author: Stevens, V. C.

text:
    Royal Nelson White, executor, &c., v. Mayor and Common Council of the City of Newark et al.
    [Decided January 31st, 1918.]
    Where a bequest was made to “the fresh air fund of the city of N.,” there being in such city no incorporated or unincorporated body of that name, the court will, nevertheless, sustain the gift and appoint a trustee to give effect to it.
    On bill, &C.

      Mr. Scott German, for the executors.

      Mr. Robert H. McCarter, for the heirs.

      Mr. William T. Carter, Jr., for the Newark Female Charitable Society.

      Mr. Jerome T. Congleton, for the city of Newark.
   Stevens, V. C.

The testator, Chester R. White, by his will provided as follows:

“I give the interest of five thousand dollers to the fresh air fund of Newark to be used evey summer for special needy cases that need to be sent right away not to go in the general fund * * the money I give to the fresh air fund of Newark N. J. to be put out at interest if not already invested.”

The claim is that the gift is invalid.

It is to be noted that the gift is directly to the fresh air fund and not to a trustee. As far as appears there is in Newark neither an incorporated nor an unincorporated body called the Fresh Air Fund, and the evidence fails to show the existence of any permanent fund of that description. All that appears is that the Female Charitable Society of Newark has a fresh air fund committee, whose duty it is to obtain special contributions each summer to carry on the work of sending poor children and adults to the country for an outing; and the city of Newark appropriates $10,000 each year for a similar purpose out of money derived from taxation. It may be that some of the Newark churches and institutions raise and apply money for a like object. The evidence fails to show that testator in his lifetime ever gave money to any fresh air fund, or that he had anything to do with any society that dispensed such a fund.

Under these circumstances, the first question is whether a gift to a fresh air fund is a gift to charity. Such a fund is, according to the well-understood meaning of the expression, one used to send poor children and needy adults from the city into the country for an outing, especially during the hot weather. Its purpose being the physical and moral improvement of the poor and destitute, it easily falls well within the designation charity, as that term is understood in the law.

Then the question arises whether the purpose of the gift being charitable there is any legal difficulty in giving effect to it. The only difficulty that suggests itself is that no trustee has been appointed to administer the fund; but the well-known rule is that a court of equity will not permit a trust, and especially a charitable trust, to fail for want of a trustee.

In the cases on this subject there is a clear distinction between gifts to charity generally and gifts to a charitable object definitely indicated. Where a testator gives to charity generally he must, according to American law, constitute a trustee to select the objects. Having no prerogative powers, the courts will not give effect to such a bequest, either by appointing a trustee to make the selection or by making it themselves. Perry Trusts § 719; Hesketh v. Murphy, 36 N. J. Eq. 304. In Norcross v. Murphy, 44 N. J. Eq. 522, there was a bequest of the residue “for further consideration in the way of charitable purposes,” and Chief-Justice Beasley said: “The bequest is void, as the gift is general, and there is no testamentary designation of a person to select the object of the benefaction.”

On the other hand, if the bequest be for a specific object and no trustee be appointed, the court will nominate one. This was decided by Vice-Chancellor Grey in Bruere v. Cook, 63 N. J. Eq. 634 (affirmed on appeal, 67 N. J. Eq. 724, for the reasons stated in the opinion below). He says: “The misnomer of the legatee who should, in. the first place, receive and apply the fund, or the selection of one who does not have the power or equipment to carry the testator’s intention into effect, or even the- entire omission in any way to indicate a person or corporation to whom payment of the fund could primarily be made, will not defeat such a gift, if the testator’s ultimate object is lawful and is definitely indicated. Equity will not permit a lawful trust to be defeated for want of an efficient trustee.”

In the case cited the body designated by the testator did not exist. Consequently, the bequest stood, as it does here, with no trustee appointed. But if the court had the power to appoint there it must here. The bequest is in all respects specific — as specific as the ordinary case of a bequest to the poor of a designated town. It is the fresh air fund of Newark that is named— a fund for the needy cases in that municipality. The books arc full of cases in which the poor of a town have been the object of testator’s bounty, and where if no trustee has been named, or some one has been named who could not take, the court has made the appointment. The following, among others, are New Jersey cases illustrating the subject: McBride v. Elmer, 2 Halst. Ch. 107; Mason's Executors v. Trustees of M. E. Church, 27 N. J. Eq. 47; Brown v. Pancoast, 34 N. J. Eq. 321; Green v. Blackwell 35 Atl. Rep. 375; Trenton Society v. Howell, 63 Atl. Rep. 1110, and see Kerrigan v. Tabb, 39 Atl. Rep. 701.

The attorney-general having been made a party it will be proper for me to hear counsel on the appointment of a trustee. Trenton Society v. Howell, supra; Lanning v. Commissioners of Public Instruction, 63 N. J. Eq. 2.


source: Caselaw Access Project

license: Public Domain

text:
    William A. Bartley v. J. Wilson Lindabury.
    [Decided June 13th, 1918.]
    1. Where the enforcement of a contract for sale of land would be harsh and oppressive on one of the parties thereto, its specific performance will not be decreed, but the parties will be left to' their remedy at law.
    2. Under the evidence in this case,. held that ito enforce the contract in question by decree of specific performance would as a matter of judicial discretion be harsh and oppressive, and the bill is therefore dismissed.
    On bill, &c.

      Mr. Elmer King, for the complainant.

      Mr. Nathaniel G. Toms and Mr. Charles A. Rathbun, for the defendant.
   Stevens, V. C.

The bill is filed to enforce the specific performance of the following agreement:

“This agreement made and entered into this 19th day of January, 3910, between Wm. A. Bartley of Bartley, N. J., party of the first part, and J. Wilson Bindabury of Mt. Olive, N. J., party of the second part.
“Party of the first part agrees to sell to party of the second part $9,900.00 of the stock held by him in the corporation of Wm. Bartley & Sons, in consideration of which the party of the second part does hereby pay unto the party of the first part the sum of $5.00 as a binder to this agreement, the receipt of which amount ,the party of the first part hereby acknowledges. The balance to be paid as follows: $1,000.00 on or before January 24, 1910, and the remaining $4,900.00 of the cash payment to' be paid on or before April 1, 1916. The remaining $4,000.00 to be paid by the transfer of a guaranteed deed for the farm owned and occupied by the party of the second part, consisting of 315 acres and buildings situated thereon, located in the township of Mt. Olive, County of Morris, State of New Jersey, said deed' to be transferred on or before April 1, 1916.
“It is further mutually understood and agreed that in the event that the farm is sold for more than, $4,000.00 the party of the second part is to receive one-half of the increased price over and above the commission paid for selling.
“In Witness Whereof the parties hereto have this day and year set their hands and seals first above written.
“Witness Mes. Jennie L. Lindabury. Wm. A. Bartley.
“Witness Mbs. Jennie L. Lindabury. J. Wilson Lindabury.”

The complainant was, at the time the agreement was made, a stockholder of Wm. Bartley & Sons, a corporation doing business in the village of Bartley, whose capital stock was $24,000. Of this complainant owned one hundred and one shares. The defendant was a farmer. His family lived opposite the factory and his farm was in Mt. Olive, two miles distant.

The complainant had had some difference with the other factory owners and wanted to sell his stock. A week or ten days before the agreement was executed, he went to Mt. Olive and asked defendant to buy it. He spoke of the company’s condition and suggested that he (defendant) talk with the company’s officers, which he did. The agreement was drawn by complainant himself and was executed in defendant’s house in the presence of his wife. After signing, the defendant sought to borrow money on the stock to enable him to pay the $5,900, which the agreement called for. “He could not get it, and within twenty-four hours notified complainant over the telephone that the agreement was off. In May following, the machine shop was partially destroyed by fire, and the insurance being inadequate, there was a net loss estimated at from eight to ten thousand dollars. At the time the agreement was made the stock seems to have been worth about par.

There is no merit in the defendant’s contention that the agreement was nothing hut an option. One has only to read it to see that it was, in form, at least, a contract binding on both sides. And there is no proof of fraudulent representation. Eurthermore, the defendant’s contention, that he is not bound by the contract, for the reason that the statement in yuiting called for by the supplement to the Corporations act (P. L. 1913 p. 28) was not filed at the time the stock was issued, is untenable. The act does not say when the directors are to file the statement which it prescribes. While its language is a little ambiguous, it is apparent that what is called for is a statement of the completed transaction. The company if it purchase property must pay “what the same is reasonably worth in money, at a fair, bona fide valuation,” and may “issue therefor stock to the amount of the value thereof in payment.” After this is done the directors are to make and file a true statement of the transaction. This was done in the present case, but not until after suit brought. Whether or not it should have been done before, I find nothing in the terms of the act which, would invalidate complainant’s stock and make it unmarketable.

I come now to the only defence which seems to me to possess any merit, and that is that the court ought not to enforce the equitable remedy of specific performance because it would lie harsh and oppressive. With considerable hesitation, I have adopted this view.

In his work on Equity Jurisprudence, volume 3 (1st ed.) in the footnote on page 149, Pomeroy says:

“Oppression or hardship may result from unconscionable provisions of the contract itself, or it may result from the situation of the parties, unconnected with the terms of the contract or with the circumstance of its negotiation and execution — that is from external facts or events or circumstances which control or affect the situation of the defendant.”

To the same effect is Crane v. DeCamp, 21 N. J. Eq. 414.

Looking, first, at the external circumstances, it appears that defendant — a farmer — was unfamiliar with business methods. Had he been otherwise, he would have applied for a loan before signing the contract. It also appears that the fire loss, must have considerably diminished the value of the stock. While a vendee ordinarily takes the risk of depredation, it is- still true that the defendant is here placed in a position of peculiar hardship. He agreed to give for the stock, not only $5,900 in cash, but also his farm — his only means of livelihood. The result of decreeing performance would probably be this: He would be deprived of his farm, and would be decreed to pay $5,900 in money. Failing to pay, the stock decreed to be transferred would be subject to levy and sale. In its depreciated condition it is moro than likely that there worild be but little demand for it, and that, bidders failing, complainant would buy it in and so become the owner of both farm and stock.

Looking at the agreement itself, it is not entirely clear what is meant by the stipulation “party of the first part agrees to sell to party of the second part $9,900 of the stock held by him in the corporation.” Does it call for stock whose par value is $9,900, or does it call for as many shares as would, taken at their market value, make up that amount ? The agreement calls for a “guaranteed” deed. Does it mean a deed containing covenants of seizin, quiet enjoyment and warranty, or does it mean a deed for land, title to which is guaranteed by a title or trust company? Complainant’s bill prays for a warranty deed. These obscurities might not, of themselves, prevent specific performance, but there is another provision which seems to me to be oppressive, particularly in view of what has happened. That provision is “that in the event that the farm is sold for more than $4,000, the party of the second part [defendant] is to receive one-half of the increased price over and above the commission paid for selling.” The agreement, drawn by complainant himself, does not compel him to sell. He may retain indefinitely. The undisputed evidence is that the farm is worth $7,000. For this, aud the cash payment of $5,900, the defendant is to receive stock, whose market value did not exceed, and may not have equaled. $9,900, at the time of the making of the agreement, and which is now, uncmestionably, worth less. The clause in question was nol the subject of discussion and is plainly one-sided.

The law is well settled that courts of equity will often refuse to enforce the specific performance of an agreement that (hey would not, on the evidence, set aside. Woollam v. Hearn 2 Lead. Cas. 695 (3d Am. ed.); Stoutenburgh v. Tompkins, 9 N. J. Eq. 332; Bowker v. Cunningham, 73 N. J. Eq. 458. There is no rule more clearly established, says Chancellor Zabriskie in Crane v. De Camp, 21 N. J. Eq. 418, than “that upon an application for a specific performance of a contract, the court must he satisfied that the claim is fair, reasonable and just, and the contract equal in all its parts. If these points are not established by complainant he will be left to his remedy at law.”

It seems to me that as a matter of judicial discretion, looking at all the circumstances, to decree specific performance would be harsh and oppressive within the meaning of the cases, and that the equities of the case would be better subserved by lea*. !ng the parlies to their legal remedy of damages.


author: Leaming, V. C.

text:
    Smith-Austermuhl Company v. Jersey Railways Advertising Company.
    [Submitted February 18th, 1918.
    Determined February 19th, 1918.]
    1. Where an advertising contract to run twelve months is later superseded by another contract for sixty months, procured through misrepresentation that the term- named was only twelve months, equity will reform or cancel the contract, even though the defence of fraud can, be interposed in an action at law.
    2. Under these circumstances the payment of monthly installments clue under the contract for the first twelve months does not affirm the contract as to its sixty months’ term.
    3. In' an action to cancel or reform a contract and to restrain the enforcement thereof on the ground that the signature thereto was procured through misrepresentation as to the term thereof, a temporary injunction will not be continued pending the final outcome of the case, as complainant cannot be injured, since he can plead the fraud as a defence in an action at law.
    On hearing on return of order to show cause for injunction pendente Hie.

      Messrs. Harris & Harris, for the complainant.

      Messrs. Wilson & Carr for the defendant.
   Leaming, V. C.

The hill in this suit has been filed by complainant to procure an injunction restraining defendant from bringing an action at law against complainant upon a certain written contract now held by defendant by the terms of which complainant has agreed to pay defendant a certain amount per month for’ a period of sixty months for certain advertising of complainant’s business to be performed by defendant during that period. The bill also prays in the alternative that the contract be either canceled for fraud or reformed by the substitution of twelve months for sixty months as the period of time embraced within its operation.

The averments of the bill duly verified are to the effect that a similar written contract for a term of twelve months was executed by the respective parties; that shortly thereafter defendant’s agent presented to complainant another similar contract and sought that it be substituted for the former contract, fraudulently stating to complainant that the two contracts were in all respects identical, except as to one provision, which provision was suggested as more favorable to complainant and is here immaterial; that relying upon defendant’s statements complainant executed the substituted contract without examining its contents and surrendered the original contract; that complainant has since discovered that the substituted contract was for a term of sixty months instead of twelve, as represented by defendant.

If these averments of the bill are true the original contract was surrendered by complainant and the substituted contract now held by defendant was signed by complainant in the belief that the term of the substituted contract was the same as that specified in the original contract, and with intent to contract for no other period of time, and was accepted and signed by defendant with full knowledge of complainant’s belief and intent to that effect and with knowledge that complainant’s belief was induced by defendant’s fraudulent misrepresentations touching the term. In 'such circumstances, the only term on which the minds of the parties at any time met was a term of twelve months, and complainant clearly became entitled to a reformation of the substituted contract in such manner as to change the term therein stated from sixty months to twelve months.

The bill further sets forth that during the twelve months’ term an action at law was brought by defendant against complainant, based upon the substituted contract, to recover the monthly contract price up to the time the suit was brought; that complainant filed a plea in that action which set forth as a defence said fraud of defendant in the execution of the contract; that at the trial the law court refused to permit complainant to introduce evidence of the fraud on the ground that it tended to alter or vary the terms of a written contract; that when the court determined to instruct an adverse verdict complainant, in order to avoid a verdict in that action and with intent to file a bill in equity for relief, paid to defendant under protest the amount claimed in that action, with costs.

The bill in this suit was filed after the expiration of the twelve months’ term and an order to show cause with restraint against further suits at law was issued. At the return of the order to show cause defendant filed an answer denying the fraud and averring that complainant executed the substituted or new contract with full knowledge of its contents. Laches and recognition of the new contract are also averred. Affidavits accompany the answer verifying its averments. It accordingly is to be determined at this time whether the preliminary restraint shall be retained until final hearing in this suit.

It is urged by defendant that this court is without jurisdiction to entertain the bill because of an adequate remedy for complainant at law.

It is apparent that in any action at law which defendant may institute against complainant for recovery for services performed for complainant under the new or substituted contract, complainant can defeat recovery in the law court if able to supply proofs sufficient to establish the fraud set forth in the present bill. But the existence of that defence at law does not deny to a court of equity jurisdiction to entertain a bill to reform the contract and, in a proper ease, to restrain the institution of an action at law pending the suit for reformation; and the same jurisdiction necessarily obtains in suits for rescission, cancellation or surrender of outstanding contracts. This has been repeatedly determined by the courts of this state. Cornish v. Bryan, 10 N. J. Eq. 146, 151; Chase v. Chase, 50 N. J. Eq. 143.

As to whether, pending a suit for reformation, cancellation or surrender of -an outstanding contract restraint should be imposed against the institution or an action at law or the further prosecution of a pending action at law, I think the sound and generally accepted modern view may be said to be that although the special circumstances of each case may go far to detenuine whether such restraint should be imposed, yet the existence of a complete legal defence, even when an action at law is pending, falls short of and does not ordinarily constitute an adequate’ remedy for the defendant. This is because, first, the opportunity to make that defence may be lost, or the ability to make it may be weakened, by studied delay of the other party; delay in bringing the action in cases in which an action has been merely threatened and has not been brought, or, when an action at law has been brought, like delay which may be obtained by dismissal of the action, and second, because “in any event mere defence, however perfect, is not relief.”

This general view is, I think, sanctioned by our court of errors and appeals in Sweeney v. Williams, N. J. Eq. 627. In that ease an action at law had been brought on a bond. The defendant in the legal action then filed a bill in equity for an injunction against the further prosecution of the action at law, and demanded the relief upon grounds which would have been available as a defence at law to the action on the bond. Touching the propriety of exercising the equity jurisdiction after tho jurisdiction of the law court had attached, the reported opinion says:

"The complainant was entitled, if at all, to a relief broader than could be afforded him in the action at law. He asked, and if his contention is correct, was entitled to a perpetual injunction against the bond. At law his relief as to the bond could bo obtained only in case the plaintiff brought his action to a trial. If he discontinued or submitted to a nonsuit, the relief could not be obtained there.”

The opinion then further points out that in that suit the existence of a‘mortgage securing the bond also afforded ground for equitable relief.

In the present case there is no pending action at law to deter the exercise of the remedy which is here sought.

It is further urged that the payment' by complainant of the monthly installments for which the action at law was brought was operative to affirm the contract in such manner as to now deny relief to complainant. I am unable to adopt that view. If the averments of complainant’s bill are true, there appears to be ho valid defence to the pajunent of monthly installments for the twelve months’ period, unless the service which defendant was to perform for that period of time has been inadequately performed. Complainant herein specifically avers that a contract for that period was made; the grievance asserted by the bill is that no contract for a longer period has been made. The protection equitably called for by the averments of the bill is protection against the extended period. Complainant is clearly privileged to pay for the twelve months’ service for which it admits it agreed to pay and repudiate further liability.

But notwithstanding the propriety of restraint based upon the averments of the bill, I am convinced that in view of the denials contained in the answer and answering affidavits filed at the return of the order to show cause, restraint should not be continued pending final hearing.

Our court of errors and appeals has repeatedly determined that upon the coming in of such an answer restraint should not as a rule be retained. The exceptions to that rule are so far dependent upon the special circumstances of cases that their statement in general terms is difficult. A general statement is that to retain restraint, in such circumstances, it must be reasonably apparent that the threatened damage will be irreparable in character, or that the urgent'necessity of the case requires restraint to save the subject-matter of the controversy from impairment or destruction. This general statement of the exceptions to the rule is given sanction in our court of errors and appeals in the recent case of Schlemm v. Whittle, 86 N. J. Eq. 415; but I do not understand that case, or the earlier cases in that court dealing with that subject, to disapprove of the view that circumstances may exist where restraint may be properly retained which may not fall strictfy within the exceptions, as above phrased, such as that suggested by Vice-Chancellor Van Fleet in Connelly Manufacturing Co. v. Wattles, 40 N. J. Eq. 92, 97, where it is stated that if it clearly appears that to retain the restraint will do the defendant no harm, while a refusal to do so will deprive the complainant of all relief should he finally succeed in his cause, or subject him to some other peculiar hardship, the restraint may bo properly retained; nor is it clear to my mind that our court, of errors and appeals has given disapproval to the views expressed on the same subject by numerous prior decisions of the court of chancery, as, found in the several cases collected and partially reviewed in Stanton Manufacturing Co. v. McFarland, 52 N. J. Eq. 85.

But in the present case it is entirely clear that while restraint will not injure defendant, at the same time no substantial injury can be suffered by complainant by the denial of restraint. Should an action at law be brought to trial before final hearing in this suit, complainant’s defence therein is adequate, and complainant cannot suffer from delays in any such action because a favorable final decree herein will afford him permanent relief. In these circumstances, I am convinced that restraint should not be retained.

Costs may abide the result of the final hearing.


text:
    Ocean Front Improvement Company v. Ocean City Gardens Company et al.
    [Submitted February 8th, 1918.
    Determined February 19th, 1918.]
    1. A lease by riparian commissioners tinder 1¡ Comp. Stat. p. J/390 § 21, conveying all the rights of the state in described tidal lands in perpetuity, subject to payment of renlt, with right of .entry for forfeiture and option to purchase on full payment, transfers an estate in fee subject to a condition subsequent, consisting of the rent charge.
    2. A condition annexed to a conveyance in fee that the grantee shall pay the grantor or his heirs an annual rent and in default the grantor may enter, is a valid condition subsequent.
    8. Where the lessee under such an instrument executed a mortgage thereon, held that the mortgage was valid, and was in no way disturbed by mortgagor’s subsequent conveyance, or the subsequent conversion of the lease into a grant by the vendee of the mortgagor.
    On final hearing on bill to quiet title.
    This suit is brought under our statute to quiet title to real estate. The claim of complainant is that a certain mortgage which by its terms covers tidal lands now owned by complainant under a grant from the riparian commissioners of this state is not a subsisting lien on the tidal lands. Defendant Security Trust Company, as trustee, is mortgagee of the lands in question; it is .claimed by the mortgagee, and also by the several holders of bonds secured by the mortgage, that the mortgage is a valid and subsisting lien on the tidal lands of complainant described in the bill.
    At final hearing the jurisdiction of this court to entertain the bill was first determined.' The several parties then waived an issue at law and proofs were submitted touching the issue of title as raised by the pleadings.

      There is no substantial dispute touching the facts. Complainant is owner of the fee. The mortgage in terms covers the locus in quo; it was executed by a predecessor in title of complainant at a time when the tidal lands were held by the mortgagor under a lease from' the riparian commissioners. That lease has been since converted into a grant.
    The dispute arises from the. following facts: June 15th, 1908, the Ocean City Gardens Company was the owner of a tract of land bordering on the Atlantic ocean and also the owner of such rights in the adjacent tidal lands as were conferred by a certain riparian lease which had been made by the riparian commissioners -of this state February 27th, 1902. June 15th, 1908, that company executed a mortgage to defendant Security Trust Company on both its upland and the adjacent tidal lands covered by the riparian lease. The mortgage contained a clause which entitled the mortgagor to releases from the lien of the mortgage of any part of the mortgaged property by the payment of a fixed amount per square foot of the land released. October 7th, 1909, the Ocean City Gardens Company conveyed to the West Jersey Investment Company a portion of the upland fronting on the ocean and its rights under the riparian lease in the tidal lands in. front of and adjacent to the upland so conveyed. That transaction was as follows: The purchaser paid to the vendor (mortgagor) the full purchase price of the upland, and paid to the vendor in addition thereto the amount which the riparian commissioners were to charge to convert the lease into a grant, the vendor thereupon agreeing to have the lease converted into a grant. To protect the vendee in a perfect title, free from the lien of the mortgage, indemnity security was given by the vendor to the vendee. The vendor then applied for a riparian grant of the tidal land so sold to the investment company, together with a like grant for other tidal land held by the vendor under the same lease. It was then ascertained that the riparian commissioners would not execute a grant except to a person holding title to the ripen. Accordingly, the investment company reconveyed the upland to the gardens company for the purpose of facilitating the procurement of the riparian grant. The riparian grant was then made to the gardens company and thereafter the gardens company reconveyed the upland and tidal lands to the investment company. Subsequently, the gardens company procured from the mortgagee a release of the lien of the mortgage on the upland so reconveyed to the investment company; no release of the lien of the mortgage on the tidal lands was procured. The investment company, apparently in the belief that the mortgage was -not a lien on the tidal lands, then surrendered its indemnity.
    Subsequently, the investment company conveyed the same upland and tidal lands to the Ocean Front Improvement Company, complainant herein.

      Mr. Lewis Starr, for the complainant.

      Mr. Thomas E. French, for the defendant Security Trust Company, trustee.

      Mr. S. Slanger Iszard, for the defendant Ocean City Association.
   Leaming, V. C.

The primary inquiry is to ascertain whether at the time the mortgage was executed the mortgagor enjoyed merely a leasehold estate in the tidal lands with an option of purchase or an estate in fee. If the latter, it will be necessarily conceded that the lien of the mortgage' still subsists. If the former, it remains to inquire whether the after-acquired fee, acquired, as it was in effect by the vendee of the mortgagor, enured to the benefit of the mortgagee under a mortgage devoid of covenants of title or quiet enj03011011!, and, if so, whether any equity to be relieved of. the lien of the mortgage exists in complainant which -would not exist in favor of the mortgagor or the investment company.

In three reported cases consideration has been given to the ascertainment of the estate which passes to a lessee under our statutory convertible riparian leases.

The first case was that of Hudson Tunnel Co. v. Attorney-General, 27 N. J. Eq. 573. It was there sought to enjoin certain proceedings then pending for condemnation of tidal lands which were held under a statutory riparian lease; the information charging that the state held a' reversionary estate, in the leased lands and that the act authorizing the condemnation proceedings denied the right'to condemn land which belonged to the state. It was there held that the statutory riparian lease there in question transmitted to the lessee the entire estate of the state, and that no residue of the estate in the lands, such as is essential in an estate in reversion, remained in the state; that the interest which the state had in the land was not an actual estate, but consisted merely in a charge to secure the payment of rent received, by distress and re-entry and taking possession. Accordingly, the lands were held not to be lands, belonging to the state, and hence were subject to condemnation.

The next case was Cook v. Bayonne, 80 N. J. Law 596. It was there again held that the estate transmitted by the statutory riparian lease was an estate in fee, subject only to a rent charge. It; accordingly, was held that the leased tidal lands were properly taxed.

The third case was Leary v. Mayor, &c., of Jersey City, 189 Fed. Rep. 419. In that case, also, the validity of a tax against tidal lands held under a statutory riparian lease was in question. It was there held that an estate in fee-simple passed to the lessee under the riparian lease on condition subsequent; the condition being that if the annual payments were not made when due the estate could be defeated. On appeal the views there expressed were adopted by the United States circuit court of appeals. 208 Fed. Rep. 854.

The lease in question here was executed under authority of the act of March 21st, 1871. 4 Comp. Stat. p. 4390 § 21. Prior to that act the jurisdiction of the riparian commissioners to execute leases and grants of tidal land was limited .to certain restricted territory; that act authorized the execution of leases and grants to shore owners in all other parts of the state. The act provides:

“1. That any riparian owner on tide waters in this state who is desirous to obtain a lease, grant or conveyance from the Staite of New Jersey of any lands under water in front of his lands, may apply to the commissioners appointed under the act to which this is a supplement and the supplements thereto, who may make such lease, grant or conveyance with due regard to the interests of navigation, upon such compensation therefor, to be paid to the State of New Jersey, as shall be determined by said commissioners, which lease, conveyance or grant shall be executed as directed in the act to which this is a supplement and the supplements thereto, and' shall vest all the rights of the State in said lands in said lessee or grantee.”
“2. That this act shall not interfere with the original act or its supplements as to the waters of the Hudson river, New York bay or Kill Von Kull, easterly of Enyards clock.”

The lease in question here varies in form in some respects from what appears to have been the form of the leases considered in the cases above cited. After reciting that the applicant for the lease is shore owner, and the amount determined upon as the purchase price and the amount of annual rental, the instrument proceeds:

“Now therefore, the said State of New Jersey, by the said Riparian Commissioners, the Governor approving, in consideration of the premises and of the rents, covenants and conditions herein, contained, does hereby demise, lease and to farm let unto, the said The Ocean City Association, its successors ancT assigns, until default is made in the punctual payment of the annual rentals herein fixed, or until this instrument and all estate or rights arising thereunder has been, declared forfeited 'by said Commissioners or tueiv successors in office, for breach of any of the covenants or conditions herein contained, or until the same has been, in any other manner forfeited or terminated, all that certain, parcel of land flowed by tidewater” [here follows a specific description of the land], “with the right and privilege, under the covenants and conditions of this grant, to exclude the tidewater from so much of the lands above described as lie under the tidewater, by filling in or otherwise improving the same, and to appropriate the lands under water above described to its and their exclusive private use.” * * * “To have and to hold, use, exercise and enjoy, as lessee for the term aforesaid, the said lands and premises, ancl all the rights and privileges aforesaid, exercisable within and over, and in the manner and form that they are above leased unto The Ocean City Association and to its successors and assigns, subject to the regulations now imposed by law on the exercise of said rights of property hereby leased, and to such as shall hereafter be made by the Legislature or the said Commissioners or a majority thereof, yielding and paying therefor unto the State of New Jersey the annual rent of,” &c.

Then follows a covenant of the lessee for the prompt payment of the rent; then a clause authorizing distress for rent in arrears; then a clause authorizing re-entry for non-payment of rent; then a clause that upon such re-entry all covenants of the state shall cease and determine and the lease become null and void; then a clause that, if as a condition precedent, all the rentals are paid on or before the date when, the same fail due and all the covenants complied with, a grant will be made on application therefor for any part of the lands free and discharged of any future rent on the pajment of the gross sum first named or an equitable part thereof.

Erom the foregoing it sufficiently appears that the instrument is, in its general structural form, a lease with an option of purchase. The term, however, is without limitation as to time; the limitátion of the term, as expressed in the instrument, is an event — the non-payment of rent — and that is an event which may never happen. Nor does the non-payment of rent alone operate to terminate the term; by the terms of the instrument a re-entry is required to effect a forfeiture of the estate conveyed. While the words of conveyance used in the instrument are words appropriate for a leasehold estate, yet the rights which are transferred are all the rights which the state enjoys in the lands and those rights are intended to continue forever unless terminated by the non-payment of rent, followed by re-entry. There is no reversion sueli as obtains in a lease for a term; the rights conferred by the instrument are to be terminated only by default followed by re-entry, and a right of re-entry is not in any sense a reversion. The instrument, though in name and general form a lease, thus lacks the essential and distinguishing qualities of a lease; in substance, it is a transfer or assignment of the rights of the state in perpetuity on condition subsequent in the nature of a rent charge.

“It is necessary to the relation o£ landlord and tenant that a reversionary interest remain in the landlord, a conveyance of the landlord’s entire term being an assignment rather than a lease. Hence a taking and holding in perpetuity is contradictory of the relation of landlord and tenant.” 24 Cyc. 878.
“A lease is properly a conveyance of any lands or tenements, in consideration of rent or other annual recompense, made for life or years or at will, but always for a less time than the lessor has in the premises.” Wood L. & T. & 75.
“A lease is properly a conveyance of any lands or tenements (usually in consideration of rent or other annual recompense) made for life, for years or at will, but always for less time than the lessor hath in the premises; for if it be for the tohole interest, it is more properly an assignment than a lease.” 3 Bl. Com. § 317.
“An assignment is properly a -transfer or making over to another of the right one has in any estate; but it is usually applied to an estate for life or years. And it differs from a lease only in this: that by a lease one grants an interest less than his own, reserving to himself a reversion; in assignments he parts with the whole property, and the assignee stands to all intents and purposes in- the place of the assignor.” 3 Bl. Com. § 327.

In Leary v. Jersey City, supra, in considering the nature of the riparian lease there in question, the learned trial court said (at p. 427): “By this instrument- the state parted with the whole estate as effectually as if the consideration had been paid in one sum. The instrument contemplated two methods of paying the consideration — an annual sum equal to seven per cent, of the entire consideration, as directed by the joint resolution of March 17th, 1870, and a lump sum, at any time at the option of the purchaser, whereupon another conveyance was to be executed and the annual payments cease. The right, title and interest of the purchaser were the same whichever method of-payment was adopted. So long as the purchaser made the annual payments, the estate vested in it was as absolute as if the entire capital sum had been paid in the first instance. The use of the words Tease’ and Tent’ does not change the quality of the. estate where the whole interest is conveyed. Substancie, not form, controls. A lease never conveys all that the owner has. That at some time and by the very terms of the instrument itself the estate shall revert to the lessor, his heirs or assigns, is of the essence of a lease. In the present case, a default in the annual payments causes a forfeiture; but this is not the necessary result .of the terms of the conveyance. It provides for such a contingency, but does not require it. The conveyance transferred the whole estate to the purchaser. Only his disregard of the terms can end it and cause a reversion.”

A reference to the statute under which the instrument was executed further discloses that it must be understood as transferring all the rights of the state in the tidal lands, subject only to the rent charge; as a statutory instrument it must be given the force and effect prescribed by the statute. That statute, above quoted in full, says:

“Which lease, conveyance or grant shall be executed as. directed in tlie act to which this is a supplement and the supplements thereto, and shall vest all thg rights of the state in said lands in said lessee or grantee.”

It, therefore, seems impossible to escape the conclusion that the statutory lease here in question, like the leases under consideration in the three cases first above cited, must be deemed operative to vest in the lessee an estate in fee in the tidal lands described, subject to a condition in the nature of a condition subsequent consisting of a rent'charge; and the execution of the subsequent grant upon payment of the principal sum on which the rent charge was based must be regarded as merely operative to discharge or release the runt charge. A condition annexed to a conveyance in fee that the grantee shall pay the grantor or his heirs an annual rent, and in default the grantor may enter, has long been recognized as a valid condition subsequent. Van Rensselaer v. Ball, 19 N. Y. 100.

It follows that as the mortgagor was in enjoyment of an estate in fee-simple in the tidal lands here in question, at the time the mortgage was executed, the lien of that mortgage was in no way disturbed by the subsequent conveyance of the tidal lands by the mortgagor, or hv the still subsequent, conversion of the so-called lease into a grant by the vendee of the mortgagor.

As the lien of the mortgage is not dependent upon any after-acquired title, it is unnecessary to here consider the other questions which have been argued. I find no equitable rights in complainant as against the mortgagee. Its right to have other parts of the mortgaged premises first sold at foreclosure for its protection is not involved here.

It may be appropriately noted that by act of 1891 (P. L. 1891 p. 213; Comp. Stat. p. 4396 § 39) it was declared that the riparian commissioners should not thereafter be required to execute leases convertible into grants upon payment of the principal sum, but should be privileged to malte leases or grants on special terms as to time and manner of payment, and also malte leases of limited duration; as already stated, the statutory lease in question here is in perpetuity and in terms convertible upon payment of the principal sum»

I will advise a decree in conformity with the views herein expressed.


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    Austin J. Bozarth v. Egg Harbor City, a municipal corporation.
    [Submitted February 23d, 1918.
    Determined February 25th, 1918.]
    1. Where a filed plat showed parcels of ground designated as parks by name, and lots were sold' by references to such plat, there was a dedication of such parcels to the public.
    2. One buying lots within a city with reference to a plat designating certain squares as parks and public market places, has private rights therein in the nature of easements, and where the vendor subsequently deeded them to the city with the reservation that they be used for such purposes, the legislature had no power to authorize the city to sell them for commercial purposes, and they could not be sold' under P. L. 1915 p. 642 or P. L. 1890 p. 530.

    On hearing on bill for injunction.
    By this suit complainant seeks to enjoin defendant municipality from selling a certain block of land situate in that municipality and known as “Turner Park;” also another similar block known as “Singer Park;” also a third tract comprising three blocks and known as “Market Places.”

      The case has been submitted at final hearing on an agreed statement of facts.
    It appears hy the statement of facts that the Gloucester Farm and Town Association was incorporated in the year 1854 for the purpose of buying, selling and improving real estate, and soon thereafter acquired a tract of land containing in area several thousand acres. Defendant municipality was incorporated in the year 1858 (P. L. 1858 p. 385) and embraces territorially a portion of the original Gloucester Farm and Town Associátion tract. By its corporate act defendant municipality is given power to purchase, hold and convey real estate and to establish public grounds. The land here in controversy is within the corporate boundaries of defendant municipality.
    In the year 1865 the Gloucester Farm and Town Association filed in the clerk’s office of the county a map of its lands. That map divides the entire tract, including that part within the boundaries of defendant municipality, into blocks by the delineation of intersecting streets; each blbck so delineated on the map was numbered, except a few which were marked with inscriptions which indicated that they were set apart for public use and were not to be sold for private uses. A lithographed copy of that map forms a part of the stipulated facts and is marked Ea-hibU A. On that exhibit one of the blocks here in question is the extreme southwesterly block of a tier of unnumbered blocks extending northeastwardly and southwestwardly across the entire tract and forming the northwesterly boundary of defendant municipality. That tier of blocks is marked on the map “Gardens,” and the said southwesterly block of the tier is marked “Turner Park.” The right of the municipality to sell that block of land marked “Turner Park” is drawn in question in this suit. A similar tier of unnumbered blocks, parallel with the other tier and forming the southeasterly boundary of defendant municipality, extends across the map; the extreme southwesterly block of that tier is marked “Singer Park.” The right of defendant municipality to sell that block also is in question in this suit. The other tract drawn in question by this suit is now known as “Market Places;” it comprises three blocks of land, one numbered, on the map* 320, one containing no number on the map, but obviously intended to be block 444, the other numbered on the map 435. These three blocks are separated by streets and are all adjacent to a street in which is delineated a railway marked “Camden & Atlantic Rail Road.” There also appears on the map an octagonal drawing which extends in part on each of the three named market blocks and also extends over the railroad street, with the word “Station” written in it. This delineation, standing alone, indicates that the parts of these three blocks which are covered by the octagonal drawing are occupied by or are to be used as a railroad station for the railroad shown on the map.
    January 16th, 1872, another map' was filed in the county clerk’s office; that map is now commonly known as the official map of defendant municipality. That map' subsequently became lost from the files of the clerk’s office and a duplicate thereof was filed in the clerk’s office "March 3d, 1886; a copy is marked in the stipulation Exhibit B. That map émbraccs only that part of the tract of the Gloucester Earm and Town Association which is within the corporate limits of defendant. The stipulation filed herein states that this map (Exhibit B) is a facsimile of the original map of 1865, except in that the 1865 map covered additional territory; but a comparison of the two maps shows differences which may be of importance. In the 1872 map the several numbered blocks are subdivided into lots, whereas in the 1865 map the method of subdivision of blocks is disclosed by a small drawing to an enlarged scale below the map proper. While on the 1865 map the tiers of blocks forming the extreme northwesterly and southeasterly boundary of the municipality were unnumbered and were marked “Gardens;” in the 1872 map these “Garden” blocks are numbered, and are also subdivided into lots, and the name “Gardens” is omitted. In both maps the extreme southwesterly lot of each of these two tiers of lots is left blank without number or other marks except the words “Turner Park” as to one and “Singer Park” as to the other. In the 1872 map the territory which is referred to in the stipulation as tlie Market Places is delineated in a manner materially different from that of the earlier map. In the 1872 map the three blocks are left blank except as to the following marks: Each block is numbered in its centre, the numbers eor.responding to the former map; lot 320 has the words “Market PL” written across it; lot 435 has the words “Stuben PL” written across it; no words are written on the centre lot; also a line is drawn across each lot at the place where the octagonal drawing shown on the earlier map would extend to. The stipulation does not specifically state whether this 1872 map — which map is now commonly referred to as the official map of the municipality — was filed by the Gloucester Earm and Town Association or by defendant municipality; although the stipulation appears to assume that it was filed by the former. It is referred to in the exhibit about to be considered as a special map of the Gloucester Earm and Town Association.
    By deed bearing date January 21st, 1871, and recorded January 27th, 1872, the persons then holding the legal title of the lands of the Gloucester Earm and Town Association in trust for the use of that association executed a conveyance to defendant corporation which is marked Exhibit C2. The consideration and granting part of that deed is expressed as follows:
    “Now this indenture witnessetli tlmt tlie said parties of tlie first part, • for and in consideration of certain valuable papers delivered and credits given by tlie said party of tlie second part, estimated at ten thousand dollars, as for and in consideration of the sum of one dollar well and truly paid by the said party of the first part at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, released and confirmed, and by these presents do grant, bargain, sell, release and confirm unto the said city of Egg Harbor City, party of the second part, their successors and assigns, all those certain parcels and lots of land, avenues, streets, back-streets, Public and Market places and other real estate, situate in Egg Harbor City in the county of Atlantic and State of New Jersey, known and designated on a special map of the said Gloucester Farm and Town Association, comprising all the lands situate within the boundary lines of said Egg Harbor City, which said map bears even date with this conveyance and is filed in the office of the clerk of Atlantic county the lGth day of January, A. D. 1872, as follows:
    “1. All avenues, streets and back streets to wit:”

      Then follows a specific description of what appears to be all the streets in defendant municipality. The deed then proceeds:

      “2. All the following public places, to wit:”
    Then follows, first, a specific description of what is called in the description “The City Park.” That description includes, what is delineated on both maps as “City Park.” Then follows a description of the market places here in question in the following language:
    "And further the Three Market Places between Cincinnati and St. Louis avenues and Agassiz street and' Atlantic avenue designated on the plan aforesaid as blocks No. 320, No. 434, and No. 435, containing thirteen and a half acres more or less (being subject however to a certain permission given to the Camden and Atlantic Railroad Company to locate a Depot at the southeast portion of these Market Places), bounded and described as follows
    Then follows a specific description of the three blocks by metes and bounds. The deed then specifically describes six additional tracts, each of which is referred to in the description of it as a “Market Place.” These six market places are not delineated on either of the maps as such. Then follows: “And also the Singer Park, bounded and described as follows:” Then follows a specific description by metes and bounds of the block marked “Singer Park” on the two filed maps. Then follows: “And also the Turner Park, bounded and described as follows ;” Then follows a description by metes' and bounds of the block marked “Turner Park” on the two filed maps. The deed then proceeds: “And all the following lots of land intended for school localities, to wit:” Then follows specific descriptions of. various lots, none of which appear to be marked on either map differently from other lots. Then the following occurs:
    “And it is hereby particularly remarked and conditioned that all the above named and described Public Places and avenues, streets and back streets are forever to remain public for the purposes they have originally been set apart and reserved by the Gloucester Farm and Town Association.”

      Then follows:
    “3. The Gloucester Lake with a sufficient number of lots necessary for the successful use of the Water Power. The Gloucester Lake including a surrounding promenade ground being permanently fixed by the said Gloucester Ifarm and Town Association within the following boundaries, in which form and limits it is to remain as a Pond forever, to wit:”
    Then follows a specific description of the lake by metes and bounds and a description of various lots comprising territory adjacent to the lake. Then follows a description of two blocks called “The Brick Yard.” Then follows a description of a portion of “the water front on Mullica river,” with a proviso excluding adjoining land. Then follows a description of two tiers of lots on cither side of Antwerp avenue; the lots described pass Gloucester lake and City Park at the southeasterly boundaries of that lake and park and include the territory between that lake and park and the tier of blocks marked “Gardens” on the original map which formed the southeasterly boundary of the municipality. The deed then proceeds:
    “Together with all and singular the buildings, improvements, ways, rights, liberties, privileges, hereditaments and appurtenances to the same belonging or in anywise appertaining and the reversions and remainder’s, rents, issues and profits thereof; and also the estate, right, title, interest, possession, claim and demand whatsoever, both in law and equity of the said parties of the first part of, in and to the said premises with the appurtenances; to have and to hold the said premises with all and singular the appurtenances unto the said City of Egg Harbor City party of the second part their successors and assigns forever; subject however to the exceptions and limitations expressly mentioned in this conveyance.”
    Then follows a warranty of title as against the vendors or persons claiming under them.
    The entire scope of the provisions of this'deed are herein set forth, although in this suit only the two parks and the tract forming the three market places are brought in question. The descriptions in the deed of those tract’s and of the streets, it will be noted, is followed bjr the express condition that they “are forever to remain public for the purposes they have originally been set apart and reserved by the Gloucester Farm and Town Association;” and in the description these three tracts are defined respectively as parks and market places.
    In the year 1890 (P. L. 1890 p. 530), the legislature passed an act referring specifically to this conveyance and reciting that whereas certain public places and school-house lots specifically enumerated in the act had been conveyed by the deed to Egg Harbor City, above referred to, with a condition annexed to the conveyance that said public places and school-house lots were forever to remain public for the purposes they were originally set apart and reserved by the Gloucester Farm and Town Association, and whereas the public places and school-house lots in said city are in locations where they cannot be used by the public for the purposes they were originally set apart; therefore, it was enacted that the deed of conveyance was thereby confirmed and the title to said public places and school-house lots should be held to be fully vested in fee-simple, in said city free of and discharged from the conditions, limitations and restrictions in the deed.
    Among the blocks named in the act were the three blocks herein referred to as the three market places. The two parks here in question are not there referred to.
    In the year 1915 (P. L. 1915 p. 642), the legislature passed an act authorizing any city which had acquired for public use lands and real estate not used or needed for public purposes, or the further use of which, in the judgment of said board or body, is no longer desirable, to sell or exchange or lease such land.
    Complainant is the owner of several thousand lots within defendant municipality, all acquired by him during twenty years last past, some of which lots are in close proximity to and overlooking the tracts of land here in controversy. All deeds for lots within the municipality executed since 1872 have been made with specific reference to the map' filed in thqt year.

      Mr. Herbert R. Voorhees, for the complainant.

      Mr. Herman L. Hamilton, for the defendant.
   Leaming, V. C.

The principles controlling dedication of land to public use, and the public rights flowing from such dedications, have been frequently defined by the courts of this state. The leading cases are: Methodist Church v. Hoboken, 33 N. J. Law 13; S. C., 19 N. J. Eq. 355; Hoboken Land Co. v. Hoboken, 36 N. J. Law 544; Price v. Plainfield, 40 N. J. Law 608; Bayonne v. Ford, 43 N. J. Law 292; Fessler v. Town of Union, 67 N. J. Eq. 14; Borough of Spring Lake v. Polak, 76 N. J. Eq. 212. From these authorities it is apparent that the filing of the map of 1865, and the execution of conveyances of lots by reference thereto, were operative to effect an irrevocable dedication to public use of the two blocks of land marked respectively Turner Park and Singer Park, unless a part of the stipulation filed herein and about to be referred to may be found of controlling force. That part of the stipulation is to the effect that at the time that map was filed the Gloucester Farm and Town Association did not intend the designation of the words “Singer Park” and “Turner Park” to be taken in the sense that those blocks were for public irse as parks, but intended to set the blocks aside for the use of two German societies of those names as homes and for private recreation purposes, which societies were organized and maintained by the Gloucester Farm and Town Association for advertising purposes to attract Germans to the proposed German settlement; the stipulation further sets forth that these two German societies in fact secured locations elsewhere for their use, and that these two blocks have never been used for park purposes. In Price v. Plainfield, supra, Mr. Justice Reed, in speaking for our court of errors and appeals, touching a block of land marked “Park” on a’ filed map, said: “There is no such uncertainty of meaning as will let in parol testimony to vary or modify it. If the grantors had a different intention, that should have appeared from the papers themselves. The popular and natural meaning should have been so modified, in accordance with the intention. I think that all parol testimony of such intention was incompetent to vary the purport of the mapping, filing and conveyances, and that a dedication was conclusively effected by such acts.” See, also, Bayonne v. Ford, supra, in which this conclusive force to be given to the word “park,” when so used, is declared to be required by public policy. But even though a dedication of these two parks was not effected by the filing of the map of 1865, and the subsequent conveyance with reference to it, the stipulation is not clear’ that any use of' the parks for less than the entire public was intended when the 1872 map was filed; that map and subsequent conveyances with reference to it clearly amount to a dedication of these two parks, and the deed to the city of these parks containing the condition that the “Public Places” and streets so conveyed are forever to remain public, must be regarded not only as a renewed dedication, but also as an acceptance of such dedication by the city. By that deed the naked fee, until then held by the original proprietors, also passed to the city.

The three blocks of land which are known as the market places in some respects differ, from the two parks. The delineation of these three blocks on the 1872 map does not. import a dedication to public use; it imports a use by the railroad of a part of the blocks for station purposes, and imports no use of the remaining portion of the blocks inconsistent with unrestricted title of the proprietors. But the filed map of 1872 delineates these three blocks as blank spaces, save as to the numbers placed on the blocks and the words “Market PL” on block 320, and the words “Stuben Pl.” on block 435, and the tracing of what appears to be the exterior boundary lines of the station tract. All blocks on that map, except these three blocks and the two parks already referred tó, are subdivided into lots. In the deed to the city these three blocks are referred "to as “the Three Market Places” and as being subject to a certain permission given to the Camden and Atlantic Bailróad Compañy to locate a depot on the southeast portion of “these market places.” The condition in the deed above quoted also applies to these three blocks. The authorities above cited appear to impel the conclusion that the two maps, taken together, followed by the deed to the city containing the condition above quoted, import a dedication of those three blocks to public use, subject to the right of the railroad company to use a specified portion of them for station purposes.

All that has been said up to this time has reference alone to strictly public rights arising from dedication of land to public use.

But it is unnecessary to determine here whether under the facts disclosed in this case the parks and market places in question are to be deemed to have been dedicated to public use. Distinct and independent private rights may arise in transactions of this nature which this court may protect from invasion.

The leading case touching the nature and extent of such private rights is Lennig v. Ocean City Association, 41 N. J. Eq. 606. In that case Mr. Justice Dixon, speaking for our court of errors and appeals, says: “Whenever the owner of a tract of land lays it out in blocks and lots upon a map, and on that map designates certain portions of the land to be used as streets, parks, squares, or in other modes of a general nature calculated to give additional value to the lots delineated thereon, and then, conveys those lots by reference to the map, he becomes bound to the grantees not to use the portions so devoted to the common advantage otherwise than in the manner indicated.” * * * “From this doctrine it of course follows that such distinct and independent private rights, in other lands of the grantor than those granted, may be acquired by implied covenant as appurtenant to the premises granted, although they are not of such a nature as to give rise to public rights by dedication. The object of the principle is not to create public rights, but to secure to persons purchasing lots under such circumstances those benefits, the promise of which it is reasonable to infer has induced them to buy portions of a tract laid out on the plan indicated. Clark v. Elizabeth, 37 N. J. Law 120; 40 N. J. Law 172; Bayonne v. Ford, 43 N. J. Law 292.”

In Bridgewater v. Ocean City Railroad Co., 62 N. J. Eq. 276; affirmed, 63 N. J. Eq. 798, this implied covenant was enforced at the suit of a lot holder distant from the tract which by implied covenant the land company had agreed to keep open and who had purchased from a grantee of the land company, and was enforced against a purchaser of the restricted space

It follows that in purchasing lots with reference to-the map of 1872, complainant came into enjoyment of private property rights in the nature of easements arising from implied covenants from the town site proprietors that the vacant squares delineated on that map should not be devoted to uses inconsistent with those imported by the map, in the absence of evidence disclosing that complainant knew, or had reason to know, that the squares were in fact reserved for purposes other than the uses v hich the map imported. As defendant municipality tjok the fee to these open squares under a deed referring to that map, and under the express condition that tiie avenues and public places so conveyed to it should forever remain public for the purposes they had been originally set apart and reserved, these .miplied covenants are necessarily enforceable against the proposed acts of the municipality which are designed to defeat the restricted use.

It remains to consider the effect of the legislation already referred to.

The act of 1890 is designed to discharge “the conditions, limitations and restrictions” contained in the deed.

The act of 1915 is designed to authorize the sale by a municipality of land acquired by it for public use, when the land is no longer needed for such use.

The question here involved does not include a consideration of the power of the legislature to yield up the right of the public in land devoted to a public use by dedication. That power appears to be conceded in Methodist Church v. Hoboken, 19 N. J. Eq. 355, and in Fessler v. Town of Union, 67 N. J. Eq. 14, 25. But where private property rights exist in the nature of an easement, touching the use of the land by the owner of the fee, it is obvious that no legislative power can disturb such rights. It is such a private property right that complainant herein asserts and that our constitution protects.

As it is conceded that the proposed sale of these blocks by defendant municipality is for the purpose of enabling purchasers to appropriate the land so sold to manufacturing and other commercial uses and will be operative to effect that result, I am obliged to' .advise the issuance of an injunction against such sales.


text:
    John McEvoy et al. v. Harry F. Brooks.
    [Submitted February 27th, 1918.
    Determined March 1st, 1918.]
    1. For part performance to justify parol evidence of the terms of a parol contract for the sale of land, the acts or conduct of the parties— what they did as distinguished from what they agreed to do — must be such as to point to the existence of a contract between them consistent with that which is set forth in the bill.
    2. To enforce specific performance of a parol contract for the sale of realty, the proofs of the contract must be clear and convincing.
    3. In this case the evidence as to the existence of a positive engagement to repurchase held insufficient to warrant a decree for complainant.
    On final healing on bill for specific performance.
    In this suit complainant seeks the specific performance of an alleged parol contract wherein defendant is alleged to have agreed to pay to complainant $300 for certain real estate.
    The transaction set forth in the bill is substantially as follows : Defendant by parol agreed to purchase from complainant a certain residence property and to pay for it $1,200 in cash. Before the conveyance was made defendant found that he could raise only $900 in cash and offered to pay to complainant that amount and convey to complainant two certain vacant lots of land then owned by defendant in satisfaction of the remaining $300; but at the same time by parol agreed that he would within two years buy back the two lots for $300. Accordingly, the residence property was conveyed to defendant and .the two lots were conveyed to complainant. The two year’s having elapsed, complainant now seeks to enforce the parol agreement of defendant to buy back the lots. The only written evidence of the transaction (except some recent correspondence of no material value) are the two deeds of conveyance. The deed to defendant recites a consideration of $1,200; the deed to complainant $300. The lots in question are unimproved and in actual possession of neither party.

      Messrs. Bergen & Richman, for the complainants.

      Messrs. Otl & Carr, for the defendant.
   Leaming, V. C.

It is urged in behalf of complainant that the agreement of complainant to sell the residence property for $1,200, and accept a conveyance of the lots for $300 in part payment, and the agreement of defendant to buy back the lots within two years, were all parts of one entire contract, and, in consequence, the conveyance to defendant ’ of the residence property must be deemed in equity such part performance of the parol contract as will remove it from the operation of the statute of frauds in a suit for specific performance.

A doubt as to the sufficiency of that theory is to be found in the accepted rule that for part performance to justify parol evidence of the terms of the parol contract the acts or conduct of the parties — that is, what they did, as distinguished from what they agreed to do, must be such as to point to the existence of a contract between them consistent with that which is set forth in the bill. See Pom. Spec. Per. §§ 107, 108; Lozier v. Hill, 68 N. J. Eq. 300. In this case the acts and conduct of the parties, aside from testimony of their parol agreement, are solely to be found in the conveyance of the residence property to defendant for a consideration of $1,200 upon the payment of $300 in cash and the simultaneous conveyance to complainant of the lots for $300. In appearance those acts constituted a finality, so far as those conveyances were concerned, and were admittedly a finality, so far as the conveyance of the residence property was concerned. Those transactions in no way suggest, or in the slightest degree indicate, the existence of any other or outstanding engagement of the parties. The existence or probable existence of the other engagement here claimed is discoverable only by the direct testimony of the fact. It may, accordingly, be said to be well within the field of doubt whether testimony of the agreement to repurchase is admissible in this case.

But a further, and I think unsurmountable, difficulty is found in doubts which must be said to exist as to whether defendant in •fact engaged to repurchase the lots.

In all suits for specific performance clear proofs of the contract are required to support that form of extraordinary relief. But to enforce specific performance of a parol contract for the sale of teal estate, it is even more imperative that the proofs of the contract shall be dear and convincing. In Eyre v. Eyre, 19 N. J. Eq. 102, 104, that rule is expressed as follows:

“But, if I only doubted, the relief must be denied. The complainant or actor, in all cases, must prove his case to the satisfaction of the court; but in these cases, where the provisions of the statute of frauds are to be set aside by some act of specific performance, clear proof is eminently required. This salutary statute should not be lightly dispensed with. And the uncertainty and unreliability of much of the evidence in this case shows the wisdom of that statute and throws a doubt over the doctrine of equity that part performance will take the case out of it.”

At the hearing all parol testimony which was offered touching the contract was received. No claim was made by anjmne that the conveyance of the lots was by way of security for the payment of the $300. All agreed that the conveyance of the lots was in full satisfaction of the balance of the purchase price of the residue property. As to whether defendant in fact agreed to repurchase the lots the testimony is in radical conflict. Defendant positively denies any such agreement. His testimony is that he merely stated that if at some future time he should he able to repurchase the lots, he would do so at the price he-sold them for, because they were the first and only real estate he had ever owned; but that no promise or assurance was given by him that he would do so at any time- The testimony of complainant, touching the agreement of repurchase, was positive; but in practically all other respects his memory was obviously unreliable and his iestimonv in conflict with clearly established facts. The testimony of Mrs. Brown, a housekeeper' of complainant, was positive, and, on her direct examination, reasonably impressive. On her rebuttal examination her testimony was distinctly less impressive and disclosed circumstances surrounding the transaction measurably consistent with defendant’s testimony. Her testimony, however, was that defendant said he would take the lots back and pay $300 at the end of two years if Mr. Mc-Evoy (complainant) “did not want them.” This suggestion that complainant was privileged to keep the lots, if accurate, rendered the alleged contract one binding oh defendant, ‘but not binding on complainant, and, measurably, at variance with the contract asserted by the -bill and by the testimony of complainant.

A careful consideration of the entire testimony leads me to such doubts touching the existence of a positive engagement to repurchase the lots that I am convinced a decree of specific performance is unwarranted by the evidence, even though the testimony of the contract should be deemed competent.

I will advise a decree dismissing the bill.


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    Ciriaco Palumbo v. Gelsomino Piccioni.
    [Submitted March 25th, 1918.
    Decided March 27th, 1918.]
    Whore the proprietor of a shoe-repairing business has bought out a competitor under a contract whereby the latter was not to engage in that business in the city for five years, and after operating both establishments for a while, sells the one he purchased to a third party,' he may restrain the original vendor from engaging in business within five years, the contract not 'being void as in restraint of trade, since the public interests have not been adversely affected, and both the business sold and the business retained have been benefited.

      On hearing on motion to dissolve injunction pendente lite.

    By this suit complainant seeks to specifically enforce a covenant made by defendant wherein the latter agreed not to engage in the shoe repairing business in Camden for a period of five years from March 14th, 1916. On that date complainant purchased the shoe repairing business then owned by defendant and the covenant referred to was executed as a part of that transaction.
    At the return of an order to show cause defendant, though duly served, failed to appear and an injunction pendente lite was issued.
    Defendant has since petitioned for relief against the restraint. At the hearing on the petition it was ascertained that since complainant purchased defendant’s business he has sold it to a third party who now conducts it and does not object to defendant resuming business in the vicinity. It further appears, however, that at the time complainant purchased defendant’s business he owned and was conducting a similar business in the vicinity and now owns and operates that business. The restraint now sought by complainant is wholly for the benefit of his old business.
    It is now urged in behalf of defendant that the sale by complainant to a third party of defendant’s old business was operative to deny to complainant the right to longer enforce the covenant.
    Complainant now bases his right to relief upon the claim that when he purchased defendant’s business he did not want it, but purchased it solely, or almost solely, for the benefit of his, complainant’s, old business; that he sought to remove defendant as a competitor in business by reason of defendant’s peculiar ability to draw trade from complainant; that the price paid was based upon those considerations; that after conducting both businesses for a few months he sold the business which he had purchased from defendant to a person whose competition he did not object to; that defendant’s new establishment, which is near complainant, will withdraw from complainant’s old business the very trade which complainant procured by means of the purchase. These several claims of complainant are not denied, and no claim is made that the covenant is unreasonable as to time or territory.

      Mr. Cyrus D. Marter, for the complainant.

      Mr. Albert S. Woodruff, for the defendant-petitioner.
   Leaming, V. C.

The early rule was that any contract which tended to restrain trade was void; but it is now everywhere recognized that many contracts in partial restraint of trade are valid. In United States v. Addyston Pipe and Steel Co., 85 Fed Rep. 271, valid covenants in partial restraint of trade are classified as:

1. Agreements by a seller of a property or business not to compete with a buyer in such a way as to derogate from the value of the property or business sold. 2. Agreements by a retiring partner not to compete with the firm. 3. Agreements by a partner pending the partnership not to do anything to interfere, by competition or otherwise, with the business of the firm. 4. Agreements by the buyer of a property not to use the same in competition with the business retained by the seller. 5. Agreements by an assistant, servant or agent not to compete with his master or employer after the expiration of his term, of service. It is noted that in all these several situations the ren straint is incident to the main purpose of a valid contract; and after an exhaustive review of the authorities the conclusion is there reached that no conventional restraint of trade can be enforced unless the covenant embodying it is merely ancillary to the main purpose of a lawful contract, and necessary to protect the covenantee in the enjoyment of the legitimate fruits of the contract, or to protect him from the dangers of an unjust use of those fruits by the other party. (See also note to 6 L. R. A. (N. S.) 847, and 13 C. J. 477, collecting later authorities to the same general effect.) From these conclusions the further conclusion is there deduced that a contract, the sole object of which is to restrain competition, is void as a restraint of trade.

Should the conclusions above stated be regarded as wholly inflexible, it may be plausibly urged that the agreement here in question was valid only in so far as it was for the protection of the business which complainant purchased from defendant, and void and unenforceable because in restraint of trade in so far as it was designed to protect the old business of complainant from competition by defendant; hence when complainant subsequently sold the business so purchased from defendant he could no longer enforce the covenant of restraint for the benefit of his old business. This, it appears to me, is the only theory on which defendant can rest his defence with any claim of plausibility.

But a brief consideration of the grounds which are generally accepted as giving rise to and sanctioning covenants in partial restraint of trade will, I think, disclose that no sound objection can be urged against extending the benefits of the covenant here in question to the protection of complainant’s old business or against its enforcement for the protection of that business after the business purchased from defendant should have been sold to a third party.

Agreements in partial restraint of trade ancillary to the sale of a business appear to be sanctioned primarily because of the recognized value of what is known as the good-will of a business; it is held to be alike to the interest of the public and the owner of a business that the owner should be privileged to sell that valuable asset and protect the purchaser in its acquisition, providing the restraint be no more extensive than is reasonably required for that purpose and be not otherwise injurious to the public interest by reason of any peculiar circumstances of the case. Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507 (at p. 514). In such transactions the public interests are deemed fostered rather than injured, since the seller has been enabled to reap the fruits of his industry and the business is continued in the hands of a new purchaser; the business with its new proprietor takes the place of the old; the commodities of the trade are as open to the public as they were before and the same employment is furnished to others as before. The distinction between contracts of that nature and those in which a trade competitor is hired to discontinue business is obvious. Contracts of the latter nature have been, as a rule, condemned, although in some cases sustained where real public interests have been ascertained to be unaffected. Wood v. Whitehead Brothers, 165 N. Y. 545.

In the present case complainant, who had a business of his own, purchased a similar business of a trade competitor. Admittedly, he was primarily induced to make the purchase in order to remove the competitor from that field of operation; but he had no purpose to close out the business so purchased, and did not do so. On the contrary, .he conducted both businesses as they had been theretofore conducted until he found a satisfactory purchaser for the business so purchased, and that business is still being conducted as before. In all of this the public interests have been in no way affected by the withdrawal of defendant from business, for no withdrawal of trade enterprises occurred, or was planned, and it is idle to say that complainant’s ownership of two shoe repairing shops constituted or tended to constitute a monopoly in that industry; indeed, the extremely limited magnitude _ of these two businesses seems scarcely to justify the present litigation. The covenant of defendant not to engage in a similar business in that vicinity for the limited period obviously was not only for the benefit of the business sold by defendant, but also for the benefit of complainant’s other business; complainant intended that it should be so and paid for that measure of protection, and defendant could not have been ignorant of complainant’s purpose or of the measure of protection which complainant purchased and paid for, since in the written agreement no suggestion is made that the protection of the covenant shall cease until the expiration of the specific period of time named. If, then, defendant has been thus enabled to profit by his covenant, and the public interests have been in no way adversely affected by his withdrawal from the field for the period specified, there appears to exist no good reason to deny to complainant the full measure of protection which the terms of defendant’s covenant extend.

This view in no way opposes the notion that the covenant of restraint must be incidental to the sale of a business or other contract of an analogous nature; but where, as here, the covenant is designed to protect not only the business purchased, but also another similar business then owned by the purchaser and is reasonable as to time and territory, and both businesses are intended to be continued in operation and are so continued, and where, as here, the circumstances of the case adequately disclose that no element of monopoly is involved and no public interests adversely affected, there appears to be no adequate reason against the enforcement of the covenant according to its terms for the benefit of the old business after the business so purchased shall have passed to a new owner. This view appears to be entertained in Tuscaloosa Ice Co. v. Williams, 127 Ala. 110 (at p. 120).

I will deny the prayer of tire petition for a dissolution of the injunction.


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    Fanny Virginia Hartfield v. The Pennsylvania Company for Insurance on Lives and Granting Annuities and Alice E. Brown, executrix of the estate of Charles English, deceased.
    [Submitted April 1st, 1918.
    Decided April 3d, 1918.]
    Where a testator purchased a tract of land, and later an adjoining tract, after which he erected a house on the first tract and fenced in both tracts for a lawn, his devise of it as “my house” included both tracts.
    On final hearing on bill to quiet title.
    Complainant has filed a bill to quiet title to certain real estate in the city of Beverly. Defendants have answered admitting complainant’s peaceable possession and asserting an adverse title. No demand for an issue at law having been made, final hearing has been had on the issue of title raised by the pleadings.
    No dispute exists touching the facts. The isstíe of title is wholly dependent upon the construction of a clause in the last will and testament of Charles English, deceased. . That clause is as follows:
    “Third: I order and direct that my wife be suffered and permitted to occupy and have the use of my house in Beverly and its contents for and during the full term of her natural life, and from and after her decease, I give, devise and bequeath the same unto my daughter, Alice E. Brown, absolutely, if she be then living' or should she predecease my said wife, then I give, devise and bequeath the same unto my said wife, absolutely if she be living at my decease.”
    It is to be herein determined what land'passed by the above-quoted devise of “my house in Beverly.” Whatever land passed by that devise is now owned in fee by complainant by virtue of a deed of conveyance from Alice E. Brown, who survived testator’s widow.
    The material facts touching the issue stated are as follows:
    March 13th, 1885, one Diehl conveyed to testator a tract or lot of land in Beverly fronting eighty feet on the east line of Jennings street and extending easterly in depth one hundred and twenty feet, more or less. October 7th, 1886, testator purchased from Diehl an adjacent tract of land at the north and also in the rear of the land first purchased, the tract so purchased being in the shape of the letter “L” and embracing the land lying between the lot first purchased and Church street and land in the rear of the tract first purchased. This tract had a frontage on Jennings street of forty feet and extended along Church street one hundred and sixty feet and- embraced forty feet in the rear of the tract first purchased. By these two purchases testator became the owner of a rectangular tract one hundred and twenty feet in frontage on Jennings street and one hundred and sixty feet on Church street.
    Thereafter testator erected a dwelling-house on the land so owned by him. The dwelling-house was located on the land described in the first conveyance above referred to and a lawn was made by testator embracing the remaining portion of his land, and tlie whole was then surrounded and enclosed by a fence and no visible or distinguishable trace was left of the lines which originally divided the two tracts of land. The dwelling-house was then occupied by testator as his home during the remainder of his lifetime, and the surrounding land above referred to as a lawn was so used and enjoyed by him. Testator's will was executed while he was so enjoying his home. Testator owned no other house or home in Beverly.
    Defendants claim that the land secondly purchased by testator does not pass by the above-quoted devise of “my house in Beverly.”

      Messrs. Thompson & Smathers, for the complainant.

      Mr. Clarence E. Knauer, for the defendants.
   Leaming, V. C.

The devise of testator’s house clearly included the entire tract of land embraced within the boundaries of the two conveyances to testator.

In 15 Am. & Eng. Encycl. L. (2d ed.) 771, it is stated that in a devise or grant the word “house” will carry the land upon which the house is built and the curtilage. The authorities there cited adequately support the rule as stated. In 10 Ibid. 353, substantially the same rule is stated as follows:

“At common law tlie term ‘dwelling-house’ included not only the premises actually used as such, 'but also such outbuildings as were within the curtilage, or courtyard, surrounding the mansion house.”

In Derrickson v. Edwards, 29 N. J. Law 468, 474, our court of errors and appeals, in a mechanics’ lien case, has defined a curtilage as follows: “A curtilage is a piece of ground within the common enclosure belonging to a dwelling-house, and enjoyed with it, for its more convenient occupation.” In harmony with these views Chancellor Bunyon held, in Lanning v. Sisters of St. Francis, 35 N. J. Eq. 392, 401, that the following devise: “I will my house to * * * No. 160 Rose Street Trenton” was a devise of all of the land of testatrix adjacent to the house-that had been used in connection with the house; and in Inhabitants of Phillipsburg v. Bruch’s Executors, 37 N. J. Eq. 482, 485, Vice-Chancellor Van Eleet gave approval of Bennett v. Bittle, 4 Rawle 339, and Rogers v. Smith, 4 Pa. St. 93, to the effect that a devise of a “house,” without further descriptive words, is to be deemed to be synonymous with messuage and to pass all within the curtilage of the house.

These principles are conclusive of the present case. The land embraced within the boundaries of the two conveyances to testator was not only used by testator as one tract comprising the land on which the house rested and a lawn surrounding his house, but was also enclosed by him with a fence, and, thus enclosed, Avas used by him exclusively as a residence property. The lawn thus formed a part of testator’s home and must be deemed to have passed by the devise of his house.

I will advise a decree quieting complainant’s title as against defendants.


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    Atlantic City Fire Insurance Company v. Board of Commissioners of Atlantic City.
    [Submitted May 13th, 1918.
    Determined May 14th, 1918.]
    Where a building ordinance in a city provided that Avhen a building Avithin the lire limits shall be damaged to an amount not greater than, half its value, exclusive of the value of its foundations, it may be repaired or rebuilt; but if damaged more than one-half of that value it shall not be repaired or rebuilt, but shall be/aken down, and the owner of the building and the municipality have appealed to the courts of law to settle the question of the extent of the damage, the building being without a roof and parts of it exposed to injury from the elements, this court will restrain the municipality from exercising force to prevent the owner from making such temporary repairs as will preserve the property from injury from the elements.

      On bill for injunction. On hearing on return of order to show cause.

      Mr. Theodore W. Schimpf, for the complainant.

      Mr. Harry F. Wootton and Mr. Joseph B. Perskie, for the defendant.
   Leaming, V. C.

Section 11 of the building ordinance of Atlantic City provides :

“It shall be unlawful to proceed with the erection, enlargement, alteration, moving, repair or removal of any building or part thereof * * * unless a permit shall first be obtained from the office of the building inspector.”

Complainant’s building has been partially destroyed by fire. Complainant seeks to make repairs to the building and the city building inspector, under the advice of the city solicitor, refuses to issue a permit; the police authorities of the city refuse to permit repairs to be made until a permit for that purpose shall have been issued.

Complainant has made application to the supreme court for a peremptory writ of mandamus to compel the issuance of a building permit for the purpose stated; that application is now pending and undetermined.

The bill filed herein by the owner of the building seeks temporary relief pending the determination of the application for a writ of mandamus.

The real controversy between the parties arises from another section of the building ordinance (section 115), which section provides that when a building within the fire limits shall be damaged to an amount not greater than one-half its value, exclusive of the value of its foundations, it may be repaired or rebuilt ; but if damaged more than one-half that value it shall not be repaired or rebuilt, but shall be taken down.

The owner of the building desires to repair it and claims that the building has been damaged less than one-half its value; the municipality claims that the damage exceeds one-half the value of the building and desires the building to be taken down.

. AYith that branch of the controversy this court has no concern. .The legal remedy is wholly adequate. New York and Greenwood Lake Railway Co. v. Township of Montclair, 47 N. J. Eq. 591; Barber v. W. J. Title Co., 53 N. J. Eq. 159; West Jersey and Seashore Railroad Co. v. Mayor, &c., of Woodbury, 80 N. J. Eq. 412.

But, pending the determination by the supreme court whether complainant is entitled to restore its damaged building to its former condition by making the necessary repairs for that purpose, a situation exists in which this court may afford appropriate temporary relief to prevent irreparable injury to complainant.

The building is without a roof, and the first-floor rooms, some of which are occupied, are exposed to injury from the elements. This destruction of complainant’s property rights, pending the action of the supreme court, is wholly unnecessary, in so far as it can be prevented by temporary repairs made for that purpose only. No benefits can flow to the municipality by the uninjured or partially injured portions of the building remaining exposed to further damage from the elements, and great loss will be thus suffered by complainant. In these circumstances, I think it is the right of complainant to temporarily protect his property from such unnecessary loss.

Temporary repairs made solely for the purpose stated, and not in any sense for the purpose of restoring the building to its former condition, cannot be properly regarded as repairs if wholly limited to the single purpose of temporarily excluding the elements pending- the mandamus proceedings; and any denial of that privilege to- complainant can only be regarded as an unlawful invasion of its property rights and a source of irreparable and unnecessary injury.

Accordingly I will advise an order restraining defendants from exercising force to deny to complainant the right to protect its property in the manner and for the period stated.

The order to be signed will be settled on notice or by agreement of the solicitors, to the end that it may specifically and clearly limit such acts as are to be performed by complainant to acts necessary to accomplish the temporary purpose already stated as distinguished from repairs that may be regarded as of a permanent nature 'to restore the building to its ¡former condition.