author: Gummere, Chief-Justice.

text:
    Knickerbocker Trust Company, appellant, v. Penn Cordage Company et al., respondents.
    [Argued November 19th, 1903.
    Decided June 20th, 1904.]
    1. Whenever chattels have been placed in and annexed to a building by their owner, as a'part of the means by which to carry out the purposes for which the building was erected, or to which it has been adapted, and with the intention of permanently increasing its value for the use to which it is devoted, they become fixtures, as between the owner and his mortgagee.
    2. Mortgages which cover both real and personal property (except those made by railroad companies upon their property and franchises) must, in order to make them valid liens upon both classes of property as against creditors, be recorded, not only among the records of real estate mortgages, but also in one of the books provided for the recording of chattel mortgages.
    3. Actual transcription of a chattel mortgage in the records is necessary in order to make it valid as against creditors.
    4. By force of section 7 of the Chattel Mortgage act (Gen. Stat. p. MIS), the deposit of a chattel mortgage in the clerk’s office for record creates a presumption of its immediate transcription in the records; and that presumption continues so long as the instrument remains in the office, and until it is actually transcribed, and when that is done the presumption becomes conclusive. When, however, the mortgage is taken away from the clerk’s office without having been recorded, the presumption raised by the statute, being contrary to the fact, ceases to exist, and the mortgage stands in the same condition, so far as creditors are concerned, as if it had never been lodged for record.
    Oil appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in 20 Dick. Gh. Rep. 181.

      Mr. John B. Humphreys and Messrs. Davies, Sione & Auerbach (of the New York bar), for the appellant.

      Mr. James B. Howell, Mr. Joseph II. Gaskill and Mr. Charles V. D. Joline, for the respondents.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The bill in this case was filed to foreclose a mortgage executed by the Penn Corclage Company to the appellant, the Knickerbocker Trust Company, on the 1st day of February, 1896, to secure the payment of an issue of bonds aggregating $100,000. This mortgage covered certain lands and premises belonging to the cordage company, situate in Burlington countjg with the improvements' thereon, the franchises of the company, and all the goods and chattels belonging to it and being in use about the said lands and premises. At the time of its- execution a prior mortgage, covering the same property, held by one Adolph Segal, and which had been recorded in the clerk’s office of Burlington county, both as a real estate mortgage and as a chattel mortgage, was paid off. On the 20th of February, 1896, the appellant mailed to the clerk of Burlington county both its own mortgage and also a discharge of the Segal mortgage, with a letter of instructions directing him to satisfy the latter mortgage of record and to “simultaneously record in your office the enclosed mortgage covering the same property.” Upon the receipt of this letter, with its enclosures, the clerk canceled the Segal mortgage in both the real estate mortgage book and the chattel mortgage book. At the same time he recorded the appellant’s mortgage in the book kept for the recording of real estate mortgages, but not in that kept for recording chattel mortgages, and, after so recording it, he returned it to the appellant.

The Penn Cordage Company became insolvent in 1897, and a receiver was appointed on December 6th of that .year. The bill of complaint was filed in February, 1900.

The property embraced in the appellant’s mortgage is the cordage works of the Penn Cordage Company, comprising numerous buildings, including a rope walk, together with the machinery, tools and appliances used therein. The contest is between the appellant, as mortgagee, and the receiver of the cordage company, representing judgment and other creditors. Two questions are presented — first, whether certain of the machinery and appliances contained in the company’s buildings and used in the manufacture of its product are fixtures, and, consequently, a part of the realty; and, if they are not fixtures, then, second, whether the appellant’s mortgage became recorded as a chattel mortgage, within the meaning of the Chattel Mortgage act, by being lodged with the county clerk for that purpose, although it was subsequently returned to the mortgagee without being in fact so recorded.

The learned vice-chancellor before whom the case was tried held that the machinery and appliances which are the subject-matter of this controversy were not fixtures. Pie further held that the mortgage had not been recorded as a chattel mortgage, and was therefore void as against creditors, so far as the chattels covered by it were concerned. The soundness of each of these conclusions is challenged by the appellant.

As lias already been stated, the machinery and appliances which are the subject of this litigation were contained in the buildings of the Penn Cordage Company, and were used in the manufacture of its product. They consisted of a scutcher, a lapper, two breakers, three coarse spreaders, four fine spreaders, two drawing frames, eight finishers, a large number of double jennys, nine single and double twisters, two marline machines, three house-line' machines, ten double-bailers, a number of strapping reel bars, several rope machines, one double and one single Boone layer, one cone former, two lathes, two drills, one shaper, one oil pump, one grindstone, one emery grinder, one picker, one porgy spinner, eight forming and laying jacks, four reeling machines, one strapping reel stand, one yarn testing reel, one belt driver,'one reverse reel, one porgy jenny, one bobbin reel, one platform scale on wheels, a number of windlasses, several reel dyers and all the belting used in the various buildings which was less than six inches in width. All of these machines, with the exception of the porgy jenny, the platform scale, the windlasses aiid the reel flyers, were a necessary part of the company’s plant. Most1 of them were fastened to the floors of the various buildings in which they were located 'by lag screws. Those which were not so fastened were attached to the buildings by some other method. The belting ran from the various machines to the shafting, supplying them with power. Two of the requisites necessary to constitute these machines and appliances fixtures, therefore, existed, viz., their actual annexation to the freehold and'their application to'tlic use or purpose to which that part of the realty with which they were connected was appropriated. The question remains whether they were annexed with the intention of making a permanent accession to the freehold.

In the earlier cases, decided not only in the supreme court and the court of chancery, but also in this court, in determining whether such intention existed with respect to a given machine, the conclusion seems to have been rested very largely upon the method adopted in making the annexation, and but little consideration given to the relation which the machine bore to the building in which it was located, or to the other machinery in conjunction with which it was used. In Feder v. Van Winkle, 8 Dick. Ch. Rep. 370, this court took a more comprehensive view of the subject than liad been done in the earlier cases, and gave controlling weight to the object for which, rather than to the method b}f which, the annexation was made, and declared that the physical annexation to the freehold of machinery that was so fitted for and applied to the use to which the realty was appropriated; that the machinery and buildings became unified and incorporated- together, as a whole, for the prosecution of a common purpose for an indefinite period (i. e., so long as the business engaged in should be carried on successfully), indicated that such machinery was designed to be, not a temporary, but a permanent, accession to the freehold. In the later ease of Temple Company v. Penn Mutual Life Insurance Co., 40 Vr. 36, decided by the supreme court at the February Term, 1903, the same learned jurist who wrote the opinion in Feder v. Van Winkle, in discussing the question whether certain chattels which had been placed in a building designed for and used as a theatre (and, of course, annexed thereto) were fixtures, declared that “whatever was incorporated with the building to fit it for use as a theatre became part of the realty.”

The rule laid down in Feder v. Van Winkle, and followed in Temple Company v. Penn Mutual Life Insurance Co., states the true principle to be applied in the determination of the question when it is presented. Whenever chattels have been placed in, and annexed to, a building by their owner as a part of the means by which to carry out the purposes for which the building was erected, or to which it has been adapted, and with the intention of permanently increasing its value for the use to which it is devoted, they become, as between the owner and his mortgagee, fixtures and as much a part of the realty as the building itself. And this is true notwithstanding that such chattels may be severed from, and taken out of, the building.in which they are located without doing any injury either to them or to it and advantageously used elsewhere, and notwithstanding that the building itself may thereafter readily be devoted to a use entirely different from that which was contemplated when the.annexation was made.

Tested by this principle, the machinery and appliances which are the subject-matter of this controversy, with the exception of the po-rgy jenny, .the platform scale, the windlasses and the reel flyers (which are none of them annexed to the buildings in which they are located), are fixtures and subject to the lien of the appellant’s mortgage as part of the real estate embraced therein.

As the excepted articles are not a part of the realty, it is necessary to consider and determine the second question decided by the vice-chancellor, namely, whether the appellant’s mortgage is valid as a chattel mortgage against the creditors of the mortgagor, notwithstanding the fact that it was recorded only among- t-he records of real estate mortgages- and not in the book provided for the recording of chattel mortgages.

The provisions of our Chattel Mortgage act bearing upon this question are contained in sections 4, 5, 7 and 9. Gen. Stat. p. 2118. Section 4 provides as follows:

“That every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made, which shall not be accompanied by an immediate .delivery and followed by an- actual and continued change of possession of the things mortgaged, shall be absolutely- void as against the creditors of the mortgagor, and as against the subsequent purchasers and mortgagees in good faith, unless the mortgage * * * be recorded as- directed in the succeeding section of this act; provided, that nothing contained in this act shall be taken, construed or held to apply to any mortgage of personal property included in a mortgage of franchises and real estate heretofore or hereafter made by any railroad company, and which hath been or shall be recorded or registered as a mortgage of real estate in every county in which such railroad, or any part of it, is or shall be located, and it shall not be necessary to record as a chattel mortgage any such mortgage as is in this proviso- described.”

Section 5 requires the instruments mentioned in the preceding section to be recorded in the office of the register (or in the office of the cleric where there is no register) of the county where the mortgagor resides, if he is a resident of the state at the time of its execution; and if not, then in the office of the register (or clerk) of the county in which the mortgaged property shall be at the time of the execution of the instrument. Section 7 provides as follows:

“That the clerks and registers of the several counties of this state are hereby authorized to provide suitable books, at the expense of their respective counties, in which to record the instruments by this act directed to be recorded; and it shall be the duty of the said clerks and registers to record such instruments in accordance with the provisions of this act; and the said clerks and registers shall respectively enter, at the foot of the record of each mortgage and instrument so recorded, the time when such mortgage or instrument was received by- him in his office to be recorded, and shall endorse on each mortgage and instrument, when recorded as aforesaid, the time when the same was delivered to him at his office to be recorded, and the book and page in which the same has been recorded.”

Section 9 provides:

“that every chattel mortgage hereafter recorded pursuant to the provisions of this act shall be valid as against the creditors of the mortgagor, and against subsequent purchasers and mortgagees-, from the time of the recording thereof until the same be canceled of record.”

The contention first advanced on behalf of the appellant is that the recording of its mortgage among the records of real estate mortgages was a sufficient compliance with the provisions of the- Chattel Mortgage act. It is not necessary to repeat the argument made in support of this contention. It is enough to say that the proviso, contained in section 4 of the act, makes it plain that, with' the exception of the class of mortgages designated therein, ■ every mortgage which covers both real and personal property must, in order to make it a valid lien upon both classes of property as against creditors, be recorded not only among the records of real estate mortgages, but also in one of the books which the statute under consideration requires to be provided for the recording of chattel mortgages.

The solution of the question must depend upon whether the lodging of the appellant’s mortgage for record as a mortgage of chattels (for this we consider to have been the effect of the letter of instructions sent by the appellant to the clerk with its mortgage) was, within the meaning of the statute, a recording of that instrument, notwithstanding that it was never in fact transcribed in the official book provided for the purpose. I't was held by the learned vice-chancellor, in the court below, that a transcription of the mortgage in the chattel mortgage book was necessary in order to make it valid as against creditors. In this view we concur. The statute, in express words, requires that there shall be an actual recording of these instruments in boohs specially provided, and declares that they shall be absolutely void against creditors unless so recorded. To say that a chattel mortgage, which has been left for record but which is afterward returned to .the owner unrecorded in fact, has, nevertheless, been recorded in contemplation of law, is to disregard the plain meaning of the words used in the statute, and to arbitrarily construe them in such a way is to make the statute embrace a case not covered by it.

We do not, however, concur in the view, which seems to have been held by the vice-chancellor, that, by force of the provision of section 9 of the act, a chattel mortgage is void as against creditors until it is actually transcribed in the records. The seventh section of the act requires the clerk to enter, at the foot of the record, the time when the mortgage was received by him for record, and also to endorse that time on the instrument itself. Manifestly the purpose of this requirement was to advise persons who should inspect either the record or the mortgage itself of the time when the instrument was lodged for record, and no reason can be perceived for affording this information, unless it was intended that the recoi'd, when made, should relate back to that time; in other'words, that the deposit of the instrument for record, and its transcription in the record, should be presumed to have occurred at one and the same time. It follows, therefore, that, as soon as a chattel mortgage is deposited for record in the clerk’s office, it must be presumed to have been forthwith transcribed in the records; and that presumption continues so long as it remains in the office and until it is actually transcribed; and when that is done the presumption becomes conclusive. When, however, the mortgage is taken away from the clerk’s office without having been recorded, the presumption raised by the statute, being contrary to the. fact, ceases to exist and the mortgage stands in the same condition, so far as creditors are concerned, as if it had never been lodged for record.

The decree appealed from should be reversed, except so far as it adjudges that the porgy jenny, the platform scale, the windlasses and the reel flyers are chattels and therefore free from lien of the appellant’s mortgage.

For reversal — The Chiee-Jtjstice, Dixon, Garrison, Fort, Garretson, Pitney, Swayze, Bogert, Yredenburgit, Yroom, Green, Gray — 12.

For affirmance — None.


source: Caselaw Access Project

license: Public Domain

text:
    Mungo J. Currie et al., complainants and appellants, v. The New York Transit Company and The National Docks Railway Company, defendants and respondents.
    [Argued December 3d, 1903.
    Decided June 20th, 1904.]
    1. The quantity of interest which a railroad corporation acquires in land, taken by it under the power of eminent domain, is that which the statute conferring the power authorizes it to take. When the statute declares that the corporation shall be seized and possessed in fee-simple of the land so taken, an estate in fee becomes vested in the corporation; when the statute limits the acquisition to a less estate than a fee, only such less estate passes.
    2-. When a railroad corporation, incorporated under the General Railroad law, takes land by the exercise of the power of eminent domain conferred upon it by the provisions of that act, the whole present estate in the land becomes vested in the corporation, and the former owner retains no interest therein for the protection of which he is entitled to invoke the aid of a court of equity.

      On appeal from a decree advised by Vice-Chancellor Stevenson.

      Mr. Charles C. Blade, for the appellants.

      Messrs. Collins & Corbin, ■ for the respondents.
   The opinon of the court was delivered by

Gummere, Chief-Justice.

The New York Transit Company laid an oil pipe line on the right of way of the National Docks Railway Company, with the consent of the latter. A part of this right of way was acquired by the Bergen Neck Railroad Company (to whose rights the National Docks Railway Company has succeeded) from 'the predecessors in title of the appellants by condemnation proceedings taken under sections 12 and 13 of the General Railroad law — the Bergen Neck Railroad Company having been incorporated under that statute. The bill in this cause was filed to compel the removal of the pipe line from this portion of the right of way, the contention of the appellants being that they still retain, in the land condemned, such an interest as entitles them to prevent it from being used for any other than strictly railroad purposes, and that the Bergen Neck company only acquired by the condemnation proceeding “a right of way for railroad purposes over and across the land in question, leaving the fee therein, and in and to the soil thereof, vested in” the appellants.

On final hearing the bill of complaint was dismissed, on the ground that the appellants had no such interest in the land condemned as entitled them to interfere with the use to which it was being put by the respondents, even though such use was ullra vires the corporation. The complainants appeal from the decree of dismissal.

The extent of. the interest acquired by a railroad corporation in lands condemned by it has been the subject of frequent discussion, and much variance of opinion has been expressed on the subject, not only generally but in our own decisions. In the case of Taylor v. New York and Long Branch Railroad Co., 9 Vr. 28, Chief-Justice Beasley says: “The fee in the land is not acquired by the company, but a mere easement in such land; the title remains in the owner, the property being made serv-ient to the purposes of the railroad.” In the case of New Jersey Zinc and Iron Co. v. Morris Canal and Banking Co., 17 Stew. Eq. 404, Vice-Chancellor Van Fleet declares that “where the state invests a corporation with the sovereign prerogative of eminent domain for the purpose of enabling them to construct and operate a public highway,-and take land by force of their charter, or by any other means than by grants for the purposes of such highway, it is manifest that the plain purpose of the grant to them is not to give them capacity or invest them with power to take a fee, but merely to give them power to acquire such an easement in the land as will enable them fully to accomplish the purpose for which they were created.” On appeal to this court the Zinc Company Case was affirmed on the opinion of the vice-chancellor. 2 Dick. Ch. Rep. 598. In the case of Pennsylvania Railroad Co. v. Breckenridge, 31 Vr. 583, Justice Adams, delivering the opinion of this court, declares that a grant of power to condemn lands for railroad purposes “will be construed to give merely the power to take an easement adequate to the accomplishment of the corporate design.” On the other hand, in the case of De Camp v. Hibernia Mine Railroad Co., 18 Vr. 43, Justice Depue expresses the opinion that by condemnation proceedings an estate in the land itself was vested in the companj and not a mere easement therein. So, too, Chief-Justice Beasley, in the case of New York, Susquehanna and Western Railroad Co. v. Trimmer, 24 Vr. 1, fifteen years after the delivery of his opinion in the Taylor Case, changing the view expressed by him in that case, held that the interest acquired by condemnation proceedings was not a mere easement in the land but such an estate as would support an action of ejectment brought to recover possession of it. Again, in the late case of United States Pipe Line Co. v. Delaware, Lackawanna and Western Railroad Co., 33 Vr. 254, Justice Depue, delivering the opinion of this court, reiterated the view expressed by him in the De Gamp Case.

Notwithstanding that three of the decisions referred to are those of this court, the question presented by this appeal is not one to which the doctrine of stare decisis is applicable, for the reason that the expression of view as to what interest in the land was acquired b3r a corporation by the exercise of the power of eminent domain was, in each of these cases, entirety obiter. In the New Jersey Zinc and Iron Company Case, the land, which was the subject-matter of the controvers3r, was claimed by the canal Compaq not by virtue of any condemnation proceedings taken for the purpose of acquiring it, but solety by adverse possession for more than twenty years. The same situation existed in the case of Pennsylvania Railroad Co. v. Breckenridge. In the United States Pipe Line Company Case the question presented was the right of the pipe line company to lay its pipe across lands held by the railroad Compaq, not by virtue of any condemnation proceeding but by conv^ance.

The quantity of interest which a railroad corporation obtains in land taken by it under the power of eminent domain is that which the statute conferring the power authorizes it to acquire. The legislature may authorize the taking of a fee, or any less estate, in its discretion. United States Pipe Line Co. v. Delaware, Lackawanna and Western Railroad Co., supra; Sweet v. Buffalo, &c., Railroad Co., 79 N. Y. 299, 300. It is manifest, therefore, that it cannot rightly be said, on the one hand, that nothing is ever acquired by such proceedings except a mere easement in or right of way over the land condemned; nor, on the other hand, that something more than a mere easement, or right of passage over or through the land, is always acquired. For instance, in the charter of the Morris and Essex Railroad Company, under which the Delaware, Lackawanna and Western Railroad Company is operating its railroad in this state, and the provisions of which called forth the expression of opinion of Justice Depue in the United States Pipe Line Company Case before referred to, the declaration of the statute, in conferring the power to condemn land, is, that, upon the making of the award by the commissioners (or upon the rendition of the verdict by the jury on appeal from the award) and “upon payment of the sum so found by the commissioners or by the jury, with costs, if airy, the said corporation shall be deemed to be seized and possessed in fee-simple of all such lands and real estate,” &c. (P. L. of 1835 p. 28); while the power conferred by the statute involved in the decision of the case of De Camp v. Hibernia Mine Railroad Co., supra, is as follows:

“That when any corporation formed under the provisions of this act shall take legal proceedings to acquire the right of way for its proposed railroad beneath the surface of the earth, such right of way shall not include the right to permanently use or occupy the surface of the earth immediately above such railroad, but shall be confined to a mere right to tunnel and excavate the earth for its tracks.” P. L. of 1879 p. 167 § 3.

It needs no argument to show that the interest acquired in land by virtue of proceedings taken under the one statute is as widely different from that acquired from proceedings taken under the other, as would be the case were the interests obtained by deed or grant from the landowner instead of by the exercise of the power of eminent domain.

The extent of the interest which the National Docks Railroad Company has-in the land involved in this litigation is that which the Bergen Neck Railroad Company was authorized to acquire by the provisions of sections 12 and 13 of the General Railroad law. Section Í2 of the act provides that, in case of the inability of the company to purchase land needed by it for the purposes of its road, commissioners shall be appointed “to examine and appraise the said land and assess the damages;” that such commissioners shall

“proceed to view and examine the said land, and to make a just and equitable estimate or appraisement of the value of the same and an assessment of damages to be paid by the company for such land, which report shall be made in writing, and filed in the clerk’s office of the county in which the land is situate; and thereupon, and on payment or tender of the amount awarded, the said company is empowered to enter upon and take possession of the said land, for the purposes aforesaid, and the said report, and proof of payment or tender of the amount awarded, shall at all times be considered as plenary evidence of the right of the company to have, hold, use, occupy, possess and enjoy the said land.”

Section 13 of the act authorizes an appeal from the award of the commissioners by either party and a trial by jury, and declares that, on such appeal, “it shall be the duty of the'jury to assess the value of the land and damages sustained.” Tlie only effect of section 13' is to substitute the verdict of the jury, in case of an appeal, for the award of the commissioners.

By these statutory provisions the company is not limited to the acquisition of a mere easement or right of passage over the land condemned. It is authorized to acquire the land itself when, in its judgment (subject to the usual judicial review in limine), the exigencies of the case demand it. When the land itself is sought to be taken and not a mere temporary right or limited interest in it (as was the case in Hepburn v. Jersey City, 38 Vr. 114; S. C. on error, 38 Vr. 686), the commissioners and the jury, on appeal, are to estimate and assess the value of the land, and the company must pay the value so estimated and assessed as a prerequisite to its right to enter and take possession. When they have made the payment they are to have, hold, use, occupy, possess and enjoy the land so long as they devote it to the uses for which they are authorized to acquire it. Where land is held by a railroad company under a deed containing the words of this statute, it can hardly be doubted that the conveyance, having been made in consideration of the payment of the full value of the land, operates to strip the grantor of all present estate, right, title and interest in the land, and to vest the same in the company so long at least as its corporate life continues to exist and so long as it continues to devote the land to. the uses which its charter prescribes, “and there seems no reason [to quote the language of Chief-Justice Beasley in New York, Susquehanna and Western Railroad Co. v. Trimmer, supra] why this language, as it stands in this statute, is to be interpreted differently from what it would if it were found in a deed from the landowner to the company.”

It' is contended that, because the right of the company to enter and take possession of the land, after payment of the award, is given by the statute “for the- purposes aforesaid,” the landowner still retains such an interest in the land as will enable him to restrain an unauthorized use of it by the company. But the words quoted do not operate to restrict the quantity of the interest which passes to the company by virtue of the condemnation proceeding, or to reserve to the landowner any rights in the lands taken. They merely limit the uses to which the lands may be put. And it is to be observed that this limitation is not confined to lands taken bv the exercise of the power of eminent domain. The charter of the company (the General Railroad law) imposes -it equally upon lands acquired by conveyance from the owner. Whether the land be acquired by the one method or the other, when the company enters upon and takes possession thereof it does so for the purpose of subjecting it to the uses which its charter authorizes.

Nor does the fact that, while in possession and so using the land,-the company subjects it to an additional and unauthorized use operate to divest it, to any extent, of the estate which it has acquired therein. McKelway v. Seymour, 5 Dutch. 321.

The complainants’ bill therefore was properly dismissed, for, as the condemnation proceeding vested in the Bergen Neck Railroad Company the whole present estate in the land, and that estate was not divested by the act of its successor in subjecting the land to the additional and unauthorized use complained of, the complainants had no interest therein -for the protection of which they were entitled to invoke the aid of a court of equity. Barnett v. Johnson, 2 McCart. 481.

It may be that the state, acting through the attorney-general, may restrain the unauthorized use by a railroad company of lands acquired by it under its charter powers. This, however, is a question not involved in the case and, therefore, one not now requiring consideration.

The decree appealed from should be .affirmed.

For affirm,anee — T’i-ie Chibe-Justice, Garrison; Fort, Garretson, Hendrickson, Pitney, Swayze, Vredenburgh, Green, Gray — 10.

For reversal — Dixon, Bogert, Vroom — 3.


author: Dixon, J.

text:
    Mary M. Power, appellant, v. Henry Power, respondent.
    [Argued December 4th, 1903.
    Decided June 20th, 1904.
    Filed June 20th, 1904.]
    1. Although a husband, after separating himself from his wife and children without lawful excuse, still provides for their support, his conduct may constitute the matrimonial offence of desertion.
    2. If, after a husband has deserted his wife, articles of separation reciting that tney agree to live apart are signed by them, the husband may, notwithstanding, be adjudged guilty of continued, willful and obstinate desertion, in case it be shown that ne knew his wife’s attitude to be one of dissent from the separation, and his own attitude was one of determination to continue it, whether the articles were signed or not.
    3. Under the circumstances of this case, a divorce being granted because of desertion by the husband, the custody of two children, one ten years old and the other five, was awarded to the wife.
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 20 Dick. Gh. Rep. 93.

      Mr. Richard V. Linddbury and Mr. William R. Barricklo, for the appellant.

      Messrs. Grouse & Perkins, for the respondent.
   The opinion of the court was delivered by

Dixon, J.

The parties' to this suit were married June 24th, 1891, in Montclair, and resided there as husband and wife until September, 1899, during which time they had three children, of whom two are still living. For some time prior to September, 1899, their cohabitation had not been harmonious, and early in that month the husband told his wife that her presence was extremely distasteful to him, that he was very sorry he had ever met her, and that he did not wish to live with her. To this the wife replied that she was perfectly willing to do everything in her power to make their home life as pleasant as possible, that it made her extremely unhappy to see matters in such a condition, and slie asked him if they conld not be adjusted. He answered that he had not the slightest intention of trying in any manner whatever, that he did not desire to and did not intend to. A day or so afterwards the wife requested her brother-in-law, Mr. Westervelt, to see her husband about their difficulties. Mr. Westervelt did so, and on the witness-stand thus related his interviews with the husband:

“I told Dr. Power [the husband! that his wife had told me of her last conversation with him; that she wanted me to see him; that his father’ also wanted me to see him, and do what I could to make him willing to continue to live with her; I asked him if he would not be, under any circumstances, willing to do so; told him she had asked me to ask him that; he said he would not; he would not live with her under any circumstances ; he wanted to be rid of her; I asked him what his reasons were —whether he had anything against her; he said that had nothing to do with the case — the fact was that he would not live with her; I tried to make him change his mind; talked t.o him about the disgrace it would bring upon his children ; suggested to him that it would be more expensive than he could stand; I brought every means I could think of to bear upon him to make him state that he would be willing to try to continue to live with his wife; he refused; I asked him if there was not something she could do — any change she could make in the course of her living — that would make him more contented with his home life; stated that she was willing to do anything that he would ask her; he said there wasn’t anything; a few days afterward, on the morning of September 14th, I went into his office shortly after breakfast; I said that his wife had asked me to make another appeal to him ; that she was exceedingly desirous on the children’s account, if on no other, to keep the home together — to patch things up so that they could continue to live together; he cut me very short and said- there was nothing further of that kind to discuss; he wouldn’t discuss it, and furthermore, he thought he had made it clear to mo the last time I liad seen him that what he wanted was a divorce; he expressed a wish that she should get a divorce from him; I said she was unwilling to— wouldn’t do it; he asked me questions about the law in the matter [Mr. Westervelt being a lawyer] and I explained it to him; ‘Well,’ he said, T want that divorce and I don’t want anything else; all my efforts will be directed to that end, and I want you to put it to Mary [Mrs. Power] in that light.’ ”

The truth of this narration is not denied. On the same day the husband left home and went to live with his father in the same town, and since that time the husband and wife have lived apart.

Immediately after the separation the husband employed an attorney, Mr. Jones, to act for him in the matter. Thereupon Mr. Jones saw Mr. Westervelt and assured him that Dr. Power would not return to the house while his wife was in it; that it was desirable to arrange some modus vivendi; that Dr. Power would require his wife to leave Montclair and sign away all her dower as a condition of receiving any support from him; that Dr. Power wanted to keep his house and his office, which was in it (he being a physician), and Mrs. Power must leave, as he would not live with her; that if she did not leave Montclair and sign an agreement, which should be prepared, she would not get any support from him; but if she did do so, Dr. Power’s father would be willing to look after the matter of income.

This being the attitude of the parties, an agreement was prepared, and on November 15th, 1899, Mrs. Power, on the advice of Mr. Westervelt and having, she says, no other alternative, joined with her husband and a trustee in signing it. This writing declares that Dr. and Mrs. Power agree that they will live, and continue to live, apart; that Mrs. Power shall not remain in Montclair, but outside of that town shall have the right to choose her own separate residence; that she shall execute proper instruments for relinquishing her right of dower; that she shall have the custody of the children until they are seven years of age, after which their custody shall be subject to further arrangement, and that Dr. Power will pay to the trustee $95 a month for the support of Mrs. Power and the children during her natural life, subject to deduction in certain specified events.

Upon the execution of this instrument Mrs. Power, with her children, moved to' the city of New York, where she has since resided, receiving from her husband, or his father, $95 per month and, bj? her own .exertions as a teacher, earning the rest of her necessary expenses.

In November, 1902, she filed a petition in the court of chancery for divorce, because of her husbancVs desertion; but, after hearing, the petition was dismissed, on the ground, first, that there had been no desertion; second, that if there had been, it ceased to be willful and obstinate upon the execution of the agreement. From this dismissal the petitioner appeals.

That on September 14th, 1899, Dr. Power deserted his wife seems to us indubitable. Having declared to her that he would not live with her, having heard her earnest expressions of desire tluit their cohabitation should be continued, he abandoned the matrimonial home and asserted his determination not to return while she was there. Certainly nothing more is wanting to make desertion complete. That he continued to send provisions to the house so that his wife and children might have food, may indicate that he had not given up all concern for their existence, but is not at all inconsistent with the matrimonial offence called desertion. As was said by Lord Penzanse, in Yeatman v. Yeatman, L. R. 1 P. & D. 489: “A wife is entitled to her husband’s society and the protection of his name and home in cohabitation. The permanent denial of these rights may be aggravated by leaving her destitute or mitigated by a liberal provision for her support; but if the cohabitation is put an end to against the consent of the wife and without the intention of renewing it, the matrimonial offence of desertion is in my judgment complete.” To the same effect was the decision in Magrath v. Magrath, 103 Mass. 577, which, in Anonymous, 7 Dick. Ch. Rep. 349, was cited with approval by Chancellor McGill.

The effect upon this desertion produced by the agreement of November 15th, 1899, requires more consideration. It is certain that the agreement did not give to either spouse, as against the other, the right to continue the separation. Notwithstanding it, each was entitled to demand of the other a resumption of marital relations. Miller v. Miller, Sax. 391; Aspinwall v. Aspinwall, 4 Dick. Ch. Rep. 302. Consequently the only question is whether it either indicates or gave rise to a change in the mental attitude of either party, showing mere consent to the separation instead of protest on the part of the wife, and instead of obstinate persistence on the part of the husband.

In solving this question the terms of the instrument are, of course, important, and they militate strongly against the petition of the appellant. But from the very nature of the inquiry they cannot he conclusive; they are only a part of the circumstances from which the truth must he inferred. No matter how explicit the declaration of the wife’s agreement to live apart from her husband and to release him from his marital obligations, it is credible that she was but yielding to the necessities of the case, still recognizing, as the law recognized, the continuance of marital duty, both for herself and for her husband. And it is equally credible that the husband was aware of this condition and remained separated from his wife, not because he believed she assented to such separation, but because his resolution never to resume cohabitation was unaltered. If such a state of facts appears, they constitute willful, continued and obstinate desertion, no matter what is said in articles of separation. 1 Bish. Mar. & Div. (6th ed.) § 805b. Such was the decision in Nott v. Nott, L. R. 1 P. & D. 251, and in Crabb v. Crabb, L. R. 1 P. & D. 601, the judge ordinary remarked upon the distinction between a separation induced by a written agreement and a separation of which the real cause was the determination of a husband to abandon his wife, and the writing only put a false face upon the transaction. In Moores v. Moores, 1 C. E. Gr. 275, Chancellor Green gave effect to such a deed of separation as a ground for defeating an application by the husband for divorce, because of his wife’s desertion, notwithstanding her continued purpose not to live with the complainant; but he based his conclusion also upon the fact that the husband had never intimated a desire or even a willingness that the state of separation should cease. Evidently he thought that such an intimation, made in good faith, would strip the deed of its force. His quotation from the opinion in Butler v. Butler, 1 Pars. Sel. Cas. 335, clearly shows that, when such a deed has been signed, the question still remains whether the separation resulted from or was continued because of the agreement expressed in it, or was the willful and perverse conduct of a deserter.

If, with this view of the question at issue, we consider the evidence, the statutory fault -of the husband is proved.

When in September, 1899, Dr. Power left his wife and their two children, one under six, the other under one year of age, Mrs. Power had no means of livelihood except as she could earn it or it should be given to her. Her husband, although a physician in middle life, was earning so little that alimony secured by judicial decree would furnish very scant maintenance. His purpose not to have her living in his home was declared to be, and after utmost efforts to change it, seemed to be irrevocable, and was already in course of execution. Her brother-in-law, her only counselor, advised that she submit to what was demanded as the condition of any voluntary contribution for support of herself and her little ones, and her father-in-law, a man of wealth, promised such contribution on her compliance with her husband’s demands. In yielding under these circumstances there is no sign of any withdrawal from that disposition of which she and her counsel had given her husband repeated assurance, a disposition protesting against separation and willing to do anything to win the husband back to their home. She was but saving what was salvable from the inevitable wreck.

The continuance of the husband’s determination is also manifest. His demand that she should leave not only the house but even the town where they had lived, so that his practice might as little as possible be disturbed; the insertion of that provision in the deed of separation; his desire, expressed before the deed was signed, that his wife should know that he was absolutely intent on divorce; his assertion, when examined in this cause, that he had “had no personal dealings with Mrs. Power whatever” since the separation began, and the tone of all his testimony during that examination, make it plain that at no time has he relented in the least from that hostility to marital relations which caused their severance. Hor has he ever had the slightest reason for thinking that, if he suggested to his wife a desire for reconciliation, she would not gladly meet him with an unchanged purpose.

On all the evidence we can reach, no other conclusion than that the desertion, which took place in September, 1899, began and has continued because of the willful, persistent and obstinate determination of Dr. Power to abandon his wife.

The causes for such determination are confessedly inadequate. They need not he further stated than by quoting the defendant’s own words on the witness-stand: “It was distressing to her and distressing to me, and particularly distressing to the children for us to live together.”

The decree dismissing the wife’s petition should be reversed and in its stead a decree should be entered divorcing the parties from the bond of matrimony because of desertion by the husband.

The petition of Mrs. Power also prays that the custody of the children may be awarded to her. In response the husband, by way of cross-petition, asks that the custody of the older child, a boy, born in May, 1894, may be awarded to him, and the chancellor has so decreed.

After much hesitation we deem this decree also unwarranted.

Three considerations were chiefly influential upon the mind of the learned vice-chancellor by whom the decree was advised: the wealth and character of the husband’s parents, who were willing to take the boy into their home and educate him; the desirability of withdrawing the boy from city life into a country home, and of subjecting him to such useful restraints as a father is more likely than a mother to impose.

But, as to the first point, it must be remembered that the decree gives the custody of the child to his father, not to his grandparents, and that they will be under no obligation to him other than such as their affection may create. While this affection may be strengthened by association with the child, we should not assume that without association it will be barren of utility to him while they live to manifest it. It is reasonable to hope that, with their abundant means, they will desire in any case to afford him the benefits of education.

As to the difference between city and country life the advantage of either over the other for a boy approaching maturity depends much upon the surroundings. The neighborhood in which Mrs. Power and the children live appears by the testimony to be an excellent one, the residence of refined people, many of whom are her friends, and with whose children this boy associates in' play and at school. Two or three months every summer she and they spend on the seashore of Rhode Island, and their health has been good, better than when they lived in Montclair.

On neither of these points does there appear any great preponderance in favor of awarding custody to the father.

But, on the remaining ground for judgment, the advantage of abiding with one parent rather than the other, we think the preponderance is decidedly with the mother.

The boy is only ten years of age, too young, even if he were an .unruly child, to be beyond maternal control; he has been brought up under his mother’s care, and undoubtedly feels for her the affection which such a relationship usually establishes, while his feeling for his father must be modified by estrangement. No suggestion is made that Mrs. Power is not in every respect fit to fulfill her duty to her children. Since their birth she has displayed toward them an ardent and self-sacrificing love, for which we find no equivalent in her husband’s disposition, who appears to be, on the contrary, of a hard, intolerant and unsympathetic temper. The effect upon the moral and spiritual nature of the child, produced b}r constant association with such a mother far outweighs in value the' possible material advantages to be secured by separation from her.

On the score of pecuniary ability to maintain a home, the evidence furnished by Mrs. Power’s conduct since the separation is satisfactory if that ability bo'supplemented by such assistance as it will be Dr. Power’s duty to render.

In view of all conditions we think the custody of the children should be awarded to Mrs. Power, and that the contrary decree should be reversed.

Let the cause be remitted to the court of chancery that proper order may be made for alimony, for the maintenance of the children and for other matters incidental to the decrees now directed.

For reversal — Dixon, Garrison, Fort, Bogert, Vredenbtjrgh, Green — 6.

For affirmance — Hendrickson, Pitney, Swayze, Vroom— 4.


author: Fort, J.

text:
    Margaret A. Cooper, complainant and respondent, v. Edwin Colson et al., defendants and appellants.
    [Argued December 2d, 1903.
    Decided June 20th, 1904.
    Filed June 20th, 1904.]
    1. ’An oral contract for the sale of land or of any interest therein, partly or wholly performed, in certain respects, by the party seeking the remedy, may, if such performance is clearly referable to the execution of the contract, be specifically enforced by courts of equity, notwithstanding the statute of frauds.
    2. Payment of a part, or even of the whole, of the purchase-money, under an oral agreement for the sale of land, is not an act of part performance to take the contract out of the statute of frauds.
    3. Special acts, personal service or the like, ordinarily compensated for upon a quantum meruit, although performed under an oral agreement to devise or convey land therefor, are not such performance as, standing alone, will take the case out of the statute of frauds.
    4. An oral agreement for the sale of land in consideration of services to be rendered, where no other act is done in execution of the agreement except the performance of services for which compensation may be had upon the quantum meruit, stands upon the same legal basis as a like oral agreement of sale for a cash consideration that has been paid but no other act done under the contract in execution thereof.
    5. Where compensation for services is not to be made until a certain date or the happening of a certain event, full compensation may be recovered at law for all services performed prior to that date, as the statute of limitations in such case does not begin to run until the period so fixed.
    On appeal from a final decree of the court of chancery advised by Vice-Chancellor Eeed.

      Mr. Enoch 8. Fogg and Mr. David J. Pancoast, for the appellants.

      Mr. Isaac 0. Acton and Mr. Jonathan W. Acton, for the respondent.
   The opinion of the court was delivered by

Fort, J.

This is a suit in equity for specific performance of an alleged contract for the devise of lands. The bill is filed against the heirs-at-law of Joseph P. Colson, who died intestate, leaving three farms in the county of Salem, in this state.

The bill states the alleged agreement to have been

“that if your oratrix would continue to live with him [Colson] and act as his housekeeper, to serve him and,look after his interests, as she had done, he would compensate her fully and completely; that he would ‘leave’ her a farm; by which words your oratrix charges that said Joseph P. Colson meant, and did intend for your orátrix to understand, that he would make and execute his last will and testament, and would therein, in due form of law, devise to her a farm.”

The prayer of the bill is that the heirs-at-law be decreed

“to convey to your oratrix, her heirs and assigns, the farm and plantation of which the said Joseph P. Colson died seized and hereinbefore particularly described and set forth, known as the ‘Peterson farm.’ ”

■ The answer denies the agreement as alleged in the bill or any other agreement of like character.

The proof shows, I think, that the agreement was made, and that Colson frequently stated that he did intend to leave to the complainant the Peterson farm, or that the Peterson farm was hers, or similar statements, which clearly indicate that a parolagreement was made to devise, in consideration of the labor and services of the complainant, the Peterson farm to her.

By our “Act for the prevention of frauds and perjuries,” approved March 27th, 1874, it is provided,

“that no action shall be brought * * * upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, * * * unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.” Gen. Stat. p. 1603 § 5.

Ail agreement to convey or devise lands wholly in parol is unenforceable at law. It is equally so in equity, unless there has been a partial or full performance in certain respects, in which case such an agreement may be specifically enforced by a court of equity, notwithstanding the. statute of frauds. The authorities to sustain this principle of equitable jurisdiction are collected and fully stated in 3 Pom. Eq. Jur. 456 § 1409 note 2.

The complainant in this case relies upon a partial or complete performance of the contract alleged to sustain her prayer for specific performance.

That the complainant did act as housekeeper, and attend upon and care for Colson, and did perform her part of the agreement in this regard, is proven, and if such a performance of her agreement to serve the deceased'can be considered part performance within the rule which permits equity to decree specific performance of contracts for the conveyance or devise of lands, she is entitled to such a decree in this case.

Stated plainly, the agreement proveía in this case was to convey or devise to complainant the “Peterson farm” in consideration of her paying Colson, as the purchase price for the same, her labor and personal service as his housekeeper and attendant for so long a period as he should live. Payment of a part, or even the whole of the purchase-money, is not an act of part performance to take a contract out of the statute of frauds. Fry Spec. Perf. (4th ed.) §§ 613, 614; Snell Eq. 4-64 4; Pom. Spec. Perf. 159 § 112; Lippincott v. Bridgewater, 10 Dick. Ch. Rep. 208; Green v. Richards, 8 C. E. Gr. 32; Browne St. of F. (5th ed.) § 461; Cochrane v. McEntee, 51 All. Rep. 279 (Vice-Chancellor Emery); Brown v. Brown, 6 Stew. Eq. 650, 660; 26 Am. & Eng. Encycl. L. (2d ed.) 54.

In every case, in order to1 take the case out of the statute on the ground of part performance, irrespective of other questions, two things are requisite. The terms of the contract must be established by the.proofs to be clear, definite and unequivocal, and the acts relied on'as part performance must be exclusively referable to the contract. Wallace v. Brown, 2 Stock. 308; Brown v. Brown, 6 Stew. Eq. 650.

Professor Pomeroy, in a note at page 457, volume 3, of his work on Equity Jurisprudence, declares, among the acts which do not constitute part performance the “payment of the purchase price in whole or in part/5 and states that the rule is otherwise in the State of Iowa, owing to a statute which expressly makes such payment a part performance.

This same learned author gives two acts, which he characterizes as controlling acts, of part performance which will take a parol agreement of sale out of the statute and permit a court of equity to decree specific performance thereof, namely, (a) Actual open possession; (&) permanent and valuable improvement made on the land; or these two combined. 3 Pom. Eq. Jur. 457 § 1409.

But in this case it is contended that, in the absence of possession taken or any permanent improvement made upon the property, there are other special acts of personal service and the like which, when performed upon condition that land will be conveyed, will also entitle the party so performing to a decree for the specific performance of a parol agreement to convey lands. Three cases decided in the court of chancery in this state are relied upon by the complainant to sustain this contention. The first of these is Johnson v. Hubbell, 2 Stock. 332, decided by Chancellor Williamson, in 1855; the second is Van Duyne v. Vreeland, 1 Beas. 142, also a decision of Chancellor Williamson; the third is Davison v. Davison, 2 Beas. 246, decided by Chancellor Green.

I shall not attempt a review of these cases. Johnson v. Hubbell and Davison v. Davison are not in all respects in point under the issue here, but Van Duyne v. Vreeland does seem to have been clearly determined upon the question, sub judice.

Chancellor McGill says “that equity will specifically enforce such a parol agreement at the instance of a complainant who shall have completely performed it upon his part, is now established in this state beyond controversy. The remedy is afforded upon the ground that it will work a fraud upon him who, inducecl by the agreement, has, in good faith, so performed it as to irretrievably change the situation of the parties to his disadvantage, to permit the other party to refuse fulfillment upon his part. It has had frequent recognition and application in adjudged cases in our courts.” He cites all the New Jersey cases. Vreeland v. Vreeland, 8 Dick. Ch. Rep. 387, 389.

As a general statement, this language is unexceptionable. But the mere proof of the performance of services is not sufficient. Such services may be adequately compensated for by a recovery of damages. Such services, thus performed, are of no greater efficacy to take the case out of the statute than would be a payment in whole or in part of the consideration money agreed to be paid upon a parol contract to convey land for cash.

It must appear, to constitute ground for a decree for the specific performance of an oral agreement to convey land, founded upon alleged services, that the services were in some respects of an exceptional character and that it is obvious that the parties not only did not intend that they should be measured by ordinary pecuniary standards, but that they were of such a peculiar character that it is impossible to estimate their value by any such standard. 1 Lead. Cas. Eq. 1054, 1055; Rhodes v. Rhodes, 3 Sand. (N. Y.) Ch. 279.

Where it appears, as in Van Duyne v. Vreeland, supra, that the result of the performance of the labor and service under the agreement has been such as to change the whole course of the life or life work of the complainant, on the faith of tile contract to devise or convey, the ease is one which is within the same rule as to part performance, as where possession of the land has been taken or improvements made thereon. Pom. Spec. Perf. 161 § 114.

The true rule seems to be, as stated by Chancellor Williamson in Van Duyne v. Vreeland, “that when there has been such a performance on both sides as puts the complainant in a situation which is a fraud upon him unless the agreement is fully performed,” specific performance should be decreed.

If such fraud exists it estops the defendant from setting up the statute as a bar to the right of specific performance, because the agreement to convey was not in writing. Snell Eq. 461; Twiss v. George, 33 Mich. 253; Smith v. Yocun, 110 Ill. 142; Brown v. Sutton, 129 U. S. 238; Tidem. Eq. Jur. § 495.

The mere performance of services, which may be compensated for in damages, is not sufficient to take the case out of the statute. Cronk v. Trumble, 66 Ill. 428; Edwards v. Estell, 48 Cal. 194; Carabill v. Marsh, 38 Ohio 331.

Where compensation is not to be made until a certain date, or the happening of a certain event, full compensation may be recovered at law for all services performed prior to that date, as the statute of limitations in such case does not begin to run until the period so fixed. Stone v. Todd, 20 Vr. 274, 282.

In such cases, if the services are such as can be compensated for on the quantum meruit, the remedy is ample. McElroy v. Ludlam, 5 Stew Eq. 828; Smith v. Administrators of Smith, 4 Dutch. 208; Guy v. Mooney's Administrators, 38 Vr. 27.

We do not think the facts proven in this case bring tire complainant within the rule established by the cases. The services she performed were no doubt performed in part, though not wholly, in reliance upon compensation by way of the conveyance of a farm. ( But her services were neither exceptional nor extraordinary.

She in no way changed her mode of living, or course of life, or life work, because of them. What she did was of such a character as to be easily and adequately compensated on the quantum meruit. 'There is nothing to establish that she had abandoned any other plan of life work or calling to devote herself to the deceased in consideration of the promised conveyance of á farm. Most scrupulous care should be exercised by the courts in this class of cases, and especially where one of the alleged contracting parties is dead. An allegation of an agreement to convey is easily made, and casual conversations or jocular remarks of intent to devise or convey at death can readily be turned into serious import. The statute declares that agreements to convey land not in writing are void. If equity is to overthrow the statute, on the ground that, owing to the peculiar character of the facts in a given case, it would be a fraud not,to IiolcL one of the contracting parties estopped from setting up the statute, such power should be exercised upon the most clear proof, not only of the contract to devise or convey the land in question, but of the fact that the rendition of the services was wholly referable .to the contract to convey, and solely predicated upon that agreement, and that proper and adequate compensation for the services cannot otherwise be made, because of the fact that, in reliance upon the contract, it appears reasonably probable that the complainant has irretrievably changed the whole course of his life and circumstances in order to fulfill his part of the agreement.

The decree of the court of chancery is reversed and the bill dismissed.

For reversal — The Chiee-Justice, Dixon, Gabeison, Foet, Pitney, Swayze, Yredenbuegh, Yroom, Gbeen — 9.

For affirmance — Hendrickson, Bogebt — 2


text:
    Leonhard Schaab, petitioner, v. Emma Schaab, respondent.
    [Submitted November Term, 1903.
    Filed May 13th, 1904.]
    1. A husband or wife is not compellable, in any action or proceeding for divorce on the ground of adultery, to testify for the other, except to prove the fact of marriage.
    2. Under section 5 of the act concerning evidence (Revision of 1900), the right of either to give evidence for the other, in actions for divorce on the ground of adultery, exists. The proviso in said section in nowise limits the competency of either to testify in such action for or against the other.
    3. Under the testimony in this case, the adultery is proven.

      On appeal from a decree of the court of chancery refusing a divorce and dismissing 'the petitioner’s petition.

      Messrs. Weller & Lichtenstein, for the appellant.
   The opinion of the court was delivered by

Fort, J.

The petition in this case was filed for a divorce for the cause of adultery.

The petitioner alleges that the defendant was guilty of adultery in 1900 and 1901 with one J. L., and at a later period in 1901 with a person unknown.

The proof of the first charge of adultery was conclusive, but there was clear evidence of the condonation of the first offence by the petitioner. The fact of the adultery on the second occasion, viz., December, 1901, we think is also established by the evidence.

Two classes of proof were offered as to the second offence:

First. Evidence of the defendant herself — she being called by the petitioner to testify for him.

Second. Evidence given by detectives, employed by the petitioner, as to compromising circumstances, from which guilt would necessarily be inferred where no explanation was made or attempted.

The testimony of the detectives was that they followed the defendant and a man, unknown at the time but shown by the evidence to have been one H., to the Grandview Hotel, in Bergen county, and there saw the defendant and H. upstairs in a bedroom in the hotel, partly disrobed, in which room they remained together drinking for upwards of two hours. The defendant, when called as a witness, was. informed by the master that’she was not compelled to testif}r. She declined to answer certain questions, which went to directly establish her guilt, but answered others. She neither denied her guilt nor asked leave to do so when under examination.

It is contended that the defendant was not only not compelled to testify, but that she was not a competent witness. This ne- '' cessitates the consideration of sections 2 and 5 of the act concerning evidence. Rev. of 1900; P. L. of 1900 p. 362.

Said sections read as follows:

“2. In all civil actions in any court of record, the parties thereto shall be admitted to be sworn and give evidence therein, when called as witnesses by the adverse party in such action; and when au3* part3' is called as a witness by the opposite party, he shall be subject to the same rules as to examination and cross-examination as other 3vitnesses; provided, no-party to a suit shall be compelled to be sworn or give evidence in any action brought to recover a penalty or to enforce a forfeiture; and provided, also, this section shall not apply to suits for divorce.
“5. In any trial or inquiry in any suit, action or proceeding- in any court, or before any person or committee having by law or consent of parties authorized to swear tvitnesses or hear evidence, the husband or wife of any person interested therein, as a party or otherwise, shall be competent and compellable to give evidence the same as other witnesses, on behalf of any party to such suit, action or proceeding; provided, that nothing herein shall render any husband or wife compellable or competent to give evidence for or against the other in any action for criminal conversation, except to prove the fact of marriáge, or to render any husband or tvife competent or compellable to give evidence against the other in any criminal action or proceeding except to prove the fact of marriage, and except as no3v otherwise provided by statute, or compellable in any action or proceeding for divorce on account of adultery to give evidence for the other, except to prove the fact of marriage, nor shall any husband or wife be compellable to disclose any confidential communication made by one to the other during the marriage.”

It will be noticed that section 2 only applies to a party to an action when such party is called as a witness “by the adverse parky."

This section, however, does not apply to a proceeding for divorce, for by the express terms of the proviso, at the end of it, it is enacted, “and provided, also, this section shall not apply to suits for divorce.”

This language is too plain for construction, and hence, if there, were no other statute authorizing the calling of a wife as a witness for her husband, or vice versa, in a divorce suit for the cause of adultery, the common laiv rule would apply and she would be neither competent nor compellable to testify therein. Section 2 therefore gives no authority for calling the defendant ás a witness in this case. Nor does it in anywise apply to this ease.

Section 5, however, covers the whole subject and relates exclusively to the testimony of a husband or wife.

The first clause of this section makes a husband or wife both ■competent and compellable to give evidence, the same as other witnesses, "in any trial or inquiry in any suit, action or proceeding, in any court * * * on behalf of any party to such suit, action or proceeding." But for the proviso in this section, the clause just quoted would make a husband and wife both competent and compellable to testify in any civil or criminal action or proceeding for or against the other, at the call of any party thereto, on any question at issue therein, and it does undoubtedly do so, save in the respects limited by the proviso therein.

The terms of this proviso appear to have been drawn with great care, as applicable to each particular case excepted therein.

By the first limitation in the proviso a husband or wife is not competent or compellable to give evidence for or against the other in an action for criminal conversation except to prove the fact of marriage.

By the second limitation a husband or wife is likewise not competent or compellable to give evidence against the other in any criminal actioar or proceeding except to prove the fact of marriage, and except as now otherwise provided by statute. This last exception relates to section 57 of the Criminal Procedure act. Rev. of 1898; P. L. of 1898 p. 886.

By the third limitation a husband or wife is not compellable in any action or proceeding for divorce on account of adultery to give evidence for the other in any such action or proceeding, except to prove the fact of marriage. This clause is not a limitation on the right of either party in any such action or proceeding to testify. It in no way affects the competency of either as a witness for or against the other. It simply prevents compulsion.

By the fourth limitation a husband or wife is not compellable to disclose any confidential communication made by the one to the other during marriage.

The evidence of the defendant in this case, as given, was competent. Pier testimony appears, so far as she did testify, to have' been voluntary. While under the statute she was not compellable to testify, she was a competent witness for the cause of the petitioner when called by him. Pier testimony, as to the facts and circumstances concerning which she did testify, was entirely corroborative of the testimony of the detectives. The proof establishes her guilt of adultery.

It was in proof in this case that the first acts of adultery with J. L., in 1900 and the early part of 1901, were condoned by the petitioner. Condonation, of course, makes it impossible for the procurement of a divorce for the offence which the petitioner had pardoned. But the proof of the fact of the subsequent act of adultery would furnish ground to deprive her of the benefit of the previous condonation as well as furnish an independent ground of divorce. Warner v. Warner, 4 Stew. Eq. 225; Durant v. Durant, 1 Hagg. Ec. 733; Johnson v. Johnson, 1 Edw. Ch. 439; Hoffmire v. Hoffmire, 3 Edw. Ch. 173.

The decree is reversed and the petitioner is entitled to the divorce prayed for.

For reversal — -Ti-ie Ci-iiee-Justice, Dixon, Garrison, Fort, Hendrickson, Pitney, Bogert, Yrbdenburgi-i — 8.

For affirmance — Swayze, Yroom, Green, Gray — 4.


author: Swayze, J.

text:
    The Sperry & Hutchinson Company, appellant, v. Harry Vine and Louis Vine, partners, &c., respondents.
    [Submitted December 8th, 1903.
    Decided May 13th, 1904.
    Filed May 13th, 1904.]
    The defendants agreed with the complainant not to use any trading stamps except the complainant’s during the continuance of the contract, but, notwithstanding this agreement, used the stamps of complainant’s competitors; the complainant filed this bill for an injunction. — Held, that the remedy at law was adequate, and that the bill was properly dismissed.
    On appeal from a decree advised by Vice-Chancellor Reed.

      Mr. Edwin Robert Walker, for the appellant.

      Mr. John M. Dickinson, for the respondents.
   The opinion of the court was delivered by

Swayze, J.

Oh April 3d, 1903, the defendants agreed to receive of complainant “a sufficient number of trading stamps, to be supplied as a discount for cash trade to all persons who may call for them,” to pay complainant for all stamps disposed of and “not to use any other coupons, trading stamps or similar device during the existence of this contract.” The contract contained also the following clause: “No dry goods, shoes or gents’ furnishing store within two blocks either way to have S. & H. stamps without consent of Vine Brothers.”

The defendants, during the continuance of this contract, used and gave out, to use the words of the answer, other trading stamps to cash purchasers of their goods in lieu of the trading stamps dealt in by the complainant. Thereupon the complainant filed the bill in this cause, the sole object of which is to restrain the defendants from giving out, distributing, advertising for free distribution, or otherwise, the red star trading stamp, or any other coupon similar to the green trading stamp of the complainant. Substantially, it is a bill for specific performance. The defence interposed was that one Robinson, a dealer in dry goods, located within two- blocks of the defendants, had Sperry & Hutchinson stamps without the defendants’ consent, and that it would therefore be inequitable to enforce against the defendants an agreement which had already been violated. The vice-chancellor took this view of the case and dismissed the bill. The appellant now argues that the contract means only that “no dry goods, shoes or gents’ furnishing store within two blocks” is to have tire S. & H. stamp from the complainant, and that there has been no breach of the contract on complainant’s part since the stamps which the defendants’ competitor had were secured from other sources.

Whether this construction of the contract is correct need not be -decided. The question whether it is equitable to enforce specific performance against the defendants involves considerations aside from the question whether there has been a breach of contract by the complainant for which an action would lie. The jurisdiction to decree specific performance is based upon the inability of courts to give adequate relief. Brown v. Brown, 6 Stew. Eq. 650, 654; Blake v. Flatley, 17 Stew. Eq. 228; Rothholz v. Schwartz, 1 Dick. Ch. Rep. 477.

The rule is well stated by Vice-Chancellor Pitney in the last-cited case.

In the present case, the injury to the complainant is the loss of a market for their stamps and consequent loss of profit. There can be no difficulty in ascertaining how many of complainant’s green- stamps would have been required if their place had not been supplied by their competitor’s red star stamps, and the complainant’s profit thereon must be a matter of calculation. Assuming that'the complainant has a legal right, the remedy at law is adequate.

The decree should be affirmed, with costs.

For affirmance — The Chief-Justice, Dikon, Garrison, Eort, Hendrickson, Pitney, Swayze, Bogert, Vredenburgh, Vroom, Green — 11.

For reversal — None.


text:
    John H. Capstick, respondent, v. Gilbert D. Crane et al., appellants.
    [Argued November 20th, 1903.
    Decided May 13th, 1904.
    Filed May 13th, 1904.]
    The defendants agreed in writing with Cahill to convey, by general warranty deed, land which was at the time subject to a right of way. Cahill assigned the agreement to the complainant, who, upon the refusal of defendants to fulfill the contract, filed a bill praying for specific performance, with compensation for the encumbrance. It was agreed that the right of way should be considered as located along the boundary line between the tract to be conveyed and other property of the complainant.— Held, (1) that in determining the compensation the peculiar .value of the tract, if unencumbered, to the complainant for development in connection with his other land, cannot be considered; (2) that under the circumstances of this case, compensation is such sum as bears the same proportion to the whole purchase-price as the area of land affected by the right of way bears to the whole area.
    On appeal from a decree advised by Vice-Chancellor Pitney.

      Mr. George T. Werts and Mr. Newton S. Kit ch ell, for the appellants.

      Mr. Richard V. Lindabury and Mr. Willard W. Cutler, for the respondent.
   The opinion of the court was delivered by

Swayze, J.

The bill in this case was filed to compel the specific performance of an agreement for the sale of land, made between the defendants and Edward J. Cahill on May 15th, 1902, and assigned by Cahill to the- complainant, May 22d, 1902. The agreement was for the conveyance of property by a general warranty ' deed for a consideration of $10,000 in cash. The property was encumbered by a mortgage for $3,500, by a right which had been granted by Crane to one Yan Duyne to lay a pipe under a portion of the premises and by a right of way over a portion of the premises which had been reserved in a deed to a former owner. The defendants refused to make a warranty deed, and the complainant filed his bill, in which he set up the encumbrances and prayed that the defendants might specifically perform the contract and execute and deliver a deed in accordance with its terms; or, that if the defendants could not convey the property free from the encumbrances, that they might be decreed to convey-the same, and that the complainant might be allowed such deduction from the purchase price as the court should think equitable.

Do question as to the complainant’s right to a decree is raised by the appeal. The amount of the mortgage is a mere matter of calculation, and the necessity of deducting it from the purchase price is conceded. The parties agreed at the hearing that the compensation for Yan Duyne’s right to lay pipe should be $25. The vice-chancellor allowed a compensation of $2,000 for the encumbrance of the right of way. .

The petition of appeal complains of the allowance for the right of way, and also of the allowance for the right to lay pipe; but the latter complaint was not pressed upon the argument. The only matter presented by the petition of appeal now to be considered is the allowance of $2,000 for the right of way.

This right, as reserved in the deed to the defendants’ predecessor in title, was indefinite, but at the hearing before the vice-chancellor the parties agreed that the case might be disposed of and the compensation determined upon the assumption that the road was located along the extreme westerly line of the whole tract to he conveyed, and was not more than thirty feet in width.

The tracts to be conveyed contain in all about twenty-eight acres. The tract of land affected by the right of way is about two and one-half per cent, of the whole area. The buildings and improvements are on that portion of the tract which is remote from the right of way, and the only damage is such as arises from the defect in the title to this strip of land, which has no peculiar value distinguishing it from the rest of the tract. There was evidence, on the part of the complainant, that the whole tract, as encumbered by the right of way, was worth from $2,500 to $4,000 less than it would have been if not so encumbered. The vice-chancellor rejected all of the estimates of the witnesses and adopted his own estimate of $2,000. The case makes it clear to us that these estimates could only be reached by a consideration of the value of this tract of land for development for business purposes in connection with a tract adjoining on the west already owned by the complainant. The evidence justifies the belief that the defendants’ land possessed a peculiar value to the complainant for such development; but in our judgment this peculiar value to the complainant is not the equitable basis for the allowance of compensation. There is nothing to show that the defendants, at the time the agreement was made, knew of any intention to unite the two properties and develop them as one. They could hardly have suspected such an intention, for the contract was with Cahill, not with the complainant, and the evidence indicates that Cahill was employed to procure the agreement for the very purpose of preventing any suspicion on the part of the defendants that the complainant was the real purchaser.

There are no circumstances in this case to take it-out of the ordinary rule stated by Sir William Grant in Hill v. Buckley, 17 Ves. 394, that where there is less land than was agreed to be sold, the ordinary mode is to ascertain the quantity and take it ratably. This rule has been substantially adopted in the court of chancery in this state in Couse v. Boyles, 3 Gr. Ch. 212; Day ton v. Melick, 5 Stew. Eq. 570; Van Blarcom v. Hopkins, 18 Dick. Ch. Rep. 466. By adopting it in this case no injustice will be done the complainant; it allows him as large a deduction from the purchase price as if the title to the strip occupied by the right of way entirely failed; and although he does not, perhaps, get as good a bargain as he anticipated, he has, by his bill, sought for such title as the defendants can give, and has submitted the amount of compensation to the court. This basis of computation is not unfair to the defendants, for the strip encumbered by the easement can have but little value, if any.

Two and one-half per cent, of the purchase price is $250. We think that justice will be done if the compensation is fixed at that amount. The decree must be reversed and a decree entered in conformity with this opinion.

For reversal — Dixon, ' Garrison, Port, Hendrickson, Pitney, Swayze, ' Bogert, Yredenbtjrgi-i, Yiioom, Green — 10.

For affirmance — None.