author: Lewis, Vice-Ordinary.

text:
    In the matter of the appeal of J. Henry Leonhard, Albert F. Leonhard and George L. Leonhard, trustees under the last will and testament of Theodore Leonhard, deceased, from a decree of the orphans court allowing the surrogate of the county of Passaic the sum of $1,035.52 for auditing the second intermediate account of said trustees.
    [Decided October 2d, 1919.]
    A surrogate is entitled, under section 200 of the Orphans Court act (3 Comp. Stat. p. 3887), to one-tenth of one per cent, for auditing, stating and reporting an account of an estate over $50,000 and not exceeding $500,000.
    On appeal from the Passaic county orphans court.

      .Messrs. Humphreys & Sumner, proctors of the appellants.

      Mr. Frederick W. Van Blarcom, proctor for the respondent.
   Lewis, Vice-Ordinary.

The following stipulation between the proctors of the appellants and the respondent sets forth the facts with sufficient particularity :

“1. By the decree of intermediate accounting made by the Passaic county orphans court March 16th, 1919, in the matter of the intermediate account of the appellants as trustees under the last will and testament of Theodore Leonhard, deceased, the surrogate was allowed $1,035.52 for auditing said account.

“2. Said allowance consisted of one-tenth of one per cent, of the sum of $1,035,515.02, which sum was made up of $50,000, the amount of principal money received during tire period of nine years covered by the account, together with $985,515.02, the amount of income received during the same period.

“3. The whole principal money received during said period was. $50,000.

“4. During the same period $985,515.02 was received for income.

“5. All of said income so received during said period had been distributed to the beneficiaries entitled to the same prior to tire filing of the account, with the exception of the sum of $179,288.32.

“6. At the time of the filing of the account, the trustees held, besides the corpus, of the estate, including the said sum of $50,-000 principal money received during said period, and besides the said sum of $179,288.32, consisting of income received during said period and undistributed, the additional sum of $7,654.13, the last-mentioned sum being the balance of income brought forward from the previous accounting, leaving a balance of income in the hands of the trustees at the time of filing the account of $186,942.45.”

The fee allowed the surrogate, from which this appeal is made, is the fee for auditing, stating and reporting the account of executors, administrators, guardians, trustees and assigns provided for in section 200 of the Orphans Court act. 3 Comp. Stat. p. 3887.

That section of the act provides for fees of the surrogate for auditing, stating and reporting such accounts:

“On estates * * * over $10,000 and not exceeding $50,000, thirty dollars;
“Over $50,000 and not exceeding $500,000, at the rate of one-tenth of one per centum, and where estates exceed $500,000, the e<?urt shall fix and determine the additional fees to be allowed on such excess, provided such further and additional fees may he allowed in any case as the court shall think reasonable.”

It appeal’s, therefore, that under the facts as shown in the stipulation filed, the account in question accounted for $50,000 of corpus and for $985,515.02 income, no part of which amounts, or either of them, had ever been accounted for in any prior accounting, and, hence, no account in respect of these two sums could have theretofore been audited by the surrogate. .

The rate allowed to the surrogate for auditing the account, to wit, one-tenth of one per cent, upon the total of the two sums above mentioned, seems clearly, therefore, to come within the limitations .set forth by this court in Heath’s Case, 52 N. J. Eq. 807.

I am unable to see, therefore, that there has been any error, and the appeal must be dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    In the matter of the application of Max Huncke to establish the last will and testament of Richard C. Huncke, deceased.
    [Decided December 18th, 1919.]
    1. The orphans court is a court of general jurisdiction and has,full power and authority to determine all controversies respecting the existence of wills.
    2. The burden of showing the existence of a will is on the proponents.
    3. In this case, held, that proponents have sustained that burden.
    4. In considering the uneontradicted testimony of a daughter of the testatrix as to the destruction of a will by a decedent, the element of her interest and benefit must be considered. «
    On application to establish a will.

      Mr. Actolf L. Engelhe, for the appellant.

      Mr. William B. Maclcay, for the respondent.
   Lewis, Vice-Ordinary.

The proceedings in the court below on this application were taken under section 2, page 715 of the act respecting orphans courts. P. L. 1898.

There is mi question raised as to the power and authoritj'- of the court below to hear the questions involved in the controversy. It is settled that the orphans court is a court of general jurisdiction over the subjects committed to its cognizance, and has full power and authority to determine all controversies respecting the existence of wills. In re Matter of John Cassidy's Will, 80 N. J. Eq. 164.

An appeal has now been taken, and I have examined the state of the case filed in this court; and also have considered the arguments of counsel.

The burden of proving the existence of the will, of course, was with the proponents; and a review of the evidence cannot fail to satisfy one that they have sustained this burden.

The execution and publication of the will of Richard C. Huncke, who died October 30th, 1917, is established beyond doubt. The scrivener, a member of the bar, who drew the will, is among the witnesses. His stenographer corroborates him as to the manner of execution and publication of the will. The testimony of Max Huncke, a brother of the decedent, is persuasive. He is benefited but to a very slight extent by establishing it. A witness, however, who has not the slightest interest, and who may be described as absolutely impartial, is the nurse, Claire Thomas. She is not mentioned in any way in the will, and is not related to the decedent. She was employed, in the ordinary course of her profession, to take care of him. Her evidence, as to the conversation between herself and the decedent, identifies the will to be established in this case. One of the significant features of her testimony, and which must influence the court in reaching the conclusion that the will was in existence at the time of Richard Huneke’s death, is the statement of the testator to her, in reply to the question: “Did the will provide for the sister who is taking care of you?” and Huncke said: “Yes, I have left her a nice big house; I guess she will be all right.” His will contains this provision.

The testimony of the respondent, Mrs. Ida V. Enders', is, that the will which is sought to be established was destroyed by the decedent on October 22d, 1917. The testimony as to the circumstances of the destruction is uncorroborated. The testimony of Max Huncke is, that after the funeral of the decedent he telephoned to Ida V. Enders, and that she asked him if he had found the will, and that he replied, “Ho;” and that Mrs. Enders then said, “Well, papa most likely,” or, “perhaps,” “has destroyed it;” and it would appear that if the will had been destroyed in the manner described in her testimony, she would then and there have informed Max Iiuneke concerning this fact. The element of interest and benefit must be considered in viewing her uncorroborated testimony. In case of the intestacy, of Richard C. Hun eke, she, his daughter, would be the heir-at-law.

In examining this case I think that the effect of the will to be established should be considered. Its provisions are not unreasonable and cannot be said to be unfair to the heir-at-law. His benefactions are general, and there is nothing in the evidence that indicates that he has forgotten anyone that he would naturally remember. His gift under tire will to1 his brother, Max Iiuneke, the petitioner in this cause, is simply of a victrola and victrola records. This gift in itself would not lead him to be greatly interested in establishing the will, or in provoking a controversy over it.

His bequest to Bertha Arnold, with whom it is alleged he has been on intimate terms since the death of his wife, of the automobile and French clock is not a large gift; and the same statement applies also to the gold watch and chain bequeathed to George Iiuneke, and the diamond pin to his friend Elinrer Thomssen.

Under the sixth clause he devised certain land to Iris daughter.

Under the seventh clause he gives the dwelling-house, in which he resided at the time of the making of the will, to his wife.

Under the eighth clause he devised certain property to his sister.

The will on its face appears to be a fair one. The evidence is, that the testator and his wife had lived apart and were estranged for twenty years.

The learned trial judge of the'orphans court who heard this ease had the benefit of the appearance before him of the witnesses themselves; and in his opinion he reaches the conclusion that a decree must be entered establishing the will; and, as I agree with him in this view, the decree below will be sustained.


author: Backes, Vice-Ordinary.

text:
    In the matter of the guardianship of Charlotte Cook, Ruth Joyce Cook, Edmund Dunham Cook, George Rea Cook, 3d, and Margaret Eva Cook, minors.
    [Submitted July 19th, 1919.
    Decided August 7th, 1919.]
    1. Where guardians invested in .securities on which interest had accrued, commissions were improperly allowed on the collection of the interest as income.
    2. Where the income received by a guardian from a ward!s estate exceeded the ward’s requirements, and the excess was carried to the principal of the estate and invested, commissions were properly calculated on the income, but improperly allowed again on the excess as principal.
    S. Under our statute regulating commissions, where two guardians turned over the estate to the ward on her majority, commission was improperly allowed on the accrued interest on the securities turned over, as it had never come into the hands of the guardians.
    4. Where the rate of commission was fixed by hn order of the orphans court, and the sum of percentage allowed by the decree confirming their account, the remedy of the ward was by appeal either from the order or the decree within the period of three months limited by law.
    5. Where the sum allowed guardians as commissions was within the limits prescribed by statute, in the absence of a timely appeal directly attacking the allowance, it must be assumed to have been arrived at by the orphans court after due consideration.

      Mr. Malcolm G. Buchanan and Mr. Linton Baitierthivmte, for the appellants.

      Mr. Frank 8. Katzenbach, Jr., for the respondent.
   Backes, Vice-Ordinary.

This appeal is from an order of the orphans court of Mercer county refusing to open, restate and resettle the account of Margaret P. Hewitt and Henry Palmer, guardians of the above-named minors, in so far as it affects Charlotte Cook. The account was allowed and confirmed by the orphans court February 11th, 1916, and shows total net assets of $722,532.24, of which Charlotte Cook’s share was $144,506.44, to which she was entitled to payment, having attained her majority on that day. In a subdivision of the account is set forth a schedule of the securities to be turned over to her, upon which there was accrued interest of $703.39, making a total of $145,209.83. A flat commission of five per cent, on corpus and income was allowed to the guardians, and it was left to the clerk of the court to make the calculation. The amount thus calculated, $7,260.49, was incorporated in the final account as a discharge, leaving a net balance of $137,-949.34, which was paid to the ward. On August 3d, 1916, Charlotte Cook and her mother, Margaret P. Hewitt, one of the guardians, petitioned the orphans court to open and correct the account because of errors in the calculation of commissions in three several respects. The rule to show cause, granted on the petition, was discharged by an order March 11th, 1919, and from that order this appeal was taken.

1. The guardians invested in securities upon which interest had accrued, and necessarily laid out amounts equal to the principal and interest. Commissions, were allowed on the collection of the interest as income. Manifestly, it was not income; it was simply the return of the principal of the estate advanced for interest. Metcalfe v. Colles, 43 N. J. Eq. 148.

2. The income exceeded the requirements of the ward, and the excess was canned to' the principal of toe estate: and invested. Commissions were- calculated on the income, which was proper, but they were again allowed on the excess, as principal, which, of course, was wrong. On the argument counsel for the guardian-respondent intimated misgivings, and in his brief admits that there was a duplication. That there was is so palpable that I wonder why it was not conceded in the court below and there corrected.

3. The third overtaxation complained of was this: When the guardians turned over to their'ward the estate of $144,506.34, represented' by thirty different securities, there had accrued upon these securities interest aggregating $703.39, to which I have already alluded. Commission was allowed on, the interest. The interest never came to the hands of the guardians. When they turned over the securities to their'ward, in discharge of their liability, it was not then due, and it passed with the securities as accretions, and was collected by .the ward. Compensation to guardians’ is statutory, and is measured by their actual pains, trouble and risk, not to exceed five per cent, of assets actually handled. The statute is explicit. The rate is limited to the amount of “the estate and interest or income received,” not to exceed “the sum of five per centum on said estates and the income received by such guardian.” Comp. Stat. p. 3861 § 131. Treating this interest as income received by the guardians was not justified by the facts, and the allowance of commission thereon is not warranted by the statute. In Metcalfe v. Colles, supra; Flaacke's Estate, 64 Atl. Rep. 1024; Pomeroy v. Mills, 37 N. J. Eq. 578, commissions were disallowed because the items, although part of the estates upon which they were appraised, never came into the hands of the accountants.

This disposes of the grounds assigned in the petition to the orphans court. The order discharging the rule to show cause, is reversed, with directions to open the account and to restate and resettle it accordingly. The appellants axe entitled to costs.

When the appeal was brought on for hearing the appellants’ counsel asked leave to amend the petition to open the account, to enable him to charge that the allowance of five per cent, commissions on corpus and income was excessive, considering the pains, trouble and risk of the guardians. The rate was fixed by an order of tire court, and the sum of the percentage allowed by the decree confirming the account. The appellants’ remedy was by an appeal either from the order or from the decree. To have granted the motion would have been, in effect, to circumvent the bar of the statute, which limits the time for taldng an appeal to three months. Comp. Stat. p. 3889. Besides, the commissions were not included in the account by mistake. Decrees of orphans court on final settlement of accounts of gúardians are conclusive upon all parties, except, inter alia, for “some fraud or mistake therein” proved to the satisfaction, of the count. Comp. Stat. p. 5857 § 127. The sum allowed was within the limits of the statute, and, in the absence of an appeal directly attacking the amount, it must be assumed to have been arrived at by the court below after due consideration. Johnson v. Eicke, 12 N. J. Law 316. Two cases (Culver v. Brown, 16 N. J. Eq. 533, and Jackson v. Reynolds, 39 N. J. Eq. 313) were cited as supporting the appellants’ contention. Upon examination it will be found that the accounts were opened for mistake in exceeding the rate of compensation fixed by .tire statute.

In Cook’s Guardians, 90 N. J. Eq. 276, I had before me an appeal from the decree of the orphans court allowing commissions on the corpus of the remaining four minors named in the title hereof. The accounts were filed in September, 1917, and were final as to Mr. Palmer, he having then resigned.. In view of what was there said, that the estates were managed as a unit, and that the same scrupulous care and attention was given to each (this applied to Charlotte’s), and the fact that the corpus of Ruth’s estate, the administration of which was then drawing to a close, was taxed at the rate of three per cent., although the guardians served a year and a half longer, it is, indeed, difficult to understand upon what theory Charlotte’s-estate was charged five per cent. The record brought up by that appeal is, of course, not before me, but the report of the case indicates excessiveness of commissions in the present case if those there allowed were fair and just. However, the appellants, apparently, did not feel themselves aggrieved until long after the time had elapsed for taking an appeal, and as the allowance, if excessive, was judicial-error reviewable by appeal-only, and not a mistake correetible as such in tire court below or here, they must be held to be concluded.


author: Swayze, J.

text:
    Joseph F. McGann, complainant-appellant, v. La Brecque Company, Incorporated, defendant-respondent.
    [Decided March 1st, 1920.]
    The court of chancery has no jurisdiction to enjoin summary proceedings by a landlord to dispossess a tenant where no equitable right is involved.
    On appeal from a decree advised by Vice-Chancellor Lane, reported in 90 N. J. Eq. 526.

      Mr. Milton M. TJnger, fox the complainant-appellant.

      Mr. D. Frederick Burnett, for the respondent.
   The opinion of the court was delivered by

Swayze, J.

The learned vice-chancellor, after holding that the court of chancery had jurisdiction, struck out the bill on the merits in a summary way, on motion. This, appellant argues, seems incongruous, but we need not consider the point since the same result must be reached on the defendant’s objection to the jurisdiction of. the court.

The bill was to enjoin the enforcement of possession after a judgment in favor of the defendant, the landlord, against the complainant, the tenant, by summary proceedings to dispossess after the end of the term. The vice-chancellor correctly held that no equitable right was involved. He bases his jurisdiction •wholly upon the inadequacy of the remedy at law, and since the correctness of the present judgment for possession is not disputed, the jurisdiction of the court of chancery cannot be sustained on any peculiar fact of this case but must rest on the view that speaking generally, without regard to the facts of the particular case, the remedy at law must be inadequate. The remedy is by action of trespass, exactly the remedy that has existed in English law for centuries, certainly from the time of Henry III. When the legislature in 1817 enacted the statute providing for summary proceedings by a landlord to obtain possession of his property, its evident object was to settle speedily the right to the immediate possession by a judicial proceeding and thereby avoid actual physical conflict the occurrence of which had made necessary the statutes relating to forcible entry and detainer. Fry v. Myers, 56 N. J. Law 115. But the legislature recognized that the landlord might be in the wrong and therefore took away from the judgment of dispossession all semblance of a determination of the ultimate right as distinguished from the immediate possession by enacting that the landlord shall remain liable in an action of trespass for any unlawful proceedings under the act. P. L. 1847 p. 142. This is re-enacted in section 113 of the District Court act (Comp. Stat. p. 1990 § 113) and in section 7 of the act of 1903. Comp. Stat. p. 3074 pl. 18g. The use of the word “remain” is a clear proof that' it was the old common law action of trespass that was preserved, and not a new remedy that was provided for the first time. We can hardly believe that the learned vice-chancellor meant at this late date to decry the most characteristic action of the common law, of which trover and assumpsit were mere developments, and to hold that a jury could not assess adequate damages in an action of tort. If he meant to hold that, he in effect held that in any case triable by jury, the court of chancery might intervene by injunction and draw the case into its jurisdiction whenever the chancellor thought that a jury would not rise to his notion of adequate damages. We are at a loss to know what criterion of adequacy could .be suggested. The amount involved is of no consequence since it is the glory of the law to treat cases where the amount is small with the same careful consideration as cases involving millions. The poor man who may be ejected from his apartments may suffer damage as serious to him as the loss suffered by the present plaintiff in losing the good will which he has built up under a lease terminable on six months’ notice. The injury to both may be determined by a jury if the ejection is unlawful. Unliquidated damages must be assessed by a jury, and it is only in cases involving some special feature that the court of chancery ever undertakes the task. Palys v. Jewett, 32 N. J. Eq. 302; Trotter v. Heckscher, 40 N. J. Eq. 612, 656; Alpaugh v. Wood, 45 N. J. Eq. 153, 157; Norton v. Sinkhorn, 63 N. J. Eq. 313; Sparks Manufacturing Co. v. Town of Newton, 57 N. J. Eq. 367, 393. The jury may err by either too large or too small a verdict, but we must not assume in advance that it will err. We must assume it will do right.

If the vice-chancellor meant to assert jurisdiction because in an action of trespass the damages might be assessed by a jury at an amount he considered inadequate, we should have constitutional difficulties. When our constitution was adopted in 1844, tire right to trial by jury in an action of trespass existed as it had existed for centuries. That right was made inviolate ■without limitation as to the method of attempted violation, whether by legislative act or judicial decision, and we venture to say that the court of chancery had never attempted to interfere by injunction with an action for trespass to land. It was probably because of this constitutional provision that the legislature enacted especially that the landlord should remain liable in an action of trespass for any unlawful proceedings under the act. This secured the tenant the vindication of Ms rights by the verdict of a jury, but it secured also the rights of the landlord. If the verdict: of a jury might be less than the tenant thought just, the landlord was entitled to the benefit of the jury's judgment. We are led to. express these views not because we think the learned vice-chancellor ignored for a moment principles so fundamental and elementary, but because of the unfortunate scope of Ms remark that the court of chancery has jurisdiction in all cases in which the remedy is inadequate whether involving the right of possession to real estate or not. There are cases where the jurisdiction of chancery may be sustained on the ground of irreparable injury. The question is dealt with by the late Vice-Chancellor Emery with his usual care in Public Service Corporation v. Westfield, 82 N. J. Eq. 43; affirmed, 82 N. J. Eq. 662. Some are cases of preliminary injunction where it is only sought to preserve the property pending proceedings in courts of law to determine the legal right, and some are cases where objections to- the jurisdiction of chancery are waived, but after all deductions, cases do remain which sustain the jurisdiction to determine the legal right on frnal hearing in cases of irreparable injury. Inadequate damage and irreparable injury are not synonymous. All injury, in a sense, is irreparable, but where the only possible compensation is pecuniary there is no reason to hold the damage irreparable. However great the complainant's loss may be in tliis case;, whether it is ascertained by a jury or b}r a vice-chancellor, it must be pecuniary, unless an equitable right is involved, and, as the vice-chancellor held, none is involved here. The vice-chancellor attempts to extend his jurisdiction to cases where there is no equitable right involved merely because he fears the verdict of a jury may be too small. He trusts the ascertainment of damages to an equity judge, where the law for centuries, and the legislature recently by plain enactment, has entrusted it to a' jury. Hot only is tire provision for ascertaining the damages the time honored method of the common law, but it has the approval of the legislature. When they enacted the statute and afterward whenever they re-enacted it, they thought the rights of the defendant were sufficiently protected by the action of trespass; they expressly took away any right of review by appeal or by certiorari and expressly reserved the action of trespass. It is not for the courts to assert a different remedy where the legislature has made the remedy by action of trespass exclusive. There are no special circumstances in this ease which would legally limit the jury in an award of damages.

It was within the power of the legislature to enact that damages should be ascertained in an action of trespass. Nothing in our constitution suggests a constitutional right of appeal except from the orphans court and circuit courts. Const. § I, 8, and § 5, 8. It is within the power of the legislature to alter or regulate appeals. Ex parte McCardle, 7 Wall. 506; State Coun. Jr. O. U. A. M. v. Nat. Coun. Jr. O. U. A. M., 79 N. J. Eq. 193; Terwilliger v. Browning, 207 N. Y. 479; 101 N. E. Rep. 463, or to -make the decision of the court of first instance final. This is so even in the ease of administrative bodies and officers. It is enough to cite Murray’s Lessee v. Hoboken Land and Improvement Co., 18 How. 272; U. S. v. Ju Toy, 198 U. S. 253. A fortiori, the legislature need not provide for an appeal from a judicial tribunal as in the case of proceedings to dispossess a tenant. As was said by Mr. Justice Brewer in Pittsburg Railway, &c., v. Backus, 154 U. S. 421, 427: “'If a single hearing is not due process, doubling it will not make it so.”

Let the decree be affirmed, with costs.

For affirmance — The Ci-iiee-Justioe, Swayze, Trenciiard, ' Parker, Bergen, Minturn, ICalisch, Black, White, Heppeniieimek, Williams, Taylor, Gardner, Aokerson — 14.

For reversal — None.


author: Trenchard, J.

text:
    Andrew J. Cartan et al., partners, &c., complainants-respondents, v. Ernest L. Phelps et al., defendants-appellants.
    [Submitted December 8th, 1919.
    Decided March 1st, 1920.]
    1. On appeal from a decree of the court of chancery great weight is given to a finding upon a question of fact, because the chancellor, who hears the case in the court below and sees the witnesses and hears them testify, has better opportunities to judge their credibility than the reviewing court. But that rule imposes no restraint on the power of the reviewing court to ascertain by full investigation and analysis of the evidence what the facts are, and whether the general finding- is consistent therewith.
    2. It is permissible for a witness, in order to refresh his recollection, to use a memorandum, made by another at his dictation, which he recollects he saw made while the facts were fresh in his memory and remembers that he then knew that -the particulars therein mentioned were correctly stated.
    3. On appeal from a decree of the court of chancery, where the character of a party for truth and veracity is unimpeached, and his testimony is uncontradieted, is not contrary to circumstances in evidence, and contains no inherent improbabilities or contradictions which alone or in connection with other circumstances in evidence excite suspicion as to the truth of the testimony, it will be given effect.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, and reported in 89 N. J. Eq. 599.

      Mr. Jehiel G. Ship-man and Messrs. Fort, Hunt & Shipman, for the appellants.

      Mr. Peter Bentley and Messrs. McCarler & English, for the respondents.
   The opinion of the court was delivered by

Trenchard, J.

The bill in this case was filed to set aside a deed of conveyance made by the defendant Phelps to the defendant Wayland O. Bagley for lands located near Matawan, in this state — the ground of the relief sought being that the conveyance was made for the purpose of defrauding the complainant and other judgment creditors of Phelps.

The learned vice-chancellor reached the conclusion upon the proofs .submitted at the hearing that the deed was made primarily to secure to Bagley the payment of an indebtedness of $1,200 due him from Phelps; and further, that the purpose of Phelps was, not only to secure this debt, but also to put his property out of the reach of other creditors. The vice-chancellor found that Bagley was not a party to the scheme to defraud the creditors' of Phelps, and, therefore, advised a decree that he be permitted to hold this conveyance as security for his debt, which was adjudged to be $1,200; that the property be sold for the payment of that debt; and that what remained of the proceeds of the sale after such payment should be applied to the payment of the several judgment creditors of Phelps. 108 Atl. Rep. 114.

On Bagley’s appeal this court affirmed that decree except as to the amount of the indebtedness to Bagley. 89 N. J. Eq. 599. After pointing out that the finding of the vice-chancellor as to such amount was based entirely upon the testimony of two witnesses who had no personal knowledge upon the subject except as it was told to them by Phelps, this court held that Phelps’ admissions were not evidential against Bagley and that proofs should be taken as to the actual amount of this indebtedness.

When the case went back, this specific matter was referred to a special master to take additional testimony and certify that testimony to the vice-chancellor. Bagley was examined and testified (after having refreshed his memory since testifying at the original hearing) that the amount of the indebtedness was $4,400. The vice-chancellor, however, considered his testimony so meager and uncertain as to be unworthy of credit, and held that the proofs failed to establish “a greater indebtedness due the defendant Bagley than the amount which the former decree awarded him,” and advised that the terms of the former decree be carried into effect. It was decreed accordingly and Bagley appeals.

We are of the opinion, after full examination and reflection, that the appeal is well taken.

At the outset we remark that unless effect is given to some part of Bagiev’s testimony, the decree as to the amount of the indebtedness has no evidence to support it, since there was no other legal evidence upon that topic.

So, the question presented is whether we are justified in rejecting that uncontradicted testimony, as was done in the court below.

We are constrained to think that we are not.

On an appeal from- a decree from the court of chancery great ■weight is given to a finding upon a question of fact, because the vice-chancellor, who hears the case in the court below and sees the witnesses and hears them testify, has better opportunities to judge their credibility than the reviewing court. But that reason does not obtain with full force in the present case because the testimony at the second hearing was taken before a master and certified to the vice-chancellor.

However, the rule giving great weight in the appellate court to the vice-chancellor’s finding on a question of fact imposes no restraint on the power of the former to ascertain by full investigation and analysis of the evidence what the facts are, and whether the general finding is consistent therewith. Riddle v. Clabby, 59 N. J. Eq. 573; affirmed, 46 Atl. Rep. 782. Of course, the rule is different on appeal from an inferior law tribunal by way of writ of error, for in such case only errors of law are reviewed, and the determination of disputed questions of fact depending on the credibility of the witnesses is the exclusive function of the jury. See Clark v. Public Service Electric Co., 86 N. J. Law 144; Schmidt v. Marconi Wireless Tel. Co., 86 N. J. Law 183.

Now, in the present case, Bagley testified that at various times between 1908 and 1912, he loaned Phelps money, taking each time his promissory note or "I. O. U.that in 1913, when the indebtedness amounted to about $3,000, he pressed Phelps for payment; that an accounting was had between them at the time and it was agreed that the indebtedness, including interest, then amounted to $3,675; that then Phelps proposed to convey to Bagley the land in question upon payment to him of the further sum of $1,000; that Bagley, with his wife, went and looked at the property, and accepted the proposition; that in April, 1913, the deed was drawn, was sent west for the signature of Phelps’ wife, and was delivered to Bagley in November, 1913; that pursuant to such agreement, at various times between the making thereof and the delivery of the deed in November, Bagley paid Phelps by checks $400, $100, $125 and $100, and that the remainder of the $1,000, namely, $275 (by mutual agreement, apparently), was not paid; that thus by way of loans, interest and checks the amount of such indebtedness was $4,400.

We do not feel at liberty to disregard that testimony of Bagley. His character for truth and veracity was unimpeached. He was expressly acquitted by the vice-chancellor, at the end of the hearing, of any fraud in the transaction. His testimony as to the amount of the debt is not inherently improbable. He and Phelps were friends and were employed at the same place. He had ample means to make the loans and additional payments, and knew that Phelps owned the property in question and other property, and received a good salary. It is said to be improbable that he would have loaned $3,000 without security or other evidence of indebtedness. But he says he took notes for the loans. The fact that the notes were not produced at the trial is satisfactorily explained by his testimony that he gave them to Phelps when he received his deed four years before the trial, and we think that was not an unnatural thing for him to do. The fact that he produced no record of these loans is accounted for by tlie fact that he kept no books and had no bank account at that time. This may be said to be careless, but a careless attitude not infrequently suggests good faith.

We think that his testimony was reasonably consistent throughout, and is in harmony with the other circumstances in evidence. At the first hearing his testimony was given without the benefit of the memorandum to which we shall hereafter refer. At that hearing he testified that the loans amounted to “something between $2,800 and $3,000,” when, on his pressing for payment in 1913, a conveyance was proposed on payment of $1,000 additional, and that “the total indebtedness up> to that time (of conveyance), including the $1,000 mentioned, would have amounted, with interest, to a little over $4,000, probably, $4,300 or $4,400.” He further testified that about $800 only of the additional $1,000 was paid; that this was paid by four checks (he having then opened a bank account), and he produced one returned check for $400 dated April 15th, 1913, and one for $100 dated July 18th, 1913.

Before testifying at the second hearing he refreshed his memory as to the amount due him; and how it was made up, by inspecting.a memorandum made at his dictation by Kenneth McEwen, his attorney, in New York City, in March, 1914, about five months after the delivery of the deed to him by Phelps, and at a time when, as he says, he recollects that the facts were fresh in his memory, and remembers that he then knew that the particulars therein mentioned were correctly stated. Of course, it was permissible under such circumstances for him to thus refresh his recollection. State v. Dougherty, 86 N. J. Law 525; More-Jonas Glass Co. v. West Jersey, &c., R. R. Co., 76 N. J. Law 708; Meyers v. Weger, 62 N. J. Law 432. This memorandum was made for the guidance of Bagley’s attorney at the time-a prior suit was brought by another creditor seeking to set aside this same conveyance as without consideration, which suit was afterwards discontinued. The attorney corroborates Bagley with respect to the fact that the memorandum was made, the time when it was made, and that it was inaccessible to Bagley at the first hearing by reason of the absence of his attorney who had possession thereof. The attorney also' corroborates Bagley as to the fact of the existence of four checks given by Bagley to Phelps and returned, amounting to $725 (two of which were produced at the first hearing). He testifies that all four checks were left with him by Bagley at the time the memorandum was dictated, and that two were lost by him in course of preparation for the defence of the prior suit.

Where, as here, the character of a party for truth and veracity is imimpeached, and his testimony is nncontradicted, is not contrary to circumstances1 in evidence, and contains no inherent improbabilities or contradictions which alone or in connection with other circumstances in evidence excite suspicion as to the truth of the testimony, it will be given effect.

The result is that Bagley is entitled to- a decree that there is due him $4,400. He is not entitled to interest from the date of the conveyance to the date of the decree because we think the evidence justifies us in finding that the rents received by him are the equivalent of such interest.

The decree is correct in all other respects, but it will be reversed for the purpose of such modification as is required by the conclusion we have reached and expressed in this opinion.

The appellant is entitled to costs.

For affirmance — Black—1.

For reversal — The Chief-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisch, White, Heppenheimer, Williams, Taylor, Gardner, Aokerson — -13.


author: Parker, J.

text:
    Harry McMurtry, executor, &c., complainant-appellant v. Annie Bowers et al., defendants-respondents.
    [Submitted July 7th, 1919.
    Decided March 1st, 1920.]
    1. A tona fide purchaser of a mortgage for valuable consideration is entitled to enforce it as against any latent equities in favor of third persons against the mortgagor.
    2. A married woman may mortgage or pledge her property to secure the debt of her husband or any other person; but such mortgage will not be valid against her creditors in the hands of a mortgagee who at the time of taking it had notice or knowledge of her previous indebtedness.

      On appeal from a decree of the court of chancery advised, by Vice-Chancellor Backes, whose opinion is reported in 90 N. J. Eq. 103.

      Mr. Edward P. Johnson, Jr., and Mr. Hugh K. Gaston, for the appellant.

      Mr. George E. Clyiner, for the respondents Bowers, Allen W. Rose and William Prout.

      Messrs. Raymond, Clancy & Mcursh, for the respondent Newark Trust Companj7.
   The opinion of the court was delivered by

Parker, J.

The basic facts are fully stated in the opinion of the vice-chancellor, but must also be dealt with here. The bill was an attack by a judgment and execution creditor named Catharine Bowers, upon a mortgage made by the defendant Annie Bowers and her husband, Henry, as in fraud of complainant’s rights. Catharine died pending the litigation and her executor was substituted.

The mortgage in question was made to the defendant Rose, whom the vice-chancellor found to have been at the time a Iona fide creditor, not of Annie, but of her husband, Henry, and as he also found, not as security for, but in payment of Henry’s debt. The vice-chancellor also found as a fact that Rose at the time of taking the mortgage as such payment was unaware of the fact that Annie owed the complainant, and while he conceded that if Rose had known that Annie was already indebted, the good faith of the transaction would have been very questionable, he upheld it on the express finding that Rose did not know of the prior indebtedness. The mortgage being thus adjudged good in Rose’s hands, was likewise held good in the hands of respondent Prout as assignee, although Prout knew all about Annie’s indebtedness, the fact being that when the mortgage was made, Annie had been sued by Catharine Bowers for this debt in the Somerset circuit, had employed Prout hr file a plea, which he did, that the mortgage was made while the cause was at issue and awaiting trial, and that afterwards when the cause was called for trial, Annie defaulted and Catharine had judgment. In this aspect the vice-chancellor relied on the rule that a bona fide purchaser for value without notice of fraud can transfer a good title to a subsequent purchaser aware of the fraud.

Prout did not record Ms assignment for some seven years, and at the end of that period used the mortgage as collateral security in borrowing from the respondent Newark Trust Company. That company concededly was unaware of any equity of Catharine Bowers. By this time, it is true, she had well nigh exhausted all purely legal remedies for the recovery of her debt. She had obtained judgment, issued execution and caused a levy to be made on the property covered by the mortgage, which consisted of Annie’s undivided interest in land subject to an unassigned dower right and of which the dowress was in possession; and had bought in Annie’s interest at a sale under her execution; but, of course, could not enter into possession as against the dowress. The trust company had the title of the land examined down to the making of the mortgage, and the title to the mortgage examined from that onward. There was notiling in the record or the papers themselves, to put an intending assignee of the mortgage on notice of Catharine’s equity as against Annie. The mortgage was recorded on April 27th, 1910; the judgment was not entered until September 27th, 1910; and the bill in this cause was not filed until after the assignment to the bank was put on record. As already noted, Catharine could not enter into possession of the land under her execution sale because of the outstanding possession of the dowress, so there was no notice to the bank, either actual or constructive.

The vice-chancellor, while remarking that almost all the circumstances of the case gave rise to grave suspicion of fraud, held that they were satisfactorily explained, and upon his findings that Eose was a Iona fide mortgagee for value paid, that he passed a good title in consequence to Prout, and that the trust company was without blame or fault in the matter, he upheld the mortgage and assignments, and as the trust company held the mortgage only as collateral for a loan to Prout, who had an equity therein, above the amount of the loan, he dismissed the bill as to complainant; and the trust company, having prayed foreclosure by way of counterclaim, he ascertained the amount due that company, and to Prout over and above the loan, and decreed foreclosure and' sale accordingly.

Our examination of the case leads us to the conclusion that the decree so fax as it relates to the Newark Trust Company was right and should be affirmed. We do not agree, as will presently appear, with the result reached below as touching Rose and Prout. Notwithstanding this, however, the trust company is entitled to enforce its security' under the rule that a bona fide purchaser for valuable consideration of a mortgage is protected against any latent equities in favor of third persons against the mortgagor. Danbury v. Robinson, 14 N. J. Eq. 213.

With respect to the defendants Rose and Prout, we reach a different result, for it is, of course, clear that Prout was fully aware of the complainant’s claim, and we find that Rose was aware of it also; for in his own affidavit he deposes that he was considering the question of taking a deed from Annie and her husband of her interest in this land in satisfaction of the amount that he claimed tó be due him, and was advised by counsel that a mortgage was preferable because “tire Bowers” were indebted to other creditors at the time and if he took a deed it would only amount to a mortgage in any case. This, taken with other circumstances highly suspicious in character, satisfies us that Rose knew of Annie’s indebtedness before he took his mortgage; and while he might be protected if she had owed him the money, she could not, under well-recognized rules, mortgage hex property for her husband’s debt to the detriment of her own creditors. Campbell v. Tompkins, 32 N. J. Eq. 170, 173; affirmed, 33 N. J. Eq. 362; Butterfield v. Okie, 36 N. J. Eq. 482. As to her creditors, the mortgaging of her property for her husband’s debt would be purely voluntary. Oonsequeutly, as Rose was not protected by the doctrine of Iona fide purchaser, the mortgage in his hands was invalid as to complainant. This being so, Prout was no better off as assignee, because he knew all that Rose did, and probably more.

The decree must be reversed as to Prout, and a decree entered in favor of complainant against him, with costs, setting-aside the mortgage so far as relates to his claim or any part of the same or its proceeds. There should also he a reversal as to Rose and the two Bowers, and an award of costs against them. The trust company, as we have said, is entitled to an affirmance.

For .affirmance — None.

For reversal — Bergen, Minturn, Kaliscii, Wi-iite, Heppen-TTETMER — 5.

For modification — The Chiee-Justice, Swayze, Teen-chard, Parker, Black, Williams, Taylor, Gardner, Ackerson — 9.


author: Bergen, J.

text:
    Conrad Muller et al., appellants, v. Nathan Weiss, respondent.
    [Submitted November term, 1919.
    Decided March 1st, 1920.]
    1. A contract to purchase laud induced by material misrepresentations as to the restrictions to which the land is subject will not be enforced in equity.
    2. The expression of an opinion as to the cost of excavation necessary to erect a building on the land contracted for is not sufficient to avoid specific performance, when both parties have an equal opportunity to judgk of conditions and no representation of knowledge is made by the seller to induce the contract.

      On appeal from a decree by the chancellor refusing specific performance of a contract to purchase land.

      Messrs. Weller & Lichtenstein, for the appellants.

      Messrs. McDermott & Enright, for the respondent.
   The opinion of the court was delivered by

Bergen, J.

This is an appeal from a decree advised by a vice-chancellor dismissing a bill of complaint filed for the specific performance of a contract to purchase land. The contract of purchase contained a provision that the conveyance would be made and accepted, subject to, inter alia, “all restrictions and covenants of record.” When this was read to defendant, and before it was signed, he asked the complainant what the restrictions were, and he said that it only forbid the keeping of a saloon on the land. The proof shows that the deed by which complainants acquired title to a material portion of the land was subject to other restrictions which limited the use of the land to any building other than a dwelling-house to cost not less than $4,000, to be of a required height and to be arranged for not more than two families, or which may be constructed of brick and arranged in apartments not less than three stories in height and to be arranged for not more than three families. The vice-chancellor found that the defendant was induced to enter into this contract through the fraudulent misrepresentation of the complainant as to the character of the restrictions which encumbered the property, and we agree with his findings on this branch of the case. The complainant knew .that it was the intention of the defendant to use the property for a large apartment-horrse of a character which would be antagonistic to the restrictions imposed by the deed to the complainant, and we are well satisfied from the evidence that the defendant would not have signed the contract if the complainant had truthfully informed him as to the restrictions. The remedy invoked by this appeal is discretionary. It is not what must be clone, but what in view oí all the circumstances .should be done, and where a contract is procured by fraud and its enforcement would be a manifest injustice, the court will refuse its aid. Plummer v. Keppler, 26 N. J. Eq. 481; Ten Eyck v. Manning, 52 N. J. Eq. 47. But the vice-chancellor went further and. held that there was a fraudulent misrepresentation, sufficient to avoid the .contract, because on the night when the contract was signed, but before it was executed, the defendant asked the complainant whether he had ever made an estimate on taking out the rock to make the necessary excavation, and ho replied that he had figures from two Italians for $1,500, and that the defendant replied that he was willing to spend $2,500 to get out the rock, and that he afterwards found out that it would cost $1,500. We do not think this was a fraudulent misrepresentation, but' a mere expression of opinion based upon the representations of the Italians as to what it would cost. Both parties could see the land, each had an equal opportunity to judge the conditions, and there wás no representation by the complainant that it could be excavated for $1,500. The vice-chancellor found this to be a misstatement by the complainant as to the cost of excavating the rock, but we do not think he was correct in saying that the statement about the cost of excavating was a sufficient misstatement to warrant a denial of specific performance.

The only other matter needing consideration is the effect of a release, by the former owner, of the restrictions contained in his conveyance to the complainants. The lots contracted to be conveyed were designated as Hos. 52, 53, 51 and 55, in block .2175, on a map' of property of John G. Gerber, which was duly filed. These lots were conveyed to the complainants by John G. Gerber by two deeds, one conveying lots 52 and 53. subject to the restrictions above set out, and the other conveying lots 51 and 55, which contained a covenant by the complainants to use the premises for dwelling and store purposes, and not for manufacturing purposes. After the contract now sought to be enforced was executed, Gerber, by a deed of quit-claim to the complainants, released lots 52 and 53 from the effect of the restrictions imposed on them, and the complainants urge that this deed removed every restriction from all the lots and made the title marketable. The difficulty which this argument meets is, that when Gerber conveyed to the complainants he restricted the character of the use of the premises in a different manner as to each parcel, and it is not claimed that the release did, or was intended to, remove any restrictions as to lots 54 and 55, so, as to those lots, the release did not apply. There is another reason why this release cannot have the effect which the complainants urge, and that is it appears in the case that Gerber had sold, prior to this contract, to different persons,' a number oE lots designated on his map, subject to the same restrictions which he attempted to release, and he cannot in such manner release the rights of former purchasers to enforce a restriction made, presumably, for their benefit and as a part of the inducement for their purchase. The release of Gerber would not destroy the right of prior buyers to the benefit of a general scheme, nor relieve the defendants from the possibility of law suits by such owners to enforce such restrictions. Except as to the effect of the representations as to the excavation the vice-chancellor was clearly right, and the decree should be affirmed, with costs.

For affirmance — The Chibe-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Wi-iite, Heppeni-ieimer, Williams, Taylor, Gardner, Ackerson — 14.

For reversal — None.


author: Minturn, J.

text:
    Carl S. Ziezel, petitioner, v. Benjamin H. B. Hutchinson et al., defendants.
    [Argued November term, 1919.
    Decided March term, 1920.]
    A (girl) child from her birth was retained, with the consent of her father, by the maternal grandparents, the mother having died at the birth. The child was raised by the grandparents until she reached the age of three years, when .the father, whose circumstances had changed in the interim, claimed her upon habeas corpus. — Held, that in the absence of satisfactory proof of parental unfitness, the father, as the iegal custodian of the child, was entitled to her possession.
    Oil appeal from an order on habeas corpus.

      2Ir. D. Trueman Stackhouse, for the petitioner.

      Mr. William J. Kraft, for the defendants.
   The opinion of the court was delivered by

Minturn, J.

On the 15th of May, 1916, two days before her mother’s death, Virginia A. Hutchinson, the infant daughter of the petitioner, and the subject of this controversy, was born at Camden, in this state, in the humble but comfortable home of her maternal grandparents, the defendants in this proceeding.

The grandmother tells the simple story of the acquisition of the child at her birth: “The night she died I put my arm around Carl’s (the petitioner’s) neck, and I said, ‘Carl you have robbed me of Florence (the mother of the child), and now you will never take the baby from me, will you?’ and he said ‘Ho.’ ”

Three years have elapsed, and in the interim the world war drew the petitioner from the old environment of his wife and child, and gave him the opportunity to become a lieutenant in the navy, as a dental surgeon; to cross the ocean frequently, and visit other lands, and incidentally to marry a lady, described by the lower court as “a woman of amiable disposition and moral worth.” When his child was born he was unable to support and care for her, and quite manifestly the parental appeal of the grandmother was opportune, 'and fell not on unwilling ears.

To him manifestly, a young mail without means, slightly over his majority, with laudable ambitions, and an education as he testified, “in excess of the average,” a new vista opened up; and in that mental vision the “youngster,” as he laconically terms the child, would assuredly become a burden and perhaps a handicap. There not having been a legal adoption of the child by the grandparents, the consent given by the father on the night of the birth was morally, but not legally binding upon him. 2 Rul. C. L. and cases; 29 Cyc. 1591 and cases.

With the advent of a new wife came the “vita nuova” of which Dante speaks; and also a salary in the navy in excess of $3,000 per year, and six furnished rooms in an apartment house upon a prominent avenue in Brooklyn. In the elder days the grandmother in the letters of the petitioner was “Dear Ma.” In the metamorphosis that came with tire new life, she was transmuted into “My dear Mrs. Hutchinson.” The grandparents in Camden still maintained the old life, in the old way; and as the years passed by, the child knowing no other parents, now at the interesting age of three years, • clings to them, and they to her, with all the filial affection and intense devotion that time and tender family association alone can bring. Whether tire father during that period furnished the grandparents with any substantial means of support for the child, remains a controverted question upon the record; but concededly at most it was intermittent and desultory, and they alone practically nurtured her to her present development. In this situation the father upon this writ of habeas corpus claims her, as was Iris legal right. Like the famed denizen of Venice lie had only to proclaim, “My deeds upon my head, I crave the law,” and the law in the absence of proof of unfitness, would respond to his wishes; for as Blackstone declares, “The empire of the father continues even after his death” (1 Bl. 453); or as Chancellor Kent states the same proposition, he is

“in contemplation of the law entitled to the custody of the persons, and to the value of the services and labor of the children during their minority.” 2 Kent Com. 19S.

But in liis testimony the petitioner deemed it necessary to accentuate his obvious legal right by invoking equitable considerations involving the alleged mental obliquity of the grandparents, and the debasing environment of the old habited, upon the child of a man of superior tastes and refinement. Thus he testifies,

“She is allowed to go dirty. Her body and health are not looked out for. Her clothing is such as disgraces me when I have taken her out. Evidently, the money applied to her keeping is not applied to her at all. The grandparents have absolutely no insight into the rearing — the scientific rearing of children; nor have they into their mental development. They do not grasp the fundamental principles required in raising a child. They will say the grandmother’s sight' is failing; she offers this as excuses when I complain of the child’s dirty attire. The home is filthy dirty. And were she put in my care she would be in a home of cleanliness and looked out for by a father who has a professional education — an education, perhaps, in excess of the average, and a mother who has an excess of education over any of the grandparents.”

Manifestly "Témpora, mvlcmiur el nos mutewmr in illos.”

That the old home in Camden is as it was when the petitioner claimed it as the abode of liis wife and himself, and as a fit natal place for his child; and that these defendants have not changed with the advent of life’s gloaming, but remain the same unalloyed type of simple homely people, who took him to their hearthstone in the years of his early struggles, becomes manifest by a reference to the testimony of the grandmother:

“I give her a bath every night of her life. I never put her to bed without a bath. If I don’t give her a bath, I give her a sponge hath, and she has a clean bed to sleep in. Her clothing has always been plain; of course, a child will get dirty, a little dusty, and her hands out playing around; but I have always kept her clean. You know any child will get dirty playing. We intend to bring her up right, and she is christened in the Methodist Ohurcli, and she will go to Sunday School.”

So lmicli only of this record is it necessary to recite, in order to state that while we agree with the conclusion of the- learned advisory master, that, the child must be awarded to the father, as her legal custodian, upon the familiar rule of law to which we have adverted, and which has received practical application in the courts of this state in the following adjudications— Baird v. Baird, 18 N. J. Eq. 194; Landis v. Landis, 39 N. J. Law 274; Luppie v. Winans, 37 N. J. Eg. 245 — we, nevertheless, do not deem it necessary to make the award upon any proven theory of the fitness or unfitness of either party to the controversy, compared with the other. Were the child of suffieent age to realize the situation, the rule is well settled that the court in its concern for the welfare of the infant, as the prime consideration, would lie influenced in some degree by the infant’s predilection. State v. Stigall, 22 N. J. Law 286; Baird v. Baird, supra; Richards v. Collins, 45 N. J. Eq. 283; Wood v. Wood, 77 N. J. Eq. 593.

But the case failing to present that situation, and in the absence of satisfactory proof of parental unfitness, the child in compliance with the inexorable legal mandate, must be awarded to her father. Bennet v. Bennet, 13 N. J. Eq. 114; Magee v. Holland, 27 N. J. Law 86; Morris v. Wardell, 67 Atl. Rep. 850.

The order of the court of chancery must therefore he affirmed.

For affirmance — Tins Criuse-Justice, Tbenci-iard, Parker, Bergen, Mintuhn, Kaltsctt, Black, White, Heppent-tetmek, Williams, Taylor, Ackerson — 12. .

For reversal — None.


author: Per Curiam.

text:
    William Bliss et al., complainants-appellants, v. Linden Cemetery Association, respondent.
    [Submitted December 8th, 1919.
    Decided March 1st, 1920.]
    On appeal from the court of chancery. See opinion of that court, 90 N. J. Eq. 404.

      Messrs. Vail £ McLean, for the appellants.

      Mr. Clark Mc'K. WhittemOre, for the respondent.

      Mr. Abram 11. Cornish, for the receiver.
   Per Curiam.

The only cpiestion raised relates solely to the priority of payment of allowances awarded to the receiver, the- amount of which is not questioned, for operating expenses-, services and counsel fees out of moneys collected in two ways — first, by sales of lots, pursuant to the cemetery scheme, under which the receiver has operated the cemetery as a going- concern; seconclty, out of the proceeds of sale, of land of the insolvent cemetery corporation to a railroad company. The scheme, as noted in previous reports’of this litigation (Bliss v. Cemetery Association, 85 N. J. Eq. 501; S. C., 89 N. J. Eq. 192), involved a reservation of ten per cent, on gross proceeds of sales, and appellants claimed, before Vice-Chancellor Baches, .who advised the order now before us, that they were entitled to a. vendor’s lien which should be held prior to the expense of operating and of the receivership. The vice-chancellor rejected this claim, and rightly so. The well-settled rule, touching expenses of receivership of an insolvent corporation, is laid clown by statute in section 85 of the Corporation act, which provides that

“before distribution of the assets of an insolvent corporation among the creditors and stockholders, the court of chancery shall allow a reasonable compensation to the receiver for his services and the costs and expenses of the administration of his trust, and the cost of the proceedings in said court to be first paid out of said assets.”

And the next section clearly indicates that such allowance precedes all liens, special and general, upon the funds of the corporation. There is no claim that the receiver ought not to have continued the business; no doubt he had the express direction of the court so to do. Under such circumstances, the question of the existence of a vendor’s lien is not involved in determining the priority of the award, for conceding its existence, for present purposes, it cannot precede the expenses of administering the trust.

The decree will be affirmed.

For affirmance. — Ti-ie Chief-Justice, Sttayze, Trenchard, Parker, Bergen, Minturn, Kalis oh, Black, White, Hep-pent-ieoier, Williams, Taylor, Gardner, Ackerson — 1-I-.

For reversal — None.


author: Pee Curiam.

text:
    Emma W. Noll et al., complainants-appellants, v. Rosedale Cemetery Association, respondent.
    [Submitted December 8th, 1919.
    Decided March 1st, 1920.]
    On appeal from the court of chancery.

      Messrs. Vail & McLean, for the appellants.

      Mr. Ciarle McK. Whiltemore, for the respondent.

      Mr. Abram II. Cornish, for the receiver..
   Pee Curiam.

The present ease is precisely similar in its determining features to Bliss v. Rosedale Cemetery Association, No. 20 of the present term. Por tire reasons stated in the per curiam filed in that case, the decree herein will be affirmed.

For affirmance — The Chiee-Justice, Swayze, Trbnoiiard;, Parker, Bergen, Minturn, Kausoh, Black, White,. Heepeniteimer, Williams, Taylor. Gardner, Ackerson — 14.

For reversal — None.


text:
    Arthur J. Anderson, administrator, &c., complainant-respondent, v. Broad Street National Bank of Trenton, defendant-appellant.
    [Argued June 25th, 1919.
    Decided March 1st, 1920.]
    On appeal from a decree advised by Vice-Chancellor Backes, ■whose opinion is reported in 90 N. J. Eq. 78.

      Messrs. Wicoff & Banning, for the appellant.

      Mr. Frederic B. Brace, for the respondent.
   Per Curiam.

We concur in the view expressed by the learned vice-chancellor in his opinion filed in this cause, that the case is indistinguishable in principle from Sullivan v. Maroney, 77 N. J. Eq. 565, and that that decision is therefore controlling.

The decree will be affirmed.

For. affirm cunee — The Chief-Justice, Sway.ze, Trenchard, Parker, Bergen, Mtnturn, Kalisci-i, Black, White, HepPENHEniEB, Williams, Taylor, Gardner, Ackerson — 14.

For reversal — None.


text:
    Christian H. Bloom v. Guaranty Trust Company et al.
    [Decided March 1st, 1920.]
    On apiieal from the court of chancer}'.

      Messrs. Lnm, Tamblyn, & Oo'lyer, for the appellant.

      Mr. Philip J. Schotland, for the respondent.
   Per Curiam.

This case was properly noticed, for argument, and upon the call of the list was announced to be submitted upon briefs by agreement of counsel. The brief for the respondent was submitted within the time limited by the rule, but no brief has been received from the appellant, nor has any explanation or excuse been furnished to us for the failure. Standing rule No. 17 of this court provides that in case the appellant, after noticing the case for argument, shall fail to bring on the hearing according to rule, the order or decree appealed from shall be affirmed, or the appeal dismissed, as the court shall direct. We have examined the state of the case for the purpose of determining which one of these courses shall be followed, and we reach the conclusion that the decree brought up by the present appeal should be affirmed. It will be so ordered.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, HepPENHEIMER, WILLIAMS, TAYLOR, GARDNER, ÁCKERSON-14.

For reversal — None.


text:
    Florence Pipe Foundry and Machine Company et al., respondents, v. Burlington City Loan and Trust Company et al., appellants.
    [Decided March 1st, 1920.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Baekes, and reported in 90 N. J. Eq. 410.

    Appeal of Sloss-Slieffield Steel and Tron Company.

      Messrs. Pilney, Hardin & Shiwner, for the complainants.

      Mr. Marshall IT. JMverty and Mr. Ernest Watts, for the defendants.
   Per Curiam.

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

For affirmance — The Chief-Justice, Trenchard, Parker, Bergen, Minturn, Kalisci-i, Black, White, Williams, Taylor, Gardner, Ackisrson — 12.

For reversal — None.


text:
    National State Bank of Elizabeth, appellant, v. Ellis L. Foster, respondent.
    [Decided March 1st, 1920.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, who filed the following opinion:
    This is a creditor’s bill. The defendant, Ellis L. Foster, sold his farm and the grantee made a mortgage to him to secure a part of the price, which mortgage Foster assigned to his wife. Foster had, prior to this sale, endorsed the notes of a corporation called the Sands-ICline Companjr, and upon these complainant has recovered judgment against both maker and endorsers. The case comes within the rale laid down by the court of errors and appeals in Severs v. Dodson, 53 N. J. Eq. 633; for the evidence fails to show actual fraud and, according to the opinion in that caso, we are • not at liberty, in a case circumstanced like the present, to infer constructive fraud merely from the fact of a voluntary conveyance. The additional evidence taken after I had indicated my opiniofi orally does not change it. In fact, this evidence shows that the bank accepted defendant’s re-endorsements after it had notice of the sale. If there is to he any modification of the rule in the case of a stockholder endorsing for a corporation, it must come from the court of errors and appeals and not from this court.

      Messrs. King & Yogi, fox the appellant.

      Messrs. Yreeland £ Wilson, for the respondent.
   Per Curiam.

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

For affirmance — Ti-ie Chief-Justice, Swayze, Trenchard, Parker, Bergen-, Minturn, Kaliscii, Black, Wi-iite, Heppeniieimer, Williams, Taylor, Gardner, Ackerson — 14.

For reversal — None.


text:
    Lewis S. Chester, appellant, v. Samuel Campbell et al., respondents.
    [Submitted May 12th, 1910.
    Determined May 13th, 1919.]
    On appeal from a decree of tlie court of chancery advised by Vice-Chancellor Learning, who filed the.following opinion:
    November 14th, 1918, defendánt Sanxuel Campbell and his wife executed a written declaration of trust of certain real estate and personal property in Cape May county. The instrument recites that whereas Campbell, one Hunt, and complainant have purchased the property for $10,000, clear of all encumbrance, and whereas title to the same is to be taken in the name of Campbell; therefore it is acknowledged and declared by Campbell and his wife that the title is to be held by them in trust for. .Campbell, Hunt, and complainant, share and share alike, and that trustees will upon request of Hunt or complainant convey to either of them their oné-third interest, or upon the sale of the property and conveyance to ,any purchaser mutually agreed upon one-third of the net proceeds from the sale shall go to each of said three parties.
    The legal title to the property was .thereafter taken by Campbell.

      In December, 1918, Campbell, by letter to complainant, repudiated the trust, declaring that it had no legal or moral obligation.
    Complainant then filed the present hill in which lie prays Campbell may be decreed to hold one-third of the property in trust for complainant, subject to a lien of $10,000 in favor of Campbell; and also that Campbell may he decreed to convey to complainant a one-third interest subject to a lien in favor of Campbell of $10,000.
    While the declaration of trust specifically declares that complainant is the owner of one-third of the property and Campbell and Hunt, respectively, are the owners of the remaining twoihirds, yet the bill avers, and the answer admits, that complainant’s share was to he only one-third after the purchase price of $10,000, which was paid by Campbell, shall have been first received by him. To that extent tire declaration of trust is imperfect in its terms. At the hearing complainant also testified, and Campbell’s testimony was substantially to the same effect, that the real agreement was that he, complainant, was to have one-third of the profits of the transaction, above the $10,000 paid by Campbell, when the property should he sold. That, too, is in conflict with the specific terms of the trust instrument which provide that Campbell shall convey to complainant his one-third when he shall request it.
    These two admitted inaccuracies in the declaration of trust obviously render it impossible to enforce it by decree in strict accordance with its terms. These two inaccuracies, however, may not necessarily afford insurmountable obstacles to a decree in behalf of complainant. Since the bill avers and the answer admits that any interest of complainant is subordinate to a lien of $10,000 in favor of Campbell a decree establishing the repudiated trust could appropriately so determine; and since the undisputed testimony is to the effect that it was not in fact contemplated by the parties that any division of the property should be made, but that when sold to a satisfactory purchaser the proceeds of sale in excess of $10,000 should be divided,'a decree establishing complainant’s interest could, in like manner, so provide.

      The primary controversy arises from a vital disagreement of the parties touching the origin of the trust agreement. The property was, prior to "the sale to Campbell, owned by one Mrs. Anderson who had placed it in the-hands of complainant, as a real estate broker, for sale. Complainant, as agent of Mrs. Anderson, negotiated the sale to Campbell and received from Mrs. Anderson for his services the usual commissions of a real estate agent, pursuant to his.contract with -her. In such circumstances the law imposed upon complainant, as agent, the duty to make the best possible bargain' for his principal. In the performance of that duty the law requires of the agent an un'divided devotion to the best interests of his principal; accordingly an agent, so circumstanced, is not permitted to become personally interested in- the sale, except to the extent of his commissions. Should a real estate agent, having property of another for sale, become personally interested in the sale, without knowledge of the owner of "the property, it is entirely obvious that his personal interests would be so far antagonistic to the interests of the owner as to militate against the full performance of his duty to the owner.' While in such circumstances he might fully perform his duties to the owner, the temptations of personal gain would be such as to deny to Mm the privilege to subject himself to such temptations. Hence, no- court of - equity could properly aid him in enforcing his interests so acquired in the property sold. The principles underlying Stewart v. Lehigh Valley Railway Co., 38 N. J. Law 505, 522, inhere in the situation stated. But,,of course, after a sale has been'made no reason exists to forbid the agent to acquire an interest,' if his former agency has in no way entered into or influenced the subsequent transaction.
    Complainant herein claims that his interest in the property here in controversy was acquired after' the sale to Campbell had been fully agreed upon and the first or deposit payment had been made and the agreement had been approved by Mrs. Anderson. Complainant claims that a few days after the sale had been agreed upon and a deposit made he agreed with Campbell to perform certain services in connection with repairs to the property and also to assist in finding a purchaser at an advanced price, in consideration of which he was to have one-third 'of Campbell’s profits when a sale was made; and that accordingly the declaration of trust was drawn and executed to insure to complainant that interest.
    Campbell claims that his agreement with complainant was made before the sale was agreed upon and that it formed a part of the terms of the sale. His testimony is to the effect that while the sale to him was being negotiated complainant stated to him that Mrs. Anderson required the full $10,000 and was to allow to complainant no commissions and that he, Campbell, would needs provide for complainant’s compensation if he purchased at $10,000. Also that complainant stated he had in view another purchaser to whom he thought a sale could be made at a good profit. It was by reason of these statements of complainant that Campbell says he agreed to pay $10,000 for the property and give complainant one-third of the profits should-the properly be subsequently sold at a profit. Campbell’s testimony is measurably corroborated bjr the testimony of Hunt, who was Campbell’s partner in the transaction. Hunt, by his consent and by consent of all parties, has been made a defendant at the hearing and has agreed to stand on Campbell’s answer. Complainant denies the truth of these claims of Campbell and Hunt.
    The testimon3r is in such radical conflict that it is practically impossible to ascertain the exact truth with, certainty. •
    The primary question is whether the agreement between complainant and Campbell whereby complainant was to become personally interested in the profits of Campbell in the transaction was made before or after Campbell had agreed to buy. Whether or not complainant represented that he was to receive no commissions from Mrs. Anderson is, I think,' quite immaterial, if, in- fact, complainant became personally interested in the property while negotiating the sale as agent of Mrs..Anderson; that fact alone would, in my judgment, prevent a court of equity from extending the relief here sought.
    The declaration of trust is framed in a manner to strongly indicate that complainant was an original purchaser. It says:

      “Whereas, said Samuel Campbell, of Bridgeton, State of New Jersey, M. J. Hunt, of Philadelphia, State of Pennsylvania, and Lewis S. Chester, of Sea Isle City, State of New Jersey, have purchased The Rio Grande Pickling factory and lot or piece -of ground located at Rio Grande, Cape May County and State of New Jersey, together with all machinery, fixtures and personal property now in and belonging to same for the price or sum of ten thousand dollars, clear of all encumbrance. And whereas, the title to the said property is to be taken in the name of Samuel Campbell.”
    This recitation clearly is to the effect that the original purchase was in the interest.of the three persons named.
    But perhaps the admitted inaccuracies of the declaration of trust might deny to it any considerable force in the recitation above quoted but for the specific averments of the bill, paragraph 4 of the bill is as follows:
    “4. That your complainant represented the owner of said premises, said Cecelia E. Anderson, in the sale of said premises and secured said Samuel Campbell as the purchaser thereof; that said Cecelia E. Anderson, fixed her price of ten .thousand dollars as the'price for which she would sell said premises; that said Cecelia E. Anderson advised complainant and told complainant that whatever he received for said premises over and above said sum of ten thousand dollars he could have and receive fox his services in selling said premises and besides which she would pay him a commission of five hundred dollars; that with this understanding your complainant, some time in the month of October, nineteen hundred and eighteen, to wit, October 24th, 1918, took up with said Samuel Campbell the matter of purchasing said premises for the sum of ten thousand dollars, and giving your complainant one-third of whatever profit he the said Samuel Campbell would make out of said premises, over and above the sum of ten thousand dollars to be paid therefor; that said Samuel Campbell agreed to purchase said premises for the sum of ten thousand dollars, for himself and your complainant and Mr. Hunt, through your complainant, and also agreed to give him one-third of whatever profit he would make out of said premises and to convey to complainant a one-third interest in said premises, over and above said ten thousand dollars; that in pursuance of said understanding, said Samuel Campbell signed and gave to your complainant a writing or agreement wherein he agreed’ to purchase said premises from said Cecelia E. Anderson for the sum of ten thousand dollars and also gave to your complainant the following writing, signed by him and his wife, Lillian M. Campbell, which writing is as follows, viz.
    It will thus be observed that the bill specifically avers that Mrs. Anderson had authorized complainant to sell for $10,000 less his commissions, and to take for himself, in addition to his commissions, whatever he could get over $10,000; and that with’ that understanding complainant sold to Campbell for $10,000 and one-third of CampbelFs profits in the transaction.
    At the hearing neither complainant nor Mrs. Anderson supported this claim that she had authorized complainant to taire what he could get above $10,000. Complainant testified that he sold for $10,000 and no more, and that his interest arose solely under an agreement subsequently made. That claim was clearly contrary to the very averments of the bill in that respect.
    .In view of the conflict of testimony and the terms of the trust agreement and averments of the bill above quoted, I am convinced that no decree can properly be awarded to complainant. I am accordingly obliged to advise a decree dismissing the bill.

      Mr. William J. Kraft, for the appellant.

      Mr. J. Ogden Burt, for the respondents.
   Per Curiam.

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

For affirmance — The Chief-Justice, Stvayze, Trenoi-iard, Parker, Bergen, Minturn, Kalisch, Black, White, HepPENHEIMER, WILLIAMS, TAYLOR, GARDNER, AcKERSON-14.

For reversal — None.


text:
    Charles Lask, respondent, v. Bedell, Incorporated, appellant.
    [Decided March 1st, 1920.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lane, who filed the following opinion:
    The facts, as I find them, are as follows: On March 1st, 1918, complainant loaned one Corcoran $2,000 for the purpose of enabling Corcoran to acquire an interest in the stock of Bedell, Inc., a corporation; the loan was evidenced by a note dated March 1st, 1918, m'ade’by Corcoran to- Lask, which note is unpaid. Corcoran, at the time of the advance, assigned to complainant, as collateral security for the payment of the note, “fifty per cent, of my (holdings) stock, preferred and common, in the Bedell, Inc., of Paterson, N. J., to be held in payment of note issued to him by Charles Lask until same, is paid by me, for value received.” Previous to this, and on February 16th, 1918, the then holders of the capital stock of Bedell, Inc., had agreed to sell the stock to Corcoran and simultaneously therewith Corcoran had assigned his interest in that contract'to Levay & Friedberg, the people who were putting up the money. On February 25th an agreement had been entered into between Corcoran and Levay & Friedberg, under the terms of which Corcoran was to invest in the concern $2,000, payment to be made March 1st, 1918; Levay & Friedberg were to invest $18,000; the stock of Bedell, Inc., was to be increased; Corcoran, was to receive $2,000 in common and $2,000 in preferred of such stock. On February 26th, 1918, the transaction between the owners of the then existing stock of Bedell, Inc., and Corcoran and Levay & Friedberg was consummated. Ninety shares of the then existing stock (there being one hundred in all) was issued to Levay & Eriedberg, and ten shares to Corcoran; the certificates were never actually delivered, but Corcoran was thereafter recognized as a stockholder; on May 4th, 1918, after a certificate had been filed increasing the capital stock from $10,000 to $40,000, one-half common, the other half preferred, a meeting of the stockholders and directors were held, at which meeting there is recited to have been present, Abraham Levay, forty-five shares; Abraham Eriedberg, forty-fiv-e shares; John J. Corcoran, ten shares; at that meeting there was authorized the issuance to Levay & Eriedberg, or their designee, of $39,000 in stock, and Levay & Eriedberg, at the same meeting, directed the corporation to issue, of the stock, two hundred shares common and two hundred shares preferred to Corcoran. The consideration for the issuauce of the increased stock was an indebtedness due from the corporation to the owners of the old stock, which indebted-mess Levay & Eriedberg, as individuals, had purchased. Stock certificates were actually drawn up,'but were not, in fact, delivered, for tire reason, as stated, that Eriedberg went on the road and the papers were left with Meyers, the attorney. Eriedberg testified that if the defalcation hereinafter mentioned had not occurred, he judged that the stock would have been delivered to Corcoran. Corcoran, on May 4th, 1918, was appointed general manager. A provision of the by-laws required that the general manager should give a suitable bond. No bond was given or exacted. In August Corcoran absconded and fled the state. Prior to his going.he wrote a letter to Eriedberg, advising him of the condition of affairs, and also a letter to Lask, enclosing in the letter to Lask an instrument, which reads as follows:
    “July 3, 1918.
    “To Whom it may Concern :
    “I hereby assign 200 shares of preferred and 200 aliares of common stock of Bedell, Inc., Paterson, N. J., for the consideration of one dollar and other valuable consideration to Mr. Charles Lask of No. 159 Madison Ave., New York City, N. Y. I also give Mr. Lask power of attorney with regard to the above mentioned holdings. Signed this 3rd day of July, 1918.”
    The assignment was antedated by Corcoran. No notice was given to the corporation, either of the assignment of March or of the last-mentioned assignment, until after the defalcation. The bill makes party defendant only Bedell, Inc., and prays that complainant may be adjudged to be the owner and entitled to the immediate possession of the shares of stock; that defendant be decreed to forthwith issue such shares and that complainant have such other and further relief as may be proper. The claim of defendant is, that the stock was not delivered to Corcoran because, under the by-laws, it was provided that a bond should be exacted and the stock was held by defendant in lieu 'of the bond. On the trial defendant insisted, in addition, first, that the stock had not been issued and that Corcoran had merely a chose in action against the corporation, and that the assignee of such chose in action took it subject to any equity of defendant, and that defendant was entitled to. offset against the claim of the assignee its claim against Corcoran for the amount embezzled, in the neighborhood of four thousand dollars; second, that it had a lien upon the stock for the amount due to the corporation from Corcoran.
    I will deal, first, with, the contention made in the answer.
    1. There is no evidence that any arrangement was made whereby the stock was to be'held by the corporation in lieu of the bond. No agreement on Corcoran’s part that it should be so held was shown. Both he and Eriedberg were witnesses and no attempt was made to prove an agreement either that the stock should be held by tine corporation in lieu of the bond or that the stock should be held to answer any claims the corporation might have against Corcoran.
    2. If the stock was, in fact, issued, although the certificates had not been delivered, then I fail to see upon what theory the corporation can offset against the claim of the assignee to the possession of the certificates, and to have such entry made upon the books of the corporation as will evidence his rights, any claim that the corporation may have as against Corcoran. It is the recognized law of this state that the certificate of stock is merely evidence of ownership, and that there need not be'a certificate issued and delivered to vest a person with the rights of a stockholder. Storage Company v. Assessors, 56 N. J. Law 389; Warren v. Pim, 66 N. J. Eq. (at p. 381), citing Downing v. Potts,

      23 N. J. Law 66, 79; Bijur v. Standard Distilling and Distributing Co., 74 N. J. Eq. (at p. 556); affirmed on opinion below, 78 N. J. Eq. 582; N. Y. & East. Tel., &c., Co. v. Great East. Tel. Co., 74 N. J. Eq. (at p. 230); affirmed on opinion below, 75 N. J. Eq. 297; Fidelity Trust Co. v. Federal Trust Co., 100 Atl. Rep. (at p. 619). The question is whether, in fact, the stock was issued. In Walcott y. Waldstein, 86 N. J. Eq. 56, cited by defendant, the holding of Vice-Chancellor Learning was based upon the fact that the transaction under which the stock was to be issued was never, in fact, consummated. In Fidelity Trust Co. v. Federal Trust Co<., supra, I held, although there were no stock certificates issued or book entries, that the transaction had been -consummated and that J ames Smith, J r., had become a stockholder. In the case at bar, the transaction under which the stock was to be issued was consummated. Corcoran had paid his $2,000. The debt due from the corporation to the holders of - the. old stock, taken by assignment by Levay & Fried-berg, had been surrendered. The corporation had directed the issuance of the stock to Levay -& Friedberg, or their nominees; Levay & Friedberg had directed the corporation to, in fact, issue two hundred shares of common and two hundred shares of preferred to Corcoran, who had, as above stated, paid the full consideration therefor. The certificates were drawn up and nothing remained to be done except the physical delivery of the certificates. This delivery was not withheld because of any agreement. The stock was not put in escrow. The delay in delivering was due to the absence of the parties.
    I am convinced, therefore, that it must he considered in this case that Corcoran at the time of the defalcation was, in fact, a stockholder of the corporation to tire extent of two hundred shares of common and two hundred shares of preferred. If this be so, then, in anjr action of the assignee of Corcoran to enforce his rights in the corporation, or to compel the corporation to recognize him as a stockholder, the corporation cannot set up or offset its demand against Corcoran, the act of the officers of the corporation in delivering the certificates and making the entries upon the books being purely ministerial.

      3. Defendant claims a lien upon the stock and counsel for defendant cites, in support of his proposition, Hammond & Co. v. Hastings, 134 U. S. (at p. 401); 33 L. Ed. 960. That case, as a casual inspection will show, was based on a statute of Michigan giving a lien. The law is well settled that in the absence of statute or by law or agreement a corporation has no lien, upon the stock of a stockholder for a debt due from the stockholder to the corporation. 23 Am. & Eng. Encycl. L. (1st ed.) 689; Drexel v. Long Branch Gas Light Co., 3 N. J. L. J. 250; Young v. Vough, 23 N. J. Eq. 3 825; 7 Rul. C. L., tit. "Corporations" § 177. Counsel also cites McILroy Banking Co. v. Dickson (Supreme Court of Arkansas), 50 S. W. Rep. 868. It appears that the ruling in that case was based upon a statute. The brief of defendant was prepared and filed by New York counsel. Under a statement of counsel that the authorities are clear, to the effect that a corporation is entitled to a lien on stock of stockholders who have embezzled money of the corporation, excerpts from the opinions of the courts in the two last-cited cases are quoted. There is omitted any reference to the fact that both cases were decided upon' statutes. A cursory examination of the cases would have indicated that they cannot be considered in anywise as authority for the proposition advanced by counsel. The courts in this jurisdiction are not accustomed to having cases cited to them in a misleading manner. The courtesy usually extended to counsel from New York to appear in cases in this court will not be extended by me to counsel engaged in this ease until his conduct shall have, been, if it can be, satisfactorily explained.
    Complainant, therefore, is entitled, in my judgment, to a decree compelling the corporation to issue the’ stock to him, and to maleé such entries on the books as will evidence ownership in him. The jurisdiction of equity, I think, is indicated by the following eases: Morris v. Hussong Dyeing Machine Co. et al., 81 N. J. Eq. 256 (at p. 261); Reilly v. Absecon Land Co., 75 N. J. Eq. (at p. 74); Archer v. American Water Works Co., 50 N. J. Eq. 33, 50; Lockward v. Evans, 88 N. J. Eq. 530. In this case it is apparent that the dispute between the parties would have to be settled in this court because of the alleged equitable claims on the part of defendant. While the bill is apparently based upon the theory that Corcoran had a right of action against the corporation to compel the corporation to- issue the stock to him, yet there is a prayer for general relief. ' No objection has been made to the pleadings and the case has been fully heard. I think relief, therefore, may be granted upon the facts as T find them. Complainant is not bound or prejudiced by the position he takes in his bill, as he had no knowledge, at the time he filed it, of the actual conditions.
    I do not think, however, that a decree should be made until Corcoran is made a party defendant. The assignment made by Corcoran to Lask is as collateral security. I think the corporation is entitled to his presence in the suit. That he is a proper party was held by Vice-Chancellor Emery in Morris v. Hussong Dyeing Machine Co., supra. That he may, if necessary, be brought in by publication is settled in Andrews v. Guayaquil and Quito Railway Co., 69 N. J. Eq. 211; affirmed, 71 N. J. Eq. 768. I will withhold the signing of a decree until he is brought in.

      Mr. William Hauser, for the respondent.

      Mr. Wood McKee, for the appellant.
   Per Curiam.

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

For affirmance — Tss Chibe-Justice, Teenchaeb, Parker, JBergejST, Mihturn, Kalisoh, Black, White, HeppbhSeimer, Williams, Taylor, Aokersoh — 12.

For reversal — None.