author: Grey, Y. C.

text:
    Mary E. Hildebrand et al. v. Anne Madeline Willig et al.
    [Filed January 12th, 1903.]
    1. Delivery of a deed is matter of intention, rather than action in any definite form. Acts or declarations of the grantor and grantee, which, taken in connection with the surrounding circumstances, indicate that the parties intended to deliver the deed, and believed they had done so, will be held to be a delivery. *
    2. Mere proof of registration of a deed is not in itself conclusive evidence of a delivery. But proof of registration', with the assent of the parties, is forceful evidence' of a delivery.
    3. Where a grantor, in anticipation of his entering upon a new business, conveys land to a grantee for the purpose of preventing its application to payment of the grantor’s possible debts in case financial misfortune should result from the venture, the conveyance is obnoxious to the statute of frauds, as made with an intent to hinder creditors.
    4. Such a conveyance is invalid as against the creditors of the grantor, but is valid as between the grantor and grantee and their heirs-at-law.
    5. A court of equity will not aid the heirs-at-law of such a grantor to declare such a deed to be a nullity, nor will it direct a reconveyance to them. It will leave the title to the land whese the intending fraud-doers place it.
    6. Where it is shown that a conveyance was made with such an intent, the court will not be induced to lend its aid because it is proven that the feared misfortune did not in fact happen. The court will say to applicants for relief in such a case, “it is no ground for relief, that although you intended to cheat creditors if occasion should require, the expected occasion did not happen, and your preparation to defraud creditors was therefore unnecessary.”
    On bill for relief on final hearing.
    The bill in this case is filed by Mary E. Hildebrand, the widow of William P. Hildebrand, and his six children, some of whom are infants, against Anne Madeline Willig, the widow of Henry Willig, and- Clarence Henry Willig, the only child and heir-at-law of Henry Willig, and George Bundens, administrator, &c., of the personal property whereof Henry Willig died seized.
    The hill shows that on January 28th, 1901, Hildebrand (then living), the husband of Mary E. Hildebrand and father of the rest of the complainants, was the owner of a lot of land, of sixty-five aeres and a fraction, lying in Franklin township, Gloucester county. It is alleged in the bill that Mrs. Willig was seized of an adjoining- piece of land, and that Hildebrand was desirous of conveying the title of his tract to Mrs. Hildebrand, his wife, in order that she might have title to both tracts and make them one farm; and to accomplish that result, the bill says, Hildebrand and his wife agreed and arranged with Willig (then living) to convey the premises to Willig in fee, Willig and his wife were immediately to reconvey the premises to Mrs. Hildebrand, no consideration to pass for either conveyance. The bill further alleges that, in pursuance of that agreement, Hildebrand and his wife, on the 28th day of January, 1901, secured Mr. Stratton, a conveyancer, to draw a conveyance from Hildebrand and wife to Willig, the consideration price being $1, and that on that day the parties did so convey to Willig, by deed in fee-simple; that it was further agreed by the grantors that Stratton should take the deed to the office of the .county clerk and have it recorded, but not to deliver the same to the said Willig, but to return it to Hildebrand when recorded.
    The bill further alleges that, acting on those instructions, Stratton did, oil the 29th of January, 1901, have the deed recorded and procured it to be returned to him from the clerk, and then sent it back again to Hildebrand. The bill alleges that the deed was never delivered by Hildebrand, or by anyone for them, to Willig, or to anyone for him; that no consideration passed between Willig and Hildebrand fox the deed, and that the value of the property is $1,500; that, through mistake, the intention of Willig and wife to complete the agreement was never carried out, and although Hildebrand often requested Willig to make the deed to Mrs. Hildebrand¿ and although Willig promised to do it, yet, being the son-in-law of Hildebrand and the parties relying upon each other that the intention of the parties concerned would be carried out, the conveyance was not made; that on the 16th day of September, 1901, Willig having not yet re-conveyed to Mrs. Hildebrand, departed this life intestate, leaving him surviving his wife (the defendant) and one son, his heir-at-law. Administration was then granted upon his estate to George Bundens, the wife and heir-at-law being defendants to this suit, the heir-at-law being a babe nine months old.
    The bill further shows that on the 25th of October, 1901, William P. Hildebrand, before any steps could be taken to protect his interest, departed this life intestate, leaving the complainant Mary E. Hildebrand and the other complainants as his heirs-at-law; that Hildebrand, up to the time of his death, occupied and enjoyed the premises without any claim by Willig or any of the defendants upon the property, and that Hildebrand, up to the time of his death, has paid the taxes. The bill charges that Bundens, administrator of the Willig estate, threatens to apply the property conveyed by the deed, by application to the orphans court, to the payment of the debts of Willig; that the complainants are unable to obtain from Mrs. iVillig and the infant child a release to them of their claim to the premises, and are obliged to .seek relief in this court. The bill prays discovery by the defendants of the inducements to the making of the deed and under what agreement; and, by way of relief, that the deed may be set aside and canceled and declared null and void, and that the complainant may have such further and other relief as the nature of the ease may require.
    A decree pro. confesso has been taken against Mrs. Willig, and appearance is made for the infant defendant, but no answer appears to have been hied for him. The- answer of the defendant George Bundens, administrator of Henry Willig, deceased, admits that, on the day of -the making of the deed, Hildebrand was possessed and seized of the premises, and that they are correctly described in the bill; and that Mrs. Hildebrand owned the adjoining piece of land, but denies that it was ever Hildebrand’s intention to convey the premises to Mrs. Hildebrand; denies that there was any agreement between the parties to that effect, and denies that Willig ever agreed so to convey. It admits 'that Stratton drew the deed; that the consideration of $1 is the named price in the deed, but denies that Stratton was the agent of_ Mary Hildebrand, and says he acted in the transaction as agent for William P. Hildebrand and Henry Willig. 'It admits the execution of the deed conveying the premises to Willig, but denies that it was- made in pursuance of any agreement that he should reconvey to- Mrs. Hildebrand, or upon any expectation on her part that the premises would be reconveyed to her. Admits the acknowledgment of the deed, and that Stratton sent it to the clerk, but denies that Hildebrand and his wife instructed Stratton not to deliver it to Willig. On the contrary, the answer says the deed was delivered to Willig after it had been recorded; denies that it was through any mistake that Willig did not reconvey, and for the reason that there never was any such purpose or intention; admits the death of Willig and Hildebrand, and that the parties, complainants and defendants, are their wives and children 'and heirs-at-law. The answer of the administrator of Willig claims that he has not sufficient personal estate of his decedent to .pay his debts, and that he is about to apply to the orphans court of Gloucester county for leave to sell the premises in question for the payment of Willig’s debts, and asserts the rights of Willig in the premises by virtue of a deed; alleged that the conveyance passed the title from Hildebrand and wife to Willig in fee, clear of any trust or condition or agreement that he should reconvey. The answer further sets up that the motive which prompted Hildebrand in making the convejmnce to Willig was that Hildebrand was one of the stockholders of the Swedesboro Glass Works,.a corporation of the State of Hew Jersey, and became an endorser upon the commercial paper of that corporation, and was fearing that he might become liable on such paper, and in order to place the premises beyond the reach of creditors he placed the title to the premises in Willig, with no arrangement for reconveyance to himself or the complainant Mary Hildebrand. The answer further denies that Hildebrand ever called upon Willig to reeonvey, and sets up the fact that an action was begun in the Gloucester county court seeking to enforce the alleged contract of Willig to reconvey, which was dismissed. The answer further sets up that the case alleged by the bill shows the attempted creation of an express trust by parol, and prays that the defendant shall have the same benefit of the answer as if he had demurred to the bill.
    Issues are joined on the allegations of the answer, and the case has come to a hearing on proofs submitted by each side.

      Messrs. Wallcins & Avis, for the complainants.

      Mr. Austin 3. Swackhamer, for the defendant George Bun-dens, administrator, &c.
   Grey, Y. C.

(orally).

The complainants base their case substantially upon two points—first, that there never was any delivery whatever of this deed to Willig, or to' anyone for him, by Hildebrand, the grantor, and secondly, that if there was a delivery, it was upon an express trust that Willig should reconvey to Mrs. Hildebrand, which was defeated by the accident that he died before it was carried into effect.

Thera is no question that there was such a deed executed, and its operation and effect, as appears on its face, would have been, upon delivery, to pass the title to Willig in fee-simple. There is very little denial of the mode in which the deed was executed, and substantially none as to the manner in which it came to be put upon record. In the point as to the actual delivery of the deed by Hildebrand to Willig, the evidence of an actual physical transaction- of tire deed from Mr. Hildebrand to Mr. Willig in the lifetime of the parties is somewhat obscure. It is, however, shown, by the weight of the evidence, that there was an agreement between Hildebrand and Willig that such a deed should be made, and that Willig had ■ expressed to Hildebrand a willingness on his part to accept such a deed, and that, in accordance with that understanding between Willig and Hildebrand, the latter instructed Mr. Stratton to draw the deed and to have it recorded. It was drawn and executed under that agreement. Hildebrand instructed Stratton to get the deed back again after it was recorded, and when Stratton had obtained it from the clerk, after record, he sent it to Hildebrand. Willig, when spoken to by' Stratton about the deed, said Hildebrand would attend to it.

On the question of the delivery of the deed, an actual physical passing of the paper is the usual mode observed in order to operate in law a delivery, but it is not necessary that there should be such an actual physical transmission of the deed. So, also, there may be situations where there is an actual passing of the paper which do not operate in law to effect a delivery. It is always a question, not of the actual thing doné, but of the intent and mind of the acting parties in doing the thing. It may be that a man may be in an office, where he executes a deed, and he may walk out of the office and say nothing, leave the deed behind him, and a grantee may walk into the office and pick up the deed, and put it upon record, and the subsequent transactions may show that it was a bona fide conveyance, and that the delivery was effected at the time tire grantee, by the assent of the parties, took the deed, because subsequent transactions may show ■that that was the intent of the parties. In such a case no word was spoken, no act of delivery took place; the deed was simply left in one place by the grantor and picked up by the grantee. If subsequently he paid the consideration money, and received possession, it is perfectly obvious that it was the intent of the parties that the deed should be delivered. See the discussion of a delivery in Terhune v. Oldis, 17 Stew. Eq. 150.

What was the intent of Mr. Hildebrand and the intent of Mr. Willig in this transaction ? The evidence satisfies me that Willig agreed that Hildebrand should make such a deed to him, and therefore the action upon the part of Hildebrand thereafter must be considered to have been with relation to the preceding agreement between him and Willig. Hildebrand not only executed such a deed, but, in addition to executing it and very well understanding what the deed would accomplish, he sent it to the clerk’s office for record, and he thereby proclaimed to the world that he had made a deed to Henry Willig conveying the premises in question.

Mere registration of a deed, as the uninvited act of a scrivener, or even of a party to it, without the assent ox agreement of the other party, ought not of itself to be held to be conclusive evidence of a delivery of it. But registration by agreement and instruction of the parties'is forceful evidence of the delivery of the deed, for it is proclamation to the world that the conveyance has, in fact, been made.

All the circumstances of this case precedent to, attendant upon and subsequent to the act of registration show that it was done by the grantor, with the assent of the grantee, and that the grantor thereafter recognized the fact that the deed had passed title.

The bill of complaint itself recognized that the deed had, in fact, been delivered, for it narrates that, under the agreement with Willig, Hildebrand and wife “conveyed all the hereinbefore described premises unto said Willig in fee-simple.” This could only have been done by delivery of the deed.

The next question is, for what purpose and intent was the deed made? Complainants insist that the title was passed to Willig under an agreement between Willig and Hildebrand, as follows: Mrs. Hildebrand owned one property, and Mr. Hildebrand owned that conveyed to Willig, which immediately ( adjoined Mrs. Hildebrand’s tract. The complainants’ claim is that the deed made to Willig was, by agreement between Hildebrand and Willig, made for the purpose of having Willig reconvey the premises now in dispute to Mrs. Hildebrand, in order that the two properties might be joined into one holding.

The defendants resist this claim, contending that it is an attempt to enforce an express trust, for the conveyance of lands, not evidenced by any writing. This is, I think, sufficiently answered by the reply that the statute of frauds will not be enforced in equity when the eff ect of its application will be to operate a fraud. If there was, in fact, such a parol trust, the performance of which was defeated by the accident that Willig died before performance, the aid of a court of equity might be asked, if not to compel the steps necessary to complete the gift in favor of a wife, then at least to restore to the representatives of the donor the property which had never been paid for.

It is therefore proper to examine the evidence to ascertain what, in fact, was the agreement between Hildebrand and Willig touching this conveyance, and whether there is any equity in the complainants entitling them to the relief they ask.

The evidence offered on the part of the complainants in support of this claim is wholly the proof of statements made by Mr. Hildebrand to his wife and daughter, here repeated by them. They are parties in the cause, testifying in their own interest. Mr. Stratton, the scrivener who drew the deed, is a witness. He received no declaration from Mr. Hildebrand that there was any such agreement. No instructions to prepare a deed from Willig to Mrs. Hildebrand appear to have been given. In the countryside, where this form of conveying the title of the husband’s property to the wife is a common occurrence, it is almost invariably the custom to draw the two conveyances—from the husband to the third party, and from’him to the wife—and to execute both deeds at the same time. The same officer usually prepares both deeds. It is remarkable, if there was a purpose that Willig should reconvey, that something of it was not mentioned by the grantor, intimating that it was intended that a second deed should be made. No disclosure of such á purpose appears in this case.

Another circumstance makes doubtful the claim that there was an agreement that Willig should reconvey. Hildebrand’s deed to- Willig was made on the 21st day of January, 1901. ' It is claimed that Willig’s death prevented the completion of the plan of' a reconveyance by him to Mrs. Hildebrand. Willig’s death occurred in the month of September, 1901. During a period of eight months intervening between the making of the deed and Willig’s death there is no proof whatever of any request, suggestion or claim that Willig should reconvey.

There is no explanation here given in evidence which satisfactorily shows that there was any definite agreement of any kind by which Willig obligated himself or agreed that he would reconvey to Mrs. Hildebrand. No other testimony is offered in support of that contention than the statements of Mrs. Hildebrand and her children, who are interested in supporting that claim.

In the view which I take of this case, however, I do not think the legal effect of the transaction would he affected whether there was an intent to reconvey the property to the wife or not. I am unable to avoid the force of the testimony of Mr. Millard F. Du Bois, narrating the explanation given to him by Mr. Hildebrand of the purpose and intent of this conveyance. After Mr. Willig’s death, and when parties interested were applying to Mr. Du Bois, the surrogate, for letters of administration upon his estate, Mr. Hildebrand-had the conversation with Mr. Du Bois regarding which the latter testifies. The conversation took place in September or October, 1901. At this time eight months had elapsed since Mr. Hildebrand conveyed the property to Mr. Willig. No steps had been taken to declare any trust in the property or to reconvey to Mrs. Hildebrand. In the meantime Willig had died. Hildebrand was Willig’s father-in-law, and took an interest in the settlement of his estate. The relations between Hildebrand and Willig had been friendly. There was nothing improbable that there should have been an understanding between them that Willig should hold the premises for the benefit or at the option and command of Hildebrand. It was under these circumstances that Hildebrand explained the transaction to- Mr. Du Bois, who was then surrogate of the county-of Gloucester. Mr. Du Bois was asked to relate the conversation he had with Mr. Hildebrand. He testified as follows:

“After I had granted the letters of administration to Mr. Bundens, Mr. Hildebrand said to me, ‘Now, when will the administrator transfer back to me my property?’ I said, ‘What property?’ I knew nothing of any property that lie held. ‘Well,’ he s-aid, ‘My property.’ I said, ‘You will have to explain to me what your property is.’ He said, T might as well tell you the whole thing, because you will have to know it.’ He said, T went into the glass business at Swedesboro and I did not want to make any of my property liable for any misfortune that might happen to the firm, and I made it. over to- Henry Willig, my son-in-law,’ and he said, ‘Now I want it back.’ I said I didn’t see how he was going to get it back. The administrator had no authority to transfer his property back to him. The only way I see that it could be done is by an order of the court. I stated there were debts the son-in-law was bound for, and I didn’t see any other way except to get an. order of the court to sell lands to pay debts. ‘Well,’ he said. ‘X am up against it then-.’ He said, ‘I-t seems kind a hard that I have got to pay to get my property back.’ I told him ‘the administrator had no authority to transfer back any property.’ ”

,This testimony is given by an intelligent and wholly disinterested witness. It is entirely undisputed and unexplained. It is consistent with all the documentary proofs and with the actions of both Hildebrand and Willig with relation to this conveyance. It explains Willig’s remark to- Stratton that Hildebrand would look after the matter, or words to that effect. The action of Hildebrand in recording the deed and getting it returned to Mm, and his retention of possession of the premises, go to- show that.Ms statement to Mr. Du Bois is the true explanation of the transaction.

The weight and credibility of the evidence- clearly support this view. The result is a showing that Mr. Hildebrand made the .deed in question when he was about to- enter into a new business undertaking, which might involve him in financial misfortune. He did not want his property to- he liable to be applied to- satisfy such apprehended liabilities, and to avoid them he conveyed it to Willig. Willig died still holding the title to it. This hill is filed by Hildebrand-’s heirs-at-law to compel Willig’s heirs-at-law to reconvey it.

The conveyance was made with the intent to hinder and defraud possible creditors of Mr. Hildebrand. It is within .the operation of the statute of frauds, and this court will not give its aid to those who stand in the place of the wrong-doer to be relieved from the legal effect of such a conveyance.

It has been argued here that it does not appear that the apprehended financial misfortune did actually happen, and that there' was, in fact, no actual hindering of Hildebrand’s creditors. Conveyances made with intent to hinder and defraud creditors are declared to be void by the statute whether they succeed in defrauding ox not.

Courts of equity will not entertain propositions of this character. They say to all persons who desire to make conveyances with intent to defraud either present or possible future creditors: “You make such conveyances at your own risk; you cannot induce the courts to relieve you from the consequences of your fraudulent acts. It is no ground for relief that, although you intend to cheat creditors if occasion should require, the expected occasion did not happen, and your preparation to defraud creditors was therefore unnecessary.”

The bill of complaint must be dismissed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    Franklin Riley, trustee, &c., v. Francis R. Fithian et al.
    [Filed January 23d, 1903.]
    1. In an action by a trustee to recover trust property alleged to-have been wrongfully obtained by the defendant, parts of the bill narrating the origin and terms of tbe trust and the parties thereto, should not be stricken out as immaterial.
    2. An allegation in the bill, in an action to recover property of which complainant claims to have been defrauded, that hp consulted his counsel as to the transactions, and directed him to investigate the facts to enable him to take legal steps for relief, should not be stricken out, as it tends to show diligence and explain delay, and is not prejudicial to the defendant.
    S. The insertion, in a bill by a trustee to recover trust property, of a copy of a letter written by complainant’s counsel to defendant before suit, stating counsel’s view as to the legal basis of complainant’s claim, and suggesting an “adjustment without recourse to the courts,” is proper as being matter showing that the defendant was warned of his alleged inequitable conduct previous to the suit. Such an allegation suggests considerations which may affect the allowance of costs.
    On bill for relief. On motion to strike out parts of bill.

      Mr. Glement H. Sinnichson and Mr. William A. Logue, for the complainant.

      Mr. Edward Ambler Armstrong and Mr. David J. Pancoast, for the defendants.
   Grey, Y. C.

(orally).

This matter may be presently disposed of, as the elaborate arguments of counsel on both sides have fully discussed every view which may be taken of the points in dispute.

The bill of complaint is filed by a trustee, who devotes the first twelve or thirteen pages of the bill to a definition of the origin and character of his trust. The principal defendant is Francis R. Eithian, who is alleged, on the face of the bill, to have been the agent of the complainant, whom he employed to sell the trust property. The other defendants are parties claimed to have been associated with Mr. Eithian in the doing of the acts alleged to be wrongful. The bill alleges that the trustee employed the defendant Eithian to effect a sale, and charges that he and those he associated with him have wrongfully retained part of the trust property, and have sold and retained the profits of another part; that these acts were concealed from the complainant (trustee), and have resulted in great loss to the trust estate. The trustee complainant states the details of the transactions, so far as they have come to his knowledge, and asks a disclosure of all the incidents whereby the title of the trust property has been disposed of, and an accounting for, and the payment back to the trustee of, the profits of the trust properly 'wrongfully retained, and also a reconveyance of the portion of the trust lands which, it is alleged, have been wrongfully obtained by the defendant Fithian for his personal use.

The bill of complaint is challenged, under rule 213, in three particulars. The first is as to the twelve or thirteen pages in which the trustee narrates the origin and the terms of his trust. The criticism made of this portion of the bill is that it is wholly immaterial whether the complainant is trustee or not; if he is, it is wholly immaterial what the terms of his trust are; that the gravamen of his bill is the demand that the complainant should have an accounting from his agent employed to dispose of his property, and it is insisted that the origin and nature of the trust under which the complainant holds the lands in question may be wholly left out, without any detriment to the complainant’s case.

An examination of the bill of complaint indicates that the narration of the origin of the trust under which the complainant holds the trust property is necessary, in order to show who are the cestuis que irustent, who, in proceedings affecting the trust property, should be made parties, unless the securing of their appearance is greatly inconvenient or practically impossible. The court of appeals settled this in the case of Tyson v. Applegate, 13 Stew. Eq. 311. To strike out the history of the origin 'of the trust, would leave the complainant declaring that he was.a trustee, without disclosing his trust or showing who were entitled to the benefits of it.

The narrative of the creation of the trust is somewhat extended, but the transactions out of which the trust grew were themselves both complicated and voluminous. They cannot be stricken from the record without crippling the complainant’s statement of his cause of action.

The above objection to the bill must be overruled.

The next criticism of the bill of complaint is that it contains an allegation that there was a consultation between the complainant and his counsel touching the transactions involved, and a direction by complainant to his counsel that they should make such inquiry as to the facts as might be necessary to enable him to take legal steps for relief. This is objected to as irrelevant. The obligation upon a party who thinks he has reason to believe he has been defrauded of property is to make diligent inquiry and pursue his remedy before the defendants, if they be, in fact, fraud-doers, may so- act as to change the nature of the title or involve persons who are innocent as to the fraud.

If, upon the face of the bill of complaint, it appears that the complainant has supinely slept after warning of his danger, he might be liable to a charge of laches from a party who, because of his negligence, might have become a Iona fide purchaser of the property. The insertion of a clause tending to explain delay in procedure or to show diligence, while not of vital importance, is in no way prejudicial or embarrassing to the defendants. It should not be stricken out of the bill.

The third criticism of the bill of complaint is the insertion therein of a copy of a letter written by the counsel of the complainant to the defendant Fithian, at or about the ending of a correspondence between them -regarding the subject-matter of the present lawsuit. The objection is that this letter is wholly irrelevant and immaterial as a part of the complainant’s statement of his cause of action; that it is in the nature of a law brief, and has- no proper place in the bill of complaint.

The letter in question is a statement by complainant’s counsel to- the defendant Fithian of his view of the legal basis of complainant’s claim, and expresses a willingness to confer for “adjustment without recourse to- the courts,” &c. It occupies about one page of the bill.

In equity costs are not necessarily awarded to the successful party in the final decree. The showing on the face of a bill of complaint that, previous to its filing, the defendant had been Warned of 'his equitable duty, and requested to perform it, is. a pertinent allegation. This has resulted in the well-known clause. The complainant, if successful in the cause,, may appeal to the fact that the defendant contested the suit, with previous warning of the legal basis of the complainant’s claim, as a justification for the allowance of costs.

None of the specified criticisms of the bill of complaint can be sustained. The motion to strike out is therefore refused, with costs.


author: Stevenson, V. C.

text:
    Helen M. Barger v. John Gery.
    [Filed November 10th, 1902.]
    1. A title dependent on a fact must be regarded as marketable where (1) the fact is so conclusively proved in a suit by the vendor for specific performance that a verdict against the existence of the fact would not be allowed to stand in a court of law, and (2) where there is no reasonable ground for apprehending that the same fact cannot be in like manner proved, if necessary, at any time thereafter for the protection of the purchaser.
    2. A mortgagee assigned its mortgage to a third party, who assigned to another, who reassigned to the mortgagee. All of these assignments were duly recorded. Thereafter the mortgagee assigned to A., this assignment also being of record. No record of any kind appeared of any assignment by A. Thereafter the original mortgagee assigned to M. who assigned to another party, who brought a foreclosure suit in which he produced the bond and mortgage and obtained a decree thereon for a sale of the mortgaged premises. A. was not a party to this foreclosure suit. M. purchased at the foreclosure sale.—Held, in a suit for specific performance of a contract to purchase the land brought twenty-three years thereafter by a party claiming under M., that there was a presumption in favor of the validity of the offered title until some evidence was produced to the contrary that if A. took any rights by the assignment, such rights by reason of a transfer or otherwise were no longer enforceable against the offered title.
    3. In a .suit to compel the specific performance of a contract to purchase land, the evidence examined, and held to sufficiently show that an outstanding interest in the land in a third party had been lost by estoppel or by limitations, &c., to warrant a decree for complainant.
    4. In a suit to compel the specific performance of a contract to purchase land, when the court found the title to be marketable, but the evidence in support thereof was not presented by the vendor to the vendee, a very important part of it being obtained by the vendor after the suit was commenced, costs ought not to be allowed to either party.
    On 'bill for specific performance of contract for sale of land. Heard on bill, answer and proofs.

      The bill is filed by the vendor to compel the vendee to perform his contract. The vendee defends on the ground that the title offered is not marketable. The title in dispute is traced back, through various conveyances which are not questioned, to a sheriff’s deed in a foreclosure suit made in 1877, twenty-three years before the contract was made which is sought to be specifically enforced in this suit. The alleged defect in the title may be described briefly as this: That the mortgage foreclosed in the above-mentioned suit'may, notwithstanding such foreclosure, be an outstanding encumbrance, enforceable on behalf of one J ohn I. Anderson, who- was not a party to the foreclosure suit, or by some person claiming through him. In other words, it is claimed that the party complainant who foreclosed the mortgage apparently did not own it; that his title to it was through an assignment from a former owner, who had previously assigned it to one J ohn I. Anderson, by a valid deed of assignment, which was on record at the time of the second assignment, under which the complainant in the foreclosure suit held title.
    The complainant contends that, under all the circumstances, the possibility of there being any enforceable claim under the mortgage on behalf of Anderson, or anyone deriving title from him, is too remote for consideration; that there is no room for reasonable apprehension that any claim under the supposed Anderson assignment will ever be made.
    The facts, in which dates are of great importance, are as foK lows: The bond and mortgage were made by Archibald Warren to- the New Jersey Mutual Life Insurance Company; they bear date February 18th, 1873, and the mortgage was recorded February 24th, 1873, in the Passaic county clerk’s office. The debt secured was $2,600, and it was payable May 1st, 1874, with interest. The property consisted of a plot one hundred feet square, containing four city lots, in the outskirts of the city of Paterson, on which a house, apparently a substantial residence, was erected. The house and two lots, making a plot fifty by one hundred feet, is the subject-matter of the contract in this case, and the contract price is $1,250.
    On March 25th, 1873, the New Jersey Mutual Life Insurance Company assigned the bond and mortgage to one Daniel J. Noyes, and on the same day Daniel J. Noyes assigned the mortgage to Kate C. Woolsey, and on May 29th, 1873, Kate C. Woolsey assigned the mortgage back to the New Jersey Mutual Life Insurance Company. All of these assignments were duly recorded.
    According to the records of the Passaic county clerk’s office, on September 7th, 1874, the New Jersey Mutual Life Insurance Company assigned the bond and mortgage to one John I. Anderson, the assignment being recorded December 28th, 1875. The arguments of counsel assume that there is no record of any kind of any assignment of the bond and mortgage by John I. Anderson. ' ’
    On January 24th, 1877, the New Jersey Mutual Life Insurance Company executed a deed of assignment, bearing that date, purporting to transfer the bond and mortgage to one Minot Mitchel, of Yonkers, Westchester county, in the State of New York, which deed of assignment was duly recorded January 31st, 1877. Subsequently Minot Mitchel assigned the bond and mortgage to one Alexander Phillip, who thereupon, on May 31st, 1877, filed a bill in the court of chancery to foreclose’the said mortgage. This foreclosure bill is in the usual form, setting forth the execution of the mortgage by Archibald Warren to the New Jersey Mutual Life Insurance Company, the assignment thereof by the insurance company to Minot Mitchel, above mentioned,, and the assignment thereof from Minot Mitchel to the complainant, Alexander Phillip, but ignoring altogether the assignments of 'the bond and mortgage prior to the assignment to Minot Mitchel, including the supposed prior assignment to John I. Anderson. The solicitors who filed this foreclosure bill were Messrs. Lynn & Babbitt, of Jersey City. The suit was prosecuted in the usual way, and no exception is taken to any of the proceedings therein. The bond and mortgage, the assignment from the insurance company to Minot Mitchel and the assignment from Minot Mitchel to the complainant, Alexander Phillip, were all produced before the master and marked as exhibits in the cause. The master, now deceased, reported the amount due on the bond and mortgage as $3,393.71 and $1,581.65 due upon a subsequent judgment. Pinal decree and execution followed, and the sheriff of Passaic county, to whom the execution was issued, conveyed the mm*tgaged premises to the said Minot Mitchel, by deed dated December 8th, 1877. Whether the assignment from Minot Mitchel to Alexander Phillip, the complainant, in the foreclosure suit, was or was not recorded, is not material, because Minot Mitchel became the purchaser, and the title of Mrs. Barger, the complainant in this cause, is derived from him, and therefore includes the entire title to the mortgage, if any, which Minot Mitchel took from the New Jersey Mutual Life Insurance Company by his assignment, together with the title of Warren, who held the equity of redemption and the title of the subsequent encumbrancers. Mrs. Barger apparently holds a good title to the premises described in the contract before the court, unless someone in existence at the present day can enforce this mortgage against tire property under title thereto derived in some way from John I. Anderson.
    The defendant alleges in his answer that after the execution of the contract in question he was advised by counsel of a contemplated mortgagor that the title was defective and not marketable, but no proof was offered of this allegation. Any such opinion of counsel was presumably based upon the record only. After the bill was filed in this cause the solicitor for the complainant herein procured the bond and mortgage in question from the executor of the late Mr. Lynn, of Lynn & Babbitt, who found them among his testator’s papers. The bond and mortgage, with the assignment from the insurance company to Minot Mitchel as well, were offered in evidence in this cause. These papers all bear the endorsement of the master of chancery, in the usual form, showing that they were exhibits in the foreclosure suit of Alexander Phillip against Archibald Warren and others, above mentioned.
    The New Jersey Mutual Life Insurance Company was located at Newark, in this state, and has been defunct for about twenty years.
    The immediate grantee of Minot Mitchel was Augustus H. Drury, a practicing lawyer of Paterson, who took title from Mr. Mitchel by warranty deed dated November, 1877. Mr.. Drury was sworn as a witness on behalf of complainant, and testified that he was acquainted with both Minot Mitchel and John I. Anderson, and that these men have been dead for several years; that the house upon the -property was built by Mr. Warren, and the whole property was formerly worth about $4,000, but that it was not worth that much at the present time; that John I. Anderson and Minot Mitchel were “business associates, and had a good deal of business with each other,” and belonged to a set of “lawyers and real estate people” who were doing business together in New York. The witness further testified that John I. Anderson knew of the foreclosure suit of Mr. Phillip, and that the foreclosure suit “was in the interest of Mr. Minot Mitchel,” and that Anderson also knew of the conveyance by Minot Mitchel to the witness ten years later. These statements were undisputed, the witness not even being cross-examined in regard to them. The witness testified, also;, that during the time he owned the premises no- demand was ever made for interest on the mortgage 'by anyone. The witness owned the premises from November, 1887, to January, 1900.
    It is admitted that Minot Mitchel, the purchaser at the sheriffs sale in 1877, and his- grantees and assigns, including the complainant, have been in possession of the premises ever since the sheriffs sale. The complainant took title January 2d, 1900.
    The defendant offered no evidence, except an abstract of title of the premises, which was admitted by consent of complainant, and which exhibits the deeds, mortgages and assignments mentioned above.

      Mr. James H. Rogers, for the complainant.

      Mr. Daniel L. Campbell, for the defendant.
   Stevenson, V. C.

No exact definition has been, or probably can be, formulated of either a marketable or an unmarketable title. Various descriptions have been attempted. Professor Pomeroy lays down the law as follows:

“A specific performance will never be decreed- at the suit of the vendor whenever the doubt concerning his title is one which can only be settled by a further litigation, or when the court can see that the purchaser will, with reasonable probability, be exposed to bona, fide adverse claims on the part of third persons, and to the risk of litigation for the purpose of removing such claims.” Pom. Spec. Perf. § 203.

Chancellor Runyon, in Dobbs v. Norcross, 9 C. E. Gr. 327, 331, and the court of errors and appeals, in Tillotson v. Gesner, 6 Stew. Eq. 313, 327, adopted the language of Professor Parsons, as follows:

“The purchaser should have a title which should enable him not only to hold his land but to hold it in peace; and if he wishes to sell it to be reasonably sure that no flaw or doubt will come up to disturb its marketable value.”

In all cases where the vendor seeks to force a title upon the vendee, it is the latter’s position, not at the commencement of the suit, but at its termination, which is to be regarded. The question is, not what kind of a title the vendor has, but what kind of a title the vendee will get if the court of chancery, or the court of errors and appeals, after reviewing the decree of the court of chancery, forces the offered title upon him.

Where the alleged doubt in regard to the offered title relates to a matter of law, a decision of the court in the suit for specific performance, undertaking to establish what the law is, must, of necessity, have some effect either to strengthen or dispel the doubt. How far the court will undertake to settle a disputed question of law out of which the doubt in regard to the title has arisen, has been the subject of a variance of judicial opinion, although the general trend has been toward enlarging the jurisdiction of the court of equity in dealing with the doubtful matter of law. Fry Spec. Perf. (3d Am. ed.) §§ 865, 868; Pom. Spec. Perf. § 202. The cases on this subject are discussed at length in the opinion of Vice-Chancellor Emery in Lippincott v. Wikoff, 9 Dick. Ch. Rep. 108, and a rule on the subject is therein indicated (at p. 120).

In Fahy v. Cavanagh, 14 Dick. Ch. Rep. 278, 282, 283, Vice-Chancellor Pitney expresses himself in favor of a broader rule.

But whatever curative power upon a doubtful title the court of chancery, or the court of errors and appeals, on appeal from the court of chancery, can exercise in a suit for specific performance, where the doubt relates to some general rule of law, or the construction of some form of language employed in a writing, practically very little, if any, such curative power can be exercised where the doubt relates to a mere fact. The reason is apparent. A disputed fact may be proved in one litigation to-day and be disproved in another litigation between different parties to-morrow. The evidence which clearly establishes a fact at one time may be wholly beyond reach a year or five years later.

In Tillotson v. Gesner, supra, the defect in the title, from which danger to the purchaser was apprehended, was a judgment recovered against a former owner, who had, immediately before its recovery, conveyed the land by a deed, the bona fides of which was open to doubt.

In Fahy v. Cavanagh, supra, the title rested upon a will, apparently witnessed by two persons, but without any attestation clause reciting the facts showing compliance with our statute of wills. Vice-Chancellor Pitney found that the will had been lawfully executed, but refused to force the title upon the purchaser, because he might, years after, be utterly unable to prove the will in an action of ejectment brought by the heirs of the testator.

That titles must be held marketable, although dependent, on the proofs of facts, cannot be disputed. If this were not so, a vendor holding title as heir or devisee, in a large number of cases, could not have the remedy of specific performance. But when wc come to inquire for rules as to the nature and quanlum of evidence necessary to render a title dependent on facts, which must be proved by witnesses, a marketable title, we find ourselves with comparatively little help from the decided cases. It must be true, from the nature of things, that every case must largely rest upon its own circumstances. We have the general rule that the purchaser has a right to a title which is reasonably safe—reasonably safe against loss and reasonably safe against attack. When the authorities speak of the hazard of litigation to which the purchaser must not be subjected, it seems to me that they must refer to a hazard which-is to be determined by the chance of successful attack as viewed by the court in the suit for specific performance. When, also, they speak of a doubt or a supposed flaw as affecting the salability of a title,, they must refer to the character of the doubt or flaw as the court views it, and not as it may be viewed by the indeterminate judgment of the real estate market. Some purchasers, guided by cautious counsel, will not accept a title against which the slightest possibility of doubt is suggested; and yet there is no title concerning which a possible doubt or the possibility of a future flaw cannot be raised.

The authorities, I think, establish the rule as a s'afe one that a title dependent on a fact must be regarded as marketable when (1) the fact is so conclusively proved in the suit for specific performance that a verdict against the existence of the fact would not be allowed to stand in a court of law, and (2) where there is no reasonable ground for apprehending that the same fact cannot be, in like manner, proved, if necessary, at any time thereafter for the protection of the purchaser.

In Shriver v. Shriver, 86 N. Y. 575, 584, Chief-Justice Eolger says: “A title may be doubtful—which is to say, unmarketable—because of the uncertainty of some matter of fact appearing in the course of the deduction of it, and if, after the vendor has produced all the proofs that he can, a rational doubt still remains, a title is not marketable. It seems that a rational doubt may be said to exist when a court of law would not feel called upon to instruct a jury to' find that the fact existed on the existence of which the vendor’s title depends.” See Hellreigel v. Manning, 97 N. Y. 56, 60; Moser v. Cochrane, 107 N. Y. 35; Ferry v. Sampson, 112 N. Y. 415.

In Ferry v. Sampson, supra, the Eew York court of appeals declared that “if the existence of the alleged fact which is supposed to cloud the title is a possibility merely, or the alleged outstanding right is a very improbable and remote contingency, which, according to the ordinary experience, has no probable basis, the court may compel the purchaser in such a case to complete his title.”

In Vought v. Williams, 120 N. Y. 253, 258, the above-quoted statement was repeated by the same court, although held inapplicable to the ease then before the court.

The English rule, stated by Professor Pomeroy (Pom. Spec. Perf. § 205), takes special account of any presumption favorable to the title, and apparently takes no account of the availability of the evidence produced in favor of the title for the future protection of the purchaser in a subsequent litigation between the purchaser and a third party—thus ignoring the class of cases to which Fahy v. Cavanagh, supra, belongs.

Coming, now, -to the consideration of the case before the court, my conclusion is that, whatever may be the-exact definition of a marketable title,'which is dependent on the proof of facts, if such a definition can safely be framed, this title is proved in this case to1 be a marketable one. It is conclusively proven, in my opinion, that the alleged mortgage held by John I. Anderson cannot be enforced against this purchaser, the defendant, and that there is no reasonable basis for any apprehension that the purchaser cannot, at all times, defend his title against this mortgage, or that any future intending purchaser should, as a reasonably prudent man, hesitate to accept the title which this defendant, the present purchaser, will be able to offer to him.

The sole fact Which is set up against the merger of the mortgage in the foreclosure decree is that apparently John I. Anderson owned the mortgage in 1875. No proof is offered that Anderson did not transfer the mortgage back to the New Jersey Mutual Life Insurance Company. Before the Anderson assignment was made the mortgage had already been transferred by this company, and, after changing hands several times, had been transferred back to the insurance company. After the Anderson assignment was made the bond and mortgage were in the possession of the insurance company, or of their later assignees, with an open claim of ownership. The complainant (Phillip) .'in the foreclosure suit produced the bond and mortgage, and he was adjudged to be the owner of it in the foreclosure suit. A bond and mortgage are assignable by delivery. Possession of a bond and mortgage, with claim of ownership, would seem, to- carry as strong a presumption of title as does possession of a chattel. The assignment of Anderson is not at all inconsistent with a subsequent ownership of the bond and mortgage by the insurance company and by Mitchel and Phillip.

It has never been the custom in New Jersey to make all the former holders Of encumbrances parties to a foreclosure suit in order to prevent all future question as to their having parted with their titles. The protection of titles derived from foreclosure sales may call for a wider rule than any which I shall apply in this case; but it seems to- me that where a bond and mortgage are produced by a complainant or a defendant in a foreclosure suit, and he is therein adjudged to be the owner thereof, public policy justifies a strong presumption that he was such owner, in favor of a purchaser at the foreclosure sale, and against a vendee from him, who merely proves that someone else owned the mortgage prior to the time when the party to the foreclosure suit acquired the title to the mortgage which was accepted in such suit. The burden in such case should, in my judgment, be placed, not upon the purchaser to prove that the former owner transferred his title, but upon his adversary to present some evidence that the former owner did not transfer his title or that some person can assert a title under him.

I think, therefore^ that in this case we start with a strong presumption in favor of the complainant, and against the existence of any valid title to this mortgage outstanding at the present day and held under the Anderson assignment.

But, aside from all presumptions, let us examine the evidence on the two questions:

First. Whether John I. Anderson parted with his title or estopped himself to set it up, and

Second. Whether, without regard to any possible transfer from Anderson back to' his assignor, the mortgage is enforceable at the present time under the statute of limitations. In discussing both questions, especially the first, we must regard, not only the evidence, but the probability of its availability for the protection of the defendant in the future.

.1. The mortgage was due in 1874, twenty-six years before the contract was made by these parties. There is no evidence, apart from the assignment to Anderson, that he ever had the mortgage in his possession, nor is there any evidence that he ever collected any part o'f the principal or interest secured by it. He was connected in business with Minot Mitchel, and knew of the foreclosure suit, and also knew of the purchase of the property by Mr. Drury, ten years after the foreclosure sale to Mitchel had taken place. The bond and mortgage remained apparently for over twenty-three years in tire custody of the lawyer who conducted the foreclosure suit, or of his executor—remained as dead and worthless papers—until the solicitor for the complainant in this suit had them looked up- and produced. The property was improved, rentable property, and has been occupied continuously, by a series of owners, under title derived from the foreclosure sale, for these twenty-three years before the contract between the parties to this suit was made. The inference is unavoidable that no attempt was made by Anderson, or anyone claiming under him, to- enforce this mortgage, although Anderson was alive for at least ten years after the foreclosure sale. Mr. Drury’s testimony strongly indicates that if Anderson had any title to this mortgage at the time of the foreclosure sale, he estopped himself to set it up, and also- indicates that there are other witnesses who can testify to the facts going to establish this estoppel. Every year that goes by may malee the proof of this estoppel, if there was one, more difficult, but this same lapse of time makes the probability of any attempt to assert the supposed Anderson title to- the mortgage more remote, and makes any such assertion of title more hopeless.

If this mortgage was not merged in the foreclosure decree, then we have a mortgage which was due twenty-eight years ago, on which the defendant in this suit does not show that any claim has ever been made since it was openly foreclosed, by a party who had possession of it, about twenty-five years ago. Inasmuch as the property in dispute has- all these years been rentable property, yielding an income, occupied by a succession of owners, it would seem as if the defendant might have been able to prove some assertion of the- Anderson title—some recognition of it by payment of interest or otherwise—if proof of that character could at any time be possibly obtained. The possession of the bond and mortgage during all this period by the solicitor who undertook to foreclose it, or his executor, is an additional indication that the mortgage, in fact, was merged in the foreclosure decree, and that the possible or presumed, former owner, Anderson, had lost what title to- it he ever had.

Upon the facts stated, in my judgment, the defendant has no right to stand upon the mere existence of this record of an assignment to- Anderson twenty-seven years ago, and the absence of any record of an assignment from Anderson; he is bound, whether a presumption is established against him by the foreclosure 'suit as indicated above or not, to bring some evidence to- show that the Anderson title has life to-day. He is not bound to establish the Anderson title, but out of all the witnesses who plainly can be produced to give positive or negative testimony in relation to this property and its encumbrances, he should be able to find one spark of testimony in favor of his contention— in favor of the doubt which he claims inheres in the title.

3. Without regard to- the question of the ownership of the mortgage, the evidence very strongly indicates that the statute of limitations is a complete bar to any attack upon this title based on the alleged existence of this mortgage as an encumbrance. The mortgage is twenty-eight years overdue. While the evidence of non-payment of interest is not as complete as might have been expected, no objection to the sufficiency of the proof on this subject, was made at the argument, and no claim was made that the mortgage had been kept alive by any such payments. It seems almost incredible that interest could have been paid by the owners of this property on the mortgage upon the foreclosure of which their title depended, and which was lying, with its accompanying bond, among the old papers of the lawyers who conducted the foreclosure.

In Ely v. Wilson, 16 Dick. Ch. Rep. 94, 104, Vice-Chancellor Pitney holds “that a payment on account of the debt, in order to- be efficient to preserve the mortgagee’s right against lapse of time, must be made by the party in possession of, and claiming title to, the mortgaged premises.”

Pajunent by the makers of the bond, Mr. and Mrs. Warren, would not keep the mortgage alive. If, during the past twenty years, or during twenty years preceding this contract, either of the three owners of this property paid interest upon the mortgage to any person, this unknown person, whose possible existence is held to1 create the fatal doubt in this case, apparently must have had notice of the foreclosure sale and of the title adverse to his mortgage which the occupants of the property'held. It ■may be added that apparently the statute of limitations began to run against John I. Anderson at least when Minot Mitchel took possession of the property, twenty-five years ago.

In Foreman v. Wolf, 29 Atl. Rep. 837, the court of appeals of Maryland declares that in that state it was “well settled that a title by adverse possession for over twenty years, where the only persons who could claim were all under no disability, is marketable, and such as a court of equity will compel a purchaser to take.”

Kip v. Hirsh, 103 N. Y. 565, is very similar in its essential facts to the one at bar. A mortgage upon certain vacant lots was made in 1835. In 1840 the mortgagor made a general assignment for the benefit of his creditors, which reserved to him any surplus. The assignment was recorded. The mortgage was foreclosed and the lots were sold in 1841. The assignee was not made a party. The lots were enclosed and leased in 1867, and were occupied thereafter. In 1875 the defendant contracted to purchase the lots, but refused to accept a deed, claiming that there was a defect of title, by reason of the omission to make the general assignee a party to the foreclosure suit. The court held that the “presumption of payment attaches to all the debts, and it can hardly be conceived that any facts can exist which would entitle any person to enforce the trust.” The court therefore reversed the court below, and held that the defendant would acquire a good and marketable title.

A doubt which can avail to defeat the vendor’s remedy of specific performance “must be reasonable, and, so far as it depends upon contingent events and uncertain facts, their occurrence or existence must be fairly probable.” Pom. Spec. Perf. § 204.

In my opinion no verdict of a jury ’in favor of the existence of any enforceable claim under the title to the mortgage in question-alleged to have existed in John I. Anderson in 1875 would be allowed to stand. The proof before this court, composed of presumptions, positive evidence on the part of complainant, and the absence of evidence on the part of defendant, appears to me to be conclusive in favor of the existence of the facts and conditions which are necessary to render the title which will be forced on the vendee in this case a marketable title.

As a general rule, it seems to me that any order for costs in a vendor’s suit for specific performance must be made with regard to the status of the defendant (the vendee), not at the end of the suit, but at its commencement—at the time when he refused to' take the offered title. Where the suit has exercised a curative effect upon the title, and the vendee was justified, under his contract, in demanding that such cure should be made, the expense of the suit may be a necessary incident to the performance of the contract by the vendor. Not only should the vendee not be mulcted in the costs of the vendor, but, in some cases, I think the payment of the entire costs and expenses of the vendee by the vendor should be a condition upon which the decree in favor of the latter should be made. The English rule, cited by Mr. Fry (Fry Spec. Perf. (3d Am. ed.) § 876), and embodied in a dictum of Sir George Jessel, in Osborne v. Rowlett, L. R. 13 Ch. Div. 774, 798 (1880), to the effect that even if the vendee was justified in refusing the title until decree in its favor, still he should be ordered to pay the costs, “so as to assure his title and show that the court entertains no doubt upon it”—if there is such a rule—is, in my judgment, one not to be adopted by this court. Most vendees would prefer to accept the title forced upon them by suits, which they have properly required the vendor to bring, without this unsolicited and expensive “assurance” from the court.

In Radford v. Willis, 7 Ch. App. 7, 11 (1871), the action and declaration of the court in regard to costs are inconsistent with the above-cited supposed rule.

Where the dispute over the title is about a fact, ordinarily, as we have seen, the decree can have little curative power. The decree, in most, if not all, cases, establishes the marketability of .the title which the vendor offered, not merely the marketability of the title which the vendee will take as the result of the suit for specific performance.

Nevertheless, the vendee, in all cases, is not under any obligation to search for evidence and produce the witnesses who can establish the title of the vendor. In this case the evidence to support the offered title was not presented by the vendor to the vendee; a very important part of it.was obtained-by the vendor after this suit was commenced.

Under the circumstances, which always control a decree in equity in regard to this matter, no costs will be allowed to either party.


author: Stevenson, Y. 0.

text:
    Maria B. Hunter, petitioner, v. Arthur J. Hunter.
    [Filed November 12th, 1902.]
    1. Where petition is made for an absolute divorce on the ground of desertion, promptly upon the expiration of an alleged residence in the state for the necessary two years, and where the desertion commenced while the applicant was a resident of a state whose laws do not grant an absolute divorce on that ground, a presumption is established against the existence of that sort of a residence necessary to give jurisdiction of the matrimonial status of the complainant.
    2. The presumption that the residence has not been maintained animo manendi may be overthrown by an affirmative showing, either that the petitioner did not in fact move into the state for the purpose of securing a divorce after two years, or, if that was the motive, that there was also the further purpose of making the state a permanent residence, regardless of the outcome’of the divorce proceedings.
    3. The presumption that the residence has not been maintained ammo manendi cannot be removed by the petitioner’s uncorroborated testimony as to her motives, and a petitioner, whose testimony on that point was' ■practically unsupported and consisted largely of conclusions of law, with no cross-examination, and where some of the answers indicated a mental reservation, did not prove such a residence as to give the court jurisdiction.
    On petition for divorce on the ground of desertion.

      Mr. Charles G. Babcock, for the petitioner.
   Stevenson, Y. 0.

The order of reference in this cause contained a special direction to the master, which probably he inadvertently has overlooked. The order directed the master to

“specially inquire and report what motives induced the petitioner to take up her residence in this state, what her occupation has been while residing in this state and where such occupation has been pursued, and generally as to the tona fides of petitioner’s residence in this state.”

The master has made no report according to this special direction. He appears to have recalled the petitioner and to have asked her a few questions upon the special subject above indicated, but the meagreness of the examination and the silence of the report in regard to it leave it open to doubt- whether or not the master, in addressing these few interrogatories to the petitioner, considered that he was complying with this special direction of the order.

The case is one which calls for a thorough performance by the master of the requirement of the order of reference, and to that end the petitioner should be ready to produce all the evidence within her power until the measure of proof required in such a case is full.

The petitioner was married in the State of New York, in wihch state was the matrimonial domicile. In New York desertion is not a cause of absolute divorce. She remained a resident of New York after her marriage for a period of over ten years. Two years and a half after the original desertion or separation of the defendant occurred the petitioner claims to have abandoned her residence in New York, and established a permanent residence at Atlantic City, in New Jersey. Two weeks after the expiration of the statutory period of two 3^ears the petition in this case was filed.

While it is unnecessary at present to discuss at length the testimony so- far taken in this cause, it may be profitable to point out that a large part of the case, including the jurisdiction of the court of the matrimonial status of the petitioner, is based upon the petitioner’s testimony alone. Much of this testimony, also, comes in response to questions which are more or less leading. Do independent witnesses, who can speak with apparent knowledge of the facts, are produced to show that the petitioner has continuously resided in Atlantic City; that she has established any permanent business there, of formed any social or other ties which usually would be created by a woman who broke away' from a residence in one state and moved, with her sons, into another, with intent to abide permanently.'

The two sons of the petitioner, by a former marriage, who certainly cannot be far from an adult age, and who, the petitioner swears, accompanied her to Atlantic City and live there with her, are not sworn as witnesses on her behalf. What is even more noticeable is the fact that the petitioner, after 'testifying to what are practically conclusions of law to establish tire necessary residence in the state, is not cross-examined in regard to any one of the numerous details of life, the disclosure of which always throws light upon the nature and contemplated duration of any residence which is under judicial investigation. The petitioner may intend to be absolutely truthful in answering the most important questions which were put to her, and yet she may have answered them erroneously. Sometimes she qualifies the expected answer to a leading question in a very suggestive way. This leading question was put, “And have you been keeping a boarding-house since you came here to reside?” and the answer is, “Yes, since 1899-^-off and on.”

To- the question; “Is it your intention to reside permanently in Atlantic City?” the petitioner answers, “Yes, so far as I lenow.”

This court is practically asked to act upon the petitioner’s uncorroborated testimony to the effect that, in her judgment, as a correct conclusion of law and fact, she has maintained a permanent residence, animo manendi, in the State of Dew Jersey since July, 1899.

One witness, it is true, was brought to corroborate the petitioner, and this witness testifies that the petitioner had been living in Atlantic City since July, 1899. But as this witness testified that he resided in Philadelphia, and did not indicate in the slightest degree what-the sources of his knowledge were in regard to the petitioner’s residence in Atlantic Oily, the deposition seems to he entitled to very little, if any, weight.

My conclusion in this case is that the petitioner has failed to show, 'by sufficient testimony, that she has maintained such a residence in New Jersey as is necessary, under our statute, to give the court of chancery jurisdiction of her matrimonial status; that her own testimony, even if it had been more ample and in a better form, would have required corroboration, under a safe rule of evidence.

The court of chancery 'has to deal with a large and increasing class of divorce cases, which uniformly present the following facts:

First. Desertion commenced in a state of which the complainant and defendant are both residents, and in which desertion is not a ground for absolute divorce.

Second. The establishment, by the complainant, after the desertion has commenced, of some sort of a residence in the State of New Jersey, and ’the maintenance of that residence, or the alleged maintenance of it, for the term of two' years.

Third. Prompt application, at the end of the two years, to the court of chancery for an absolute divorce, on the ground of desertion, as a complete matrimonial offence, committed in New J ersey.

From these facts the inference is drawn that the complainant established and maintained his residence in New Jersey for the purpose of doing the very thing that he did with his residence, viz., using it as a means of obtaining an absolute divorce at the end of two years. The further inference is natural that, as the purpose which actuated the complainant in establishing his residence in New Jersey was to accomplish a transient object, the contemplated duration of the residence was also transient.

Hence, where the facts above stated appear, a presumption is established against the existence of that sort of a residence which is necessary to give the court of chancery of New Jersey jurisdiction of the matrimonial status of the complainant. This presumption, however, is not irrebuttable; it may be overcome by the requisite amount of proof.

Formerly there may have been room for doubt as to whether, when the purpose of the complainant in coming into the state, as declared by him or inferred from the facts, was that he might obtain a divorce, his residence so established could, on grounds of public policy, be brought within the meaning of our Divorce act. This whole subject is covered and the decisions on the subject cited in the opinion of the present chancellor in Sweeney v. Sweeney, 17 Dick. Ch. Rep. 357.

It was not intimated by me, in the case of Grover v. Grover, 18 Dick. Ch. Rep. 771, that a residence established for the purpose of founding a divorce suit may not, in fact, be a permanent residence, established and maintained animo manendi. A man may certainly acquire a permanent residence, intending to maintain it during his whole life, from a motive which is’ entirely transient. A resident of Hew York may be able, conveniently, to break his residence there and establish a permanent residence in Hew Jersey, when it would be extremely inconvenient or difficult for him to return to Hew York after two years or any other period, and he may therefore have no such intention. While the underlying motive for establishing a residence in Hew Jersey may be the intention to apply for a divorce to the courts of Hew Jersey at the end of two years, there is no reason why the further intention may not exist, Iona fide, to reside continuously and indefinitely in Hew Jersey after the expiration of the two .years, whether the desired divorce is obtained or not. The existence of one purpose, which is accomplished in a brief period,- does not necessarily exclude another purpose, which endures indefinitely. Everyone must live somewhere, and it is a matter of common experience that the most trivial circumstances frequently determine the place where a man intentionally fixes his abode for life.

But anj»- doubt in regard to the correctness of this view, it seems to me, has been removed by the opinion of the court of errors and appeals in the case of Tracy v. Tracy, 17 Dick. Ch. Rep. 807, and especially by the opinion of that court in the case of Grover v. Grover, 52 Atl. Rep. 1131.

We have, therefore, I think, the doctrine firmly established that, in a case presenting the three facts above specified, a presumption is established that the residence of the complainant in this state has not been a permanent one, maintained during the two years animo manendi, so- as to give the court of chancery jurisdiction of his matrimonial status, but that this presumption may be overcome by evidence.

The question is whether there is any rule, founded upon public policy or otherwise, in regard to the amount or character of evidence which must be adduced in order to rebut this presumption. The burden is certainly upon the complainant who exhibits these facts as a part of his case> from which the presumption against the permanency of his residence arises, to remove that presumption; or, in other words, to- show affirmatively either that he did not, in fact, move into the state for the purpose of obtaining a divorce after two years, or that, if he had that purpose, he' also- had the further .purpose, superimposed upon, or associated with, this confessed purpose, of residing permanently in the state, whether he obtained a divorce or not.

In the case of Grover v. Grover, 18 Dick. Ch. Rep. 771, I expressed the opinion that, in the class of cases under consideration, the uncorroborated testimony of the complainant is insufficient to- remove the presumption against him in regard to the intention and purpose of his residence in New Jersey which he has established by his own case—which is inferred, as above stated, from the facts which he has shown to the court. In view of the opinion of the court of errors and appeals in that case, some further discussion of the subject may be of use.

In the case of McShane v. McShane, 18 Stew. Eq. 341, the broad rule was laid down in the opinion of the advisory master that a divorce would “not be granted upon tire unsupported testimony of petitioner as to- residence in this state and as to the causes of the alleged desertion”—thus making the- rule requiring corroboration of the testimony of the complainant apply, not only to the matrimonial offence, but also to the jurisdictional fact of residence. This case was unanimously affirmed by the court of errors and appeals, for the reasons given by the advisory master. It would seem, therefore, that the rule is firmly established that each of the two main propositions of every divorce suit must be established by more than the evidence of the complainant, who is testif}dng in order to obtain a divorce.

But .the application of this rule to the special class of divorce cases now under consideration is very different from its application to other ordinary divorce cases. Whatever may be the facts about the complainant’s residence upon which the jurisdiction of the court is founded—whether the divorce suit has been brought by a person who has lived in New Jersey all his life, or by one who has come from New York two years and a day before the suit was commenced—the complainant in every cases testifies to the matrimonial offence in order to win his cause; he must prove the offence, or he loses his cause, and he therefore testifies under the strongest possible inducements to deceive himself and the court. This is the obvious reason for discrediting the complainant’s testimony in regard to the matrimonial offence in every divorce suit, and requiring corroboration of it as the basis of a decree.

When the rule requiring corroboration is applied to the proof of the jurisdictional fact of residence, it is plain that it does not apply with equal force to all kinds of cases—that it must have a special application to the particular class of cases presenting the facts enumerated above. In the case of a complainant who testifies that he was born in New Jersey and has lived in New Jersey all his life continuously, or that he came from New York to New Jersey thirty or forty years before he commenced his suit and has lived here ever since, corroborative testimony will naturally relate largely to the physical facts of the complainant’s commorance within the state all his lifetime or during a long period of time. When the complainant has told his story under oath, no presumption is created thereby that his residence in New Jersey is transient.

In the case of a complainant applying hr the court of chancery of New Jersey for an absolute divorce on the ground of a matrimonial offence of any kind which is recognized as a cause of absolute divorce by the laws of the state from which he has recently come, his 'temptation to foist his ease upon the State of New Jersey and procure a divorce here is certainly less than that which would assail him if he were powerless to get his desired release in. the state in which he was recently domiciled. A complainant with a cause of absolute divorce, recognized as such by the laws both of Eew York and of Eew Jersey, might even be exceedingly anxious to have his suit brought in that state where it could be made to appear most plainly that his residence was situated. In such a case he might be deeply interested in having no mistake made as to the state and the court in which he brings his cause.

But in the special class of cases which we are considering, both the amount and the exact character and force of the corroborative testimony seems to call for special attention and regulation.

First. As to the amount of corroborative evidence. We have seen that in these cases the complainant produces the testimony which -establishes a presumption that his residence was transient; was established for the purpose of obtaining a divorce at the end of the two- years, and was not established for any other purpose. He then offers his own oath to overcome this presumption. Would it not seem reasonable that stronger corroboration of the complainant’s testimony is necessary in such a case than in an ordinary case, where the complainant apparently has no motive for bringing his suit in the wrong state, and stands before the court without any presumption against the permanency and bong fides of the residence to which he has testified? The complainant is testifying, not in regard to physical facts alone, but principally in regard to- his own mental state, in regard to which he naturally feels secure against contradiction. With practical immunity against prosecution for perjury, he testifies under the same constraining influence of his great interest, and under the same temptation to- deceive himself and the court under which the complainant testifies in every divorce suit in regard to the matrimonial offence. 1't seems to me that the complainant’s testimony in regard to his residence has less force and requires more corroboration in this particular class of divorce cases than in any other.

Second. As to the exact character of the corroborative evidence—the point to which it should be directed. In all these cases where the complainant stands upon a residence which he has maintained on this side of the _ Hudson river for just two years, the vital question is, with what intent has he so maintained such residence? He establishes the presumption, as we have seen, by the evidence which he himself produces, that his residence was not a permanent one, such as to give our courts jurisdiction of his matrimonial status.

Is it not plain that what must be demanded in this case is corroborative evidence to strengthen the probative force of the complainant’s oath in regard to this all important question of intention? In Grover v. Grover I expressed the opinion that the complainant could not remove the presumption against the .permanency of his residence, established by himself, in this class of cases “solely by his own testimony in regard to his motives, purposes and intentions,” and, upon a careful reconsideration of the subject, the rule appears to me to be only a useful and special application of the general rule, long ago established by the court of errors and appeals in the case of McShane v. McShane, supra.

The case of Tracy v. Tracy, 15 Dick. Ch. Rep. 25, 28, decided by Vice-Chancellor Pitney, is a typical one of the class under consideration. The complainant (the deserted wife) left her domicile in New York and came to New Jersey on May 18th, 1897, and filed her petition for divorce on May 25th, 1899. She testified that “she had no thought of getting a divorce when she came here, and that she intended to live and make her home here.” The learned vice-chancellor expressed the opinion that, “under the circumstances, the mere sworn assertion by the party that he or she came to New Jersey without a thought of getting a divorce, and intends to make New Jersey his or her home,” is not “sufficient to establish the animus manendi which is necessary to give the court jurisdiction.” The divorce, therefore, was denied.

This decision was reversed by the court of errors and appeals (Tracy v. Tracy, 17 Dick. Ch. Rep. 807), but it does not appear that the rule of evidence which Vice-Chancellor Pitney applied was rejected by that court. The higher court seems to have f o-und that the testimony of the petitioner was corroborated; that her testimony was “consistent, clear and relevant,” and did not bear any intrinsic evidence of improbability, and that it “was sufficient, after the other testimony produced, under the statute, to establish her residence here.”

What is corroboration or sufficient corroboration plainly could not be defined by any rigid rule or by any rule which would be valuable. Where the petitioner’s story as to her residence in the state is “consistent, clear and relevant,” and without any “evidence of improbability,” the absence of contradiction of this story or of doubt cast upon it, after disinterested persons, who have been the witnesses of her residence, have given Their testimony, may of itself, in some cases, be deemed sufficient corroboration.

Th practical value of a special rule in this particular class of cases requiring the complainant’s testimony to be corroborated lies largely in this result—that the complainant will be forced to bring into court the persons who have been the natural witnesses of his or her life during the two years in question. The examination and cross-examination of such witnesses, in a large number of cases, will afford- a conclusive test of the character of the complainant’s residence.

Great light will probably be thrown upon the question of the character of Mrs. Hunter’s residence in Atlantic City during the last two years, -while she has been keeping a boarding-house there, “off and on,” if she produces, as witnesses in her case, some of the disinterested citizens of Atlantic City who must have been aware of her residence among them.

There is no hardship in this proposed rule of evidence. Cases arise occasionally where it is extremely difficult, if not impossible, to produce evidence of the matrimonial offence to- corroborate the testimony of the complainant in regard .to it, especially in some instances of desertion. But it is hard to imagine a case where the fact of a person’s residence in New Jersey for two years prior to the commencement of a divorce suit, and the true character of such residence, cannot be, in part at least, proved by witnesses who- have no interest in the result of the suit.

As the proofs stand, the petition should be dismissed, but inasmuch as the insufficiency of the proofs may have been, in part, due to the failure- of the master to discharge his duty, under the order of reference, the petitioner may, if she so desires, take an order referring the case back to the master, in order that he may inquire in accordance with the views indicated above, and also report in regard to the matters specially submitted to him for investigation.


author: Magie, Ordinary.

text:
    In the matter of appeal of Edward A. O’Callaghan, administrator, from an order of the orphans court of Hudson county.
    [Filed January 8th, 1902.]
    1. A petition was presented to an orphans court by one who claimed that he had deposited a sum of money with a person, since deceased, to secure him against liability upon a bond given by him- at petitioner’s request to a creditor of petitioner, as collateral to obligations given to such creditor by petitioner. It recited that the obligations had been paid and that petitioner was in possession of the bond of deceased, and was ready to surrender it to the administrator of deceased appointed by the surrogate of the county.
    2. The prayer was for a decree ordering the administrator to pay to petitioner $2,000 and interest thereon, and such a decree was made.—
      Held, that assuming the truth of the statements in the petition, and that the transaction between petitioner and the deceased' had created a trust, the orphans court had no jurisdiction to establish the trust and decree its performance by the administrator.
    (Filed in October Term, 1901, and omitted from its proper place.)

      Mr. Warren Dixon, for the appellant.

      Mr. Marshall W. Van Winkle, for the respondent.
   Magie, Ordinary.

This is an appeal from an order of the Hudson county orphans court, dated May 17th, 1901, whereby appellant, as administrator of Thomas C. O’Callaghan, was directed' to pay forthwith to one John C. Gallagher $2,000, with interest from January 1st, 1901.

The order recites that Gallagher, the respondent, presented a petition to the orphans court praying such an order as was made; that a rule to show cause was issued thereon and personally served on the appellant; that appellant appeared on the return day and his proctor was heard by the court, and that “the facts in the petition being taken as true by the consent and agreement of the said administrator [the appellant] in open court,” the court was of opinion that the petitioner was entitled to the relief prayed.

Ho evidence was taken by the court, and the proctor of appellant who appeared asserts that it was not agreed by him or his client that the facts stated in the petition were true, or that they should be taken as true, except that he submitted an argument to the court against its jurisdiction even if the facts ■were deemed to’ be true.

I am not at liberty to disregard the recitals of the order appealed from, and I know of no way in which the truth of the recitals may be impeached in this novel proceeding.

The appeal has therefore been considered as if the order had been made upon appellant’s admission of the truth of the facts set out in the petition.

But if those facts as admitted do not disclose any jurisdiction in the orphans court to make the order in question, appellant, who is aggrieved thereby, may avail himself of that objection to the order upon his appeal.

The petition presents a novel question. The whole of the facts stated therein need not be recited. It is sufficient to say, in order to disclose the grounds of my conclusion, that the petition sets forth that the intestate, of whom appellant is administrator, at the request of respondent, gave a bond to a third person for $2,000, conditioned for the payment of that sum if the respondent did not pay certain obligations which he had given to' that person, and that respondent thereon gave to the intestate $2,000 in cash to secure him as against liability on such bond. It also states that the intestate in his lifetime and appellant since his death paid interest on said sum to respondent. It further appears that the obligations of respondent have been paid, and that respondent has procured an assignment of the bond of the intestate to himself, and is ready to deliver it up, if repaid the $2,000, with interest.

The claim in the petition was that the intestate received and held the $2,000 in trust for respondent, and that his administrator might properly be decreed to take that sum from the assets of the estate and pay respondent as cestui que trust.

The transaction narrated in the .petition would seem to create an ordinary relation of debtor and creditor, in which case the relief of respondent would be by an action at law.

There was no claim in the petition that the $2,000 had been invested by the intestate in any particular stock or property which had come to- the possession of the appellant as administrator. Nor did the petition assert that the $2,000 was traceable in a bank account or other account of the intestate, or that it, or any part of it, remained in such bank account at the death of testator. In the absence of such statements, it is open to doubt whether, if the transaction established the relation of trustee and cestui que trust, the respondent could maintain a claim against the estate otherwise than as a general creditor. Trust obligations are not among the debts of a decedent to which a preference is given by our law for the administration of estates. Smith v. Combs, 4 Dick. Ch. Rep. 420; Ellicott v. Kuhl, 15 Dick. Ch. Rep. 333. If the personal representative of an intestate trustee treat a trust fund as such and deliver it to its rightful owner or to a substituted trustee, the court before whom the representative presents his account would probably protect him in making such payment, but this is upon the ground, that the trust fund is not part of the assets’ of the decedent. Cooley v. Van Syckel, 1 McCart. 496.

But assuming, for the purposes of this case, that a trust may be decreed to be established upon the facts stated in the petition, by a court of competent jurisdiction, I am unable to discover in the original constitution of tire orphans court, or in the jurisdiction conferred upon it by any statute, any power to ^adjudicate upon, establish or enforce trusts. That jurisdiction is in the court of chancery. That such jurisdiction did not exist in the orphans court is the ratio decidendi of Ellicott v. Kuhl, ubi supra.

The result is that the order appealed from, being without the jurisdiction of the orphans court, must be reversed and set aside, with costs: