text:
    Teresa Caravatta, complainant, v. John O’Brien and John Batista Caravatta, executors of the last will and testament of Michael Caravatta, and John Batista Caravatta, individually, defendants.
    [Decided July 8th, 1925.]
    1. The question -whether a legacy given by a testator to his wife is in lieu of dower is one of intention of the testator, and is to be ascertained ‘Iby reading the will from the four corners.”
    2. If a claim of dower in the testator’s real estate is inconsistent with the clauses in the will giving the wife legacies, it is clear that she is not entitled to both the legacies and the dower.
    3. In ascertaining the testator’s intention, it is of prime importance to ascertain whether the allowance of dower to the widow will “disturb” or be “inconsistent with” any of the provisions of the will.
    J. Where a will confers upon the executors full power to sell, mortgage or lease his lands, such a provision is inconsistent with the intention of the testator that his widow take both the legacies and the dower.
    5. Freeland v. Mandeville, 28 N. J. Eq. 559, distinguished.
    On bill, &c. On motion to strike out complaint.

      Mr. Edward J. Luce and Mr. Walter A. Kipp, for the complainant.

      Mr. J. II. Thayer Martin, for the defendants.
   Berry, V. C.

The bill in this cause was filed to set aside a deed of release of dower.

The complainant is the widow of Michael Caravatta, late of Weehawken, Hudson county, New Jersey. Michael Caravatta died on September 1st, 1924, leaving a last will and testament,' which has been duty admitted to probate. The provisions of this will, pertinent to this cause, are as follows:

“Seventh. I hereby give and bequeath to my wife, Teresa Caravatta, the sum of of five thousand dollars [$5,000].
“Eighth. I hereby give and bequeath to my exieeutors, hereinafter named, the sum of twenty thousand dollars [$20,000], to hold the same in trust and invest and reinvest the same, and to pay over the net income derived therefrom to my wife, Teresa Caravatta, during the term of her natural life, so long as she does not remarry. Upon her death or remarriage, whichever shall first occur, I direct that the said principal sum of twenty thousand dollars [$20,000] become a part of my residuary estate and be disposed of in accordance with the provisions of the residuary clause, being paragraph ‘Ninth’ of this, my last will and testament.
“Tenth. I hereby nominate and appoint my friend, John O’Brien, and my nephew, John Batista Caravatta, to be the executors of this, my last will and testament, and direct that they serve as such without being required to give any bond or security of any kind or nature, and I hereby give and grant to my said executors full power and authority to sell, convey, mortgage and lease any or all of by real and personal property, at any time, upon such terms and conditions as in their discretion shall seem for the best interest of my estate.”

The pertinent facts which are alleged in the bill, and which may, for the purposes of this motion, be considered as established, are, that the decedent’s estate consist of personal property of the value of $55,000 and certain real estate located at Weeliawken, New Jersey, of the value of $20,000. The complainant has accepted the provisions of the seventh and eighth clauses of the will and has executed and delivered to John Batista Caravatta, the residuary legatee of said will, a deed releasing to him the dower rights of the complainant in the real estate of which the testator died seized, and in which deed she declared that she has “elected and hereby do elect not to claim dower, but to take under the provisions of said will.” The personal estate left by decedent is more than sufficient to pay his debts and the legacies mentioned in the will. Complainant now alleges that she executed and delivered the above-mentioned release of dower through mistake and in ignorance of her rights, and that she is now advised that she is entitled, not only to the benefits under the seventh and eighth clauses of said will, but also to a dower right in the real estate of which her husband died seized.

The question raised by this motion is whether or not, under the terms of the will, the complainant was put to her election, or, stated differently, whether or not she is entitled both to dower and the legacies, and the answer to this question will be dispositive of the motion. If she is obliged to elect, then, having done so, it is obvious that such election could not have been under a misapprehension of her rights, and, therefore, the motion should prevail.

It is admitted that section 16 of the Dower act is not involved.

It seems to me that the law applying to this case is well settled by a long line of decisions in this state, in which it is indicated that the New Jersey law differs substantially from the English law. Stark v. Hunton, 1 N. J. Eq. 226; Cooper v. Cooper, 56 N. J. Eq. 48; Moore v. Moore, 84 N. J. Eq. 39; affirmed, 85 N. J. Eq. 150.

In Stark v. Hunton, Chancellor Vroom says:

“The policy of the great mass of the English cases appears to have been to save the dower of the widow if possible, and, for this purpose, numberless refinements and distinctions have been resorted to by the courts. Our policy, as manifested by our statutes, is different.”

The real question in all cases of dower is one of intention of the testator, which is to be ascertained “by reading the will from the four corners.” Griggs v. Veghte, 47 N. J. Eq. 179; Moore v. Moore, 84 N. J. Eq. 39.

In Griggs v. Veghte, supra (at p. 183), the court said:

“This is only to be settled by ascertaining what was the intention of the testator in making the provision he has for her, with reference to its being in lieu of, or in addition to, her dower. If he intended it in lieu thereof, she must choose between the two. If a testator declares in express words one way or the other, such declaration is conclusive. But, in the absence of express words, how is the intention to be'ascertained ?”

And (at p. 184) :

“In this state it seems settled that when, from the whole will and the circumstances of the estate, it is manifest that the testator, in making provisions therein for his widow, intended that the same was to be in lieu of dower, it is sufficient to put her to her election between the provision made for her in the will and that made for her by law.” Citing cases.

And (at p. 186) :

“While the fact that what he gives her is greater than 'would be her dower in his real estate is not conclusive, it is entitled to weight, in ascertaining from the will, what was the. intention of the testator in giving her such a share of his estate, with reference to its being in lieu of dower.”

In Moore v. Moore, Vice-Chancellor Stevenson (at p. 44) said:

"'Whether a widow can accept provisions for her benefit in her husband’s will, and also receive her -dower in his real estate, is determined by the intention of the testator, which is to be ascertained in the usual way by reading the will from the four corners, and considering all its provisions in the light of the circumstances and conditions which surrounded and necessarily influenced the testator in forming his testamentary purposes, and in using language directing the carrying out of those purposes. The older English decisions, based upon the policy of saving the dower of the widow, if possible, and for this purpose resorting to ‘numberless refinements and distinctions’ [per Chancellor Yroom in Stark v. Hunton (1831), 1 N. J. Eq. 216, 226], have not been followed in New Jersey, and their original force in England has been largely abrogated by statute. ‘Express words of exclusion are not necessary in a will in order to bar dower.’ Stark v. Hunton, 1 N. J. Eq. 224. The trend of our New Jersey decisions, as indicated in our law and equity reports, has constantly been toward the establishment of a natural and common sense method of determining this question whether a testator has intended that what he gives his widow in his will is to be in addition to her dower or in lieu of her dower.”

If a claim of dower in the real estate is inconsistent with the ninth and tenth clauses of the will, then it is clear that, under out' decisions, complainant is not entitled to both legacies and dower. Colgate v. Colgate, 23 N. J. Eq. 372; Moore v. Moore, supra.

In Colgate v. Colgate, supra (at p. 878), Chancellor Zabriskie said:

“The authorities all agree that, if the provisions of the will are inconsistent with the dower of the wife in the real estate, the provision for her in the will shall be held as intended in lieu of dower, and she shall be put to her election.”

In Moore v. Moore (at p. 4-4) Vice-Chancellor Stevenson said:

“In ascertaining the testator’s intention it is of prime importance to ascertain whether the allowance of dower to the widow will ‘disturb’ or be ‘inconsistent’ with any of the provisions of the will.”

It will be noted that the will confers upon the executors “full power and authority to sell, convey, mortgage and lease any or all of my real and personal property,” &c. It has been repeatedly held in this state that such a provision is inconsistent with the intention of the testator that his widow take both legacies and dower. This was held by Vice-Chancellor Pitney in Cooper v. Cooper, supra, and in Moore v. Moore by Vice-Chancellor Stevenson.

In the Moore Case (at p. 47) Vice Chancellor Stevenson said:

“The fact that this testator provided for the sale by his trustees of this residence property without making the slightest reference to any dower right of his wife, indicates that such sale would be made free of dower. Cooper v. Cooper, supra. In this case Vice-Chancellor Pitney expresses the following views (at p. 55) : ‘Some of the older English cases, and, perhaps, a few in this country, have held that a direction to executors to sell and convey real estate, did not necessarily indicate that they were to sell free and clear of the dower of the widow. But the modern decisions which, in my judgment, are more in accordance with common sense, tend to hold that a power and direction to sell and convey .necessarily includes the idea of conveying the title free and clear of dower. Except sales of real estate by sheriff on common law judgments, the cases where a sale of real estate is made by a husband without his wife joining him are very rare indeed. Ordinary purchasers will not accept a title with an outstanding inchoate dower upon it, much less one that has dower fastened upon it by the death of the husband. Such a title is not marketable in the ordinary sense of that word,”

The decision in the Moore Case was affirmed by the court of errors and appeals in 85 N. J. Eq. 150. Counsel for complainant calls attention to the fact, that the affirmance was based upon the conclusion of the court of errors and appeals that the question was controlled by section 16 of the Dower act, inasmuch as the will in that case devised an interest in real estate to the widow, and contends that this was, in effect, a disapproval of the rule laid down by Vice-Chancellor Stevenson in the Moore Case. Mr. Justice Swayze, speaking for the court of errors and appeals, at the conclusion of his opinion in the Moore Case, however, says :

“In thus limiting our decision to the single point, we are not to be understood as questioning other propositions supported by the vice-chancellor’s opinion. We think it advisable to rest the case upon the statute alone.”

While, perhaps, this is not a direct affirmance of the rule laid clown by Vice-Chancellor Pitney, and followed by Vice-Chancellor Stevenson, I think it is as close to it as it possibly could be without an express approval, and it is certainly not a disapproval, and, so long as not disapproved, the rule obtains.

Complainant’s argument against the application of the rule of the Cooper and Moore Cases is based mainly upon the English decisions, which, as before suggested, do not prevail in this state. The only New Jersey case cited by the complainant which seems, in any way, to be opposed to this rule, is Freeland v. Mandeville, 28 N. J. Eq. 559. That case is clearly distinguishable from the ease at bar. There, although there was a power of sale given to the executors, the fact that the will made meagre provision for the widow, totally disproportionate to the dower right, evidently moved the chancellor to the conclusion that it was not the intention of the testator to leave liis widow so inadequately provided for, and that she was not put to her election. It is quite apparent from the bill of complaint that no such situation arises here, and that, by accepting the provisions of the will, the widow obtains considerably more than she would have obtained if she had elected to take dower only. However, the decree in the Freeland Case seems to have deprived the widow of her rights under the will, as dower was allowed only from the time her enjoyment of the rights thereunder ceased.

But it is claimed that the language of the will, “all the rest and remainder of my estate, both real and personal,” as used in the residuary clause, and the words conferring the power of sale on the executors, are limited to the estate of the testator after the subtraction of the dower right. To this proposition I cannot accede. If it was the intention of the testator that the legacies be in lieu of dower, as I believe it was, then his estate consisted of the property freed from any claim of dower; in other words, having determined the intention of testator to give the legacies in lieu of dower, the question as to the meaning of the words, “of my estate,” and the language of the tenth clause of the will, in so far as those words may be in limitation of the extent of the testator’s “estate,” as suggested in the final point of complainant’s brief, cannot be here involved. It will be noted, also, that all of the New Jersey cases cited in support of this point either have to do with “undivided interests” of the testator or were controlled by the Dower act, except the case of Freeland v. Mandeville, disposed of supra.

I am, therefore, convinced that this case comes within the rule of the Cooper and Moore Cases above cited; that it was the intention of the testator that the legacies should be in lieu of dower; that the widow is put to her election, and, having elected, must abide by such election; that the bill, therefore, shows no cause of action, and that the motion to strike out the bill should be granted.


source: Caselaw Access Project

author: Berry, V. C.

license: Public Domain

text:
    Louis E. Brown, complainant, v. John P. Smythe & Company, a body corporate, et al., defendants.
    [Decided July 16th, 1925.]
    1. Section SS of the General Corporation act applies to service on foreign corporations in personal actions as distinguished from actions in rem.

    2. A foreclosure suit is a proceeding in rem.

    3. A foreign corporation which develops land in this state for marketing purposes, and does many things in relation to the land to accomplish that end, is doing business within this state within our statute.
    4. When a foreign corporation enters this state for the transaction of business, it submits itself to our jurisdiction, and service of process may be made on it in the same manner as domestic corporations may be served.
    On bill to foreclose. On motion to quash.

      Mr. Lester C. Leonard, for the motion.

      Messrs. Quinn, Parsons & Dor emus, contra.

   Berry, V. C.

This is a motion to quash the service of process on the ground that the defendant, a foreign corporation, was not legally served. The bill in this cause was filed to foreclose a mortgage and for the purposes of this motion a stipulation was signed by the solicitors of the respective parties agreeing that the mortgage, which is the subject of this foreclosure suit, was made and entered into in the State of New Jersey, and that it encumbers lands located in this state, and that the mortgage is recorded in the Monmouth county clerk’s office. Tlie defendant John P. Snathe & Company, is a corporation of the State of New York, and owns property in New Jersey which is covered by the mortgage in question.

The affidavit of the complainant filed herein shows that the propert3r, which is the subject of the mortgage sought to be foreclosed, has been mapped and plotted by the defendant company for at least eight months; a development scheme has been arranged by the defendant company; maps have been placed in the hands of various agents with price lists thereon, in the borough of Red Bank, for the sale of lots from this tract of land; streets have been made through the land in question; bids have been advertised for by the defendant company for the laying of sidewalks and graveling of streets, and that a sign has been erected on the premises for many months, advertising the sale of lots on the tract. A photograph of this sign has been submitted. None of the statements in the affidavit of complainant are denied.

Service of the subpoena ad respondendum was made upon John P. Smadh, who resides at Pair Haven, Monmouth county, New Jerse3', as the president of the defendant company. The defendant appears specially for the purpose of making the motion to quash.

The defendant claims that the company has not been engaged in business in this state and that it is not authorized to transact business herein. On the other hand, the complainant claims that the defendant is engaged in the business of a real estate developer in this state and points, to the facts set out in the above-mentioned affidavit in proof thereof. The solicitor of complainant insists that process was properl}' served upon the defendant and cites in support of this contention the case of Moulin v. Insurance Co., 25 N. J. Law 57; National Condensed Milk Co. v. Brandenburg, 40 N. J. Law 111; Apgar v. Altoona Glass Co., 92 N. J. Eq. 352, and section 88 of the General Corporation act. 2 Comp. Stat. 1653. It is further insisted upon the part of complainant that inasmuch as the mortgage contract in this cause was made within the State of New Jerse3T, this case comes within the rule of the Moulin Case as interpreted by Mr. Justice Dixon in National Condensed Milk Co. v. Brandenburg.

The defendant insists that section 88 of the General Corporation act above referred to does not apply to the instant case because this case is an action in rem, and that section 88 applies only to personal actions. Undoubtedly this is so. Cohn v. Colgan, 97 N. J. Eq. 9. In that case, which was a suit for specific performance of a contract for the sale of land, Chancellor Walker construed section 87 of the General Corporation act as having no application to an action in rem, and as the language of section 88 of the General Corporation act is practically identical with that of section 87, in so far as it desci’ibes the class of actions to which it applies, the same rule of construction would apply; and, indeed, this is now admitted by counsel for complainants.

A foreclosure suit is undoubtedly a proceeding in rem. 27 Cyc. 1588; 1 R. C. L. 329.

Unless, therefore, the defendant company is actually engaged in doing business within this state, the service of the subpoena in this suit would not be good.

There is nothing before the court to indicate the purposes for which the defendant company was organized, but, for the purpose of this motion, it may safely be assumed that whatever the company has done in this state is not ultra vires, and the undisputed facts, as shown by the stipulation of the attorneys, and the affidavit of complainant, are that the mortgage, which is the subject of this foreclosure suit, was made and entered into in this state; that it encumbei’s property located herein; that the mortgage is recorded in the Monmouth county clerk’s office, and that the defendant company has mapped, plotted, advertised for sale, appointed agents to sell the various lots of the defendant company, and taken steps to improve and develop its property for the purpose of selling it off in lots; in short, the company has done practically everything that any company engaged in the development of real estate would, under like circumstances, do for the purpose of marketing its lands. In my judgment, this company is doing business within this state. When a foreign corporation enters this state for the transaction of business, it submits itself to the jurisdiction, and service may then be made upon any officer or agent of the company in the same manner as domestic corporations may be served. Norton v. Bridge Co., 51 N. J. Law 442; Doctor v. Desmond, 80 N. J. Eq. 77; Condensed Milk Co. v. Brandenburg, 40 N. J. Law 111.

My conclusion is that service of the subpoena in the instant ease was good, and the motion to quash will therefore be denied.


author: BmBY, V. C.

text:
    Charles L. Rodgers, complainant, v. Carrie M. Cressman et al., defendants.
    [Submitted July 24th, 1925.
    Decided July 31st, 1925.]
    1. The rights of a private person purchasing at a tax sale are governed, as to the owner’s right of redemption, -by the law in force at the time of the sale, and a statute which takes away, reduces time for, or otherwise impairs a right of redemption which has already vested, is unconstitutional.
    2. The right to redeem real estate sold for taxes of 1903 and 1904 on payment of the amount of the purchase-money, iwith interest, but without payment of the subsequent taxes paid by the purchaser, was fixed and vested by the Tax act of 1903', and not affected by the Tax Sale Revision law of 1918, notwithstanding the retrospective provisions of sections 59, 61 and 62 of the act of 1918.
    3. Where a statute permits of two constructions, one constitutional and the other unconstitutional, that construction which will save the act will be adopted.
    On bill to foreclose tax lien.

      Mr. Halsted H. Wainwright, for the complainant.

      Messrs. Hopkins & Herr, for the defendants.
   BmBY, V. C.

The complainant, on July 8th, 1905, purchased at tax sale, held by the collector of taxes of the borough of Lavallette, Ocean county, New Jersey, the lands described in the bill of complaint. The bill to foreclose was filed by the complainant a few months prior to the expiration of the twenty-year period limited in the Tax act of 1908 for barring the right of redemption. After the bill was filed and an order of publication against absent defendants taken, the defendant Carrie M. Cressman applied to the solicitor of the complainant to redeem the property from the tax sale. Thereupon, without further pleadings, the cause was submitted to this court upon an agreed state of facts and under stipulation that the court might determine the question of law raised by the bill to foreclose, the offer to redeem and the agreed state of facts.

This state of facts shows that the tax sale above referred to. was held under the provisions of the 1903 Tax act (4 Comp. Stat. p. 5066); that the complainant paid as the purchase price of said lands at said sale the sum of $4.60, which represented the taxes assessed against said lands for the years 1903 and 1904, together with interest and costs accrued thereon; that the tax sale was regular in every respect and that the complainant secured a valid and effectual tax certificate therefor which was dated July 14th, 1905, and duly recorded on August 21st, 1905, in the office of the clerk of Ocean county, in book 295 of deeds, page 96. Apparently, it was not recorded as a mortgage as provided in section 56 of the said Tax act, and the stipulation does not disclose whether the certificate was entered in the record of unpaid taxes for the taxing district by the county clerk as provided in said section. As this point, however, is not raised in the brief of counsel for the defendant, I shall assume, for the purpose of this decision, that the certificate was so entered in the record of unpaid taxes.

Subsequent to the tax sale the complainant paid taxes assessed against said lands from 1905 to 1924, both inclusive, including a street assessment in 1913 of $65.1?, making a total of municipal liens paid by the purchaser subsequent to the sale of $186.18. After the entry of the order of publication above referred to, the defendant tendered to the complainant the sum of $4.60, the amount shown by the certificate of tax sale to have been -paid by him, together with clerk’s fees for recording, interest thereon and costs of the suit. The complainant refused said tender and claimed to be entitled not only to the sum so offered but to all of the amounts paid by him for municipal liens subsequent to the tax sale, with interest on each of such payments, which, the complainant claimed, amounted to $357.20, besides the costs of suit. The purchaser at tax sale filed no proof with the collector of taxes of the borough of Lavallette of the amount of subsequent liens and expenses incurred, such as is required by P. L. 1918 § 1/.8 ch. 287, until some time after this suit was begun, and after the tender above referred to was made. The sole question at issue here is whether or not the defendant is entitled to redeem upon payment to the complainant of the amount tendered representing the purchase-money shown on .the certificate of tax sale, &c., or whether she is also obliged to reimburse him for the subsequent municipal liens paid by him, with interest; and this raises the question as to whether or not the defendant’s rights of redemption are controlled by the 1903 Tax act or by the tax sale revision of 1918. P. L. 1918 p. S8S.

It is contended by counsel for complainant that the defendant’s rights of redemption are determined by the 1918 act, and that, therefore, she has no right to redeem except upon payment of all subsequent taxes and municipal liens paid by the complainant, together with interest thereon and costs. On the other hand, counsel for defendant claim that defendant’s rights are governed by the act of 1903; that that act requires the defendant to pay only “the amount of purchase-money shown on the certificate, with twelve per cent, interest thereon, together with such other fees and expenses,” &c., as provided in section 57 of the 1903 act, and cites, in support of such contention, the case of Moore Securities Co. v. O. J. Hammell Co. et al., 97 N. J. Eq. 292.

The sale having been made under the act of 1903, the proceedings to foreclose were properly taken under that act. Moore Securities Co. v. Hammell et al., supra; Welles v. Schaffer, 98 N. J. Eq. 31.

Section 57 of the Tax act of 1903, as it stood in 1905, at the date of the tax sale here in issue, reads as follows:

“The owner, mortgagee, occupant or other person having an interest in the land sold for taxes, may redeem the same at any time within two yea/rs from the date of sale, or at any time thereafter until the right to redeem has been cut off in the manner hereinafter set forth, by paying to the purchaser or his legal representative or assigns the amount of purchase-money shown on the eertifieate with twelve per cent, interest thereon, together with such other fees and expenses as may be incurred by the purchaser under this act, and the purchaser, on receiving such payment, shall restore to the owner said land, and the sale shall be void, or where the redemption is by a mortgagee, or other persons having a lien on the land or not primarily liable to pay the tax, the person so paying shall succeed to the tax lien paid by him, and the purchaser shall, on receipt of the redemption money at-the option of the party making the payment, either assign the certificate of sale by assignment under seal and acknowledged as a conveyance of land to the person redeeming, or execute a satisfaction of the certificate of sale or cancel the same by endorsement in the manner required by law to satisfy or cancel a mortgage, whereupon the record of the lien shall be cancelled by the county clerk or register in like manner and for the same fees, as in the case of mortgages.” P. L. 1903 § 57 p. 431.

It is obvious that if this section of the Tax -act of 1903 controls the rights of the defendant, then she was entitled to redeem upon her tender. It is equally obvious that if the 1918 act applies, the tender was not sufficient, as that act provides that the owner may redeem the lands sold for taxes by. paying to the collector for the use of the purchaser “the sum paid at the sale, with interest, together with expenses incurred by the purchaser and subsequent municipal liens and interest and costs thereon,” provided the holder of such title shall have made and filed with such collecting officer an affidavit of the amount of such payment.

Section 59 of the tax sale revision of 1918 reads as follows:

“This act shall be deemed and taken to be a remedial act, and to operate both prospectively and retrospectively, and be liberally construed to effectuate the remedial objects thereof.” P. L. 1918 p. 899.

Section 61 of said act reads as follows:

“All acts, general and special, inconsistent with the provisions of this act, are hereby repealed, but this repealer shall not affect any rights heretofore, established or created; provided, however, that this section shall not be .construed to prevent the continuance and completion under the laws in force at the time such proceedings were commenced or any other proceeding or proceedings not herein mentioned which may have been or may be pending and remain unfinished and incomplete at the time this law shall take effect.” P. L. 1918 p. 900.

Section 62 of said act xeads as follows:

“This act shall take effect on the first day of July, nineteen hundred and eighteen, and its provisions shall extend to proceedings on and after that date relating to any taxes, assessments for improvements or other municipal charges, heretofore or hereafter assessed or imposed, or which became a lien before or after that date.” P. L. 1918 p. 900.

)

Counsel for complainant contends that the defendant, not having taken any steps toward redemption of these lands from tax sale under the 1903 act, prior to the passage of the 1918 act, thereby lost whatever rights she had under the 1903 act and is obliged now to proceed under the 1918 act in order to redeem; that the 1918 act is expressly retrospective; that there was no vested right of redemption in the defendant until after tender, and not having made any tender until after the adoption of the 1918 act there can be no objection to applying the provisions of that act retrospectively to the sale in question.

I am unable to agree with coxinsel for complainant on these points.

In the case of Moore v. Hammell, supra, the court, in discussing the rights of a tax purchaser under the 1903 act, said: “One of those rights was to acquire a tax title by mailing a notice to redeem, &c., without any requirement of publication.”

The 1918 act requires publication in addition to mailing a notice. Continuing, the court said: “Moreover, the proviso saves any proceedings under the former law .not complete at the time the 1918 act takes effect. The serving of the notice to redeem is part of the tax sale ‘proceeding’ which is complete only after notice is served, proof of service made and filed, and time for redemption has expired.”

In the instant case, in considering the rights of the defendant, it might be well said that one of these rights was to redeem upon payment “of the amount of purchase-money shown on the certificate with twelve per cent, interest thereon,” &c.' The instant foreclosure proceeding, under the case above cited, is a part of the tax sale proceeding, and the offer of redemption is made in that proceeding. Therefore, the 1903 act must govern. As the offer to redeem is here made in the foreclosure proceeding, it is not necessary for me to decide what would be the result if the defendant had filed a bill to redeem or whether or not such a bill would be considered a part of the tax sale proceeding.

Complainant’s contention that the defendant’s right to redeem had not vested is clearly wrong, as her right to redeem vested in her at the same time the right to perfect the title vested in the purchaser (the complainant) which was on the day of the sale. Trustees, &c., of Jersey City v. Trustees, &c., of Weehawken, 80 N. J. Law 572.

If this right to- redeem vested at the time of the sale, and, in my judgment, it did, then to give the 1918 act the retrospective effect claimed for it by the complainant, would render the act in this respect unconstitutional, as depriving the defendant of property without due process of law. Plahn v. Givernaud, 85 N. J. Eq. 143.

In this ease it was held that an act of the legislature in 1914 extending the time for appeal in chancery suits, and which act was enacted after the time limit fixed by law at the time the decree appealed from had expired, was unconstitutional. The act attempted to revive the right of appeal from a decree after the expiration of the time limited there-' for and after the vesting of property rights thereunder. The court held that this could not be done. Hnder the 1903 act, the defendant’s right to redeem, having vested at the time of the sale, continued until “cut off” as provided in the act. The 1918 act could not shorten the time within which this right to redeem could be exercised, nor increase the amount required to be paid by the defendant for such redemption. 12 Corp. Jur. 966; Fitzsimmons v. Bonavita, 77 N. J. Eq. 277.

The legislature has no power to increase the lien of taxes already levied, but this would, in effect, be the result of giving the 1918 act the retrospective effect claimed for it by the complainant. At the time of the sale the defendant had the right to redeem upon payment of $4.60, plus interest and costs. The lien of this amount was an encumbrance on the lands of the defendant. Her right to redeem that land from this lien for a certain specified sum, her equity of redemption, was a vested right in property. An equity of redemption is an estate in land, subject to the encumbrance, but which is capable of descent to heirs, subject to devise by will, or conveyance by deed. 1 Pom. Fq. Jur. §§ 78, 162, 876. To my mind, the owner’s right to redeem his property from a tax sale is similar to the mortgagor’s equity of redemption. To give the 1918 act the construction claimed for it by the complainant would be to permit the legislature to increase the lien or encumbrance resulting from this tax sale to $191.78, plus interest and costs, bringing the total up to $357.20, which is the amount the complainant now claims. Clearly, this cannot be allowed. Fitzsimmons v. Bonavita, supra.

The rights of a private person purchasing at a tax sale are governed, as to the owner’s right of redemption, by the law in force at the time of the sale. 12 Oorp. Jur. 966 § 524; Rogers v. Nichols, 186 Mass. 440; 71 N. E. Rep. 950; Fitzsimmons v. Bonavita, supra.

In Fitzsimmons v. Bonavita, supra, a bill was filed to foreclose a tax lien. The tax sale was made in 1906 under the provisions of the act of 1903, and was sold for $7.57. In 1907 the owner tendered the purchaser the sum which he paid, plus interest and costs. The purchaser refused to accept this tender and demanded $10 as fees and expenses incurred under the act, as representing a-reasonable fee for services actually performed by the purchaser’s counsel in searching the title. At that time there was no provision in the law authorizing such a charge, but afterwards, in April, 1907, an act was passed (P. L. 1907 p. 459) authorizing a charge not exceeding $10 for fees for searches in ascertaining the owner of property purchased at tax sale. In deciding that the purchaser was not entitled to the $10 search fee, the court said:

“So far as the tax itself is concerned, and the fees and expenses of the sale to pay the same, there can be no question that the amount to be levied, either by way of tax or fees and expenses, must be certainly and definitely fixed by the Tax act itself, and that no fees or expenses except such as are definitely and clearly provided for in the law itself could be raised by sale, or imposed on the land. Road Commissioners v. Freeholders of Hudson (Court of Errors and Appeals, 1883), 45 N. J. Law 173, 175. The tax and the warrant for sale taken together are the final and conclusive adjudication of the amount due and the execution for raising the amount with definite fees. It has been held that expenses for raising the tax by way of sale cannot be added to the tax unless authorized by statute. Hapgood v. Morten, 28 Kan. 764; cited Black T. Tit. (2d ed.) 235, 298. The question is whether on the redemption of a tax this principle of certainty in the amount to be paid is also required, and whether any fees or expenses incurred after the purchase other than those which are specially provided for in the act can be demanded as a condition of redemption. In my judgment they cannot, and in the absence of a clear and express legislative intent to the contrary, no fees or expenses other than those definitely fixed by the act should be required to be tendered.”

A statute which takes away, reduces the time for, or otherwise impairs a right of redemption which has already vested, in unconstitutional. 12 Corp. Jur. 966 § 524, and cases there cited.

Where the language of an act permits of two constructions, one constitutional and the other unconstitutional, the court will always adopt that construction which will save the act. Commercial Trust Co. v. Hudson County Board, 87 N. J. Law 179; State v. Sutton, 87 N. J. Law 192; State v. Tachin, 92 N. J. Law 269; affirmed, 93 N. J. Law 485; Curtis Sand Co. v. State Highway Commission, 111 Atl. Rep. 16; Hudspeth v. Swayze, 85 N. J. Law 592.

Counsel- for complainant further contends that unless the retrospective construction claimed by him is given the 1918 act, section 62 of that act is meaningless. I cannot agree with this argument. Section 62 certainly applies, in any event, to sales of land after the 1918 act became effective, for taxes levied both before and after 1918. This is clearly permissible. Rogers v. Nichols, supra. The theory of the 1903 act, apparently, is that the purchaser is entitled to possession of the lands purchased upon recording the certificate of tax sale as a mortgage (that the certificate of tax sale in this case was not so recorded is immaterial) and is entitled to the rents and profits of the land without liability for accounting to the owner. Anson v. Elwood, 76 N. J. Law 56. This would seem to indicate that it was the idea of the legislature when the 1903 act was adopted, that the purchaser was obliged to pay the subsequent taxes while he had possession of the land in consideration of his right to occupy the same or to collect the rents.

If it be said that to deny the tax purchaser the right to a refund of the subsequent taxes and municipal liens paid by him is a hardship, the answer is that the purchaser only is to blame for this result; that his own neglect has resulted in that hardship, as he might have served the notice to redeem or foreclosed his tax lien at any time after two years after the tax sale and either obtained title to the land or avoided the payment of subsequent taxes if redemption had been made.

The instant case is distinguishable from the case of Smith v. Specht, 58 N. J. Eq. 47, in that there a bill to redeem was filed by the owner of the land and the court held that the owner, coming into a court of equity, was obliged to do equity, and would be required to reimburse the tax purchaser for all subsequent municipal liens paid by him before redemption would be permitted, and also that the purchaser would be required to account to the owner for the rents and profits of the land received by him during his possession thereof. As stated above, this is not a case where the owner filed a bill to redeem, but is an application for redemption in a foreclosure suit brought by the tax purchaser. In my judgment, the rights of the defendant are determined by the Tax act of 1903, and the complainant is not entitled to be reimbursed by the defendant for subsequent municipal liens paid by him. I will advise a decree in accordance with the foregoing conclusions.


author: Berry, Y. C.

text:
    Mabel T. Brower, complainant, v. Clifford H. Brower and Madeline Brower, his wife, defendants.
    [Submitted August 11th, 1925.
    Decided August 14th, 1925.]
    1. Where property is conveyed to a child to be paid for by a parent, the presumption is that the conveyance is an advancement, which presumption can be rebutted only by the clearest and most positive proof.
    2. Where property paid for by a parent was conveyed to his son for the purpose of defrauding his creditors, with the knowledge and approval of his wife, the wife is not entitled to have a resulting trust declared therein, as she does not come into, equity with clean hands.
    3. A widow who assisted in the management of her husband’s business and paid some of his debts out of her personal fund after his death is, under the special circumstances of this case, entitled to an accounting, and to be repaid out of his estate for money advanced by her.
    On bill, &c. On bill, answer, replication and proofs.

      Mr, Alston Beelcman, for the complainant.

      Mr. Lester 0. Ijeonard, for the defendants.
   Berry, Y. C.

(orally).

The bill in this case is filed, first, to establish a resulting trust in real estate situate at Eed Bank, New Jersey, which was conveyed to the defendant Clifford H. Brower by W. Harold Powers and Prank E. Price, by deed dated February 3d, 1920, and recorded in the Monmouth county clerk’s office in book 1119 of deeds, pages 464, &c., on the ground that the parchase price of this property was paid to the grantors in said deed by Trevone H. Brower, the father of the grantee in said deed, and the defendant in this suit. Trevone H. Brower has since died.

The bill also asks that a lien in favor of complainant be established against the said property for moneys alleged to have been advanced by the complainant to Trevone II. Brower on account of the purchase price of said property; also that an accounting be had of amounts paid by the complainant for the account of the estate of Trevone H. Brower since his death and for the payment of debts of that estate; that the respective rights of the parties to this suit in said real estate be established, and that an alleged agreement between the complainant and defendant, whereby it is alleged the defendant agreed to turn over to the complainant one-half of all the estate of Trevone H. Brower, including a one-half interest in the above-mentioned real estate, in consideration 'of the complainant’s conducting the business of “Brower Sisters,” to be hereafter referred to, pending the settlement of the estate, be specifically performed.

The testimony shows that prior to 1916, and during the lifetime of the defendant’s mother, who was the first wife of Trevone II. Brower, defendant’s father and mother conducted a fruit canning business at Eed Bank, under the name of “Brower Sisters.” The defendant’s mother died, apparently, some time early in 1916 or late in 1915; the date has not been definitely established.

In 1916, Trevone H. Brower, who was then conducting the canning business under the name of Brower Sisters, entered into an agreement to purchase the property described in the above-recited deed, from the then owner, for $7,000, which sum was to be paid by the assumption of a $5,000 mortgage then on the property, by the purchaser, the payment of $200 in cash at the time the contract was entered into, $300 the first of the following January, and $500 on January 1st for the next three succeeding years, at which time title was to be delivered, according to the terms of the agreement.

In July, 1917, Trevone II. Brower married the complainant, and thereafter the complainant and her husband conducted the canning business which had theretofore been conducted by Trevone H-. Brewer, under the name of Brower Sisters. The bank account was maintained in one of the Red Bank banks in the name of Brower Sisters, both parties evidently having the right to draw on these funds, although no canceled checks are produced showing that the complainant ever signed any checks for the so-called firm. The testimony given by her to this effect, however, is not denied. This business was continued under the name of Brower Sisters down to the death of Trevone H. Brower, on September 10th, 1923.

After the contract of sale above mentioned was entered into, and before the marriage of complainant to Trevone H. Brower, Mr. Brower entered into possession of the property which was the subject of the above-recited deed, and carried on the business conducted under the name of Brower Sisters there, and continued this down to the time of his death.

The deed in consummation of the contract of sale of this property was executed by the vendors in Feb ruar jr, 1920, and the deed was made in favor of Clifford H. Brower, the defendant. Although settlement was supposed to have been had on this transaction in February, it does not appear from the testimony who had the deed for the premises until in August, 1920, at which time a building and loan mortgage was executed by the defendant in the sum of $5,000 in substitution for, and out of the proceeds of which, the $5,000 mortgage referred to in the agreement of sale was paid. After the execution of the building and loan mortgage the deed for the property in question, according to the testimony of the defendant, was delivered to him, either by the attorney in whose office the mortgage was executed, or by his father. The defendant does not seem to be entirely clear on this point. He says that immediately after he received the deed he put it in his safe deposit box in the bank, and that it has been there ever since until this controversy arose.

On the other hand, the complainant testifies that Trevone H. Brower had this deed in his possession.up until the time of his death, and that she gave the deed to the defendant after Trevone H. Brower died.

It appears from the testimony, and, in fact, is admitted by all parties, that at the time of the conveyance of the property in question to Clifford H. Brower, the defendant, his father had a number of judgments in the supreme court standing against him, these judgments representing a considerable amount of indebtedness incurred in a former business in which he had failed. It is claimed by the complainant that the title to the property in question was vested in the defendant for the purpose of defeating the lien of these judgments. The defendant testifies that he has no knowledge with respect to this alleged fact whatever, but claims that his father told him before the conveyance was made that he intended to buy the property for him, and that he afterwards told him, on at least two occasions, that he had bought the property for him, and that he intended that it should be his. It appears, however, that the first knowledge that the defendant had that the property stood in his name was in August, 1920, at the time the building and loan association mortgage was executed.

The complainant also alleges that after the death of her husband, and pursuant to an agreement entered into between her and the defendant, she paid out large sums in settlement of debts of her husband’s estate, and that this was with the understanding that she was to receive one-half of all the assets of the estate, together with a one-half interest in the real estate, and that otherwise she would not have paid' these debts.

It further appears from the testimony that the only bank account which Trevone H. Brower had in his lifetime, or at least after the marriage of the complainant, was the Brower Sisters’ account. Unquestionably, from the testimony the complainant spent a large part, if not all, of her time in the plant of Brower Sisters, helping with the work there. The claim is, on the one hand, that she did this as part owner, and on the other hand that it was simply in the performance of her wifely duties, and that the gain from the business was the gain of the husband, in which the wife had no share, except the usual share of a wife. In this connection there was offered in evidence at the trial a form of general release, executed by Trevone H. Brower and Mabel Brower, at Red Bank, New Jersey, and following their names “Brower Sisters,” being inserted in the release. This release was signed by Mr. and Mrs. Brower, and acknowledged before a notary public. This was offered to show that the firm known as Brower Sisters was composed of Trevone H. Brower and Mabel Brower.

The defendant, in connection with the statement by the complainant that she delivered the deed for the property which is above mentioned to him after his father’s death, claims that in this she is mistaken, that what she did deliver to him after his father’s death was a deed from Mary E. Hopping and husband to W. Harold Powers and Prank E. Price, dated December 1st, 1913, and recorded in book 966 of deeds for Monmouth county at page 85. This deed was offered in evidence and marked Exhibit D-l. Defendant claims that this is the deed, and the only deed which he received from the complainant.

My understanding of the law in this state with respect to establishing resulting trusts, where property is conveyed to a child, to be paid for by the parent, is that the presumption is that such a convej'ance is considered as an advancement, and that that presumption can be rebutted only by the clearest and most positive proof, that it was not so intended.

My mind is also perfectly clear on another proposition of law which may have its application to this case, and that is that where a conveyance is made to a person other than the one who paj^s for the property, at the direction of the purchaser and for the purpose of defrauding his creditors, no resulting trust arises, and in such a case equity will leave the parties exactly where it finds them, as a result of their wrongdoing.

Erom this it may be deduced that unless the complainant oan establish that it was her money, at least in part, which was applied to the purchase of the property in question, and that she had no part in this attempt to defraud her husband’s creditors, the court will bo obliged to hold that irrespective of whether this conveyance was an advancement by the father to the son, the father, or any representative, or anjrone claiming under him, would now be barred from establishing a resulting trust in that property. # t'.i # sjí

Since delivering the foregoing, counsel for the respective parties have submitted briefs which I. have examined with care, but the conclusion at which I arrived at the hearing and which I then expressed to counsel is not at all changed.

The evidence in this case is overwhelming, and conclusive to the effect that the conveyance of the land here involved was made to the defendant for the purpose of defrauding the creditors of Trevone H. Brower, and this with the knowledge and approval of the complainant. She participated in the attempted fraud and cannot now be relieved from it. Besson v. Eveland, 26 N. J. Eq. 469; Geroso v. DeMaio, 75 N. J. Eq. 410: Gould v. Hurley, 75 N. J. Eq. 512.

With respect to the real estate here involved, the complainant does not come into equity with clean hands, and the bill, so far as it claims a resulting trust in the land mentioned, or any lien thereon or interest therein on behalf of the complainant, will be dismissed.

The testimony with respect to the oral agreement for an equal division of the property of the estate (including the real estate the subject of this suit) in consideration of the payment of debts of the estate by complainant, is mot at all satisfying, and a decree for specific performance will be denied.

However, I am satisfied that the complainant and her husband, Trevone H. Brower, were joint owners of the business of the “Brower Sisters,” whether as partners or otherwise is immaterial to this decision; also that subsequent to Trevone H. Brower’s death the complainant paid some of the decedent’s debts out of her personal funds; that the estate was indebted to her in some sum for moneys advanced to her husband during his lifetime and that the defendant collected some of the assets of his father’s estate for which he has not accounted. I will, therefore, refer this matter to a master to state on account — first, ■ of the assets of the estate of Trevone IT. Brower at the date of his death; second, of the amount of the debts of the decedent’s estate paid by complainant out of her personal funds; third, of the amount owing to the complainant for loans or advancements made by complainant to her husband before his death and not repaid, and fourth, of the amount of assets of the estate coming into the hands of both complainant and defendant, and not accounted for, stated separately as to each. The complainant is entitled to be repaid out of the assets of the estate which came into defendants’ possession for all moneys advanced by her for the estate, assuming, of course, that the estate is solvent, which I understand it is.

I will advise a decree in accordance with the foregoing conclusions.


text:
    John Sharpe and Helen Maclay Sharpe, complainants, v. Clinton Stretch, defendant.
    [Submitted June 30th, 1925.
    Decided August 14th, 1925.]
    1. Equity will not compel a purchaser- to specifically perform his contract where there is a doubtful question of law or fact affecting the title of the vendor.
    2. Where a vendee agreed in writing to purchase land subject to certain named restrictions, and afterwards discovered that prior deeds to the land contained other restrictions which would prevent, if valid, the erection of any house on the land so purchased, and it appearing' that the vendee has been notified -by other property owners in that street that they would resist any attempt by him to erect any -building on the lot in question, the contract will not be decreed to be specifically performed.
    On bill for specific performance. Submitted on pleadings and agreed state of facts.

      Mr. Charles Jones, for the complainants.

      Mr. David A. McBride, for the defendant.
   Berry, Y. C.

The bill in this cause was filed for specific performance of an agreement of sale and purchase of certain land in the city of East Orange. The agreement of sale provided that the property should, be purchased by the defendant of the complainant for $2,650, $500 in cash to be paid upon the signing of the agreement; $2,050 by the assumption of a mortgage on the property and $100 in cash on delivery of deed. The property is described in said agreement as follows:

All the following described premises in the city of East Orange, county of Essex and State of New Jersey:

All that certain plot situate on the northeast comer of Rutledge avenue and North Walnut street, having a frontage of fifty-nine (59) feet on Rutledge avenue, one hundred and fourteen (114) feet on North Walnut street, forty-nine (49) feet across the rear and being one hundred and seven (107) ■feet on the east line, be the same more or less.

The agreement of sale contains the following clause:

“It is further understood and agreed that the plot is restricted to a one-family dwelling with attached garage. Also that the building will be in line with other houses on Rutledge avenue, conveyance to bo made subject to East Orange zoning restrictions.”

The lot has a frontage of fifty-nine feet on Rutledge avenue and one hundred and fourteen feet on North Walnut street. After entering into the agreement of sale, and before the date fixed for settlement, it was discovered by the defendant that the lot which was the subject of this agreement, with other lands, was conveyed by Edward S. Pierson et alto Provident Realty and Construction Company, by deed dated April 1st, 1912, recorded in Essex county in Deed Book W-50, page 31, and that in said deed the following restrictions were imposed upon the lands therein described:

“First. That the above described premises shall be used for private residence purposes only; that not more than one dwelling-house for a single family only shall be erected fronting on North Walnut street, on a lot having a frontage of not less than fifty feet and such residence shall cost not less than $5,000, and the front wall or foundation thereof shall be situated not less than fifty feet from the street line of North Walnut street, and further that said lot shall be located on that most northerly part of said premises and next adjoining the property of one George P. Griffiths.
“Second. That not more than one dwelling-house for a single family only and to cost not less than $5,000, shall be erected on any lot or portion thereof, of a less frontage upon Rutledge avenue than fifty feet and that the front wall or foundation thereof shall be situated so as to conform to the present building line as established by the other residences on the northerly side of Rutledge avenue.
“Third. Any dwelling-house erected facing Rutledge avenue on the lot on the corner of Rutledge avenue and North Walnut street, shall be situated so that the side wall thereof shall be located not more than ten feet from the easterly line of said lot.
“Fourth. These covenants and restrictions shall run with the land until and including twenty years from the date hereof.”

It also appears from the agreed state of facts that after the execution of the agreement of sale the defendant learned that in a deed from North Jersey Realty Company to Agnes D. Matthews, dated June 12th, 1914, and recorded in Essex county in Book K-54, page 447, which deed apparently conveyed the lot in question, with other lands, the following restrictions were imposed on the lands thereby conveyed:

“First. That the above described premises shall be used for private residences only; that not more than one dwelling-house for a single family only and to cost not less than $5,000 shall be erected on any lot or portion thereof of a less frontage upon Rutledge avenue than fifty feet and that the front wall or foundation thereof shall be situated so as to conform to the present building line as established by the other residences on the northerly side of Rutledge avenue.
“Second. Any dwelling-house facing Rutledge avenue on the lot on the comer of Rutledge avenue and Walnut street shall be situated so that the side wall thereof shall be located not more than ten feet from the easterly line of said lot.
“Third. These covenants and restrictions shall run with the land until and including twenty years from the date hereof; if the restrictive agreement made and placed on record by Edward S. Pierson and others affecting property fronting on Walnut street can be waived and made not to apply to the property covered by this deed when it was never intended to have covered by the restrictive agreement in question then and in that case the restrictions above mentioned shall be null and void and shall not apply to> the land conveyed by this deed excepting as follows: That the premises shall be used for private residence purposes only and that not more than two dwelling-houses each for a single family only and each to cost not less than $5,000 shall be erected on the property covered by this deed; that no house shall be erected on any lot or portion of a lot fronting on Walnut street unless said lot or portion of lot shall have a width of not less than fifty feet and mo house shall be erected facing or fronting on Walnut street, the front wail or foundation of which shall be less than fifty feet from the street line.
“These restrictions shall be and remain in effect until October 30th, 1933.”

After discovering the nature of the restrictions imposed upon the lot which was the subject of the agreement of sale, as above detailed, the defendant refused to perform his agreement, contending that the restrictions against the lot which were of record were more onerous than those mentioned in the agreement of sale; that although the restrictions relating to the cost of a dwelling-house which could be erected on the lot were not objectionable, yet the other restrictions would prevent his constructing the house on the lot so as to face Walnut street, and that it was doubtful whether or not any house at all could be erected on the lot. In addition to the foregoing restrictions, there appeared of record an agreement, recorded in Essex county in Deed Book E-45, page 119, between Mary 0. Pierson et al. and Edward S. Pierson, dated April 20th, 1909, which, among other things, provided that the party of the second part, his heirs, executors, administrators and assigns, would not erect, on any of the land which is the subject of that agreement, “any building other than a. dwelling-house for one family— fronting on North Walnut street, north of Rutledge avenue— in the city of East Orange; and further, that he will not erect upon such land any building on a lot having a width of less than 50 feet or having a depth of less than 150 feet.” Additional covenants were contained in the agreement respecting the conveyance of lands owned by the parties subject to the restrictions therein mentiond.

It also appears from a map of the locality submitted with the agreed state of facts, that all buildings abutting on North Walnut street are set fifty feet back from the street line and that all buildings located on Rutledge avenue are set back twenty-seven feet from the sidewalk line. It plainly appears that it would be impossible to construct a building on the lot which is the subject of the agreement of sale here involved which would set back fifty feet from North Walnut street and in line with other buildings on that street. It also appears from the agreed state of facts that defendant has already been notified by other property owners on North Walnut street to the north of Rutledge avenue that they would resist any attempt by the defendant to erect any building upon the lot in question.

The defendant asks dismissal of the complainants’ bill on the following grounds:

1. That the title is not marketable.

2. That there is cloud upon the title.

3. That there is doubt in the restrictions.

4. That it is likely the defendant would be exposed to litigation.

5. That the restrictions in the chain of title are different and more onerous than the restrictions stated in the contract.

6. That enforcement of the contract against the defendant would work hardship upon the defendant, and would not do substantial justice.

It is unnecessary to consider the first and second grounds. I am convinced that the third, fourth, fifth and sixth grounds are well taken.

A mere recital of the restrictions which have been imposed upon the lot in question indicates that there is some doubt as to their meaning and also that they are different and more onerous than the restrictions stated in the contract.

It is admitted in the agreed state of'facts that an acceptance of a conveyance of the lands in question will subject the defendant to litigation in the event that he attempts to erect any building on the lot. This, in itself, is sufficient to refuse specific performance, as it is quite apparent from the agreed state of facts that the parties had in mind the erection of a dwelling-house on this lot at the time the agreement was entered into. Elmora Development Co. v. Binder, 97 N. J. Eq. 126; Smith v. Reidy, 92 N. J. Eq. 586.

Equity will not compel a purchaser to specifically perform his contract of purchase where there is a doubtful question of law or fact affecting the title of the vendor. Kohlrepp v. Ram, 79 N. J. Eq. 386.

Any decree of this court making a comparative construcr tion of the restrictive covenants here involved would not bind the property owners on North Walnut street who have threatened the defendant with litigation, and, therefore, it. is unnecessary and improper for this court to now attempt to construe these restrictions. Franklin v. Creth, 3 N. J. Adv. R. 93; 97 N. J. Eq. 538.

It seems so plain that the enforcement of this contract would be inequitable that it is unnecessary to further discuss the matter or cite further authorities. I will advise a decree dismissing the complainants’ bill.


text:
    Effie F. Dennison, complainant, v. Wilburn N. Dennison, defendant.
    [Submitted July 10th, 1925.
    Decided August 18th, 1925.]
    1. The validity of a contract and its' construction depends on the law of the place where it is made, but the method of enforcing such contract must be in accordance with the lex fori.

      2. All collusive agreements or agreements to facilitate divorce are void as against puiblie policy, but a contract in settlement of claims for alimony is valid where there is no collusion to procure a divorce, and the fact that the agreement is entered into while divorce proceedings are pending .will not affect its validity, unless it can be shown that its purpose or effect was in some way to facilitate the granting of the divorce.
    3. An agreement providing for alimony made during the pendency of a divorce suit is, apparently, not void in Pennsylvania as against public policy if free from collusion and not made for the purpose of facilitating a divorce. It is not void per se in New Jersey.
    4. Equity, in -New Jersey, has complete and exclusive jurisdiction over contracts between husband and wife, and this extends to their specific enforcement. Where a husband asks its enforcement, the burden is on him to Show its fairness; and if he resists its enforcement the burden of proving its unfairness is also on him.
    On bill for specific performance. On bill, answer, replication and proofs.

      Messrs. Lehlbach, J ohnson & Ormond, for the complainant.

      Mr. Hugo Woerner, for the defendant,
   Berry, Y. C.

The bill prays specific performance of an agreement for the payment of alimony and counsel fees entered into between the parties while they were still husband and wife, but pending -a suit by the wife, the complainant here, against her husband, the defendant here, for divorce instituted in Pennsylvania in Mav, 1920, on the grounds of adultery and extreme cruelty. The parties were married in the State of New Jersey. The acts of adultery charged were alleged to have been committed in New Jersey. The acts of cruelty charged were alleged to have been committed in the State of Pennsylvania, where the parties resided at the times mentioned. An order to show cause why defendant should not be obliged to pay alimony and counsel fee to complainant was entered in the Pennsylvania proceeding in January, 1922. On May 11th, 1922, after the entry of this order, hut before any hearing thereon, a written agreement was entered into between the parties, reciting the divorce action and the alimony proceedings, whereby the defendant agreed to pay the complainant $25,000 in lieu of alimony and counsel fees — $5,000 down and $2,500 annualy thereafter for a period of eight years. Immediately after the execution of this agreement the divorce libel was amended by striking out the charge of adultery as one of the grounds for divorce. While the written agreement does not mention this fact, it appears from the testimony in this cause that the abandonment of the charge of adultery in the divorce action was one of the considerations of the agreement, and that another of the considerations was the agreement by the complainant not to institute proceedings against the co-respondent named in the divorce libel for damages for alienation of the affections of the complainant’s husband. A final decree for divorce was entered in favor of the complainant in the Pennsylvania proceeding on July 5th, 1922. Yo defense to this proceeding was interposed by the defendant, and the decree was based upon the ground of extreme cruelty.

The $5,000 down payment mentioned in the agreement and the first annual installment of $2,500, due January 19th, 1923, have been paid. The defendant refused to pay the installment falling due under the terms of the agreement on January 39th, 1924, and thereupon this suit was brought to compel such payment.

The answer of the defendant, filed in this cause, alleges that the agreement is void as against public policy of the State of Pennsylvania because collusive, and as being an agreement to facilitate the procurement of a divorce; that the agreement was contingent upon the complainant here obtaining a decree of divorce in the Pennsylvania proceeding above referred to, and that one of the considerations for said agreement was his engagement not to defend said suit for divorce.

Counsel for defendant, in his brief, bases his argument upon three propositions, as follows:

1. That the complainant has an adequate remedy at law.

2. The agreement sued on is void in law because it is against public policy.

6. The agreement sued on is void in fact because it is collusive.

I shall consider these three propositions in the inverse order of their statement.

As a general proposition of law, it may be stated that all collusive agreements or agreements to facilitate divorce are void as against public policy. As was said by Vice-Chancellor Garrison, in Sheehan v. Sheehan, 77 N. J. Eq. 411 (at pp. 419, 420) :

“The policy of our law favors marriage, and disfavors divorce. Parties may not be permitted, to make agreements with respect to divorce suits which would be perfectly proper to be made in other litigations. In divorce suits, public policy requires that certain agreements shall not be made between the parties, and when such interdicted agreements are made they are termed ‘collusive.’ ” See, also, Costill v. Costill, 47 N. J. Eq. 346; Drayton v. Drayton, 54 N. J. Eq. 298; Pohlman v. Pohlman, 60 N. J. Eq. 28; Griffiths v. Griffiths, 69 N. J. Eq. 689, and see, generally, 13 Corp. Jur. 463. This is also the law in Pennsylvania. In re Mathiot's Estate, 90 Atl. Rep. 139; Hoffman v. Hoffman, 30 Pa. 417; Kilborn v. Field, 78 Pa. 194; Irvin v. Irvin, 169 Pa. 529; Latshaw v. Latshaw, 18 Sup Ct. 465, and, at least in this state, collusion may be implied from the acts of the parties. Griffiths v. Griffiths, supra.

The question to be determined by me under this heading, therefore, is whether or not, in view of the evidence submitted to the court in this case, the agreement was, in fact, collusive, and in considering this question it must be borne in mind that the person most interested in having the agreement determined to be collusive, and, therefore, 'void, is the defendant himself.

The only testimony submitted indicating that the agreement here under review was collusive is that offered by the defendant. He testified that as a part of this transaction, although not expressed in the written agreement, he agreed not to defend his wife’s suit for divorce, and that his obligations under the agreement were contingent upon a decree being entered against him; also, that the agreement on behalf of his wife to withdraw her charge- of adultery is an additional feature which renders the agreement collusive. His testimony, coupled with his attitude on the witness-stand, was very far from convincing, and it seems to me that the fact that he paid $5,000 to his wife’s attorney on the day the terms of the agreement were concluded and nearly two months before the decree for divorce was entered rather negatives his contention that the agreement was contingent upon the entry of a decree; but counsel for defendant insists that the court ought to infer collusion from the course of the divorce proceedings and the actions of the parties in connection therewith. While, of course, any agreement made between the parties to a divorce suit during its pendency is always open to suspicion, I do not find any evidence relating to the divorce suit here in question which is sufficiently convincing to me to justify me in finding collusion. Counsel for defendant suggests that it is logically inferable that prior to the beginning of the divorce suit both parties were desirous of being divorced, and that the suit for divorce was the result 'of an agreement between them that the wife should obtain a divorce. The answer to this is that there is not a scintilla of proof on that point. It is quite clear to me that up until the time of the negotiations for the settlement of alimony no agreement respecting the divorce suit existed between the parties. The contention of the defendant that the agreement was collusive rests entirely, therefore, upon his own testimony, and such inferences as the court might draw from the facts in connection with the divorce suit. Opposed to this evidence is the positive testimony of the complainant herself and two reputable members of the Philadelphia bar, one of whom represented the defendant in the Pennsylvania divorce proceeding and who prepared this agreement. These witnesses all testified clearly and positively that not only was there no agreement that the defendant should not interpose a defense to the divorce action, but that he had no defense to interpose. This presents a disputed question of fact, and I have no hesitancy in saying that I prefer to accept the testimony of the complainant and these two lawyers rather than that of the defendant. The clear weight of the evidence is against the defendant on this point. As to the withdrawal of the charge of adultery indicating collusion, to my mind it does not. This is not the suppression of a defense. It is an abandonment of one cause of action, and might be considered as the suppression of scandal in the interest of morality. Such an agreement is perfectly proper under the Pennsylvania decisions. Irvin v. Irvin, supra. In that ease the wife entered into an agreement that she would not assign any other cause for divorce than desertion. It was claimed that this rendered the agreement void, and the court said: “There is no semblance of an illegal consideration in the agreement. She only expressly stipulates s'he will not assign any other cause for the divorce than desertion. In this there was not only nothing unlawful, but there was nothing discreditable to either. Prom the very fact of excluding other causes there is a fair implication that the husband was conscious of the existence of others involving graver moral turpitude than desertion. A sense of shame in him still remained and there was a willingness on her part to suppress that which would be disgraceful to him.”

It seems to me that this language has an apt application to the facts in this case.

I am therefore clearly of the opinion that the agreement was not collusive in fact.

Second, is the agreement void in law as against public policy ?

In determining this question, it must be borne in mind that the agreement here in question is a Pennsylvania contract.

If the object of a contract is to divorce man and wife, the agreement is against public policy, and void (IS Gorp. Jur. IBS'); and, generally speaking, all agreements conditioned upon divorce are held to be void as against public policy. IS Gorp. Jur. But the general rule is also that a contract in settlement of claims for alimony is valid where there is no collusion to procure a divorce, and the fact that the agreement is entered into while divorce proceedings are pending will not affect its validity, unless it can be said that its purpose or effect was in some way to facilitate the granting of the divorce. Ibid. While it has been held in this state “that there is nothing illegal in the fact of husband and wife living apart by mutual assent,” and separation agreements between husband and wife, in so far as they provide for separation only, are unenforceable in New Jersey (Aspinwall v. Aspinwall, 49 N. J. Eq. 302), such agreements, when providing for immediate separation, are, in most jurisdictions, held valid. 13 Corp. Jur. 465. This is especially so in Pennsylvania. See In re Frank’s Estate, 195 Pa. 26; 45 Atl. Rep. 489; In re Singer’s Estate, 233 Pa. 55; 81 Atl. Rep. 898; Irvin v. Irvin, supra, and other cases cited in the notes of 13 Corp. Jur. 466. The validity of a contract depends upon the law of the state in which the contract was made. 13 Corp. Jur. 253.

In Pennsylvania an agreement providing for alimony made during the pendency of a divorce suit, apparently, is not void as against public policy if free from collusion and not made for the purpose of facilitating a divorce.

I have already held that there was, in fact, no collusion in connection with this agreement; that it was not made for the suppression of a defense, nor contingent upon the obtaining of a decree, and that it was not an agreement for facilitating divorce. In a case quite similar to this (Maisch v. Maisch, 87 Conn. 377; 87 Atl. Rep. 729) the Connecticut court said:

“There is no showing that the contract was actually made for the purpose of collusion or suppression of evidence, and no claim that the decree is for any reason invalid, so that nothing remains unperformed except a financial obligation which the defendant seeks to evade. The public policy of Connecticut is not invoked to prevent the doing or continuance of any act forbidden by our law, but as a token of our disapproval of a past transaction in South Dakota between residents of that state which was unobjectionable under their law. A disapproval, moreover, founded on a general objection to the making of such contracts, and not upon any special objection to this particular transaction.
' “We think it clear that the State of Connecticut is not deeply concerned as a matter of public policy in reprehending this contract. The right of each state to determine as a matter of public policy the conditions upon which the marital relations of its citizens may be dissolved is fully recognized, and it would seem that the same policy ought to control the validity of contracts made in view of pending divorce proceedings. It is no part of the public policy of Connecticut to be more careful than the State of Dakota itself in protecting the divorce courts of Dakota against collusion.”

This language seems quite pertinent to the instant case. But it is contended by counsel for defendant such agreements in New Jersey are absolutely void. When I say “such agreements” I mean non-collusive agreements respecting alimony settlements or respecting support and maintenance of the ■wife made either prior to or during the pendency of the divorce proceedings. I am unable to entirely agree with counsel for defendant on this point. While it is quite true that such agreements are usually viewed with suspicion and are not favored by our courts, no New Jersey cáse has gone so far as to hold such agreements void per se; at least, I have been unable to find any such cases, nor has the diligence of counsel for defendant referred me to any. Our Divorce act vests in the court of chancery the power to order suitable support and maintenance for the wife, and “from time to time to make such further orders touching the same-as shall be just and equitable.” This power and authority has been jealously guarded by this court, in consequence of which it has uniformly been held that all such agreements are subject to approval or modification by this court; and no such agreements, unless fair, equitable and just, will be approved or enforced. But they have just as uniformly been enforced when couched in such terms as to meet the court’s approval. Calame v. Calame, 25 N. J. Eq. 548; Buttlar v. Buttlar, 70 N. J. Eq. 675; Buttlar v. Buttlar, 71 N. J. Eq. 671; Halsted v. Halsted, 74 N. J. Eq. 596; Rennie v. Rennie, 85 N. J. Eq. 1; Boehm v. Boehm, 88 N. J. Eq. 74; Hollingshead v. Hollingshead, 91 N. J. Eq. 261.

If these agreements, providing for separate maintenance, were void, per se, they would not have been enforced. In Boehm v. Boehm, supra, Vice-Chjancellor Learning said: “But while the right of spouses to contract touching the discharge-of this matrimonial duty of the husband cannot be regarded as unrestricted, I think it unnecessary to here determine that all such agreements are void or should be wholly disregarded; a settlement upon a wife of a fixed and certain income for her life would accomplish the purpose of the act in so far as the income should be found adequate, and the payment of a gross amount might in some circumstances be treated as relieving a husband from his obligation of support to whatever extent should be found just under the circumstances.”

It will be noted that the agreement under review provides for “money payments of the character of an annuity” for a period of eight years, and is thus brought within the rule announced by the chief-justice in Calame v.Calame, supra.

There is no suggestion in this case that the provisions for the wife are unfair, inequitable, unsuitable or improper. The complainant herself makes no such claim, and, under the circumstances of this case, the burden of proof that the agreement is unjust and unfair is upon the defendant, and he offers no evidence tending to show that fact. Where a husband comes into court and asks the enforcement of a contract that he has made directly with his wife, the burden is upon him to show the fairness of the agreement and the equities which call for its enforcement. Ireland v. Ireland, 43 N. J. Eq. 315. Contrariwise, if the husband resists the enforcement of a contract made with his wife, the burden of proving the unfairness of the agreement as a ground for its non-enforcement, would be upon the husband; but the equities to be considered in determining the fairness or unfairness of such a contract are the equities as applied to the wife. There being nothing in the case to indicate that the contract is in any way inequitable as applied to the complainant, I am therefore of the opinion that the agreement in question is valid under the laws of Pennsylvania, is not invalid, per se, under our law and is enforceable here.

As to the first contention of the defendant, that the complainant has an adequate remedy at law, this may be best answered by the statement that in this state the law is settled that equity has complete and exclusive jurisdiction over contracts between husband and wife, and that this extends to their specific enforcement. Buttlar v. Buttlar, 71 N. J. Eq. 671. The agreement here was made by the parties while they were still husband and wife, and the agreement has been fully performed by the wife and partially performed by the husband. The wife, as was said in Maisch v. Maisch, supra: “In reliance on the defendant’s express agreement, valid where made * * * has omitted to demand alimony from the court and has now lost her opportunity to do so.”

As the complainant has fully performed her part of the agreement, it would be inequitable to permit the defendant to default thereon. While not denying the rule laid down in Buttlar v. Buttlar; supra, with respect to the jurisdiction of the court of chancery in cases of this kind, counsel for defendant claims that as the reason for the rule was there expressed to be “that it is not the incapacity of one spouse to sue the other at law which is controlling, but their incapacity at law to make a contract,” and that as the contract was made in Pennsylvania, where contracts between husband and wife are held valid, the reason for the rule does not here exist, and that, therefore, the rule should not be applied; but, in this connection, it must be borne in mind that while a contract is construed according to the law of the place where made, the method of enforcing such contract must be in accordance with the lex fori, which, in this case, is the law of New Jersey. Jaqui v. Benjamin, 80 N. J. Law 10; Cronan v. Fox, 50 N. J. Law 417.

In the case of Jacqui v. Benjamin, Chief-Justice Gum-mere said: “The almost universal rule with relation to the remedies for enforcing contracts is that they are regulated by the law of the state where such remedies are pursued; and not by the law of the state where the contract was made and to be performed.”

The defendant should not object to the application of this rule, since he has, of his own choice, made this the state of his residence, thereby voluntarily submitting himself to its laws, and has compelled the complainant to enter this state to enforce the contract. To accede to the contention of the defendant that by removing to this state he can thereby avoid the obligation of this contract would be, in effect, to offer New Jersey as a haven for all ex-husbands who wished to avoid the results of their alimony contracts and furnish for them a complete refuge from prosecution thereunder. Since in this state equity has exclusive jurisdiction over contracts between husband wife, it seems idle to contend that because contracts between husband and wife are not prohibited in Pennsylvania, where this contract was made, equity ought not to assume jurisdiction for its enforcement here. This agreement having been made while the parties were still husband and wife, the subsequent entry of a divorce decree could not divest the complainant of her vested rights under the agreement. Buttlar v. Buttlar, supra; Galusha v. Galusha, 116 N. Y. 635.

Bullock v. Bullock, 57 N. J. Law 508, is cited by counsel for defendant in support of the proposition that a court of law is the proper forum in which to enforce a decree of a foreign jurisdiction for the payment of alimony, and he argues that the same rule should be applied to the enforcement of agreements to pay alimony made in foreign jurisdictions. That case holds that an action at law may be maintained in this state upon a decree for alimony made in New York, if the New York courts had jurisdiction of the subject-matter and of the person of the defendant. Such, undoubtedly, is the law; but the agreement which is the subject of this suit is not a foreign decree. A foreign decree, being in the nature of a judgment, is not open to collateral attack, and a suit at law thereon is therefore entirely proper, the decree being conclusive evidence of the debt. In an action upon an agreement between husband and wife, however, the agreement is not always conclusive as to the rights of the parties, and the reasons for courts of equity assuming jurisdiction over such contracts are well stated by Chief-Justice Beasley in Woodruff v. Clark, 42 N. J. Law 198, as follows:

“It was obviously intended that the court of equity should, as it had always done, prior to the amplification of the rights of the wife, exercise a supervision over the engagements of married persons. Nor is it deemed that such an adjustment was an unwise or illiberal one. The subject is one that requires more delicate handling than could be given to it through the instrumentality of a jury. Contracts of this class do not always rest, in point of validity, on fixed and palpable rules of law; sometimes they approach closely to the field of discretion. * * * So, it often happens that relief is afforded only upon equitable conditions. All these precautionary measures would be wanting to a suit at law. The union arising from the matrimonial connection is so entire, the interest so mutual and the confidence so complete, that the question in the given case, whether a transfer of property has been equitably obtained by one of the married persons from the other, or is the creature of coercion or undue influence, is often one of the most subtle and abstruse subjects than can be presented for judicial investigation — an investigation to which the methods of a court of conscience are alone adapted. Few subjects would seem to fall more appropriately under equitable cognizance.”

I am of the opinion, therefore, that this court has complete jurisdiction over the present suit; that the bill for specific performance was properly filed in this court, and that the complainant is entitled to the relief prayed for. I will therefore advise a decree in favor of the complainant and in accordance with these conclusions.