central avenue, within the territorial 'limits of the defendant, the township of East Orange. The municipal authorities of that town threaten to remove said wires by force, and the object of the bill is to restrain such threatened action.
    The wires in question are strung upon poles belonging to, and by permission of, a telephone company, which poles were erected and are maintained lawfully, and the right of the company so erecting them to maintain the same,’so far as the municipality is concerned, is not challenged. It was admitted that the wires are maintained at such a height as not in anywise to interfere with the use of the streets.
    The right of the complainant to so maintain wires is based upon the act of May 10th, 1884 (P. L. of 1884 p- 881), which was in substance re-enacted by the act of April 21st, 1896 (P. L. of 1896 p. 822). That act provides that a company like the complaiuant
    “ shall have full power to use the public roads or highways, streets, avenues and alleys in this state for the purpose of erecting posts or poles on the same to sustain the necessary wires and fixtures, upon first obtaining the consent in writing of the owners of the soil,”
    with a provision that
    “no posts or.poles shall be erected in any street of any incorporated city or town without first obtaining from the incorporated city or town a designation of the street in which the same shall be placed and the manner of placing the same, and that the same shall be so located as in no way to interfere with the safety .or convenience of persons traveling on over the said roads and highways, and that the public streets in any of the incorporated cities and towns of this state shall be subject to such regulations as may be first imposed by the corporate authorities of such cities and towns.”

      The township committee of East Orange, by a special charter, are authorized by subdivision 9 of section 6 of the supplement to the act organizing the township, which supplement was passed March 10th, 1873,
    “ to prevent or regulate the erection or maintenance of any awning, stoop, steps, platform, bay window, swinging gate, cellar door, area, descent into a cellar or basement, sign, banner, post or erection or projection of any kind in, over or upon any street or highway or public place, and to remove the same, when already erected, at the expense of the owner or occupant of the premises in front of which the same may be.”
    By authority of that section alone, on the 11th of October, 1886, the township committee passed an ordinance regulating the mode in which telegraph, telephone or electric light poles should be erected in the city; and the fourth section of that ordinance provides that “ all telegraph, telephone or electric light wires shall be placed so as to hang not less than twenty feet above the street crossing over which they are drawn.” That is the only provision in that ordinance as to the stringing of wires.
    On the 19th of February, 1889, the township committee passed an ordinance which provides
    “ that no person or persons shall run or suspend across or through any public street in this township any electric wire, except at railroad crossings, without first obtaining the permission of the township committee.”
    Subsequently, on the 14th of October, 1895, the township committee adopted the following resolution:

      “Resolved, That consent be and the same is hereby given to the ‘ Suburban Electric Light and Power Company’ (the complainant) to erect poles and string wires within this township for electric lighting purposes, subject to all the provisions and restrictions contained in the ordinances of the township, and especially of a certain ordinance entitled ‘An ordinance regulating the erection of telegraph, telephone and electric light poles in the township of East Orange,’ adopted October 11th, 1886; provided, however, that no poles shall be erected within the lines of any accepted street within the township without the further consent of the township committee.”
    It is alleged by complainant and admitted by the defendant that Central avenue, along which the wires in question are suspended, is not an accepted street, but is a street within the control and jurisdiction of the Essex county park commission, subject to certain reserved rights in the defendant.
    Under this resolution the wires in question were strung upon the poles of the telephone company, as we have seen, by its consent.
    It was held by "Vice-Chancellor Emery, in Inhabitants of Summit v. New York and New Jersey Telephone Co., 12 Dick. Ch. Rep. 123, that the language of the Telephone act, which is substantially the same as that of the Electric Light act above cited, gave the telephone corporation the right to string wires over the streets without the consent of and subject only to proper regulation by the municipal authorities. The regulation contained in the ordinance of the defendant herein of October 11th, 1886, provides only that the wires shall be strung a certain number of feet above the street. Ho other regulation has ever been ordained. The later ordinance of February 19th, 1889, provides that wires shall not be suspended across any street without first obtaining permission of the township committee. That permission was given by the resolution of October 14th, 1895. And I am of the opinion declared by Mr. Justice Reed in Hudson Telephone Co. v. Jersey City, 20 Vr. 303 (at p. 307), that a’resolution was quite sufficient to give such a permission and that an ordinance was not necessary for that purpose.
    This conclusion renders it unnecessary to consider the debatable questions — first, whether or not the authority given by the above-recited ninth subdivision of section 6 of the defendant’s supplement of March 10th, 1873, authorizing it to prevent certain erections, by its true construction included the right to prevent stringing of wires charged with electricity; or second, whether, if such authority was given, it was not, in effect, repealed by the act authorizing electric light companies to string their wires, subject to proper regulations by the municipal authorities. Vice-Chancellor Emery, in the Summit Case above cited, held that a right to regulate did not include a right to absolutely prevent the stringing of such wires.
    It is ut^ed against the value of the permissive resolution of October 14th, 1895, that it is entirely general in its character and inefficient because it does not designate any street in which the wires shall be strung. The answer to this is that the provision of the act requiring such designation applies only to the erection of poles and not to the stringing of wires. This is the necessary result of the decision of Vice-Chancellor Emery above referred to. In support of this position, however, the defendant cites the case of State, Myers et al., pros., v. Hudson County Electric Co. and City of Bayonne, 31 Vr. 350. But that case relates entirely to the erection of poles, and varies from this in that it was a suit by the state, on the relation of property-owners, to set aside an ordinance of the city which had authorized an electric company to set poles generally in any and all of the streets without designating any particular streets, and under that authority the electric company proposed to set poles along the lands of the prosecutors. The ordinance was set aside as against the prosecutors.
    It is also urged that the resolution adds nothing to the force of the provisions of the act of the legislature giving general authority to the complainant corporation to string wires over streets. This is true, and it is only necessary to add that the permission given by the act, as we have seen, is quite sufficient of itself to authorize the mere act of suspending wires across the street. No action on the part of the municipal authorities was necessary to authorize it. The true, proper and only office of the permissive resolution in question was to counteract and suspend in favor of the complainant the restrictive effect, whatever that may have been, of the ordinance of February 19th, 1889.
    No right was reserved to the township authorities in the resolution of October 14th, 1895, to revoke the same, nor was any limitation fixed upon the time during which the wires strung under it should remain.
    A resolution rescinding that resolution was, after the stringing of the wires, passed by the municipal authorities, and it is claimed by the defendant that it was authorized to make such rescission, and that when rescinded, the authority of the complainant to maintain its wires was destroyed. This .argument is based upon the ground that the permission was a mere license, revocable at the pleasure of the licensor.
    I am unable to adopt that view. Considering it is a mere license, it is still a license which has been acted upon, and may not be revoked at the pleasure of the licensor. In support of this proposition I refer, without citing at length, to the clear and forcible language and reasoning of Mr. Justice Reed in the case of Hudson Telephone Co. v. Jersey City, 20 Vr. 303 (at pp. 305, 306).

    Moreover, the complainant’s right to string the wires does not depend alone, if at all, upon the consent of the municipal authorities; it relates back to the legislative authority to string and maintain the wires upon certain conditions. No time is fixed by the legislative authority for the continuance o'f the exercise of the franchise, and the grant must be presumed to be perpetual, subject, it may be, as it probably is, to the right of the legislature to exercise upon it its police powers from time to time ás it in its wisdom may see fit.
    It is further urged by the defendant that the original grant to the telephone company of the right to erect poles was, by implication, restricted to the right to use them for the purpose of sustaining telephone wires, which are of a more harmless character than electric light wires. It is urged that the latter are dangerous in their nature, and that the grant to erect 'the poles should be construed as restrictive in that respect. I am unable to adopt that view. The dangerous character of the wires must be presumed to have been in the mind of the legislature when it gave the general power above referred to. The poles are the private property of the telephone company, and they have a right to use them as they choose so long as they do not maintain a public nuisance. If they are too small to bear the weight that is put on them, or have become weak from age, it is probably within the power of the municipality to order them to be replaced and made safe, and the cases, in my judgment, must be viewed precisely as if those poles stood upon private ground, as was the fact in the Summit Gase above cited.
    The rights of the owners of the soil which supports the poles upon which the wires in question are strung are not here brought in question. They are quite distinct from the rights of the public in the street, and cannot, in my judgment, be invoked by the defendant in support of its proposed action, for the simple and all-sufficient reason that it is not within the scope of the power of the defendant to enforce those rights.
    Tiie proposed action of the common council is probabiy excited by a desire to compel the electric light company to place its wires under ground. It is not intended by this decision to intimate any opinion as to the power of municipal authorities, under the present state of the law, to bring about that result by proper municipal action.
    ■ I will advise an order that an injunction do issue pending the suit.

      Mr. Philemon Woodruff, for the appellant.

      Mr. Chandler W. Piker, for the respondent.
   The opinion of the court was delivered by

Magie, Chief-Justice.

Two appeals of the above title were argued together. Each complains of a decree enjoining appellant from cutting down certain wires of the respondent, attached to the poles of a telephone company, in a street within the township of East Orange. One decree was made upon a bill filed by respondent to obtain such relief, at a time when a resolution under which it claimed the consent of the township of East Orange had been given to the stringing of those wires remained unrescinded. The other decree was made upon a bill filed by respondent for the same relief after the municipal authorities claimed to have rescinded the resolution.

These decrees were made upon the advice of Vice-Chancellor Pitney, whose opinion is reported in 41 Atl. Rep. 865.

An examination of the opinion discloses that the vice-chancellor assumed that the legislative grant of power to such corporations as respondent is, by the act entitled “An act relating to eléctric light, heat and power companies,” approved April 21st, 1896 (P. L. of 1896 p. 322), to use the public roads or highways, streets, avenues and alleys in this state for the purpose of erecting posts or poles on the same, to sustain necessary wires, did not apply in the territory of appellants unless respondent had first obtained from appellant a designation of the streets on which the posts and poles should be placed.

Upon this assumption the learned vice-chancellor proceeded to consider and determine several important questions such as these — whether the permission required by the act of 1896 could be given by a resolution, whether the permission required a designation of the streets in which poles might be erected when the authority to string wires was alone exercised, whether a permission once given became an irrevocable license, and whether a permission thus given would authorize the stringing of such wires on poles of another company having permission to string wires for other purposes thereon.

I deem it unnecessary to determine whether these questions were rightly solved in the court below, for, upon the true construction of the act of 1896, the power thereby conferred upon such companies as the respondent was not limited by any requirement that permission should be first obtained from a township within which the power was exercised.

The power granted by the act was very extensive in its application to the public highways of the state, but it was admittedly within the authority of the legislature to grant.

The power is, however, limited by the proviso, which is expressed in these words:

“ Provided, however, no posts or poles shall be erected in any street of any incorporated city or town without first obtaining from the incorporated city or town a designation of the streets in which the same shall be placed and the manner of placing the same.”

The proviso is applicable in this ,case only if appellant comes within its meaning as being a town.

That word is used in our legislation in different senses. Stout v. Glen Ridge, 30 Vr. 201. Whether it is used in a particular statute in a general or in a restricted sense is to be determined by the legislative intent discoverable therefrom. As the word in its general sense includes the municipalities called cities, the express inclusion in this proviso of such municipalities by that name indicates clearly that the word “town” was not used in a general but in a restricted sense, and so would apply only to such municipalities as are towns eo nomine.

That such was the legislative intent appears, also, from a consideration of previous legislation upon the same subject.

By the provisions of the act entitled “A further supplement to an act entitled ‘An act concerning corporations, approved April 7th, 1875/ which supplement was approved May 10th, 1884” (P. L. of 1884 p. 331), power was conferred upon corporations having similar purposes to those for which respondent was formed as extensive as that conferred by the act of 1896, with a proviso in these terms :

Provided, however, no posts or poles shall be erected in any street of any incorporated city or town without first obtaining from the incorporated city or town a designation of the streets in which the same shall be placed and the manner of placing the same.”

By a supplement to the act of 1884, just cited, the act was amended so that the proviso read thus:

Provided, however, no posts or poles shall be erected in any street of any incorporated city or town or in any street of any township without first obtaining 'from the incorporated city or town or from the township committee of such township a designation of the streets in which the same shall be placed and the manner of placing the same.” P. L. of 1898 p. 412.

The act of 1896 contained the next expression of the legislative will upon this subject. It related to the same class of corporations. It conferred the like powers in public highways. It repealed inconsistent acts and, obviously superseded the prior legislation just referred to. When, therefore, we find the proviso to this act omit the words of the supplement of 1893, requiring the permission of the township committee in a township, it is at once obvious that the word “towns” in that proviso was not intended to include townships. It follows that it must have been intended to require the permission to be obtained only from cities and towns eo nomine.

That appeilaut is a municipal corporation having powers much more extensive than those conferred on ordinary townships and assimilated to the powers granted to towns created under special legislation prior to the adoption of the amendment to the constitution, and towns now organized or capable of being organized under existing legislation, does not prevent this conclusion. For when it is ascertained that the legislature has used the word “towns” in a limited and restricted sense, courts must accept that sense, and cannot by construction extend the meaning beyond the plain legislative intent.

It was upon similiar reasoning that I concurred in the late decision of this court to the effect that legislation expressed to be intended to affect “cities” would not be applicable to the town of Morristown. The trend of legislation had, in my judgment, clearly indicated that such language expressed a legislative intent to confine the legislative act to the municipal corporations named cities, and that such effect should be given to the act even though it was thereby brought under the ban of constitutional prohibition.

In the ease before us, no contention has been made that, upon such construction as I have attributed to the act of 1896, it falls within constitutional restrictions, and no consideration has been given to that question.

The result is that respondent was possessed of sufficient' authority to string and maintain the wires in question in the public street, and whether it originally acquired or afterwards retained the permission of the township authorities, was immaterial.

Upon this ground I shall vote to affirm the decrees in both cases.

For affirmance — The Chief-Justice,Depue, Van Syokel, Dixon, Garrison, Gummere, Ludlow, Collins, Lippincott, Bogert, Hendrickson, Adams, ISTixon, Vredenburgii — 14.

For reversal — Hone.


text:
    William Riddle, complainant and appellant, v. Joseph F. Clabby, defendant and respondent.
    [Filed November 20th, 1899.]
    Whether, under the circumstances of this case, a right to the conveyance of an interest in land can be established by parol evidence, is not deemed necessary to decide, because, assuming it can be, the conclusion below that the parol evidence was insufficient to establish such right is not found to be erroneous.
    On appeal from a decree advised by Vice-Chancellor Reed, who delivered the following opinion:
    Mr. Benjamin H. Brown, president of the United States Hotel Company, put in the hands of William Riddle, a real estate dealer and broker, certain property belonging to the United States Hotel Company for sale, at the price of $30,000, on a commission of two per cent. Mr. Brown was informed by Mr. Riddle that he had sold the property to.a Mr. Mason, and an agreement for the sale thereof to Mr. Mason was executed on April 24th, 1891, at which time $500 was paid down. This agreement was really made by Mr. Mason for William Riddle and Joseph F. Clabby, and to these gentlemen Mr. Mason assigned in writing his interest in the agreement. Subsequently a point was raised by Mr. Riddle in respect to the title which the United States Hotel Company was able to give, Mr. Riddle insisting that by the operation of certain deeds'whieh the company had given for other lands, certain restrictions were imposed upon the use of the property in question. To avoid this alleged difficulty it was arranged that a mortgage upon this property, held by the Provident Life Insurance Company, which had been 'executed previous to the creation of the restrictions, should be foreclosed, and that the property sold under the foreclosure should be'bought in by someone for Mr. Brown, who was then to convey the title so purchased to Messrs. Riddle and Clabby. At the foreclosure sale the property was sold to one Mr. Shuster, who bought it in for Mr. Brown. Mr.'Shuster,, on October 12th, 1892, the day of the sale, made a new contract with Mr. Riddle and Mr. Clabby confirming the former one already made between the hotel company and these gentlemen.
    The time named in the agreement for delivering the deed was October 29th, 1892, and the consideration, $30,000, was to be paid in. the following manner: Five hundred dollars had been paid when the original agreement was executed. There was to be paid $7,000 in cash. One thousand dollars was to be allowed on account of rent for the property. There was to be a mortgage of $1,500, and another mortgage of $20,000, executed by the vendees to the vendors. On Saturday, October 29th, 1892, Mr. Shuster and Mr. Brown attended at the place of business of Mr. Clabby, at Atlantic City, for the purpose of passing the papers and settling the consideration. Mr. Riddle was sent for and subsequently appeared, and had some conversation with Mr. Clabby, which resulted in an arrangement that Mr. Clabby, with Mr. Riddle’s consent, should take the title to the property alone, and that he alone should execute the bonds and mortgages. ■ This required the execution of a new deed by Mr. Shuster, which new deed on the Monday following was executed, and the entire consideration was paid by and the title to the property taken in the name of Joseph F. Clabby.
    The facts so far are not controverted. The litigation springs out of the difference between Messrs. Riddle and Clabby as to the purpose of this arrangement to put the title of this property in the name of Mr. Clabby alone, instead of in the name of Riddle and Clabby.
    Mr. Clabby insists that Mr. Riddle abandoned his right to receive a deed because of his pecuniary embarrassment, and assented to Mr. Clabby’s taking the entire title and paying the entire consideration.
    Mr. Riddle insists that the reason that he did not take the undivided moiety of the property was because Mr. Clabby objected that his (Mr. Riddle’s) domestic relations would embarrass the execution by him of the mortgages to be given at the time, or of any future deed which might be required to dispose of the property; and that it was understood that Mr. Clabby should take the title, arrange the consideration for their joint benefit, he to be subsequently reimbursed by Mr. Eiddle for one-half the consideration.
    At this point it is suggested, rather than argued, by the counsel for Mr. Clabby, that the agreement to make the title to Mr. Clabby alone cannot be proved by parol. That Mr. Eiddle’s interest in the agreement to convey an undivided moiety to him was an interest in lands which could not be transferred, because of the prohibition of the statute of frauds, by a verbal agreement.
    If this view is tenable, then the agreement of Mr. Shuster to convey to both of these parties is still enforceable, but it seems obvious that upon a bill to compel such performance Mr. Eiddle would be clearly estopped by his assent to the substituted performance. Estoppels in relation to sales of land usually lie in parol, and are based upon the fraud which would be perpetrated by a successful attempt of a person who, by his assent, has led opposing parties into a certain line of conduct to ignore such assent. The specific performance of verbal contracts for the sale of land, when there has been a part performance, rests upon this doctrine. After Mr. Eiddle assented to the substituted performance of the contract to convey, and the conveyance was executed in conformity with his consent, he is estopped from invoking the provisions of the statute of frauds. King v. Morford, Sax. 274; Stoutenburgh v. Tompkins, 1 Stock. 332. The question is then narrowed to one fact, namely, as to which of these counter-contentions of Messrs. Eiddle and Clabby is true, and the answer to this question depends upon what occurred on Saturday, October 29th, 1892, when Mr. Brown, with Mr. Shuster, came to Mr. Clabby’s saloon, bringing with them the conveyance that was then to have been delivered.
    At that meeting there were present, besides the two just mentioned, Mr. Eiddle, Joseph F. Clabby, the defendant, Mr. Thomas Clabby, the defendant’s brother, and Mr. Ormrod, the bar-tender.

      Mr. Joseph F. Clabby’s account is, that on that day, after the arrival of Messrs. Brown and Shuster, Mr. Riddle was sent for, came, had some conversation with Mr. Brown about the settlement of a due-bill for $60, and upon then being asked if he was prepared to go on with the purchase of the bath-house property said, “ No; I am not prepared to go on; I haven’t any money and cannot keep my part of this agreement, and it is off, so far as I am concerned ; I want you to understand that I am out of it.”
    That he then called Mr. Thomas Clabby out into the corridor where they had some conversation, and where finally Mr. Joseph Clabby joined them, and found, as he says, Mr. Riddle trying to induce Thomas Clabby to go in with him in the purchase of the property, as he (Riddle) had abandoned it. Joseph F. Clabby says he again asked Riddle if he meant what he had said to Mr. Brown, and he said he did. And he said, “ If you think it is a good thing, go in and take it yourself; but if you do conclude to buy it, there is one thing I would like you to do for me.” And I said, “What is that?” And he said, “I want you to give me credit for the $250 which I have paid on the Mason agreement, and release me from that amount.” I told him if I purchased the property I would do so.
    Mr. Riddle came back into the room and said to Mr. Brown, “ That if Mr. Clabby should purchase the property, I want you to give him credit for the $250 which I have paid on the Mason agreement; and as I owe him $250, he released me from that amount.”
    Mr. Clabby says he then concluded to take the property, wrote his check for $7,000, and took it to the bank and bought two drafts, one for $6,400 and the other for $600, on the Mechanics Bank of Philadelphia. Six hundred dollars was deducted from the consideration on account of the commissions which Mr. Brown had promised to pay Mr. Riddle and which Mr. Brown allowed to Clabby on the sale. Therefore only the $6,400 draft was passed over, and the newly-executed deed was passed over on the Monday following.
    This states substantially the account given by Joseph F. Clabby of what occurred on the 29th and 31st of October, 1892.

      Mr. Thomas Clabby, who was present on the 29th of October, and went for Mr. Riddle, to inform him that his presence was required, corroborated the testimony of his brother with some immaterial variations. He says, that after Mr. Riddle had announced that he had not got the money and refused to go any further in the matter, that he took witness outside the door and asked him why he did not take the one-half interest; that if he did he wished him to get credit for the $250 which he (Riddle) had paid to Mr Brown on the original Mason agreement. Thomas Clabby also says that he loaned his brother $250 on that day to make a deposit for the benefit of his balance in bank.
    On the other side, Mr. Riddle’s account of what occurred on the 29th of October is, that he was at Heckler’s Hotel, the headquarters of the Democratic committee, and when word was sent to him that Mr. Brown and Mr. Shuster were prepared to make the deed, he went to Mr. Clabby’s saloon, and upstairs to the second story. ' That he drew Mr. Joseph F. Clabby aside, and took him half way downstairs, and said :
    “Joe, the county committeemen have got to take their trains to the various distant points, and if they do not get their trains this afternoon, I would not have a chance to do what I should do politically for these people; and I said, it will take mea good while to make this Settlement; can you make this settlement without my being here? You have the §5,000 mortgage which I gave you in June: however, if you are not willing to do this, I have the money downstairs, but it was in bills of small denominations, one and two dollar bills, and I had a considerable amount of money in one and two dollar bills, and could have readily gone and gotten the money and brought it upstairs, but he was an earnest political supporter of mine, and he was very anxious for me to go and settle with the committeemen; ”
    and he said, “ Go ahead, Bill, I will wait for you until the day after the election.” In recognition of that, I said :
    “ There is a §600 commission coming to me from Mr. Brown, and I will give you one-half of that commission; and I then walked upstairs to where Mr. Brown and Mr. Shuster were sitting, and they asked if I were ready to settle, and I said yes, we were ready to settle in everything but one particular; Mr. Clabby has the money, and the one particular is, that he don’t want me to go on the bond and mortgage, because of some domestic criticisms on my titles; I was perfectly willing to go on the bond and mortgage, and so told them then and there, but that Mr. Ciabby preferred to take the title of the deed himself, and hold it for my benefit, and not cloud the title in any way; I said, ‘ Mr. Brown,' you- will allow the $600 credit on this settlement, and I will give you a receipt in full for the commissions for the sale of this propertyafter some conversation with Mr. Brown about the $00 which Mr. Riddle owed him for overpaid commissions, he says he left the room.”
    Another witness is Mr. Brown. Mr. Brown was asked if he knew why Mr. Riddle’s name was not put in the deed, and replied, “ Well, I think it was on account of Mr. Riddle’s wife, or something of that kind, that probably he could not make a good deed — a good title.” He was asked if that was the reason, and replied:
    “I don’t know whether that was the eh tire reason or not, but that was one of the things talked about at the time.

      “Q. Was there any other reason that you know of?

      “A. No, sir.”
    He also says he supposed that Mr. Riddle had some interest in the title.
    Mr. Shuster was asked :
    “Did you understand why it was you executed the deed to Mr. Ciabby alone ?

      “A. My understanding- was this: there was a conversation between Mr. Ciabby and Mr. Riddle, and for some domestic reasons — -I learned afterwards, for fear of a common-law marriage — Mr. Ciabby did not consider it safe for them to have a joint title and joint deed.

      “Q. Did you hear that statement?

      “A. Yes, sir; I heard them talk about it; they came to me for that reason to make the title as I did.

      “Q. State how it was you received your impression. Who did you hear say so ?

      “A. Mr. Ciabby and Mr. Riddle; that is the only information I have; they were together when I heard the conversation.”
    This is substantially all the testimony in respect to what occurred on October 29th. In passing upon the force to be given the testimony of these witnesses, it has to be kept in mind that they are trying to recall the words spoken in October, 1892. The recollection of the precise words employed in a conversation occurring so long ago must at best be vague. At the time the conversation occurred, none of the witnesses supposed that the language used would become of subsequent importance. Therefore, the unconscious influence of present interest, and the impressions perhaps gained by subsequent conversations by the witnesses with the parties, is liable to color any statement of what then occurred. The testimony of the two Messrs. Clabby, as to the exact words used at that time, is probably their present recollection of what was likely to occur. But their account of the substance of the conversations, the purposes and the result of the conversations, may be accurate. It can at least be said of their statements that nothing is proven in the case in respect to their subsequent conduct or conversation which is inconsistent with the account which they now give of the arrangement of October 29th.
    Of the witnesses produced in support of Mr. Riddle’s theory, it is to be remarked that Mr. Brown, a gentleman of character and probity, has now, and undoubtedly had then, the infirmity of age and deafness, which, added to the natural infirmity of memory, renders his testimony as to the conversations which occurred on the 29th of October extremely uncertain.
    In respect to Mr. Shuster, although he swears definitely to a conversation between Mr. Riddle and Mr. Clabby, from which he says he got the impression that Mr. Riddle was left out of the deal because of domestic difficulties, T am not convinced that he has a recollection of a conversation to that effect between the parties. He remembers nothing of the transaction apart from that; in fact, neither he nor Mr. Brown recalls the fact that the deeds originally prepared were not delivered, and that he, Mr. Shuster, was compelled to execute a new deed, which -was delivered in fact on the Monday following.
    The impression which they say was left upon their minds from the conversation which then occurred was perhaps the result of subsequent conversations and reports.
    In turning to the testimony of Mr. Riddle it is to be viewed in the light of subsequent conversations and conduct. He says that the day after election (November 9th) he went to the saloon of Mr. Clabby and said, “Joe, you can prepare the deed for me; I have my money ready to settle for my half of the property.”
    Mr. Clabby answered, “ It will do to-morrow.” On the morrow Mr. Riddle says he went and said, “ I am ready, Joe; • I have the money here.” Mr. Clabby said, “Well, I do not feel as if I want to have any partners in this transaction.” I • said, “What do you mean ?” He made no reply, but “ that he did not want any partners.”
    Now, Mr. Riddle says that he had the money to pay his share on October 29th as well as on November 9th, and yet on November 1st he borrowed of Mr. Clabby $350.
    Again, after November 10th, when, according to Mr. Riddle, Mr. Clabby had deliberately announced his intention of ignoring his agreement of October 29th and of cutting Mr. Riddle entirely ' out of all rights in the property, the latter seems to have continued in friendly relations with Mr. Clabby. On July 14th, 1892, Mr. Riddle had given Mr. Clabby a due-bill for $2,172.10 and $250, with interest. In May, 1893, they had a settlement of accounts, when Mr. Riddle paid Mr. Clabby a check of $178.77, another for $60, a draft for $2,000 and another for $80. At the same time he gave Mr. Clabby a certificate that he held five shares of the Union National Bank stock belonging to Mr. Clabby, which he was to deliver in ninety days, or $500 in lieu of the same.
    It appears that after the failure of Mr. Riddle to return this certificate of stock or pay the $500, Mr. Clabby, in the beginning of 1894, began an action against him to recover the money. A judgment was entered by default. Mr. Riddle applied to have the judgment opened, and testimony was taken before Robert H. Ingersoll on May 21st, 1894. Mr. Riddle then swore “that he first discovered that his name had been omitted from the deed taken by Mr. Clabby when he went to proffer him the balance for his one-half interest.” He.said “that he could tell that Clabby had the title by his manner.” He said, “ I was not certain how the transaction was concluded.”
    In answer to the question, “ Why was the title made to Mr* Clabby instead of to you,” he answered, “ I don’t know.” He now says that he knew that the title was to be taken by Mr. Clabby alone, and why it was to be so taken, namely, because Mr. Clabby preferred to take the title himself, because of some criticisms of his (Eiddle’s) titles.
    Now, the testimony taken in May, 1894, upon the very point of inquiry, is radically variant from that of October, 1897.
    Again, from the time when, according to Mr. Eiddle, Mr. Clabby had violated his agreement with him and announced his intention to deprive him of his rights in the property, there had been friendly dealings. Mr. Clabby had loaned his money; that had settled, in May, 1893, their accounts; suit had been brought against Mr. Eiddle in 1894, and not until August 6th, 1895, did Mr. Eiddle begin this suit.
    Again, Mr. Charles Idler rented desk room to Mr. Eiddle during the years 1893 and part of the years 1892 and 1894. Messrs. Eiddle, Lafferty and Idler wanted to get an option on this property from Mr. Clabby, and sent Mr. Idler to see Mr. Clabby. Mr. Idler says Mr. Clabby wanted for the property $50,000, and would give us an option if we would put up $500. He says that Mr. Eiddle and Mr. Lafferty sent witness back to see if he could get the option without the $500. ■ Mr. Clabby refused. Mr. Idler testifies that Mr. Eiddle said that at the time he was about to buy that property with Mr. Clabby, but he could not raise the money, and the thing fell through, or something to that effect.
    As to the testimony in respect to other admissions of Mr. Eiddle, subsequent to October 29th, seeming to recognize Mr. Clabby’s title, the liability to mistake in reproducing the conversations is such that I have not given them serious consideration.
    I am unable to find much light in the testimony, and the argument based upon it, in respect to the charge of the principal and interest of tne sum of $250, in the memorandas made by Mr. Clabby, and the credit of the same sum in the same memoranda, upon the basis of which the settlement of May, 1893, was made. There seems to be a good deal of confusion in the testimony in respect to this $250. I think that the loan of $250 evidenced by the check of July 13th was the same loan referred to in the due-bill of July 14th, 1892. That loan seems to have been carried into the account against Mr. Riddle, and interest calculated, and the $250 which represented the one-half of the $500 deposited on the Mason agreement without interest, seems to. have been allowed as a credit.
    In my judgment, under the testimony, the relief .asked for by the complainant must be denied. Nor can I see any way of impressing a trust upon the property, on account of the $600 commissions, which was originally due to Mr. Riddle, and which was deducted from the consideration at the time of the execution of deeds. If it was understood that Mr. Clabby should take the entire legal title, and this money should be used as part of the consideration, no resulting trust arose in favor of Mr. Riddle.

      Mr. Lindley M. Garrison, for the appellant.

      Mr. Clarence Cole, for the respondent.
   The opinion of the court was. delivered by

Magie, Chief-Justice.

The case presented for adjudication is so completely stated in the opinion of Vice-Chancellor Reed, upon which the decree appealed from was made, that it need not be here repeated.

It appears therefrom, without any contradiction, that the agreement of Brown to convey certain land to Riddle and Clabby, the parties to this litigation, upon their paying the consideration, part in cash on the delivery of the deed and part at a future day secured by the bond of Riddle and Clabby and a mortgage on the land, was performed on the part of Brown by the conveyance of the land to Clabby alone, and on the part of the purchasers by a cash payment by Clabby of such part of the sum to be paid in cash as Brown was willing to receive, and by a bond and mortgage upon the land made by Clabby alone. This substituted performance was expressly assented to by Riddle, but his assent was by parol.

It is obvious, however, that by his conduct, in having assented to the conveyance to Clabby alone, he was estopped from making any claim to a conveyance from Brown, and, by his assenting to Clabby’s contracting to pay the whole of the deferred payments of the consideration, from asserting as against Clabby any. adverse claim to the land arising from such conveyance. Riddle’s claim of a right to a conveyance from Clabby of an undivided half of the land must therefore rest either upon a trust arising from the transaction or from an agreement on the part of Clabby.

Riddle has produced no trust or agreement expressed in writing by Clabby.

No trust arose by his paying or securing to Clabby one-half of the purchase price of the land, for he did not do so. While he permitted Clabby to use his commissions of $600, which Brown owed him, to make up part of the cash payment., such use was correctly held by the vice-chancellor not to create a trust for an undivided half of the land.

The vice-chancellor, however, conceded that the agreement by Clabby to convey the undivided half of the land to Riddle, could, under the circumstances, be established by parol evidence and was not within the statute of frauds.

I deem it unnecessary to pronounce upon the correctness of this view, for, assuming it to be correct, the parol evidence adduced was held by the vice-chancellor to be insufficient to make out such an agreement, and as the evidence was extremely contradictory, and as the decision thereon must have depended upon the credit given to the witnesses, I feel unable to say that'the vice-chancellor who saw and heard the witnesses was wrong' in his conclusion.

For this reason, I shall vote to affirm the decree.

For affirmance — The Chief-Justice, Depue, Van Syokel, Gummere, Collins, Lippin.cott, Hendrickson, Adams, Nixon, Yredenburgh — 10.

For reversal — Dixon, Garrison, Ludlow, Bogert — 4.