author: Per Curiam.

text:
    George H. Englehard, receiver of Schroeder & Rogers, complainant-appellant, v. George J. Schroeder and Mae D. Sohroeder, defendants-respondents.
    [Decided April 20th, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Church, who filed the following memorandum :
    “This is an application for leave to file a bill of review in the above entitled cause. The decree filed in the court of. chancery was affirmed by the court of errors and appeals. 92 N. J. Eq. 664. Decided February 28th, 1921. The facts of the case are stated in the opinion of Justice Katzenbaeh. I have therefore thought it unnecessary to repeat them. The grounds for the application is newly discovered evidence. The rule in regard to granting bills of review has been clearly stated by the chancellor in Kirschbaum v. Kirschbaum, 92 N. J. Eq. 7, in which earlier cases are cited and discussed.
    “The chancellor says (at p. 10), ‘The application would have to be made by petition supported by affidavit that the evidence was not only new but could not have been discovered by reasonable diligence before the hearing, and the court would have to be satisfied that the new matter came to the knowledge of the applicant for the first time since the period at which it could have been made use of in the suit, and that it could not with reasonable diligence have been discovered sooner, and that it is of such character that if brought forward in the court it would have altered the judgment/ And further (at p. 11), ‘Newly discovered evidence which is merely cumulative is not ground for a new trial/.
    “The testimony in the suit—which consists of several hundred pages—had to do with transactions between Mrs. Mae D. Schroeder, one of the defendants, and a man named Erancke. The basis of this application is that complainant wishes to offer new evidence concerning transactions between these same parties, or those in which Mrs. Schroeder was interested. I am unable to agree with counsel for the complainant that the evidence is of such character as not only to affect the merits but to compel the setting aside of the decree of the court of chancery. In my opinion it would have to be much stronger, even if admitted, to set aside a decree of the court which has been affirmed on appeal by our highest court. Erom my reading of the testimony, brief of counsel, and my impression gathered from the oral argument, I cannot see why complainant could not have obtained this evidence, with due diligence, in time for use at the original hearing.
    “Eor these reasons I will advise a decree denying the application. It is unnecessary, therefore, to discuss the question of laches, although there are several decisions of our courts holding that in these matters the principle of the maxim, restraining litigation within reasonable limits, should be applied. Putnam v. Clarke, 36 N. J. Eq. 33.”

      Messrs. Coult & Smith and Mr. Qustavus A. Rogers (of the New York bar), for the appellant.

      Messrs. Ziegner & Lane, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the memorandum filed in the court below by Vice-Chancellor' Church.

For affirmance—The Chancellor, Parker, Bergen, Minturn, Kalis ch, Black, Katzenbach, White, HepPENHEIMER,' GARDNER, ÁCKERSON, VAN BuSKIRK-12.

For reversal—None.


source: Caselaw Access Project

license: Public Domain

text:
    L. Balk Co-operative Company, Inc., complainant-respondent, v. International Fur Workers' Union of the United States and Canada, Local No. 25, et al., defendants-appellants.
    [Submitted March 26th, 1923.
    Decided June 18th, 1923.]
    On appeal from an order of the court of chancery advised by Vice-Chancellor Buchanan.

      Mr. Walter C. Sedam (Mr. Henry Carless and Mr. Samuel F. Leber, on the brief), for the appellants.

      Mr. Russell H. Watson (Messrs. R. F. & A. D. Watson, on the brief), for the respondent.
   Per Curiam.

This is the appeal of Morris Jellin, Nathan Roman and George E. Eden from an order of the court of chancery adjudging them guilty of contempt of court.

It appears that the L. Balk Co-operative Company, Inc., carrying on business in New Brunswick, brought suit in the court of chancery against the International Eur Workers’ Union of the United States and Canada, Local No. 25, and several others, among whom were the appellants, to restrain them from the use of unlawful methods in carrying on a strike against the complainant. On October 3d, 1922, a rule to show cause was made, directed to' the several defendants, containing provisions of interim restraint usual in such cases. That injunctive order was served upon Jellin and Eden October 3d, and upon Roman October 5th. On October 14th, 1922, there was presented to the vice-chancellor a petition, accompanied by affidavits, alleging that the appellants had violated the terms of such restraining order by particular acts therein stated. An order was thereupon made requiring the appellants to show cause why they should not be adjudged guilty of, and punished for, contempt of the court. Upon the hearing thereof, the vice-chancellor advised an order adjudging each of the appellants guilty of contempt and imposing punishment therefor, and an order was entered accordingly.

The first point argued by the appellants is that the vice-chancellor had no power to hear the -matter and advise the order appealed from because the matter had not been referred to him by the chancellor.

This point is without merit. It overlooks chancery rule 130 (4a) promulgated March 13th, 1919, which reads as follows:

“130. Applications in the following cases may be made to any vice-chancellor, and such applications are hereby referred to such vice-chancellor to hear and advise orders and decrees therein without special order of reference; * * *
“4a. Applications to punish for contempt, whether civil or criminal, including applications for orders or decrees therein.”

The present proceedings was not under either rule 313 or 314. These rules have to do with attachment for contempt, which historically was the procedure in cases of civil contempt. The procedure in criminal contempt, such as the case at bar, was originally by committal. Both of these methods have been largely superseded by orders to show cause and hearings thereon. Redberg v. Lamachinsky, 74 Atl. Rep. 44; In re Merrill, 88 N. J. Eq. 261. In the cases of Seastream, v. New Jersey Exhibition Co., 72 N. J. Eq. 377, and Bijur v. International Assn. of Machinists, 92 N. J. Eq. 644, the proceedings were by order to show cause, and in both cases the orders appealed from were affirmed in this court.

The right of the chancellor to make general rules of reference was recognized by this court in the case of Delaware Bay, &c., Co. v. Markley, 45 N. J. Eq. 139, and that right was properly exercised by the promulgation of rule 130 (4a).

The next point is that the evidence did not establish the guilt of the appellants beyond a reasonable doubt.

With respect to appellant Morris Jellin, we agree with the vice-chancellor that the evidence established beyond a reasonable doubt that on October 9th, 1933, he threatened Joseph Takacs with violence, with intent to coerce him to refrain from re-entering the employ of the Balk Co-operative Company, this in violation of the provisions of tlie restraining order of October 3d, 1933, herein mentioned.

With respect to appellant Nathan Roman, we likewise agree with the vice-chancellor that the evidence established beyond a reasonable doubt that, after service upon him of such restraining order, and in violation of the provisions thereof, he incited, caused and abetted the commission of assaults and batteries tipon employes of the company, and attempted to intimidate such employes by threats of violence, with intent to coerce them to refrain from re-entering the employ of the company, as stated with. particularity in the order adjudging him guilty of contempt.

But with respect to the appellant George E. Eden we have reached a different conclusion. He was not, and could not be in this proceeding, convicted because of anything which occurred before October 3d, the day upon which the restraining order was made and served upon him. The vice-chancellor acquitted him for what occurred at the informal meeting of the union on October 3d, but considered that he was equally guilty with Roman because of his presence at the formal meeting of the union of October 6th, and of his subsequent conduct in procuring bail for non-resident persons arrested by the police for acts of violence in connection with the strike. The vice-chancellor said that “the evidence leaves me without any doubt that Roman did say the things with which he is charged, and that Eden participated therein by his official presence and the implied approval of his silence or failure-to protect or absolve himself.” As we understand, the learned vice-chancellor did not deny the right of Eden, who was an official of the union, to be present at the meeting or to occupy the position he did in the union, nor his right to obtain bail for the men under arrest. But he considered that these circumstances, taken in connection with the fact that Eden was ‘silent in the presence of Roman’s inflammatory speech, when viewed in the light of all the evidence, justified the conclusion that he was guilty of inciting the subsequent acts of violence upon the part of sympathizers with the strikers. To this we are not prepared to agree. On the contrary, after consideration of all the evidence, we are not satisfied beyond a reasonable doubt of the guilt of Eden.

The result is that in so far as the order under review adjudged the appellant Eden guilty of contempt and imposes punishment upon him, it will be reversed, but in all other respects it will be affirmed.

Appeal of Jellin-—-

.For affirmance—The Chief-Justice, Trenchard, Parker, Bergen, Black, Katzenbach, White, Heppenheimer, Ackerson, Yan Buskirk—10.

For reversal—Minturn, Kalisch-—2.

Appeal of Eoman—

For affirmance—The Chief-Justice, Trenchard, Parker, Bergen, Kalisch, Black, Katzenbach, White, Heppenheimer, Ackerson, Yan Buskirk-—11.

For reversal—Minturn—1.

Appeal of Eden—

For affirmance—None.

For reversal—The Chief-Justice, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbach, White, Heppenheimer, Ackerson, Yan Buskirk—12.


text:
    Ada Leonard, appellant, v. William N. Donovan, respondent.
    [Decided June 18th, 1923.]
    On appeal from a decree of the court of chancery.

      Messrs. Howe & Davis, for the appellant.

      Mr. James B. Stewart, Jr., for the respondent.
   Per Curiam.

The bill in this case was filed by Lillian Leslie Donovan, the wife of the defendant, to have decreed to be null and void a conveyance of property made by her to the defendant in August, 1920. At the time the bill was filed, in June, 1921, Mrs. Donovan was an inmate of the insane asylum at Over-brook, where she had been confined since the preceding March. ’The suit was instituted by her sister, Ada, as next friend. The charge in the bill was that at the time of making the conveyance Mrs. Donovan, who was then a Miss Leonard, was insane and without mental capacity to. make a conveyance. The bill contained a further averment that, even if such mental capacity existed, yet the complainant’s mind had been enfeebled by disease, and that the defendant took advantage of that fact, and persuaded her, by undue influence exercised by himi, to execute the conve3rance without any consideration passing from him to her. The defendant denied all the charges contained in the bill, asserting that the conveyance was made by Miss Leonard of her own free will; that it was not a gift of the property described in it from her to him, but was made in consideration of his promise to take care of her for the rest of her life. Mrs. Donovan' died pendente lite, and her sister, the present appellant, was substituted in her place as complainant. The hearing resulted in a dismissal of the bill.

We think the decree under review should be affirmed. The proofs disclosed the following situation. Mrs. Donovan, the original complainant, and the defendant wefe second cousins, and he was a boarder in her home for many years prior to the execution of the conve3rance now in controversy. There is no doubt that their relations during all that time were friendly and close. In September, 1919, when she was about fifty years old, she had an apoplectic stroke, which left her completely paralyzed on one side, so that she was never able to help herself afterward without assistance; in other words, she was practically bedridden. The defendant continued to live in her home after this seizure, acting not only as her friend, but really as her nurse, and this continued from the time of her stroke until August, 1920, when the conveyance was made. Counsel who prepared the deed was instructed by Donovan, the defendant, to prepare an agreement also, binding him (Donovan) to support her during the rest of her life. The instructions with relation to the preparation of the deed, and also of the agreement, were given to counsel in the presence of Miss Leonard, and the agreement was executed by the defendant immediately after she executed the deed. Some three or four weeks thereafter, there having been some criticism in her family about his acting as her mirse, he married her, and continued to take care of her until the following March., when, because of her insanity, she was taken to the asylum at Overbrook; and presumably, as her husband, he continued to support her thereafter until her death.

We find nothing in the proofs to justify the averment of the bill that at the time of the making of the deed of conveyance the grantor was mentally incapable of transferring her property. The mere fact that she was insane some seven months later, standing alone, will not support the complainant’s charge of pre-existing mental incapacity, and the weight of the expert testimony was to the contrary.

Nor does the testimony support the conclusion that this conveyance was a gift of the property described in it rather than the passing of the title thereto for an adequate consideration. The burden of proving this fact by a preponderance of evidence rested upon the complainant, and she has not borne that burden. On the contrary, the evidence upon this phase of the case indicates that it was not. The only ground, therefore, upon which a court would be justified in declaring it to be invalid would be upon evidence showing that it was the result of a fraud perpetrated upon the grantor by the grantee, and there is nothing in the facts before us which ' suggests anything of the kind.

We conclude, therefore, that the decree under review should be affirmed.

For affirtmmce— Tiib Chief Justice, Trenchard, Parker, Bér&en, Halisch, Black, Katzenbaoh, White, Heppenheimer, Ackerson, Van Buskirk—-11.

For reversal—None.


text:
    Edward H. McCormick, Jr., complainant, v. E. H. McCormick & Sons, incorporated, defendant.
    [Decided May 10th, 1923.]
    On appeal of the National Leather Company from a decree of the court of chancery reversing receiver’s determination as to the validity and lien of a certain mortgage, and’in which-Vice-Chancellor Poster delivered the following opinion orally:
    “I am going to dispose of this matter, and if desired, I will file a formal memorandum in the cause, setting forth my views more in detail than I intend to express them now.
    “I am satisfied from the proofs before me that the mortgage held by the bank and Moore and Company is not invalid under the provisions of section 64 of the Corporation act, and the construction placed thereon by the chancellor, when vice-chancellor, in the case of Cope v. Walton, 77 N. J. Eq. 512, and affirmed in the court of errors and appeals in 79 N. J. Eq. 165.

    “I do not find the evidence to show that the McCormick company was insolvent on the 22d of October, 1920, the time the mortgage in question was given; and while I do find that their business had materially fallen off, that they had very
      little, if any, cash, and only about live or six thousand dollars in stock on hand, yet the company owned real estate which they appraised on January 1st, 1919, at $96,000 or more, and appraised in a statement under date of September 1st, 1920, but actually delivered to Mr. Baldwin for the bank on the day in October, 1920, when the mortgage in question was executed, in which statement the value of the real estate is stated to be $225,000, and that this real estate was encumbered by a mortgage of $7,500. It appears from the testimony of Mr. McCormick that this was the valuation he placed upon the property at that time, and, according to his testimony and the statements that I referred to of January 1st, 1919, and of September 1st, 1920, the corporation was indebted to the bank and to Moore and company, and on all other accounts and claims to the extent of $56,469.40; that it claimed assets of $259,007.05, and claimed a total net worth of $202,537.65, and there was nothing in either statement furnished by the representative of the McCormick company to the bank to show or in any way to indicate that the corporation was then insolvent. Furthermore, there is nothing to show that the corporation was insolvent up to the time when the bank began foreclosure proceedings, some time in the latter part of July or 1st of August of this year, which action on the part of the bank induced Mr. McCormick to file the bill in this cause for the appointment of a receiver, in order, as he states, to protect the general creditors of the company. According to Mr. McCormick’s statemént to the bank and to Moore and Company, the total indebtedness of the corporation outside of what was owing the bank and Moore did not exceed $4,000. He suppressed from the bank and from Moore and Company all knowledge of the claim of the National Leather Company, which has been allowed by the receiver for $50,000, and which originally amounted, or was claimed to amount, to $370,000.
    “It is also apparent from the record that while this concern had very little money and very little liquid assets, if any, it still had credit enough and was able to carry on its business from the date of the mortgage, in October, 1920, up to April or May, 1922, and I use the expression as Mr. McCormick employs it, in their tanning in the ordinary way or tanning hides on commission for others. It also appears that after the execution of the mortgage as many as twenty-five men were employed as a force in the tannery. During 1920 that force was reduced to about twelve, and, finally, a few months before the bill was filed in this case, some time in the first part of 1922, these twelve men were discharged, and Mr. McCormick and his brothers and some other continued to carry on business until April or May of 1922.
    “I find therefore that the company was not insolvent at the time it gave the mortgage in question. I find that if it were, there is absolutely no proof to show that either the representatives of the bank or of Messrs. Moore and Company, or any one representing either or both of them had any knowledge of any such insolvency. I also find that at the time the mortgage was given, the company had not suspended business; that it had and continued to have sufficient credit to carry on its business and to meet its current obligations or more, if not all, of them. It paid interest on its first mortgage of $7,500; it had ample assets to pay all its indebtedness due the bank, due Moore & Company and due all other creditors, but not, of course, to pay in full the claim of the National Leather Company, although it would seem it also had ample assets to do that, if the claim of the National Leather Company had amounted then to only the $50,000 allowed by the receiver.
    “The exceptions filed will be sustained and the receiver will have to be reversed in disallowing this mortgage.
    “I will put my conclusions in a more formal way if counsel desire, in case you appeal, but I make the announcement of my conclusions now, to put all of you in proper position in connection with the sale of the company’s property which is advertised to take place this week.”

      Messrs. Lindabury, Depue & Faulks and Mr. Josiah Stryker, for the appellant, National Leather Company.

      Messrs. Pitney, Hardin & Bhinner and Mr. Corwin Howell, for James W. Pittenger and National Newark and Essex Banking Company.

      Messrs. Lum, Tamblyn & Colyer, for George T. James and Edward C. Moore Company.
   Per Curiam.

The decree will be affirmed, for the reasons stated in the opinion delivered by Vice-Chancellor Foster in the court of chancery.

For affirmance—The Chief-Justice, Swayze, Trenchard, Bergen, Minturn, Kalis ch, Black, Katzenbach, White, Heppenheimer, Gardner, Van Buskirk—-IS.

For reversal—None.


text:
    Thomas J. Nagle, complainant-respondent, v. Bernard McCoy and Bernard Werbel et al., defendants-appellants.
    [Submitted March 26th, 1923.
    Decided June 18th, 1923.]
    On appeal from a decree advised by Vice-Chancellor Foster.

      Mr. Herbert Boggs, for the appellants.

      Mr. Robert M. Boyd, Jr., for the respondent.
   Per Curiam.

The suit was to recover back the sum of $500 claimed to have been obtained by fraud, in that defendants, after being employed by - complainant to obtain a dwelling-house property for him, obtained control of it themselves and by misrepresentation induced complainant to contract for it with one ostensibly the owner, but really the secret agent of defendants, at a price $500 more than they had agreed to pay the real owner.

The details of the evidence exhibit a process of circumlocution which is not uncommon in this class of cases and need not be reviewed here in extenso. It is enough to say that we concur with the learned vice-chancellor in his findings that the defendant McCoy, when employed by complainant to soil his house and buy another one in a different place, undertook to do so, and finding a house which he thought would suit, negotiated for it at $7,250; showed it to complainant as priced at $7,750; used $750 which complainant had paid on account to help vest the title in a corporation controlled by the defendants and conveniently available for that purpose, and induced complainant to contract for it at the higher price under the false representation he was dealing with a bona fide owner. In all this Werbel assisted as an alter ego of McCoy.

Such a case is plainly within the rulings in Porter v. Woodruff, 36 N. J. Eq. 174; Rogers v. Genung, 76 N. J. Law 306, and Harrop v. Cole, 85 N. J. Law 32; 86 N. J. Law 250. It is urged that complainant paid the extra $500 voluntarily after becoming aware of the facts; but he did not learn that the company that made the deed and took his money was identified with defendants until after he had paid; and this was the essence of knowledge of the real case.

The decree will be affirmed.

For affirmance—The Chief-Justice, Teenchaed, Paekee, Bebgen, Mintuen, Kalis ch, Black, Katzenbach, White, Heppenheimee, Ackeeson, Yan Buskiek-—12.

For reversal—Hone. .


text:
    Maria A. Hartley, respondent, v. Fred A. Hartley, appellant.
    [Decided May 4th, 1923.]
    On appeal from a decree of the court of chancery, advised by.Vice-Chancellor Foster, who filed the following opinion:
    “This is a suit for separate maintenance under the statute. The parties were married in February, 1917, and were then, and have continued to be, residents of this state. At the time of the marriage defendant was a widower, about forty years old, with two sons, and complainant was then about twenty-three years old; he was a Protestant and she a Catholic. Complainant’s family had lived for some time in the same apartment-house with defendant, and after the marriage, which was kept secret, complainant continued to live with her family, and she and her husband did not live together until May or June of the same year, when complainant took up her residence in defendant’s apartment with him and his two children. Defendant was engaged in peddling fish and produce, and this work was distasteful to complainant.
    “It was agreed that the children of the marriage should be brought up in the Catholic faith, and she claims he later repudiated this agreement.
    “Shortly after they began to live together, defendant began to receive what the parties called ‘Black Hand’ letters. The apparent purpose of these letters was to have defendant secure a divorce from complainant; and complainant’s proofs show that about this time, in May or June, 1917, defendant suggested that an actual or a mock divorce be secured, as a solution of the mystery of these letters, and that this suggestion was rejected by complainant.
    “About Labor Day, 1917, defendant, while at Asbury Park, cursed complainant and struck her with a fan and accused her of being unfaithful, and on their return home defendant ordered her from her home and told her to go and live with her mother, which she did, until the following November 19th, and during this time she received no support from him. On the latter date complainant returned to her husband’s home and remained there until June, 1918. During this period defendant left her alone frequently and did not provide her with either suitable or sufficient food, or with a satisfactory supply of heat. And he spent Thanksgiving and Christmas days away from her. The parties separated for the second time in June, 1918, and this separation continued until the following August, when complainant 'returned to live with defendant on his promise to treat her with greater consideration, and to give her a weekly allowance of $20 for supplies for the home, and this promise was kept until July, 1919, when complainant went to her mother’s home to be confined.
    “In August, 1918, after defendant induced complainant to return and live with him, he organized a corporation known as the E. A. Hartley Realty Company, and to this corporation, he and his wife conveyed all the real estate owned by him, estimated to be worth $19,500. At the time complainant joined in these conveyances, defendant gave her $1,000 to buy a fur coat, but complainant claims that she has since discovered that this payment was made her to induce her to release her dower and enable the defendant to dispose of these several properties, as he has since done, with the exception of one of them, without consulting her.
    “Eor some months after the reconciliation, in August, 1918, the parties lived together harmoniously and until defendant had effected the sale, through the corporation, of all the real estate, except one parcel, on which was placed a mortgage for $8,000. Thereafter defendant returned to his old course of treating complainant with neglect and failed to properly support her.
    “There is also some proof, supporting complainant’s contention that defendant objected to having any children. On August 14th, 1919, a child was born of the marriage, and in September complainant returned to her husband’s home, where she continued to live until January 15th, 1920, when they finally separated.
    “From September, 1919, to January, 1920, the proof is convincing that defendant discontinued the weekly allowance of $20 for household! expenses; that he closed all charge accounts ; • that he forbade complainant buying anything for herself or the child on defendant’s account; that the supply of food and fuel was wholly inadequate; the gas, the only means of heating, was shut off, ostensibly because defendant refused to pay a disputed bill. Complainant repeatedly begged defendant to end this condition of discomfort; she threatened to leave him, and some days before leaving, packed her trunk, without any protest or demand for explanation from him, and to add to complainant’s wretchedness during this period, defendant assaulted and choked her and threatened her with bodily harm, and called her vile and indecent names and accused her of unfaithfulness, and this conduct caused her to become afraid of him, so that on January 15th, 1920, she left him and went to her mother’s, and on the same day she returned to her husband and asked him to promise to treat her differently, and she and the baby would return to him; this promise he refused to make and the separation then became final.
    “For a period of thirteen months, from the date of the separation to February 16th, 1921, the date when the order for temporary alimony was made, defendant refused to contribute anything for the support of either his wife or his child, although requested so to do.
    “Defendant has denied every charge and statement of his wife and claims all his troubles are due to the interference of his wife’s family in his affairs.

      “The proofs do not show any such interference.
    “Defendant further claims he has repeatedly made efforts to have his wife return and live with him, and he now professes great affection for his child. His neglect of his child for thirteen months, and his failure to .furnish anything for its support during this period, coupled with the fact that he engaged a lawyer to write the only letter he sent to his wife during this time to effect a reconciliation, convince me that this effort, and the subsequent ones made during the pendency of this action, and particularly the one made on the ■eve of the hearing in October, 1921, were neither honest nor sincere, and I am satisfied they were made, most probably, on the suggestion of counsel, for their effect on the final outcome of the case.
    “The proofs convincingly establish the charge of the complainant that defendant has abandoned her and their child, and has neglected and refused to support and maintain them; and, as the proofs further establish the ability of the defendant to pay at least $25 weekly for such support, I will accordingly advise a decree to thaf effect.”

      Mr. James P. Mylod, for the respondent.

      Mr. Merritt Lane, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Poster.

For affirmance—The Chiee-Justice, Swatze, Teen-chard, Parker, Bergen, Kadis ch, Black, Katzenbach, White, Heppenheimer, Gardner, Ackerson, Van Bus-kirk—13.

For reversal—None.


text:
    Joseph Kolinsky, appellant, v. Antonia Pilz et al., respondents.
    [Decided April 20th, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, who filed the following opinion:
    “In the above case the wife, Antonia Pilz, was the owner of the land, and the husband, Frank Pilz, was the owner of a bakery business conducted thereon. On February 11th, 1916, as the result of previous negotiations, Frank sold his bakery business to Kolinsky, and Antonia made a lease for five years of the premises in question, with the provilege to use part of the adjoining lands of Antonia in connection with his business. In the lease Antonia agrees to sell the premises in question, at the end of the term, for the sum of $7,000. The husband did not sign the lease; nor is there a private examination, separate and apart from the husband, contained in the acknowledgment; and, treating the agreement to sell as a contract, two questions arise—first, can the wife be compelled to specifically perform the contract, and, second, she having conveyed the property by mesne conveyances to Frank on September 29th, 1916, can Frank and his wife be compelled to perform ?
    “I give little credit to the stories of the defendants, and take the story of the complainant and of Mr. Eypper, the scrivener who drew the instruments, as being true.
    “It appears that Frank desired to sell his business, and the complainant was willing to buy, but, naturally, wanted a lease for a long term. He asked for a ten-year lease, but Antonia was unwilling to make a lease for such a long term, and thereupon ask^d why the complainant would not buy the property at that time for $6,000, and the complainant said he did not have the money. Then it was agreed that the lease should be made for five years, and at the end of which term Antonia should sell the premises for $7,000. There was in the bill of sale given by Erank to the complainant, as originally drawn, a provision that he, Erank, would not engage in business for ten years, and, to make it correspond with the lease, this period was cut down to five years. It is quite plain that, in the absence of the husband joining in the deed, even though the wife properly acknowledged it according to law, equity could not decree specific performance. Corby v. Drew, 55 N. J. Eq. 387.

    “But there is a further defect: At the time this lease was acknowledged the separate acknowledgment of the wife'was required. Ho such separate acknowledgment is contained in the certificate. Eor this reason, also, the lease, as a contract to convey, is defective and unenforceable. Chassman v. Wiese, 90 N. J. Eq. 108, and cases cited. On March 17th, 1916, an act was passed which rendered the separate examination unnecessary thereafter; but this act applies only to conveyances, contracts, &c., made after the passage of the act. Thus, on September 29th, 1916, when Erank became vested with the fee through mesne conveyances, even though charged with notice of the terms of the lease, he was no more bound than his wife (TenEyck v. Sayville, 64 N. J. Eq. 611), unless some peculiar equity intervened. In Lorillard v. Union Brick and Tile Manufacturing Co., 45 N. J. Eq. 289, the wife made a contract which was regarded as onenforceable; but, subsequently, her husband died, which made her free to contract. She then conveyed to Lorillard subject to the contract, and the court of errors and appeals held that this was, in effect, a new contract which bound her vendee
    “The only peculiar equity which is urged in this case is that, in effect, the making of the bill of sale and the lease were a part of the same transaction, and,’ therefore [the husband now having the title], the husband and wife should be compelled to convey; and D’Elissa v. D’Amato, 85 N. J. Eq. 466; affirmed, 86 N. J. Eq. 244, is cited for the purpose of supporting the complainant's right under theory of part performance. But the two cases are not alike. There the vendee had paid the full purchase price, improved the premises, and was in possession; and the decree was for specific performance as against his heirs, without affecting the widow's dower right, or the right, if any, of the purchaser at the administrator’s sale.. Here the purchase price was not paid.
    “There is no evidence that Frank ever agreed to convey.
    “What he agreed to sell was the bakery business; and while the lease and the bill of sale were independent documents, they were part of the same transaction; and it is quite probable that if this agreement to sell was not contained in the lease the complainant would not have bought the bakery and taken the lease. As the case now stands, however, the wife signed the lease with the agreement to sell, which constituted one contract; and the husband signed the bill of sale, which was the other. There is no evidence that he agreed to sign the deed or join in any conveyance with his wife as an inducement to a sale of the bakery. It is unlike the case of Wharton v. Stoutenburgh, 35 N. J. Eq. 266, where the agreement for a lease was definite in all its parts and well ascertained, and it was contemplated that a formal lease should.be signed, which lease was written up and a copy sent to the defendant, who retained the same and entered into possession of the mine and undertook to operate it.under the lease. •
    “The case might well be decided on the first point, but counsel having devoted some time to the argument of the second, it was deemed proper to pass upon it.
    “I may add that the evidence is quite clear that no fraud was perpetrated by the complainant upon the defendants, and that the contract was fair.
    “A decree will be advised dismissing the bill.”

      Mr. Edward Hollander, for the appellant.

      Mr. Abe D. Levenson, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Griffin.

For affirmance—The Chiee-J'ustice, Swayze, Teen-chard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbach, White, Heppenheimer, Gardner, Ackerson, Van Buskirk—14.

For reversal—Hone.


text:
    Otto Lowy, respondent, v. William V. McMenimen, defendant, and Lowy Laboratory, incorporated, a corporation, appellant.
    [Decided May 10th, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Baches, whose opinion is reported in 94 N. J. Eq. 75.

    For the appellant, Gae-de & Gaede.

    For the respondent, Frank F. Bradner.

   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Baches.

For affirmance—The Chiee-Justice, Swayze, Trenciiard, Black, Katzenbaci-i, White, Heppenheimer, Gardner, Van Buskirk—9.

For reversal—Parker, Bergen, Kalisch—3.


text:
    Otto Lowy, respondent, v. William V. McMenimen, defendant, and Lowy Laboratory, incorporated, a corporation, appellant.
    [Decided May 10th, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Baches, whose opinion is reported in 94 N. J. Eq. 75.

    For the appellant, Gaede & Gaede.

    For the respondent, Frank E. Bradner.

   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Baches.

For affirmance—The Chiee-Justice, Swayze, Trenci-iard, Black, Katzenbach, White, PIeppeni-ieimer, Gardner, Van Buskirk—9.

For reversal—Parker, Bergen,. Kalis ch—3.


text:
    Walter Morrison, as executor, &c., and Walter Morrison and Ethel Day, individually, appellants, v. Grace Morrison, respondent.
    [Decided May 10th, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 94 N. J. Eq. 646.

      Mr. Bobert II. Doherty, for the appellants.

      Mr. Brie II. Jenbz, for the -respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Griffin.

For affio-mance—The Chief-Justice, Tbbnchard, Bergen, Minturn, Kalis oh, Black, Katzenbach, White, Heppenheimer, Gardner, Van Buskirk—11.

For reversal—None.

For modification—Swayze, Parker—2.


text:
    The George A. Mills, &c., Company, appellant, v. Hegeman-Harris Company, respondent.
    [Decided May 10th, 1923.]
    On appeal from a decree of the court of chancery advised ■ by Vice-Chancellor Griffin, who filed the following opinion :
    “The Morris County Golf Club entered into a contract with Hegeman-Harris Company [hereinafter called the contractor], by the term of which payments were to be made upon the certificate of the architect. The contractor made a subcontract with J. C. Raab & Company [hereinaftef called Raab] for the carpenter work. Raab abandoned the work on or about July 10th, 1920, and the same was completed by the contractor at a loss to itself of upwards of $3,000. The following persons served stop-notices on the owner for work done and materials furnished to Raab:
    “On August 14th, 1920, Ruthven filed his stop-notice for $1,552.74.
    “On August 3d, 1920, Mills’& Company filed their stop-notice for $4,497.51.
    “On October 23d. 1920, Green & Pierson filed their stop-notice for $1,923.30.
    “On October 1st, 1920, Mills & Company served another stop-notice, which was for work done and materials furnished to Hegeman-Harris. Company after Raab abandoned the woik, and I understand from the stipulation that this sum either has been or may be paid, and it is' so consented to by the parties.
    “In this situation the golf club filed its bill of inter-pleader, and the various claimants filed concise statements of their several claims, to which the Hegeman-Harris Company filed its objections.
    “On April 18th, 1921, Eaab & Company and Eaab were declared bankrupts; and on August 29th, 1921, Stuhr, the trustee, filed a disclaimer.
    “On August 29th, 1921, an order was made to pay to the contractor $12,047.84.
    “On August 30th, 1921, an interlocutory. decree was entered directing the parties to interplead.
    “Thus, the complainant goes free, permitting the various defendants to litigate as to the fund.
    “I may say that, in pursuance of the terms of the contract between the golf club and the contractor, payments were to be made upon the application of the contractor, and the certificate of the architect. These certificates were given. The contract between Eaab and the contractor also provides for payment on the production of the architect’s certificate, which certificates were not actually procured. I find, also, on investigating the figures, that the items paid to Eaab, ex • cepting certain overpayments, were included in the contractor’s application for payment, and were included in the certificates given to the contractor; - and if it was an important factor in the case, I would find that these certificates, so furnished by the architect to the contractor to be delivered to the owner, which were predicated upon the claims and applications of Eaab, were the certificates of the architect under the contract between the contractor and Eaab; but, for reasons hereinafter given, it is unnecessary to pass upon this question.
    “As the fund is insufficient to pay the contractor, it is entitled to the whole fund, unless, by reason of the Mechanics’ Lien act, the claims of the claimants, under their stop-notices, takes precedence of the claim of the contractor. When I speak of the ‘claims’ here, I regard the claim of Mills & Company for thirteen hundred and odd dollars as eliminated, as this was a debt of Hegeman-Harris Company, and it was stipulated, as above stated, that it should be paid.

      “The only point that can be asserted in fav'or of these claimants is that, in certain instances, the contractor paid in advance of the terms of its contract to Raab. An analysis of the statements showing the progress of the work, which I have compared with the applications of Raab for payments in connection with the architect’s certificates, shows that, in such instances, payments were made according to the contract, deducting the retained percentage, with the exception of two small items amounting to less than $400, down to February 3d, 1930, when there was a payment in excess of the amount' due under the terms of the contract of $6,686.83; and, again, on March 4th, 1930, one of $1,001.56 was made in excess. But prior thereto there had been deducted three items amounting to $5,400; thus, deducting the items of underpayment from those of overpayment, there was about $3,300 or $3,300 overpaid. And in May, 1930, there was another item of underpayment of $191.36, which further reduced the excess paid. And in June, 1930, there was a further overpayment of $1,094.33. As I recall it, all of these items, excepting the excess amounts, were contained in the certificate which the architect gave to the contractor and which it gave to the complainant, All these items of excess amount to $9,033.30. But just prior to the abandonment of the contract, in June, 1930, Raab applied for $8,698. The amount he was entitled to receive was $7,393 of this sum, but $1,000 was paid on account, and the work apparently was abandoned before the architect’s certificate approving of the application came in. Thus, $6,393.30 was earned, apparently, but not paid, which inured to the benefit of the contractor and these claimants, provided the contractor had a surplus after completing the work.
    “The account at the.time of the abandonment stood as follows:

      Overpayments ....................................... $9,023.20
    .Underpayments (excluding the item of $6,393.30 earned at the time of abandonment but not covered -by architect's certificate) . ....................................... 5,611.47
    Overpayment ................................. $3,412.73
    On August 3d, 1920, when the certificate, of the architect was given on application No. 11, dated August 1st, 1920, Exhibit W. A. 10, which included Application 10, which showed that Raab had earned $8,698, upon which he was entitled to receive $7,393.30, he was paid $1,000— thus he was underpaid $6,393.30, which, with other underpayments, made the amount (see statement showing progress of work) .............................. 12,004.77
    Deduct the overpayment above ....................... 9,023.20
    Shows that Raab was underpaid ................ $2,981.57
    “Thus, on August 3d, 1920, when the architect gave a certificate which embraced Application 10, which included the $6,393.30, the right of creditors under stop-notices served thereafter was gone. Slingerland v. Binns, 56 N. J. Eq. 413; Person v. Herring, 63 N. J. Law 599; Smith v. Dodge, Bliss & Co., 59 N. J. Eq. 584. This rule would exclude all whose notices were served after August 3d, 1920, and, possibly, the one served on that day—where the work had been abandoned by the debtor and the certificate was delivered at the time of or prior to the service of the stop-notice.
    “I am stating these facts for the benefit of counsel, not with the idea of deciding that, if there was an overpayment at the time the contract was abandoned and not covered by the subsequent certificate of August 3d, 1920, it would inure to the benefit of the claimants. This I do not deem it necessary to pass upon, for the following reason: Prior to the act of 1895 (P. L. p. 313), when the fifth section as it now exists was passed, the contractor was free to deal with the fund as he saw fit, he might assign ox dispose of it effectually prior to the service of stop-notices on the owner. To avoid this injustice the fifth section was passed, which may be found in Comp. Stat. p. 3298 § 5. In reading this section, it must be borne in mind that it refers only to the liability • of the owner for advance payments, and not to. the contractor. It says, in substance, that if the owner, for the purpose of avoiding the provisions of this act, or, in advance of the terms of such contract, pay any money, &c., under the contract, and the amount still due the contractor after such payments shall be insufficient to satisfy the notices served, such owner shall be liable in the same manner as if no such payment had been made. I find nowhere in the statute anything [nor has it been pointed out to me by counsel] indicating that, if the contractor makes a payment to his subcontractor in advance of the terms of the contract, he shall be liable in the same manner as if no such payment had been made.
    “Section 3 of the Comp. Stat. p. 3294, refers to materialmen and employes of the principal contractor; and it has been held that an employe of a subcontractor had no right to serve a notice under section 3. To overcome this, section 3 was amended (P L. 1917 p. 821), giving to an employe, materialman or subcontractor, of the subcontractor, the power to serve notice (Steuerwald v. Munn, 90 N. J. Eq. 374), and I presume that it is under this act that the notices have been served in this case.
    “While this section 3, as amended, gives claimants the right to serve their notices, yet, in order to prevail, they must go a step further, i. e., they must show some statute which makes the contractor liable for making advance payments. "This they cannot do because there is no such statute.
    “The fund in court being insufficient to satisfy the amount due to the contractor, a decree will be advised that the whole fund be paid to it."

      Messrs. Vreeland & Wilson, for the appellant.

      Mr. William, E. Decker, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the. court below by Vice-Chancellor Griffin.

For affirmance—The Chief-Justice, Swayze, Trenohard, Parker, Bergen, Kalis ch, Minturn, Black, Katzenbach, White, Heppenheimer, Gardner, Yan Bus-kirk—14

For reversal—Hone.


text:
    August F. Thies et al., respondents, v. Robert Vonderheyden et al., appellants.
    [Decided May 4th, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 94 N. J. Eq. 317.

   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filled in the ' court below by Vice-Chancellor Griffin'.

' For affirmance—The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Kalis ch, Katzenbach, White, Heppenheimer, Gardner, Ackerson, Van Bttskirk—12.

For reversal—Black—1.


text:
    William Bittles, respondent, v. West Ridgelawn Cemetery Company et al., appellants.
    [Decided March 5th, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, who filed the following opinion:
    I shall not preface my remarks with a recital of the history of the case so familiar to counsel. The point reached in the litigation is the certification to the trust company of the holders of temporary certificates entitled to permanent certificates. The trust deeds reserve that to Mr. Gruber, the dummy of Mr. Frank; that is, to Frank; but, as Frank is one of the litigants, the court will make the decision.
    There is no dispute as to the ownership of the thirteen thousand five hundred shares, save as to the following, which I will take up in the order of Frank’s petition:

      (a) Certificate No. 167, for two thousand shares, issued to “Eidgelawn Cemeteries” (now No. 408 for one thousand six hundred shares hypothecated with the trust company). Frank claims to have donated the shares to the two cemetery associations, one thousand to each, the proceeds to be used to improve the lands for burial purposes, upon condition that the improvements be made and completed within a year following the transfer. He wants the one thousand shares given to West Eidgelawn returned to him, because, he says, the condition was not performed. The shares were not donated by Frank. They came from the promoters of the enterprise, Frank, Pond and Tate, and the transaction was contractual. The ostensible purchase price of the lands of the two cemetery associations was the thirteen thousand five hundred shares. In consideration of the shares, Frank, on behalf of himself and his associates, Pond and Tate, agreed to convey the lands, and appropriate two thousand of the shares, to use the language of the proposal, “that two thousand of your shares shall be devoted solely to improvement.” Erank and others were to receive net eleven thousand five hundred of the shares. The proof of this we find in Exhibit IS, the proposal of Erank to the two cemetery associations, which reads:
    “New York, December 28tk, ’05.

      East & West Ridgelawn Cemetery:

    Dear Sirs—We hereby offer to your Cemeteries two hundred and seventy acres of land lying in Acquackanonck Township and of service to your enterprises as per the limitations of your permits, with the understanding that the said lands are and shall be held in perpetuity by the holders of 13,500 shares equal divided and indivisible shares, all of which shall belong to our Associates and ourselves in return for our agreement with the respective former owners thereof, to pay for the same, and in full payment thereof, together with the improvement of our Cemeteries; it being understood that 2,000 of your shares shall he devoted solely to developments.
    Yours very truly,”
    Erank denies the authenticity of the document, but his denial, like much of his testimony, is vagrant, rash and undependable. The instrument was written on his law firm’s stationery, and its genuineness is beyond question; and it is confirmed by the fact that later on and in compliance Frank himself issued temporary certificate No. 167 to “Eidgelawn Cemeteries” for the two t-housand shares. Erank never had ownership of them and he is not entitled to he certified the permanent shares.
    East Eidgelawn claims the two thousand shares on this ground. In the formation and early promotion of the cemeteries they were a single enterprise, divided into two corporations, only, because of statutory limitations upon landholdings of cemetery associations—one hundred and twenty-five acres. Comp. Stat. p. 373. Two thousand shares were to be used for plotting, laying out roads and by-ways, ornamentation, &c., so as to make the cemeteries attractive and marketable. East Eidgelawn, being the more favorably situated, was decided upon to be first exploited. . All attention was given to East Eidgelawn and it has flourished. West’ Eidgelawn was put in the background, where, geographically, it was anyhow. It was simply a supply—an overflow—to come into use when East Eidgelawn should be exhausted. Prank was then in the saddle, and the plans were his. Now, while the proposition of the promoters, Prank and others, for the two thousand shares was to the two cemeteries, and, ordinarily, the two would be regarded as owners in common, the truth is the shares were appointed to a specific use, and in the circumstances to the use of East Eidgelawn, for, it discharged the use, and, as Prank states in his petition, “no such development was undertaken by said West Eidgelawn, after the shares were deposited for it, of its lands. None was in fact contemplated within the time required by the deposit of shares.” That the certificate for the two. thousand shares was made out in the name of “Eidgelawn Cemeteries” is of no moment. The ownership followed the use. To approach the point more closely, suppose the shares had been sold and the cash used in the improvement of East Eidgelawn, would it even be now suggested that East Eidgelawn account to West Eidgelawn for one-half the proceeds ? East Eidgelawn pledged its credit to meet the expenditures, and is entitled to recourse to the shares, to meet its debts thus incurred. The shares will be certified to East Eidgelawn.
    It is a matter of utmost indifference to the shareholders to which of the associations the shares are awarded. Their hope lies in the dividends, to be declared by the trust company, to which the two cemeteries must yield like contributions from sales of lots or plots. West Eidgelawn is not to be developed as a unit, according to Prank’s latest decision and announcement. According to his plan it is to be cut up into large tracts and sold to other cemetery associations for community, society or sectarian burial sites, and they are to improve them according to their tastes and convictions. Prank is now in control of West Eidgelawn.

      (b) Prank claims the six hundred shares, -which, according to his notion, remains to East Eidgelawn, to reimburse him in part for eight hundred and fifty shares, he says, he parted with under duress. He wants the six hundred shares in substitution., In 1908 he contributed to East Ridgelawn five hundred shares, the proceeds of which were to be applied to make up a deficiency in the dividend fund. He charges that he was coerced into this by threat of receiverships for the cemeteries. I have nothing but Frank’s bald assertion, and that does not make out a case of oppression. The dividend fund was depleted, and the cemeteries were in a precarious condition—in financial distress. The situation may or may not have warranted receiverships, but, at all events, Frank came to the rescue. He gave voluntarily, under stress of circumstances, it is true, but not coercively, as he insists, and he is not entitled to be made whole on that score. It may be that Frank can recover in proper proceedings, as for a loan or for monejr had and received, but that question is not before me. My present function is to determine the title, legal and equitable, to the shares. Personal claims and latent equities are not involved in the consideration.
    The other three hundred and fifty shares, for which Frank claims reimbursement, came to East Ridgelawn from Pond. Pond owned a thousand shares. Frank agreed to buy them for $35,000. He paid $7,500 and defaulted on the balance. They compromised and Frank was given three hundred shares for the money he had paid, and Pond and he exchanged releases. Pond then agreed to' return three hundred and fifty shares to East Ridgelawn, upon condition that his remaining three hundred and fifty shares be purchased. Mr. William H. Bonynge bought them, and thereupon Pond made good his promise, and returned the remaining shares into the treasury of East Ridgelawn. Frank had no interest in them whatever. His claim that Pond held them in trust for him and wrongfully detained them, is utterly refuted by Frank’s purchase of Pond’s holdings for $35,000.
    Another, and, to my mind, conclusive answer to Frank’s present claim to the eight hundred and fifty shares is the fact that in 1913 he had a settlement with and executed a general release to East Ridgelawn, which included any interest he might then have had in these shares.

      Frank next ventures that Bonynge bought the three hundred and. fifty shares from Pond for him and holds, them in trust. Bonynge paid his own money for the shares; that Frank admits. Bonynge bargained for himself, not for Frank; that Frank tacitly concedes. Furthermore, in the course of the trial, Bonynge offered to sell the shares to Frank for his exact outlay, but the offer was ignored.
    (c) Of the five hundred shares turned into the treasury of East Ridgelawn by Frank, to replenish the dividend fund, four hundred and seventy-five shares were sold, in parcels, to certain trustees of the cemetery associations. Frank charges that they were acquired fraudulently and for “no or entirely inadequate consideration,” and his insistence is that they should be restored t<? the treasury. The price paid was $30 per share. The shares had no fixed market value and that seems to have been the then prevailing price. However that may be, there has been no rescission; and, assuming the sale to be rescindable, East Ridgelawn is not entitled to the shares unless the purchase price be returned, and there has been no offer to reimburse. Permanent shares will be certified to the holders of the temporary certificates as set out in paragraph c of the petition.
    (d) Is abandoned.
    (e) Certificates 33 and 37, each for a hundred shares, were issued to William H. Bonynge. Bonynge divided these shares among the members of the law firm of Black, Olcott, Gruber & Bonynge, of which he was one. Frank’s contention is that these shares were given by him to Bonynge for his legal services and that of his firm; that he and his firm “were disloyal and unfaithful to his and their duties” to him, and, because of their dereliction and mal-conduct, the issuance to them of the temporary certificates should be ignored and the shares certified to him, Frank. The charge is wanton; there is absolutely nothing of evidence to justify the aspersions. Furthermore, temporary certificate No. 37 for one hundred shares was not given to Bonynge for professional services, but was in fact issued to him for $3,000 cash, paid to Frank to qualify Bonynge as trustee. Permanent shares will be certified to the holders of the temporary certificates as set forth in paragraph e of the petition.
    (/) Is abandoned.
    (g) Certificate 103 for one hundred shares issued to William H. Bonynge. This was paid for in part by the note of Mrs. Bonynge for $1,500 and professional services. The same attack is made upon this certificate as in e. A further answer is, that Erank has not offered to return to Bonynge the $1,500 actual cash he received for these shares. The shares will be certified to William H. Bonynge.

      (h) and (Jc) are merely specifications of subdivisions of the three hundred and fifty shares sold by Pond to Bonynge, treated in b.

    (i) and (j) are abandoned.

      Mr. Robert Carey and Mr. Marry Lane, for the defendants-appellants.

      Mr. Adam Frank and Mr. Robert H. McCarter (of McCarter & English), for the complainant-respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Backes.

For affirmance—The Chief-Justice, Swayze, Teenchaed, Paekee, Bebgen, Kalis ch, Black, Katzenbach, White, Ackeeson, Van Buskibk—11.

For reversal—None. .


text:
    Charles B. Penrose, respondent, v. Absecon Inlet Land Company et al., appellants.
    [Decided October 25th, 1922.]
    On appeal from a decree of the court of chancery.

      Mr. Robert H. McCarter, for the appellant.

      Mr. Clarence L. Cole, for the respondent.
   Per Curiam.

The bill in this case was filed under the act of 1870 to quiet the title to certain lands in the city' of Atlantic City. The complainant asserted title in himself and peaceable possession of the premises described in the bill. Certain of the defendants filed answers denying title, and also denying the averment of peaceable possession. The complainant moved to strike out these answers upon the ground that the question of the complainant’s title to the lands was res adjudicaia. The hearing of this motion resulted in a decree striking out the answers as sham and frivolous, and determining, fixing and settling the complainant’s title. The answering defendant appealed, but only one of them, Salina C. Charlton, has prosecuted that appeal.

Upon the argument before us the principal question discussed was the propriety of the procedure followed by the chancellor, and very little was said by counsel on either side as to the meritorious question involved. We consider the procedure justified under section 4 of the supplement to the Chancery act of 1915, which provides that “any frivolous or ' sham-defense may be struck out on notice, and * * * such order or decree may be made in the premises as may be just.” P. L. 1915 p. 185.

We are not willing to' consider and determine whether or not the adjudication of the chancellor upon .the merits was justified by the proofs submitted without first affording counsel for the respective parties an opportunity to discuss the matter in extenso. Eor this reason further argument will be ordered, and the case carried over to the November term for that purpose.


author: Walker, Chancellor.

text:
    Edwin Robert Walker, Chancellor. Edmund B. Leaming, Vivian M. Lewis, John H. Backes, John Griffin, John E. Foster, Malcolm G. Buchanan, James F. Fielder, Alonzo Church, Robert H. Ingersoll and John Bentley, Vice-Chancellors. Mary Agnes Dolan, otherwise Wagner, petitioner, v. James H. Wagner, defendant.
    [Decided July 16th, 1923.]
    The wife was already married, and knew she was not divorced (although she had a decree nisi) when she went through the ceremony of marriage she now seeks to annul—it does not appear whether or not the defendant knew she was divorced, but, whether the husband is an innocent party or one m pari delicto, the marriage should be annulled on the ground of public policy, even at the -wife’s suit, the second marriage not being voidable merely, but absolutely void ao initio, and the decree sought being one declaratory of the status of the parties as it existed.
    On final hearing, on master's report and depositions, eo: parle.

      Mr. Roberl Newlon Crane, for the petitioner.
   Walker, Chancellor.

This is a suit for nullity of marriage. The petitioner was already married when she- went through the ceremony of marriage she now seeks to annul, but says that she believed herself to have been divorced. The fact is that she at that time had a decree nisi, which was not made absolute, until after her marriage with defendant in this suit. She says she was given to understand by her solicitors that the decree nisi was an absolute divorce, and that she was legally competent to contract matrimony, and that it was only after she had been married some time to the defendant that she discovered the true situation, without saying how she discovered it. Neither of her solicitors was called as a witness. The other facts, namely, the second marriage, the decree nisi, and the residence of the petitioner, are proved. The question therefore sharply arises as to whether the offending party—and the petitioner is in that class, for she is presumed in law to have known and understood the nature and limitation of her decree nisi—is entitled to sue for and obtain a decree of annulment of the bigamous marriage. The question is squarely presented whether a person who has fraudulently contracted a bigamous marriage should be permitted to obtain a decree to annul it, or whether, in virtue of the doctrine of clean hands, annulment should be denied, presuming the other party to be innocent.

The petitioner in her testimony says that in 1908 she instituted a suit in this court against her husband for a divorce on the ground of desertion, and ón June 25th, 1908, received a divorce decree from her solicitors, divorcing her from the bonds of matrimony. She was incompetent to testify as to the character of the decree. It speaks for itself. In re McCraven, 87 N. J. Eq. 28. She says she was given to understand by her solicitors that the decree was an absolute one, that she was legally competent to marry, which she did on October 10th, 1908, and that she entered into marriage with the defendant in good faith, believing that she was legally divorced from her former husband. The solicitors were not called, and if they had been I believe they would have flatly contradicted her as to the character of the advice they gave, and I am satisfied that she never understood from them that such a decree was a final decree, or that she was legally competent to enter into the marriage relation. Her final decree was not filed and entered until some time after her marriage with the present defendant, and had the court known of her marriage at the time the final decree was applied for it would have been withheld and the decree nisi vacated because of her adulterous conduct pendente lite. The defendant may have been an innocent party to this marriage, and presumably he was. The case will be decided upon the assumption that the petitioner knew that she was not divorced and perpetrated'a fraud upon the defendant.

In Rooney v. Rooney, 54 N. J. Eq. 231, Vice-Chancellor Pitney held that the complainant procured the defendant to marry him by practicing upon her a fraud so gross as to close against' him the doors of a court of equity to annul their marriage because it was bigamous, he having a former wife living, from whom he fraudulently represented himself to have been divorced. And the learned vice-chancellor holds that the case is one of an equitable nature in a court of equity, and that the maxim, he who comes into equity must come with clean hands, applies.

Schaffer v. Schaffer, 88 N. J. Eq. 192, was a suit for annulment on tile ground that the wife was not divorced from a living husband at the time of her marriage to the petitioner. Vice-Chancellor Backes held that the evidence was not sufficient to establish the prior marriage, denied the praj'er of the petition for annulment, and granted alimony on the wife’s counter-claim. And he said (at ¶. 196): “Then, too, so far as respects relief to the petitioner, the doctrine of ‘clean hands’ would bar him if we looked upon the cohabitation as continuously criminal. Rooney v. Rooney, 54. N. J. Eq. 231; Kretz v. Kretz, 73 N. J. Eq. 246: Freda v. Bergman, 77 N. J. Eq. 46.” This latter observation is dictum, and indicates an alignment of the case with Rooney v. Rooney, supra, and the application of the doctrine of clean hands to save the wife’s support in any event.

Davis v. Green, 91 N. J. Eq. 17, was on a petition for annulment of marriage on the ground that at the time of the marriage to the defendant the petitioner was the lawful wife of another man. She brought the suit. Vice-Chancellor Learning said (at p. 18) that the case differed from the Rooney Case by the circumstance that neither party was guilty of fraudulent concealment from the other since both knew that the wife had a husband who was alive at the time, and both knew that their marriage was unlawful by reason of that fact; that they were in pari delicto; and he further said (at p. 19) that while the general rule is that where the parties are in pari delicto, no affirmative relief will be given to one against the other, the rule has always been regarded by courts of equity as without controlling force in all cases in which public policy is considered as advanced by allowing either party to sue for relief against the transaction. And he goes on to decide, adopting the English doctrine, that the petitioner is entitled to relief. The English doctrine in favor of decrees of nullity in this class of cases he states generally, as follows: To prevent the circumstances which might in future take place from death of witnesses or other occurrences rendering proofs difficult or uncertain; that an examination of the reported cases will disclose that the fundamental reason for awarding decree of nullity at the instance of either party is for the protection of public interests, and not because of inability or hesitancy on the part of the courts to recognize and apply the equitable maxim in all appropriate cases; that it is the duty of the court to the public to declare the situation of the parties; that either party may bring suit to have the marriage declared null and void on the ground that it is material for their own sakes, and that of the public, that their status should be known; that it may be necessary for the convenience and happiness of families, and the public likewise, that the real character of these domestic connections should be ascertained and known; that the cases he cites were all in suits for decrees declaring marriages void for causes which the statute declared operative to render thorn null and void ad initio, such as precontract and the like; but that in eases where the marriages were voidable only the courts appear to have discerned no such public interests, and to have been accordingly free to deny relief to the wrong-doer since the status of the parties in such circumstances, in the absence of a decree, was regarded as already fixed by their marriage; that the view adopted was that no such public interests exists in cases of marriages voidable only.

In Gibbs v. Gibbs, 98 N. J. Eq. 542, Vice-Chancellor Buchanan (at ¶. 546) held that in a suit to annul a bigamous second marriage, the equitable doctrine of unclean hands, or in pari delicto, must be subordinated to public policy, is undoubtedly true, citing Freda v. Bergman, 77 N. J. Eq. 46, and Davis v. Green, supra.

In Freda v. Bergman, supra, Vice-Chancellor Stevenson had before him a case for nullity of marriage. It was brought by the husband against the wife. It was an ex parte case, and the master reported that the marriage in question was null and void, and that the complainant was not entitled to a decree, because he was cognizant of the prior marriage of the defendant, and that it remained undissolved.

The proofs failed to satisfy the vice-chancellor that the complainant believed the defendant was still the- wife of the man whom she had formerly married, and he said (at p. 51) that the bar to relief set up by the Rooney Case, whatever might be its exact scope, or by other American cases, must, he thought, necessarily include guilt, bad faith on the pari of the complainant in entering into the bigamous marriage, and he advised a decree of nullity. In the body of the opinion (at p. If9) the learned vice-chancellor observed: “The complainant is not asking a court of equity to aid him in securing the proceeds of any crime or other wrong-doing on his part. There is a wide difference between the large classes of cases where complainants are denied ‘relief’ in a court of equity because they come into that court with unclean hands, and this unique decree, which is rendered in a suit merely to establish the fact that a marriage was null and void ab initio. The complainant’s benefit from this decree, as I have endeavored to suggest above, is oftentimes a negligible quantity compared with the benefit which innocent parties and the state ma.y derive from such decree. The complainant is not asking for any property; he is merely asking for a judicial declaration of a fact to which the court cannot shut its eyes, and in the ascertainment of which great interests beyond those of the complainant may be involved.”

Now, the Divorce act {Comp. Slat. p. 2021 § 1 subdiv. 1) provides that decrees of nullity of marriage may be pronounced in all cases when either of the parties has another husband or wife living at the time of a second or other marriage; and subdivision 6 provides that where the marriage is dissolved because either of the parties has another husband or wife living at the time of a second or other marriage, such marriage shall be deemed void from the beginning.

In view of these provisions the language of Vice-Chancellor Stevenson in the Bergman Case (at p. 1/-9) is apposite. He says: “In many cases of the class under consideration the decree dismissing the bill on the ground that the complainant was either alone guilty or particeps criminis with the defendant, would seem to establish the nullity of the marriage.” And so it does. The statute makes it null, and a decree of nullity is only a. judicial ascertainment and pronouncement of the fact.

The complainant, even though he or she be guilty of perpetrating a fraud upon the defendant in inveigling her or him into a marriage by representing himself or herself to be a single person, has, I think, the right to seek the judicial declaration of nullity on the ground of public policy, which is quite fully exploited by Vice-Chancellor Learning in Davis v. Green, supra.

It is true that the petitioner claims that she understood that the decree nisi was a final decree of divorce and enabled her to marry again, but I cannot accept her say so to that effect. It is enough to say, in disposing of this contention, that the wife is presumed to have known the law (Taub v. Taub, 87 N. J. Eq., at p. 630) and was a guilty party, although, for aught that appears, the defendant may have been particeps criminis.

The Rooney Case, as said by Vice-Chancellor Stevenson m Freda v. Bergen, supra (77 N. J. Eq., at p. 47), when confined to its facts, merely decided that when a married man induces a woman innocently to go through a form of marriage with him by falsely' representing himself to be single, and cohabitation and pregnancy of the woman thereupon follow, he cannot come into a court of equity and relieve himself of his obligation to support his victim by obtaining a decree declaring his bigamous marriage void.

Tn this case, because the marriage is absolutely void, the petitioner, on the ground of public policy, is entitled to a decree so pronouncing it, the distinguishing features of the Rooney Case not being present. If this marriage were voidable only the clean hands doctrine would apply.

The result reached is that a decree of nullity should be pronounced.

Decree nisi accordingly.

ADDITIONAL MEMORANDUM

[Filed September 26th, 1924.]

In the above stated cause I recently filed an opinion in which I held: “The wife was already married, and knew she was not divorced [although she had a decree nisi] when she went through the ceremony of marriage she now.seeks to annul; it does not appear whether or not the defendant knew she was divorced, but, whether the husband is an innocent party or one in pari delicio, the marriage should be annulled on the ground of public policy, even at the wife’s suit, the second marriage not being voidable merely, but absolutely void ad initio, and the decree sought being one declaratory of the status of the parties as it existed.”

At that time I had not seen the case of Tyll v. Keller, 94 N. J. Eq. 426; 1 N. J. Adv. R. 317, where the court of errors and appeals held: “One who asks annulment o£ his marriage with a woman who had another husband living at the time of her marriage with the petitioner, must show by a preponderance of evidence that when he married her he was ignorant of the fact that she then had a husband living from whom she had not been divorced.”

Here is an unequivocal declaration, as I take it, that the doctrine of clean hands applies in this class of cases, and that no one can successfully annul a marriage who entered into' it with knowledge that either one had a former spouse living, although, upon the authorities I cited, I was at the time clearly of opinion that the clean-hands doctrine did not apply where the suit was to annul a bigamous marriage. I was of opinion that public policy required the annulment of such a marriage.

Upon the authority of Tyll v. Keller I am constrained to vacate the decree nisi in this ease, and to dismiss the petition for nullity.


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    Mathilda Daniele, otherwise Margulies, petitioner. v. Emanuel Margulies, defendant.
    [Decided July 16th, 1923.]
    1. At the time of their marriage the defendant was a lunatic and óf unsound mind, and incapable of consenting thereto1; the petitioner was ignorant of such incapacity and was not made cognizant thereof until afterwards and did not ratify the marriage after such discovery. —Held, that petitioner was entitled to a decree annulling the marriage, notwithstanding consummation and the birth of issue.
    2. Such issue is legitimate under Comp. Sta.t. p. 2021 § 1 suhdiv. 6.

    On petition for nullity of marriage. On final hearing, on master’s report and depositions ex parte.

      Mr. William Caruso, for the petitioner.
   Walker, Chancellor.

This is a suit for annulment of marriage on the ground that at the time of the ceremony the defendant was incapable of consenting thereto, being a lunatic and of unsound mind, and bereft of reason to truly comprehend the nature of the marriage contract and deprived of the will to give intelligent consent thereto; that petitioner was ignorant of such incapacity and was not made cognizant thereof until afterwards, when petitioner discovered that defendant was afflicted with dementia prcecox, and separated from him; that petitioner had not ratified the marriage after such discovery; and also for certain fraudulent misrepresentations, which it is unnecessary to mention, as the principal cause is sufficient; besides, as defendant was incapable of consenting to the marriage, he probably was incapable of making the representations in such a way as to be responsible for them. The case is abundantly proved, and the master reports favorably. The question thus squarely presented is whether or not insanity at the time of marriage in one of the parties, unknown to the other, is sufficient cause for annulment of the contract ?

In Allen v. Allen, 85 N. J. Eq. 55, a suit was brought to annul a marriage on account of defendant’s concealment of a taint of hereditary insanity, and a decree was denied for want of adequate proof of the fact that defendant was at the time of his marriage afflicted with a taint of insanity; and the vice-chancellor intimated that the cause alleged was insufficient. The court of errors and appeals, in affirming the decree—Ibid., 86 N. J. Eq. 441, said (at p. 442): “We conclude therefore that the complainant’s bill was properly dismissed for failure of proof to support the allegations of her bill. Reaching this conclusion, for the reasons stated, we find it unnecessary to consider the interesting question discussed by the learned vice-chancellor in his opinion, viz., whether the fact that one of the parties to a marriage is insane at the time when the marriage takes place, and intentionally conceals that fact from the other party to the marriage, affords just ground for its annulment.”

In Davis v. Davis, 90 N. J. Eq. 158, Vice-Chancellor Lane, discussing Allen v. Allen, said (at p. 161) : “If the vice-chancellor meant to express the opinion that the existence of the condition indicated by the court of errors and appeals would not be sufficient ground for relief, I think he is opposed by the weight of authority. See note to Ridgely v. Ridgely, 25 L. A. R. 800.” And I concur in Vice-Chancellor Lane’s opinion. There are cases in other jurisdictions which hold insanity to be cause for annulment, but I shall not review them. Mr. Bishop states the doctrine thus:

“It would seem to be a plain proposition that, as marriage proceeds from the free and concurring consent of two competent persons, the insanity of one of the parties renders any formal coming together or solemnization ineffectual to make them husband and wife.” 1 Bish. M., D. & S. § 645.

The jurisdiction of this court to annul a marriage on the ground of fraud, want of mutual consent, duress, &c., has been established beyond controversy. Ysern v. Horter, 91 N. J. Eq. 189, and cases cited at p. 193. And insanity is one of them.

It is true that these parties lived together from April 27th, 1922, the time of the marriage, until some time in July, 1922, between two and three months thereafter, when they separated, and that a baby girl was born to the parties in February, 1923, after their separation.

Vice-Chancellor Lane in Davis v. Davis, supra, where-the husband was afflicted with a contagious disease which he concealed from his wife during the six months they lived together (until the discovery by the wife of the existence of the disease), notwithstanding the fact that there was consummation of the marriage and a child born, granted annulment.

Non-consummation is not an absolute requisite to the annulment of a marriage for fraud in all cases, and especially is this so in the presence of section 1, subdivision 6 of the Divorce act {Comp. Stat. p. 2021), which provides, inter alia, that a decree of nullity of marriage shall not render illegitimate the issue of any marriage so dissolved, except where the marriage is dissolved because either of the parties had another wife or husband living at the time of the second or other marriage. Besides, insanity cannot be said to be fraud. It is want of capacity—capacity to consent, in the absence of which the law declares the marriage to be invalid. It may of course be ratified. That was not done here.

Decree nisi accordingly.


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    New Jersey Photo Engraving Company, complainant, v. Carl Schonert & Sons, Inc., defendant.
    [Decided September 12th, 1923.]
    1. No person, except in his own cause or in the case of an infant, is permitted to appear and prosecute or defend any action in this> (or any) court, or make any interlocutory motion therein, unless he is a licensed attorney-at-law of the supreme court of this state; and, as such he is licensed as a solicitor in chancery, and appears here in that capacity.
    2. Corporations, being artificial persons, cannot practice law.
    3. A corporation can, however, like an individual, file its claim with a receiver, without the intervention of a solicitor; but, after the expiration of the time limited, an order extending the time can only be obtained bj’ application to the court by a solicitor.
    4. Practicing law without a license is both a contempt of court and an offence against the Crimes act.
    5. An application to file a claim out of time made by a corporation through an “attorney in fact” cannot be considered.
    6. Members of the bar only have audience in the courts.
    On bill, &c.
   Walker, Chancellor.

A receiver having been appointed for the defendant corporation an order was made December 8 th, 1922, requiring creditors to present their claims to him within two months or be excluded from the benefit of dividends. And now, August 18th, 1923, a petition is presented on behalf of the American Oil and Supply Company, setting up that it is a creditor of defendant; that it received no notice of the order limiting creditors; that it attempted to file its claim with the receiver August 1, 1923; but that it was rejected because barred by lapse of time; and petitioner prays for an order permitting the filing of its claim with the receiver as of time. This paper was signed in the name of the corporation: “Per G-. A. Boyce, Atty. in fact.” Attorneys in fact have no audience in the court of chancery, and are without right to practice at its bar. They cannot appear as solicitors of record for corporations or others.

I do not say that a corporation cannot file a claim with a receiver without the intervention of a solicitor. On the contrary, I say it can. A corporation’s claim may be drawn up by one of its officers or employes or any one acting in its behalf, and, if he knows how to do it, he can append an affidavit to the claim, and after it is sworn to by an officer or agent of the company having knowledge of the facts, it may cause the verified claim to be lodged with the receiver, just as an individual creditor of the concern may do. But, after the expiration of the time in the order limiting creditors has expired, an order extending that time can only be obtained by application to the court, which application must be made by the party in person or by solicitor.

Now, a corporation is an artificial person, and, therefore, cannot personally appear.. It acts in affairs of business by its officers and agents representing it; and may even be an executor, &c., by virtue of the statute just as a natural person can. But not every natural person can be a lawyer. A corporation acts in affairs of law through its attorneys and solicitors, and, in the nature of things, must so act. Consequently, it can only apply for an order through a solicitor; as only members of the bar have audience in the courts, and corporations cannot be admitted to the bar. In 1 Dan. Ch. PI. ,<& Pr. § 146 it is stated that where corporations aggregate are sued in their corporate capacity they must appear by attorney and answer under the common seal of the corporation. See also Ransom v. Stonington Savings Bank, 13 N. J. Eq. 212. They may adopt and use any seal pro hoc vice. Ibid. See the form of a jurat to the answer of a corporation. Bick. Ch. Free. (rev. ed.) 115. In the same work in the forms of affidavits to bill (at p. 17) is one by an attorney in fact. This, however, does not refer to the case of a corporation. It is the case of a complainant out of the state and who has constituted an attorney in fact under a power of attorney executed and delivered. That only permits him to file the bill; not to appear as the advocate of the complainant; and, indeed, it could not authorize him to do the latter. In a footnote (c) it is said that the form was prescribed by the chancellor in Bank of Orleans v. Skinner, 9 Paige 305. This case, however, has nothing to do with an attorney in fact. It was one in which the chancellor said that the counsel for the bank was better acquainted with the facts than the president and cashier, and that he therefore was a proper person to verify the bill. 'I believe that the filing of bills for absent complainants by attorneys in fact is obsolete. And one so filed would have to be in the name of the principal, as, A. B. by C. D., his attorney in fact, and would have to be presented by a solicitor., I am quite sure that in the court of chancery of New Jersey preferring bills through an attorney in fact is obsolete; and I am also quite sure that the practice of putting in corporate answers under the common seal of the corporation, or one adopted pro hac vice, is also obsolete, or nearly so. As the answering corporations must be represented by solicitors it has come to be almost the universal practice for corporations’ answers to be signed by the solicitors only and not attested under the common seal. Of course, the authority of the solicitor is presumed until the contrary be shown or appears; and there has never come under my notice a case in which a solicitor’s appearance for a corporation was repudiated by it, or its authority to represent it, questioned.

The Practice act (Comp. Stal. p. 1/.055 § 16) provides that every person of full age and sound mind may prosecute or defend any action in any court in person or by his solicitor or attorney; and section 17 provides that no person except in his own cause or in the, case of an infant shall be permitted to appear and prosecute or defend any action in any court unless he is a licensed attorney-at-law of the supreme court of this state who shall be under the direction of the court in which he acts. And this, of course, extends to any interlocutory motion made to the court in a pending cause. And no one can appear for an infant except as next friend or guardian, as infants sue by next friend (Heath v. Maddock, 81 N. J. Eq. 469) and defend by guardian. In re Martin, 86 N.J. Eq. 265, 270. An attorney-at-law is also licensed as a solicitor in chancery, and appears in this court in the latter capacity.

The New York court of appeals (In re Co-operative Law Company, 198 N. Y. 479) held that the practice of law is not a business open to all, but a personal right, limited to a few persons of good moral character, with special qualifications, ascertained’ and certified after a long course of study and a thorough examination, by a state board appointed for the purpose; that the right to practice law is in the nature oi a franchise from the state conferred only for merit; that the practice of law is for the members of the bar who have complied with all the conditions required by statute and rules of court, and as these conditions cannot be performed by a corporation it follows that the practice of law is not a lawful business for a corporation to engage in.

The supreme court of Massachusetts in Creditors’ National Clearing House v. Bannwart, 227 Mass. 579, held, that for a corporation to maintain a law department through which it would give legal advice and perform the services of an attorney in collecting claims was contrary to the statute of that commonwealth and unlawful.

Practicing law in our state, without being duly licensed, is not only a contempt of court (to be prosecuted in a separate proceeding—In re Merrill, 88 N. J. Eq. 261, 267), for which the offender may be adequately punished by the court in which the offence is committed; but by supplement to the Crimes act of 1913 (P. L. p. 858; Comp. 8bat. 1st Supp. 450 § 60), it is made a misdemeanor.

As the application before me is neither made by the party in person (as indeed it cannot be, as the “person” is an artificial one, namely, a corporation, which cannot appear “personally”), nor by a solicitor in chancery, it cannot be considered.