text:
    Bayonne Building and Loan Association v. Emily A. Williams et al.
    [Decided January 13th, 1899.
    Filed June 10th, 1899.]
    1. A materialman furnished materials to a contractor, which the latter used in the construction of a building erected by him under contract with the owner, and when the materialman was entitled to payment he accepted an order from the contractor, drawn by him on the owner, for the amount due-him, to be paid out of the contract price, which was not yet due. — Held, that the transaction was not forbidden by the section of the Mechanics’ Lien law which forbids advance payments nor by the ruling of the court of errors and appeals in Slingerland v. Binns, 11 Dick. Ch. Rep. 413, and that the order-entitled the holder to stand upon an equal footing with the holders of stop-notices, given under the third section of the act.
    2. The same materialman furnished materials to a subcontractor, under the-same principal contractor, and obtained from the contractor an order on the owner for the amount due him from the subcontractor, to be paid' out of the contract price, which was not yet due. — Held, that the transaction was within the section of the act forbidding advance payments, as construed in Slingerland v. Binns, because the materialman was not entitled, under the third section of the act, to make a demand for payment of the contractor and give a stop-notice to the owner.
    3. Under the decision in Slingerland v. Binns the several holders of stop-notices stand on an equal footing, without regard to the date of service of their several notices.

      On bill of interpleader. Heard on pleadings and proofs taken in open court.

      Mr. De Witt Van JBusJdrk, for the complainant.

      Mr. James Benny, for the defendants Booth & Brother.

      Mr. Elmer W. Demarest, for the defendants Oliver, Beardsley, Conklin and Chesterfield.

      Mr. Allan Benny, for the defendants Cooney & Gilbertson.
   Pitney, V. C.

The complainant loaned money to the defendant Williams, to enable her to build a house on premises owned by her, and she gave complainant a mortgage, to secure the same in advance of the payment, the understanding being that the complainant was entitled to have the money appropriated to the payment of the contract price of the building to be erected. It was erected by the defendant Stanbrough under a written contract between him and the defendant Williams.

Before the last payment came due divers stop-notices were served on Miss Williams, under the third section of the Mechanics’ Lien law, by laborers and materialmen, for labor done upon and materials furnished to the building; and besides these notices, three orders were drawn by Stanbrough upon Miss Williams, in favor of two of his creditors.

In that situation of affairs the complainant filed this bill, making all persons interested parties defendant, and asking for directions as to the application of the last payment.

Miss Williams and the contractor, Stapbrough, did not answer, but in open court admitted that the amount mentioned in the bill was the true balance due upon the contract, and no part of it is claimed by Stanbrough. This was also admitted by all the other defendants, and it appears that the sum in question is insufficient to pay all the claims upon it; so that the contest is entirely between the defendants.

The amount due each of the defendants was also admitted, and, in effect, the only seriously disputed fact in the cause was as to the precise date when the building was finished.

The bill was filed on the 2d of July, 1897, and some stop-notices were served after that.

In point of date and character, the various claims are as follows:

First. Order drawn by Stanbrough, the contractor, upon Miss Williams, the owner, in favor of A. W. Booth & Brother, for $797, dated and served May 1st, 1897. It expresses on its face that it is drawn against the final payment due upon the contract.

The consideration of this order was not proven; that is, Booth & Brother declined to go into proof as to how much of it was in payment of materials furnished by them to Stanbrough for use in Miss Williams’ building, and elected to stand upon it as an order given in payment of a general balance of account due from Stanbrough to them.

Second. Order dated May 1st, drawn by Stanbrough upon Miss Williams in favor of George W. Conklin, for $109.93, for hardware, &c., furnished to the house in question for Stanbrough, the contractor, and directed to be deducted from any amount due from Miss Williams to Stanbrough. This was served on May 1st, but after the order of Booth & Brother.

Third. A stop-notice under the third section of the Mechanics’ Lien law, dated and served May 12th, 1897, given by Cooney & Gilbertson to Miss Williams, for the sum of $306, for mason work and materials furnished. This notice is in proper form, and is based upon a demand of payment and refusal thereof previously made by Cooney & Gilbertson upon Stanbrough, the contractor.

Fourth. A stop-notice dated and served June 3d, given by Frank Beardsley to Miss Williams, for the sum of $38.82, based upon a demand of payment on and refusal by Stanbrough for labor and materials done and furnished upon his request in erecting the stairs for the building.

Fifth. A stop-notice dated- and served June 12th, 1897, by William C. Oliver, plumber, for the sum of $360, for work and materials done for the building, based upon a proper demand of payment upon and refusal by Stanbrough.

Sixth. An order dated and served June 24th, 1897, drawn by Stanbrough on Miss Williams in favor of George W. Conklin, for $36.19, for paints and oils u&'ed in painting the building, and directed to be paid out of the last payment due.

These materials were furnished by Conklin to Chesterfield, a subcontractor for the painting under Stanbrough, and the amount of this order is included in a stop-notice of Chesterfield for painting, and paints and oils furnished to the building under contract between him and Stanbrough, which is the next, and

Seventh. Namely, a stop-notice of William S. Chesterfield, served August 11th, 1897, for $125, for the painting contract on the house. This amount includes $36.19 for materials purchased by Chesterfield from Conklin, and covered by Conklin’s second order of June 24th, 1897.

Conklin having been advised of the decision in Slingerland v. Binns, served, on March 11th, 1898, long after the bill was filed, a stop-notice for the amount included in his two orders.

Some question was raised as to whether Cooney & Gilbert-son’s notice was served before the payment was actually due from the contractor. I am satisfied, upon examining, the evidence carefully, that it was not prematurely served. The evidence of Messrs. Cooney & Gilbertson, and their solicitor, Mr. Benny, as to the time when the masonwork was finished, is quite satisfactory and is not overcome by inferences to be drawn from the. architect’s letter of May 17th, relied upon to show the contrary. Neither that letter nor any others written by the architect, fixes any date upon which he visited the building.

With regard to the time when the building was actually finished by the contractor, the evidence is not at all satisfactory and does not furnish an easy solution of that question. The painter swears that he finished his work on June 13th, 1897, and it was conceded that his was the last work to be done. The final certificate by the architect was given on July 7th, and its delay was due, so far as I can find in the evidence, only to the fact that the contractor had omitted to set up in the windows of the attic some metallic mosquito-net frames which were included in the contract. Those were finished in his shop and painted about June 13th, a few days before they were placed in, and the time when they were actually placed in the house is not easily determined. The architect never did see them there, and never was inside of the building after some time prior to the 17th of May. At that time the building was substantially completed, except putting in some partitions in the cellar and making a door in the stairway, and some ceiling. He did, indeed, write a letter on May 17th to the contractor, calling his attention to some few matters, and the contractor swears that, in two or three weeks or a month afterwards, he finished the building-completely, and it clearly appears that he made claim to that effect upon the architect as early as June 25th. The architect visited the house after that date for the purpose of inspection, but did not enter it by reason of, its being occupied by tenants, .and on July 2d wrote to Miss Williams that he would give the final certificate whenever she was satisfied, and, hearing from her to that effect, gave such certificate on July 7th.

I am satisfied that the building was substantially finished as early as the 25th of June, 1897, and fix that as that date. I think little weight is to be given to the architect’s evidence and certificate, not only on account of the’indefiniteness of his evidence, but because the only person interested in having the building finished was Miss Williams. She had already rented it, and it was occupied by tenants, as to one part, during the month of May, and as to the other part, during the month of June, so that the rent was going on. The fact that no money was coming to the contractor was ascertained some time before that, because the bill was prepared and filed on the 2d of July, 1897, so that no one was particularly interested in hastening the technical completion of the building.

Finding June. 25th as the date when the building wms completed, the result, as I interpret the decision in Slingerland v. Binns, 11 Dick. Ch. Rep. 413, is to give precedence to all the stop-notices served before June 25th over the order of Booth & Brother and those of-Conklin, unless an exception should be made in favor of either or both Conklin’s orders by reason of their having been given for materials furnished to the building.

Without giving the precise figures, the result is that all the stop-notices served before June 25th will be paid, and leave a sum of money which is not sufficient to pay both Booth & Brother and Conklin. So that the contest is between the two last named; and the question is -whether or not Conklin, by reason of his orders having been given for materials furnished, is entitled to stand on an equal footing with the holders of the stop-notices. This brings us to the question of law in the case.

I am of the opinion that the order of May 1st, given to Conklin, should stand on an equal footing with the stop-notices and should have precedence over Booth & Brother for the following reasons:

First. It was given for materials furnished to the building on the order of Stanbrough, payment for which Conklin, at its date, was entitled to demand from the contractor, and on failure by the contractor to pay, he (Conklin) was entitled to serve a stop-notice upon the owner. In fact, we may properly infer that he did demand such payment and w'as met by an offer by the contractor of this order, which was intended to work out, and in fact did work out, precisely the same result as a stop-notice would have done.

I can perceive no difference in equity between the practical effect of an order like this and that of a stop-notice. Each works an assignment by the contractor to the materialman of a portion of the contract price of the building. The order is a voluntary assignment and the stop-notice is an involuntary assignment. That is the only difference between them, and I can see no possible injury to anyone to result from the use of the one rather than the other. It is a mere matter of machinery, and the order is the simpler machine.

Second. Its adoption in this case was not contrary to either the letter or the spirit of the fifth section of the act of 1895 (P. L. of 1895 p. 313; Gen. Stat. p. 2074), forbidding advance payments, which was construed in Slingerland v. Binns. That was a case of actual payment made by the owner, in compliance with the terms of the order, in actual advance of the maturity of the payment on the contract. Here there has been no payment.

It is not contrary to the spirit of the act, because it does not divert any part of the contract price from the reach of the parties who have furnished the labor and materials which created the fund and give it to the general creditors-of the contractor. Such diversion was, and is, the very wrong, and the only wrong, which it seems to me the act was intended to prevent. Here, instead of any such diversion, the result will be to give the money to the very persons whose work and materials created it and for whose protection the act was framed.

Third. It is not within either the verbiage or reasoning of the prevailing opinion in Slingerland v. Binns. That verbiage and reasoning does not include the case of an order given in payment of money due for labor and materials furnished for the building, against the contract price of erecting which the order is drawn and for which the party holding the order was entitled to serve a stop-notice. It did not affirmatively appear in that case that the party in whose favor the obnoxious order was drawn was in a situation which entitled him to give an effective stop-notice, for, as we shall see directly, it is not every person who furnishes materials which go into a building who is entitled to serve a stop-notice. Certainly, the precise question now presented was not put forward or discussed in Slingerland v. Binns, either in this court or in the court of errors and appeals. The sole question was as' to whether or not the contractor could, prior to the maturity of any portion of the contract price, divert it from the laborers and materialmen by giving an order to his general creditors, under the ruling in Trustees of Public Schools v. Heath, 2 McCart. 22.

And here it is worthy of observation that the prevailing opinion in Slingerland v. Binns declares that the unpaid laborers and materialmen have an “ inchoate ” lien for their several claims upon the contract price in the hands of the owner, and makes such “inchoate” lien a reason for holding that the contractor cannot assign by order, in favor of a third person, any part of the contract price until the labor and materialmen have had an opportunity to enforce their “ inchoate ” liens by the statutory stop-notice. This declaration of an “ inchoate ” lien has induced two of the judges of this court — 'Vice-Chancellor Emery and myself — to do away with some,, at least, of the inequities and hardships of the Mechanics’ Lien law by holding that all holders of stop-notices shall stand on an equal footing, without regard to the date of service of their several notices; and if the fund here in court shall prove insufficient to pay the holders of the stop-notices and Conklin’s order in full, I shall advise that it be divided pro rata, so that no advantage can be gained by the holder of an order over the holder of a stop-notice, or of either one over the other.

But the question that arises out of Mr. Conklin’s inchoate lien in this case is, how did he lose that lien by accepting an order for the amount of his claim upon the very fund upon which that claim was a lien ? I confess I am unable to perceive how he did lose it.

For these reasons, I will advise a decree placing Conklin’s first order upon the same basis as the holders of the stop-notices which were served before June 25th, and, after they have been satisfied, Booth & Brother will be entitled to the remainder.

Conklin’s second order, of June 24th, stands on a different footing, because it was given for materials furnished by him to Chesterfield, a subcontractor, and used by him in the building, and for such materials he (Conklin) was not entitled to serve a stop-notice under the third section. Carlisle v. Knapp, 22 Vr. 329.

The result is to pay first all stop-notices served before June' 25th, and also Conklin’s order of May 1st. If the fund is insufficient for that purpose, the parties just mentioned to be paid pro rata. If any of the fund is left after paying them in full, it shall go to Booth & Brother.

The complainant is entitled to its costs and a counsel fee, and each of the prevailing defendants is entitled to costs.


source: Caselaw Access Project

author: Pitney, V. C.

license: Public Domain

text:
    Abram S. Hewitt v. The Lehigh and Hudson River Railway Company.
    [Decided February 3d, 1899.
    Filed June 12th, 1899.]
    1. Failure of the arbitrator to view the premises cannot afieet an award as to their value, in the absence of request to do so, he being familiar with them.
    2. The owner of land wanted by a railroad wrote the latter’s representative, “ I am perfectly willing to take the judgment of any fair man as to what damage this does to the property,” and later, “There is only one other way which I can suggest to avoid litigation, and that is to ask Mr. H. to decide how much you are to pay, and for his decision to be final.” The reply was, “Your suggestion relative to leaving the matter to decide to Mr. H. meets with my approval.” The representative also wrote to Mr. H., enclosing maps containing a description of the land. The arbitrator agreed in writing to act. —Held, that it was a complete submission in writing, and hence not within the statute of frauds.
    3. Where defendant to a bill to enforce an award admitted the agreement to submit to arbitration, the actual submission and the award, and failed to set up the statute of frauds as a defence in his answer, he cannot insist on it at the hearing.
    4. Where the only question in a submission was the amount to be paid for land already taken, and a conveyance of which could have been compelled, it was not a case requiring the submission to be in writing, and hence was not within the statute of frauds.
    5. Where neither in the negotiations and correspondence leading up to a submission, in the arbitration itself nor in the proceedings to condemn involving the same subject-matter, was an equitable defence interposed, it will be deemed waived in a suit to restrain the condemnation.
    6. Where a party agrees to a second submission, and afterwards repudiates the award therein, and begins condemnation proceedings, he waives all rights under the first award.
    7. A party to an arbitration cannot repudiate the award for causes within his knowledge before it was made.
    8. In the absence of misconduct or want of good faith in an arbitrator, the fact that the award seems too high or too low is not s-round for judicial interference.
    Heard on bill, answer and proofs.

      Mr. Charles L. Corbin, for the complainant.

      Mr. George M. Shipman, for the defendant.
   Pitney, V. C.

I The object of the bill is to enforce a submission to arbitration followed by an award of the arbitrator. The subject-matter of the arbitration was the price which the defendant railway company should pay the complainant for two strips of land belonging to him, taken and used by the railway company, by complainant’s permission, for many years before the submission. The immediate relief sought is to enjoin proceedings taken after the award, by the railway company, under the statute, for the condemnation of the lands and the appointment of commissioners by a justice of the supreme court.

The bill was filed and a preliminary injunction granted just before the award was made, but the injunction was not served in time to prevent its being made. The affidavit annexed to the bill will not be considered.

The submission was made by correspondence passing between the complainant and Mr. Grinnell Burt, the president of the defendant corporation, concerning the matter of the settlement of the price to be paid, Mr Burt being fully authorized by the board of directors of the defendant to deal therewith. The arbitrator agreed upon was Mr. Joseph S. Harris, a well-known railroad man and a director of the defendant corporation. He was furnished by Mr. Burt with maps of the lands taken, and subsequently Mr. Burt, representing the defendant, and the complainant in person met before the arbitrator at a time and place designated by him, and the arbitrator heard the allegations of the parties and later on made his award in writing annexed to the maps, fixing the amount to be paid, as follows:

“ Philadelphia. April 30th, 1898;
“To Messrs. Abram S. Skoitt and Grmnell Burt :
Gentlemen — After due consideration of the question submitted to me for decision by you, being the amount of damages which should be paid by the Lehigh and Hudson Biver Bailway Company to Abram S. Hewitt for land the property of Hewitt in Warren county, New Jersey, taken for the construction of the railway, I find that for the land taken on the Green farm the railway company should pay Hewitt §162, and for the land taken near Pequesh Furnace the railway company should pay Hewitt §1,112.40, these amounts to be in full for the value of the land taken, for interest thereon and for damages, the amount of land taken being 1.44 acres on the Green farm and 8.24 acres near Pequest Furnace, the boundaries thereof being as shown on the accompanying blue prints.
“Yours respectfully,
“Joseph S. Harris.”

The defendant refused to be bound by this award and initiated the proceedings which are sought to be enjoined.

The answer admits the submission, the meeting of the parties before the arbitrator and the award, and sets up various matters in avoidance of it, only one of which affects the conduct of the arbitrator, viz., that he did not, after hearing the parties, go upon the ground and view the premises. It does not appear that he was asked to do so, but the defendant’s counsel suggested that it was his duty to do so without being asked. It is, however, clearly proven that he had previously, on several occasions, been upon the premises and was familiar with them. Hence, I think his failure to go upon the premises after the submission, and in the absence of any special request to do so, cannot be set up as affecting his award. The counsel of defendant at the hearing expressly disavowed any intention to charge the arbitrator with any bad faith or willful misconduct.

The first ground after that just mentioned, taken by defendant, was that the submission to arbitration was not put in formal writing, and therefore, as it affected lands, was rendered void by operation of the statute of frauds.

I think there are three complete answers to that point:

First. It seems to me that there was a sufficient submission in writing. It appears that General Burt and complainant had one or more interviews on the subject of complainant’s making a legal title to the railroad company for the strips of land taken by it, and that .on the 27th of April, 1896, Mr. Burt wrote to complainant, as follows:

“ Owing to illness in my family, I have had no time to take up the matter of our right of way through the Pequest property. We will take right of way — 8.97-100—a description of which I enclose. Considering the talk we liave had from time to time in relation to this right of way, I had hoped that you would convey to us the necessary land required after my conversation with you the other day. It seems to me that if we paid you forty or fifty dollars per acre for the amount we take, it would be about right. Please let me hear from you, and oblige.”

In answer to that letter, complainant, on May 26th, 1896, wrote to Mr. Burt, as follows:

“As to the right of way, I am prepared to convey the land which you require at a fair price. What that may be, I do not know. I paid ¡í>75 per acre for the tract of forty acres adjacent to the right of way. Th’e latter is a strip along the river, cutting the place in two and depriving us of access to the river. I am perfectly willing to take the judgment of any fair man as to what damage this does to the property, and to convey the right of way to you for the amount which such a person may decide to be just.”

Subsequently, there was an attempt to ascertain the amount to be paid by an arbitration which the complainant refused to accept, and which will be noticed farther on.

On the 30th of March, 1898, Mr. Burt wrote to the complainant as follows:

“ When you last went to Europe, you informed me that when you returned you would notify me that we might take the matter of right of way for our road through the Pequest Furnace and other property. Your refusal to abide by the award of the arbitrators leaves us in the position to settle the matter only by calling on the court to appoint commissioners to fix the damages. If agreeable to you, please let me know by return mail.”

To which complainant replied as follows, under date of March 31st, 1898:

“In reply to your letter of the 30th inst., I have to say that there does-not appear to be any other method of settling the matter, except to have commissioners appointed and condemn the right of way. The award made by the arbitrators was so inadequate that if it were to stand, I would prefer to have the credit of giving you the land for nothing. There is only one other way which 1 can suggest to avoid litigation, and that is to ask -Mr. J. S. Harris to decide how much you are to pay, and for his decision to be final. I am perfectly aware that he represents the interest which is adverse to me, but he is a man so just that I am quite willing to take his opinion, even if he decides that nothing should be paid, provided you show him this letter.”

In reply thereto Mr. Burt, on April 4th, 1898, wrote to com.plainant as follows:

“ Your favor of the 31st ult. received. Your suggestion relative to leaving the matter to decide to Mr. Joseph S. Harris meets with my approval provided -he will perform those duties. I will show him your letter, which I hope to .-do this week. If he declines we will be compelled to resort to the appoint.ment of commissioners to condemn the right of way.”

Mr. Burt also, at the same time, wrote to Mr. Harris enclosing maps containing a description of the land. That letter was not produced. Mr. Burt testified that he had a copy of it at home, and it was agreed that he should furnish it for use at the argument, but it was not furnished.

In pursuance of that letter Mr. Harris, on April 18th, 1898, wrote the complainant as follows:

“Mr. G. Burt, president Lehigh and Hudson Biver Bailway Company, "forwarded to me some days ago a letter from you to him, in which you suggested that a certain unsettled matter of right of way should be left to my . decision. I notified Mr. Burt that I was willing to act, and he has sent me maps showing the right of way required, being 8.24 acres near Pequest Furnace, and 1.44 acres at some other point not designated. Will you kindly -advise me in what way you desire to present your case, whether by letter or - otherwise ? If you desire to present it personally, I have no doubt that within ..a week or two 1 should be able to make an appointment in New York to meet .both you and Mr. Burt.”

Later, Mr. Harris appointed a time and place of hearing, •when both parties appeared before him, and he, with the maps before him, expressly asked each — Mr. Burt and complainant— whether they each agreed to be bound by his award, and they each assented thereto and presented their respective cases, with .such evidence as they chose to produce.

Now, it seems to me that, taking all this correspondence and the delivery to Mr. Harris by Mr. Burt of the description of the land, it makes a complete submission in writing. The location, .description and quantity of land to be appraised were clearly -designated, and the single question submitted was the amount .•the defendant should pay the complainant.

Second. The defendant in its answer admitted substantially the agreement to submit, the actual submission and the award, and- failed to set up, either by plea or its equivalent, the statute of frauds as a defence. This, it seems to me, is fatal to that defence being insisted upon at the hearing, especially in a ease where the evidence shows such a complete understanding between both parties as to what was the actual submission, and where both parties have been fully heard. But,

Third. I am of the opinion that the statute of frauds does not apply to this case, for the simple reason that the title to land did not in anywise come into question, the only question being the amount of compensation which the defendant should pay the complainant for land which it already had in possession, and which it could have compelled the complainant to convey to it upon terms. It seems to me to require no authority to sustain the proposition that after the defendant had taken possession of these lands with the full consent and approbation of complainant (the owner), had expended moneys in grading and filling and constructing expensive works over the same, and had used them for over ten years, this court would never permit the complainant (the owner) to eject it therefrom by legal proceedings, but would declare and decree, upon application for that purpose by the defendant, that the equitable title passed to the defendant by the consent of the complainant, subject only to the payment by defendant to the complainant of the price and value thereof agreed upon, if it were agreed upon between the parties, or if there was no such agreement, then just compensation to be ascertained by this court. The precise situation of the parties, in the view of a court of equity, was this: that the defendant was in possession of and held the equitable title to these lands, and that the complainant held the legal title thereto as mortgagee, as security for the value of the lands before possession taken, with the incidental damages, to be ascertained by this court if application was made therefor by the defendant. This position the complainant at all times clearly admitted. He at no time made any pretence to any right to withhold a conveyanee of the legal title except for the purpose of securing himself the amount of just compensation for the premises.

■ It is equally well settled that a submission to arbitration by parol, and an award thereunder, is perfectly good except in such •cases as are forbidden by the statute of frauds, the rule being that whatever the parties may agree to between themselves by parol they may agree to submit to a third party to determine between them. And there can be no doubt in this case that if Mr. Burt and complainant had come to a positive parol agreement by which the defendant should pay to the complainant a certain sum of money as just compensation for the lands in •question, such agreement would have been binding on both parities and complainant would have been compelled to convey the land on the payment of that sum. On this subject I refer to Kyd on Awards (book of the last century) p. 10; Caldw. Arb. ch. 3 p. *15; and see note to page 36 of the edition of 1853. The distinction in question was taken in Walters v. Morgan, 2 Cox C. C. 369. The same law is laid down by Mr. Morse in his book on Arbitration and Award p. 50; and see Wells v. Lain, 15 Wend. 99; Valentine v. Valentine, 2 Barb. Ch. 430 (at p. 437); also French v. New, 20 Barb. 481, and on appeal, 28 N. Y. 147. A case much in point is Davy’s Executors v. Faw, 7 Cranch 171 (at p. 176) (Supreme Court United States), where, in answer to a point similar to that made in this case, ■Chief-Justice Marshall says: “That is where the title is in question. But here the title was conveyed. The dispute was only as to the price. The question of title was not submitted.”

In Jackson v. Gager, 5 Cow. 383, the supreme court of New York dealt with a parol submission to arbitration, and (at p. 386) Mr. Justice Sutherland says-: “The object of the submission was to ascertain and settle the true location of a particular lot of which the parties to the submission were joint proprietors, the ■surrounding or adjoining lots, or some of them, belonging to •them in severalty. It was, then, an agreement that the arbitrators named should determine the boundaries of the common lot, according to the description in the partition deed of the patent, under which both parties derived their title.” Then, after stating authority for the proposition that a parol agreement between-proprietors of two adjoining lots to abide by a certain division, line was not within the statute of frauds, he states the law thus: If a parol agreement between the parties, fixing the location- or boundaries of a lot, is valid, a similar agreement that certain persons named by them shall ascertain and determine the true location, would seem to be equally exempt from the operation of the statute of frauds.”

And in Mitchell v. Bush, 7 Cow. 185, the same court held, that a parol agreement to submit to arbitration and an award thereunder of the amount which the defendant should pay the-plaintiff for the use of a private road which the plaintiff had-laid out was good and not within the statute of frauds.

Other matters were urged to show a sort of equitable defenceto the complainant’s bill. First, it was urged that when the railway was located and constructed complainant encouraged it by holding out the idea that if the freight rates charged by the-railway company were satisfactory he would not charge anything for the land, but would make a conveyance thereof. That some such arrangement was made is admitted by the bill, and by complainant on the stand, but he swore that the conditions which he imposed were never fulfilled by the defendant; that it never did give him satisfactory freight rates. This defence does not seem to be cleaily made out by proof, but if it were made out,. I am unable to see that the defendant can avail itself of it, for the reason that it has deliberately waived it. If it be true that-there was an actual and definite agreement between complainant and the defendant’s agent, at the time the road was laid out, that the lands should be conveyed for a nominal consideration upon-the performance of certain conditions, and those conditions were-performed, then the defendant should long ago have filed a bill in this court to establish its equitable title to the land and to-compel complainant to make a conveyance thereof. But it never,, in any of the negotiations or correspondence between the parties,, put itself upon that ground, and it seems to me that the submission to arbitration in this case, and later on the institution of statutory proceedings to condemn, amount to a complete abandonment of that position. The defendant seems to have made the radical mistake of supposing that, when it went before an arbitrator or before commissioners appointed by a judge to ascertain the compensation to be paid for this land, it could successfully set up and rely upon the fact that complainant originally promised to give the land to the railway company. This mode of getting the benefit of complainant’s original promise seems to me to be quite inadmissible. The commissioners appointed by a judge, or this court acting in the same capacity, in ascertaining the actual value of the lands taken and damages resulting from the taking, are not permitted to take into consideration any promise on the part of complainant to convey without compensation or any benefit to him by the location of the railroad.

The next defence set up is that the parties previously submitted this very question to arbitration by Mr. J. Blair Kelsey, of Belvidere, and that Mr. Kelsey made an award. The fact of submission to Mr. Kelsey and the details of the award are not proven, and some letters, copies of which were annexed to the answer in support of this proof, were not produced at the hearing. The fact that Mr. Kelsey, under some sort of submission, did make an award was proven, and that complainant repudiated that award at once is also proven. It is but justice to the complainant to say that he declares that the settlement of the amount to be paid was, in the year 1896 or 1897, left to his agent, Mr. Fackenthall, and to Mr. Burt, and that Mr. Burt appointed an agent by the name of Albertson to act with Mr. Fackenthall. It would seem, although it was not proven, that these two — Fackenthall and Albertson — not being able to agree, called in Mr. Kelsey without the knowledge or consent of the complainant, and it was his award that the complainant repudiated. Now, it seems to me clear enough that if that award was binding upon the complainant, then it was clearly the right of the defendant to file its bill in this court for the performance of that award, and upon tender of the amount found by Mr. Kelsey, to have obtained the decree of this court to compel complainant to make the desired conveyance. Not having so asserted its right, but having agreed with complainant to make a second submission to> Mr. Harris, and having itself repudiated his award and taken condemnation proceedings, it seems to me that it must be held to have also waived any rights it had under Mr. Kelsey’s award. It does not in its answer, by way of a cross-bill, waive its condemnation proceedings which are sought to be restrained by this bill, and ask for the specific performance of Mr. Kelsey’s award.

This leaves only one other matter to be dealt with, and that is a written agreement entered into between the defendant and the firm of Cooper & Hewitt on the 26th of April, 1887, on which is based the point that Mr. Burt was deceived by complainant and surprised by the developments at the hearing before Mr. Harris.

The railroad was laid, and built about 1881 or 1882 from Belvidere up the valley of the Pequest river, through Warren and Sussex counties, to a point in the county of Orange, in the State of New York. -At that time complainant was the owner of the land here in question, and upon it was built a blast furnace called the “Pequest Furnace.” There were also a farm, farm buildings and some cottages for the accommodation of laborers working in the furnace. It was situate on the Pequest river at the crossing of the Delaware, Lackawanna and Western railroad. The blast furnace was operated by the firm of Cooper & Hewitt, and that firm obtained its coal and ores and shipped its product over the Delaware, Lackawanna and Western railroad.. The defendant’s railway crossed the Delaware, Lackawanna and Western railroad near the furnace, and traversed the furnace tract for a long way. For the accommodation of both pa'rties'a trestle switch was built leading from the main line of defendant’s railway into the furnace grounds, and also forming part of a junction with the Delaware, Lackawanna and Western railroad, the actual crossing of the two railroads being not at grade. This trestle and switching arrangement was erected at considerable expense about the year 1882, without anything in writing either as to its use or the right of the defendant to maintain it there, or as to the rate of freight to be charged, until the year 1887, when the agreement in question was made. That provided for the use of the trestle itself, its reparation and maintenance, and fixed a certain amount for freight rates to be charged to the firm of Cooper & Hewitt, but by its terms ended in 1896. It made no mention whatever of compensation for the right of way of the main line now in question, but dealt wholly with the switch trestle before mentioned.

The changes in the cost of the manufacture of iron and its price when manufactured, led to the blowing out of the furnace somewhere in the year 1890 or 1891, after which and up to this time it has remained idle.

Now, Mr. Burt swears that he went to the hearing before Mr. Harris with the idea that it was the firm of Cooper & Hewitt that owned this land, and that the contract just mentioned had a bearing upon the question to be decided by the arbitrator; but he did not produce that contract or offer it in evidence, and contented himself with referring the arbitrator to the fact that the contract was made, and says he was surprised to hear complainant declare that he was not bound by that contract, because, although he was a member of the firm of Cooper & Hewitt, he himself was the sole owner of the lands. But the evidence shows clearly-that Mr. Burt had known for years that complainant was the sole owner of the land, and the evidence further satisfies me that all that complainant claimed at the hearing before Mr. Harris, with regard to the contract of 1887 with Cooper & Hewitt, was that it did not and could not refer to the conveyance of the land, for the reason that Mr. Cooper had no interest in the land itself. Mr. Burt swears that he had not read the contract for some time before going before Mr. Harris, and, under oath, makes this remarkable statement:

“When I got home 'and read this contract of ’87,- and read Mr. Hewitt's letter, I said to myself I will repudiate the submission to Mr. Harris if he brings in anything more than Mr. Kelsey had brought.”

Now, it is hardly necessary to say that a'party situated as Mr. Burt was cannot speculate on the result of an arbitration. If he has reason or ground to repudiate his submission, he must do so promptly and before the award is made. He cannot withhold his repudiation until he ascertains whether or not the award is favorable to him. Mr. Burt seems to have entertained the notion that because the complainant had refused to be bound by the award of Mr. Kelsey, he (Mr. Burt) might in turn repudiate the award of Mr. Harris if it did not suit him. This notion, of course, is untenable.

Finally, the general complaint is made that the award is outrageously high. I understand the rule on this subject generally to be that in the absence of any misconduct or want of good faith in the arbitrator, the mere fact that his award seems too high or too low, as the case may be, is not sufficient to induce the court to interfere. In other words, where the arbitrator has exercised his judgment fairly, after giving all the parties an opportunity to be heard and present all their evidence, this court will not review his judgment. 1 find nothing in this case that would warrant the inference that the award was not the result of a judicial view of the evidence presented and an honest judgment of the arbitrator thereon.

For these reasons I think the award must be upheld and the injunction made perpetual, the complainant offering to make a conveyance on being paid the amount of the award.

The complainant is entitled to costs.


author: Emery, V. C.

text:
    Sarah A. Jackson v. Emeline G. H. Condict et al.
    [Filed October 21st, 1898.]
    1. The doctrine of marshaling portions of lands in discharge of a mortgage in the inverse order of their alienation does not apply where the alienations were not made by deeds of general warranty, and were given for a nominal consideration, and there were no circumstances from which an agreement could be implied that the portions conveyed were to be free from the mortgage.

      2. An owner of land covered by a mortgage conveyed a portion by a deed containing no covenants of general warranty, in consideration of the grantee’s-agreement to build a depot on the land conveyed. The depot would be a convenience to adjoining lands, in which the grantor and grantee were both interested. — Sdd, that an agreement to relieve the land conveyed from a charge of a ratable portion of the mortgage could not be implied from said consideration.
    3. A purchaser of a part of mortgaged land, with knowledge of an agreement between the owner of the land and the mortgagee that such part is to be charged with payment of a certain part of the mortgage, takes it subject to such agreement, where no agreement that the prior mortgage should be first paid out of the remaining part was made or could be implied from the circumstances of the purchase.
    4. A mortgage on a large number of lots provided that any one would be released on payment of a certain sum. Subsequently the mortgagee and owner of a certain lot agreed that it would be released on payment of $750. Defendant accepted a second mortgage on such lot, after the mortgagor had stated, “There are $750 to be paid on this.” — Hdd, that defendant had information sufficient to put him on inquiry and to charge him with notice of the agreement charging the lot with the payment of $750.
    On bill to foreclose.

      Mr. Richard V. Lindabury, for the complainant.

      Mr. Joseph F. Randolph, for the defendants.
   Emery, V. C.

In this case the complainant forecloses a mortgage originally given upon about ninety-four acres of land, which was laid out in building lots (one thousand and forty-one in number), with parks, streets and depot lot. The defendant Mrs. Jennie Eeynolds is a subsequent mortgagee'of the “depot lot.” All of the lots and parks included in complainant’s mortgage have been released by complainant or her assignors, except the “ depot lot” and seventeen of the building lots. Nine hundred and eighty-one of the lots were released subsequent to the execution and recording of defendant’s mortgage, and the remaining forty-three lots were released subsequent to the conveyance of the “ depot lot” to Mrs. Emeline Condict, under whom the defendant mortgagee claims.

The complainant’s mortgage is a purchase-money mortgage given to Seaton and Benedict on October 12lh, 1891, and by them assigned to John B. Planten on December 3d, 1892, subsequent to the conveyance of the “depot lot” to Mrs. Condict, which was made (as appears by the pleadings) on May 2d, 1892. This conveyance of the depot lot was made by the defendant Laura Jackson, who became the owner of the mortgaged premises on October 12th, 1891, subject to the complainant’s mortgage of the same date. Silas A. Condict, the husband of Emeline Con-dict, was interested with Laura Jackson in the development and sale of the property, had a share in the profits and entire charge óf the sales of lots. The “ depot lot ” and sixteen lots were conveyed by Laura Jackson to Mrs. Condict, at the request of Silas Condict, for a nominal consideration, and, as he says, upon his agreement to build a depot on the premises, which he afterwards did. The depot, as located, is a public convenience not only for the use of the owners of the tract in question, but also for owners of lots on adjoining tracts, in which Silas Condict was interested, and together constituting the station of “Aldene.” The mortgage of complainant contains provisions for the release of portions of the mortgaged premises, these terms providing (so far as applicable to the depot lot) that they should be released on payment at the rate of $500 per acre, and this provision as to releases was in force when the conveyance of the depot lot was made to Silas A. Condict’s wife. But on December'29th, 1892, another agreement in writing, changing the provisions as to releases, was made between Planten, the holder of the mortgage, and Laura Jackson, the owner of the mortgaged premises, in which the amount to be paid on account of each lot on release was-fixed, and in which it was provided that the “ depot ” should be released upon payment of $750. Silas Condict, for whose benefit and in whose interest the conveyance to'his wife of the “depot lot” was made, knew of this agreement and was the witness to Laura Jackson’s signature. He had, by agreement, entire charge of the sale of the lots with a share of any profits, and subsequent sales of lots were made by Condict according to the terms of this second agreement, which, however, was not recorded. On October 13th, 1893, the title of the depot lot was put in Silas A. Condict’s name (through an intermediary), and he with his wife, on the same date, gave to defendant Mrs. Jennie Reynolds a mortgage thereon to secure $11,495.56 with interest. The mortgage was given to secure a then outstanding indebtedness of Silas Condict to Mrs. Reynolds. Mrs. Reynolds says that at the time of taking her mortgage

“ Mr. Condict said, ‘ I don’t want to deceive you at all in this matter ; there are $750 to be paid on this; ’ he didn’t say what the nature of it was, but he says, ‘ that is all right, it is the same as though it didn’t exist; arrangements have been made to settle all that, and it is the same as if it did not exist.’ He said arrangements had all been made.”

The $750 does not appear to have been paid, and the amount due on the complainant’s mortgage is over $5,000. Mrs. Reynolds says she had no knowledge of the Jackson mortgage at the time of taking her mortgage. It is now claimed by her counsel that, as to releases of the property covered by complainant’s mortgage, she is chargeable only with the constructive notice of the provisions of the release in the mortgage itself, and is entitled, as claiming under Mrs. Condict, to have the full value of all the property remaining after the deed to Mrs. Con-dict was given, and which was afterwards released by complainant, applied to the payment of the mortgage. She claims that the proof establishes that Mrs. Jackson, at the time of these subsequent releases, had actual notice of her mortgage. This actual notice, however, is disputed, and is the principal question of fact in the cause.

Upon consideration of the pleadings and proofs, I reach the following conclusions:

First. The complainant had notice, through her agent, William H. Jackson, of the existence of complainant’s mortgage, at the time of the execution of the releases of her mortgage in 1894.

Second. The deed to Mis. Condict, the predecessor in title of defendant Mrs. Reynolds, not being shown to be a purchase upon valuable consideration, or a deed of warranty from Laura r/Jackson, the doctrine of marshaling the properties in the inverse order of alienation does not apply. As between different portions of the premises subject to a common charge, the general and fundamental rule of equity is, that the burden is to be borne by the different portions ratably. The exception to the operation of this fundamental rule, which is made for the purpose of marshaling the portions in favor of a prior grantee of a portion ■of the premises, is based not on the simple fact of the earliest grant, but upon the conclusion that the character and circum'-stances of the earliest conveyance are such as show that it was the intention of the parties to the conveyance that the portion conveyed should be free from the common burden. Hoy v. Bramhall, 4 C. E. Gr. 563, and cases cited p. 569 (Errors and Appeals, 1868); 2 Lead. Cas. Eq. (4th ed.) 291, 296. In Hoy v. Bramhall, it was held that where by the terms of the sale of a portion ■of the mortgaged premises the mortgage was to remain a common charge, the portion conveyed must contribute ratably. The cases in this state applying the rule of marshaling between successive grantees of the mortgagor, are cases of purchase for value or under general covenants of warranty. Shannon v. Marselis, Sax. 413 (Chancellor Vroom, 1831); Gaskill v. Sine, 2 Beas. 400 (Chancellor Green, 1861); Mount v. Potts, 8 C. E. Gr. 188 (Chancellor Zabriske, 1872); Hiles v. Coult, 3 Stew. Eq. 40 (Chancellor Runyon, 1878).

In such cases, courts of equity, for the purpose of carrying out the evident intention of both parties, that the vendee shall receive, so far as possible, the full benefit of the purchase free of encumbrance . as intended to be made, have required the property remaining to the vendor to be first exhausted. I have been referred to no decision in this state, expressly upon the point that a voluntary deed upon nominal consideration without cov•enants of warranty, will not relieve the grantee from his liability to a ratable contribution, but this is the doctrine, as settled in other courts, where the general principle of marshaling is the same as ours. Notes to Aldrich v. Cooper, 2 Lead. Cas. Eq. (4th Am. ed.) 296, 304; 15 Am. & Eng. Encycl. L. 831, note 2.

Where the deed is upon a nominal consideration and there is ■no agreement either express, as by warranty in the deed or other covenant, and no agreement can be implied from the circumstances of the case, that the portion conveyed was to be free from encumbrances, I see no equitable reason for holding that there should be any marshaling of the different portions.for the discharge of the common burden. Under such circumstances the true equity would seem to be ratable contribution, according to the general and fundamental rule above stated. In the present case the only consideration for Mrs. Condict’s deed was that her husband should build a depot upon the land conveyed. This depot was intended as a convenience not only to the other lots conveyed by the deed and to the occupiers of the remaining lots of the grantor, but as well and to the same extent to other adjoining lands in which Silas Condict was interested. The consideration, therefore, was not of such a character as to imply any agreement or intention to relieve the depot lot altogether from the mortgage and impose it upon the remaining lots, and in the absence of any express .or implied agreement, the defendant Reynolds is not entitled, merely by reason of this prior conveyance, to cast the entire burden of the mortgage upon the remaining property.

Third. The provisions of the release made on December 29th, 1892, between Planten, the holder of the mortgage, and Laura Jackson, the owner of the premises, must govern the liability of the respective portions of the premises, including the lot previously conveyed to Mrs. Condict. Silas Condict, for whose benefit and in whose interest the conveyance to his wife of the “ depot lot ” was made, participated in this agreement, became a grantee of the “ depot lot ” after the agreement was made, and under the circumstances shown in this case, was bound by this agreement as to releases, fixing the proportion of the debt to be paid by the depot lot.

The only equity as to contribution which any grantee, without notice, under Mrs. Condict could claim, would be the re-adjustment- of the proportionate value, if $750 exceeded the ratable value of the lot, but there is no claim or evidence that the proportion was unfair. Moreover, Condict’s mortgagee, Mrs. .Reynolds, had notice at the time of taking her mortgage, that this proportion ($750) was to be paid on the property, and this information was sufficient to put her upon inquiry and to charge her with notice of the provisions of the second agreement for release. The “depot,” therefore, will be charged with complainant’s mortgage to the extent of $750, and I will so advise. Questions which seem to arise on the pleadings in relation to the subseqdent mortgages or deeds to other defendants, were not presented at the hearing and have not been considered.


text:
    Mary Coddington et al. v. Amelia Jenner et al.
    [Submitted December 3d, 1897.
    Filed December 2d, 1898.]
    The execution and contents of a lost will may be established by evidence aliunde, but the proof must be clear and convincing.
    On bill, &c. Heard on bill, answer, replication and proofs taken orally.

      Mr. John A. Freoh and Mr. Richard V. Lindabury, for the complainants.

      Mr. Nelson Runyon and Mr. Craig A. Marsh, for the defendants.
   Emery, V. C.

This is a bill to establish a will of real and personal estate alleged to have been duly executed by one Mrs. Ann E. Martin and to have been accidentally destroyed by fire previous to her death, without her knowledge and without having been revoked. Ann E. Martin died on June 16th, 1894, seized of a tract of land in Somerset county, containing about nineteen acres, worth, with the house thereon, about $2,000, and possessed of a personal estate of more than $5,000. She was about seventy-nine years of age at the time of her death, and left surviving, her husband, Peter Martin, and three children, viz., the complainant, Mary Coddington, wife of William H. Coddington; Amelia Jenner, wife of Philip Jenner, and Adrian Martin. These children were all born out of lawful wedlock, the marriage of Peter and Ann E. Martin having taken place on November 26th, 1869, as now appears by the marriage certificate put in evidence. On August 4th, 1894, administration upon the personal estate of Mrs. Martin, as an intestate, was granted to Adrian Martin, Philip Jenner and Franklin P. Coddington, who have settled the estate and now hold the balance ($5,102.01) in their hands for distribution. The orphans court of Somerset county, by order dated May 21st, 1896, directed the payment of this sum to Peter Martin;, the husband. The bill is filed to restrain this payment by the administrators and to establish a will alleged to have been made by Mrs. Martin in 1890, a draft or copy of which is set out in the bill. By this alleged will the testatrix, after directing the erection of a monument and dividing her jewelry and clothing between her two daughters and directing “that the father of two of her children, Peter Martin,” shall have the use of her household furniture for life and then bequeathing it to her son, Adrian, devises and bequeaths all her property, real and personal, to her three children, share and share alike. Nothing is given to the husband except the use of the furnitnre. Joel Coddington, a grandson, is made executor with authority to sell the estate. The present bill is filed by Mary Coddington, one of the daughters, and her husband against Mrs. Jenner and her husband, Adrian Martin and his wife, Peter Martin and against the administrators of Ann E. Martin, and Joel Coddington, the executor named in the alleged will. For the proof of'the actual execution of the will, complainants rely upon the testimony of three witnesses, John K. Van Ness and William H. Clurn (the two witnesses to the will), and John P. Cowles, who says that he engrossed-the will in question from a draft made by Van Ness and delivered the engrossed will to Van Ness. This original draft, a paper in pencil, is now produced and identified by Van Ness, and probate of the will according to this draft is prayed. The pencil draft is still legible (except, perhaps, as to the date of the year in figures), and is complete with the exception of the blanks for dates and the signatures. Defendants claim that the credibility of these witnesses has been so shaken that their evidence is not sufficient to establish the will, and especially that the general reputation for truth of Van Ness, the principal witness to the execution and contents of the will, has been successfully attacked. Both .complainants and defendants have produced evidence of declarations made by Mrs. Martin relating to her will and her intentions as to her estate, before as well as after the date of the alleged will and up to within a short time preceding her death. The question in the case as presented on the hearing is one of fact purely. The rule of law applicable to the decision of the case upon the evidence is the one stated by Chancellor Green in Wyckoff v. Wyckoff, 1 C. E. Gr. 401 (1863), and is (at p. 405) “ that the will may be established upon satisfactory proof of the destruction of the instrument and of its contents and substance. Whether the proof be by one witness or by many, it must be clear, satisfactory and convincing.”

This rule was declared in a case where the execution and the destruction of the will were not contested, and the question was as to the proof of the contents, but the same principle is applicable as well to the points of execution and loss as of contents. All three points are here disputed, and the direct evidence as to all three points is to some extent connected.

John K. Van Ness was an attorney, about forty-five years of age, who had been practicing in New York since 1875, but who came from Mrs. Martin’s neighborhood and knew her from his youth. He transacted some business for New Jersey clients, and in the early spring of 1890 was building a residence at Plainfield, to which he removed in June of that year. Without going into full details of his testimony, it may be said that his testimony, if believed, establishes the following facts as to the actual execution of a will: A will was drawn for Mrs. Martin, ■under Van Ness’ instructions from oral directions given to him ■by Mrs. Martin in the summer of 1889, and a letter from her received by him in January, 1890. The will was drawn by a Mr. Cowles, a New York lawyer, then in Van Ness’ office, from .a pencil draft in Van Ness’ handwriting, made by Van Ness -on the day previous to the execution of the will, and which is now produced and identified by Van Ness. The will was exe-cuted by Mrs. Martin at the City Hotel in Plainfield, where she met Van Ness by appointment for that purpose. Previous to •the execution the will was compared with the draft by Van Ness and found to be a correct copy of it, and the will was read •over by Mrs. Martin and was also read to her by Van Ness. Cowles, who had brought the will and draft to Plainfield and •delivered them to Van Ness on that day, was at the City Hotel .and conversed there with Mrs. Martin. The will was executed in the presence of Van Ness, and a Mr. William H. Clum, an ■architect of Plainfield, and an acquaintance of Van Ness, who was requested by the latter to witness the will. The legal forms •of execution were duly complied with. As to the execution of 'the paper, Clum’s evidence establishes that, at the request of Van -Ness, who met him casually on the street near the City Hotel, he consented to witness the execution of a paper with Van Ness, and for that purpose accompanied Van Ness to the parlor of the hotel, where the will was signed by the testatrix ■in his presence and in that of Van Ness, and they both witnessed ■its execution as her will at the request of the testatrix. The paper was not read in his presence. Clum had never seen this lady before, but she was an old lady, who was introduced to him by Van Ness as Mrs. Martin, and to the will she signed ■the name “Ann E. Martin.” Clum further says that after the •■execution of the will and in reply to Van Ness’ inquiry as to what he should do with the will, Mrs. Martin directed Van Ness to keep it, and said that'she did not want the wife of her ■son (with whom she was living) to know that she had made a will. When Clum left the room, shortly after the execution of ■the will, it was lying upon the table, and Van Ness and Mrs. Martin were there. The time of the execution of the will Mr. Clum now fixes as in February or March, 1890.

I find nothing in the evidence to shake Clum’s credibility as to these substantial facts.

Mr. Cowles, the third witness on the point of the execution of the will, testifies that in 1890, and as he recollects, between the latter part of January and the first of March, he drew or engrossed a will from a pencill draft given to him by Van Ness, and at his request took the will to Van Ness, at the City Hotel in Plainfield, the next day. He delivered these papers to Van Ness at this place at the time appointed,”and he there saw an elderly lady introduced to him as Mrs. Martin by Van Ness, and to whom he was introduced as the gentleman who drew the will. He was present when Mr. Clum came into the parlor, but left shortly afterward and before the actual execution of the will. Van Ness returned to him at Plainfield the pencil draft, and he (Cowles) returned this to Van Ness at his office in New York a day or two afterward.

The witness, on cross-examination, being asked whom he met that day in Plainfield, stated that he thought he met a Mr. Holcomb, and being then questioned as to what occurred in meeting Holcomb, gave the details of the meeting.

It appeared by the subsequent examination of Holcomb that in March, 1890, and for some time before and after, he was not then living in Plainfield, but in California. He had, however, met Cowles in Plainfield previous to 1890, and two or three times. It was urgently insisted that the credibility of Cowles was entirely destroyed by reason of his detailed statements as to meeting Holcomb on that day, and their falsity. I cannot consent to this view of his evidence. The witness was mistaken if the evidence as given warrants the conclusion that he intended to assert positively that this day in March, 1890, was the day on which he met Holcomb, but as he certainly met Holcomb in Plainfield previous to the day named, I see no reason for holding that his entire story of the drafting and execution of this will is a fabrication because of a mistake on this collateral fact. H's testimony, when he declines to identify the draft now produced as the one from which he engrossed the will, is an indication of his fairness and honesty, and I see no sufficient reason to reject his evidence. Nan Ness’ general character for truth and veracity has been attacked by witnesses who knew his general reputation and has been seriously shaken, and in the absence of corroboration as to the execution of the will, his evidence might not be considered sufficient to establish it. But, corroborated as his evidence is by the evidence of Clum and of Cowles, and in the absence of any apparent motive or interest on Nan Ness’ part to fabricate this will, the evidence in this case as to the execution of a will is satisfactory. As to the subsequent custody of the will, the evidence of Clum corroborates that of Nan Ness as to Mrs. Martin’s direction that he should keep the will. The loss of the will by reason of its being taken to Nan Ness’ house in Plainfield, which was burned in July, 1893,' is proved solely by Nan Ness’ testimony, and the reliance on his statements upon this point is shaken by the fact that when the death of Mrs. Martin was first called to his attention, in March, 1896, by a notice in the newspaper of the settlement of her estate, he wrote or dictated a letter to the surrogate, from which it' would seem that he then thought he had the will in his possession. This is somewhat explained by his physical and mental condition since the fall of 1895, when he was stricken with paralysis, but if the establishment of the will depended on certain proof of the manner and circumstances of the loss or destruction, his evidence might not be entirely satisfactory on this point. But, as it seems to me, the questions upon this branch of the case are, first, whether the will was executed; second, whether it was delivered to Nan Ness for custody by the testatrix after execution and third, whether it has since and before testatrix’s death been destroyed or lost, and without the knowledge of the testatrix. As to the execution and custody, Nan Ness’ evidence is sufficiently corroborated, and if this will was so executed and delivered to Nan Ness, his statements alone are, I think, sufficient to establish the subsequent loss or disappearance of the will and his failure to notify the testatrix. Corroboration in reference to these matters, which were almost,, if not entirely, within the sole personal knowledge of Van Ness, cannot reasonably be-required of those who claim under a will which has been satisfactorily shown to have been delivered to him by the testatrix after execution. The same considerations apply to some extent to the evidence of Van Ness as to the contents of the will. He-produces the draft, and he alone proves the draft to have bee» the one delivered to Cowles to copy, and that the will was correctly copied from it. He is corroborated by Cowles as to the existence of an original draft in his handwriting from which the will was copied, and as to the subsequent return of this draft to-him by Cowles, and the paper itself bears some evidence of authenticity and purpose. It appears to be just what a paper drawn at the time and for the purposes sworn to might be. The evidence of these witnesses taken together is, in my judgment, sufficient to establish the will according to the tenor of this draft now produced. Considerable evidence was given upon both sides as to the declaration of the testatrix in reference to her execution of a will, the declarations being made both before and after the alleged execution .of the will. I have read and considered this evidence, but find nothing in the statements of testatrix sufficient to outweigh the positive evidence as to the actual execution of the will at some time during the spring of 1890. And if the desire of the testatrix to conceal the existence of a will, which she expressed at the time of the execution of the will, continued up to the time of her death, the effect of her declarations as to its existence loses much of its effect.

A decree will therefore be advised establishing the will as prayed and enjoining the distribution of the estate of testatrix as that of an intestate.


text:
    The Board of Chosen Freeholders of the County of Hudson v. Louis Emmerich et al.
    [Submitted May 28th, 1898.
    Decided December 31st, 1898.]
    1. Constitution, article 1, paragraph 16, provides that damages given on condemnation for public roads are to be fixed by the legislature, and P. L. of 1888 p. 400 $ 6 limits the award to the value of the land, and damages to the remaining land of the owner, after considering the benefits; and where a single assessment is made for all the owners and persons interested in any lot, the award is limited to the damages done to the fee-simple. — Held, to exclude an allowance for injury to business conducted on condemned premises.
    2. Where land condemned for a highway was leased for its full value, a mortgagee of the leasehold is not entitled to claim any portion of the award, as representing the value of the leasehold interest. •
    3. Where a course condemned for a public road runs through leased buildings, so as to require them to be removed or torn down, the tenant is entitled, after the condemned portion is occupied, to consider the premises untenantable, within the terms of the lease, providing that, in case the buildings are rendered untenantable, he shall not be liable for rent, but may surrender the premises.
    On petition, &c., and exceptions to master’s report.

      Mr. William G. Meppenheimer, for the exceptant.

      Messrs. Gorbin & Gorbin. for Emmerich.
   Emery, V. C.

In this case the petitioners, the board of freeholders, condemned for a county road a portion of certain premises which were owned by Emmerich and leased to one Distler. Distler carried on the business of a saloon on the demised premises, and also occupied in connection therewith a park property, adjoining or near the premises leased from Emmerich and belonging to other parties. Distler’s lease was for five years from May, 1893, at the rental of $35 per month. In September, 1894, Distler gaire to the exceptant, the F. & M. Schaefer Brewing Company, a mortgage upon his leasehold interest and upon his goods and chattels, to secure the sum of $1,000 with interest. This mortgage is still due, less the sum of $105 realized by a sale of the mortgaged chattels on October 12th, 1897. The award was made in the condemnation proceedings on January 9th, 1896, and an award in gross of the sum of $2,734 was rnade to the owners and persons interested in the lands in full for their compensation for the value of the land and damages. No separate assessments of the damages to the landlord and tenant were made in the condemnation proceedings, and the whole fund was, under the statute (P. L. of 1888 p. 404), paid into this court to be distributed according to law. The special master, to whom the matter of the distribution of the fund in court was referred, on the exceptant’s petition, has reported that the owner, Emmerich, is entitled to the whole of the fund, and that the claim of the mortgagee to any of the funds denied, because the leasehold interest had no value. Upon exceptions the mortgagee claims a right to a portion of the fund upon three grounds — -first, because the tenant sustained a loss in his business by reason of the laying out of the road over a portion of the property, and he is entitled to damages on that account; second, that the leasehold was an interest of large value, and that the tenant is entitled to receive the value of the leasehold interest, the amount to be settled by the court; third, that the tenant is entitled to receive from the fund the rent for the premises from the time when the county notified the occupants to remove the buildings (May, 1896) to the termination of the lease (May, 1898).

As to the first ground, the general rule, as settled by the best authorities, is that injury to a business carried on upon the premises, either by the landlord or tenant, is not a proper element of damage. Lew. Em. Dom. § 487, and cases cited. And while no reported cases in our own courts have been referred to, this rule, as I understand, has always been applied in this state. Whatever may be the rule in other condemnations, the damages. to be given on the condemnation for public roads are, under our constitution, such as are fixed by the legislature. Const. art. 1 16; Crane v. Elizabeth, 9 Stew. Eq. 339 (Errors and Appeals, 1882). In this case the award is by the act clearly limited to the value of the land and damages to the remaining land of the owner after considering the benefits (P. L. of 1888 p. 40 § 6), and the. damages are limited to the damages done to the fee-simple, where a single assessment is made for all the owners and persons interested in any lot. This statute, as it seems to me, clearly excludes any allowance for injury to the business carried on, on the premises taken, and cannot by construction be extended to such damages.

As to the second claim made by the mortgagee of the leasehold, viz., that the leasehold interest itself was of large value, I reach the same conclusion upon the evidence as that reached by the master. The weight of evidence shows that the land was leased to Distler for its full value, and he is not entitled to any portion of the award as representing the value of the leasehold interest.

The third claim is based on the tenant’s right to a portion of the award, as representing the damages which he sustains by the condemnation, in that he was thereafter obliged by his lease to pay the full rent reserved, and by the condemnation of a portion of the buildings he has been deprived of the beneficial use of the premises, either wholly or in part. The public road, as laid out, ran through the buildings leased, and, as the owner (Emmerich) says, required the removal of the house and the tearing down of the other building. This change of the leasehold property was, in my judgment, such as to entitle the tenant to consider it as making the premises which were leased untenantable and unfit for occupancy as soon as the property was actually taken, under the statute. The lease expressly provides that in case the buildings on the premises be destroyed or be so injured by the elements or any other cause as to be untenantable and unfit for occupancy, the tenant shall not be liable for rent, but may quit and surrender the .premises. Not being obliged to occupy any of the premises, therefore, after the occupation of the portion thereof condemned by the public authorities, or to pay rent, no damage by way of abatement or apportionment of the rent after the award can be allowed on this account. The award in court must now be distributed according to the rights and obligations of the parties, landlord and tenant, as they existed at the time of the award. Under the statute, the county, after the award, could take possession at any time on tendering or paying into court the award (without interest), but until such payment it had no right to enter into possession or interfere with the possession of the tenant. The tenant’s possession subsequent to the award was still a possession, which, as between him and the landlord, was under the lease and subject to its payment of rent. This possession of the whole premises under the lease (subject to the right of the tenant to terminate it, under the lease,, when the portion condemned was actually taken) continued until October, 1897, and the county then taking possession, the premises were surrendered, and the tenant’s obligation to pay rent ceased by the terms of the lease. Upon this third claim, therefore, I reach the conclusion that the tenant was not, under the lease, obliged to pay any rent for any of the premises after the payment into court and the occupation by the county of the portion condemned, and that until such occupation the tenant had the right to occupy the entire premises leased, but only upon payment of the' rent reserved. No allowance out of the award of the tenant (or his mortgagee) can be made by reason of these payments of rent subsequent to the award, as they must be considered as payments made under the lease as the price agreed on between the parties for the actual occupation of the premises, which still continued under the lease, notwithstanding the award, until the subsequent payment of the award into court.

The exceptions are therefore overruled.


author: Reed, V. C.

text:
    The American Net and Twine Company v. John A. Githens et al.
    [Filed October 18th, 1898.]
    Where the owners of certain tracts of land joined in executing certain concurrent mortgages thereon, each of which contained a clause stipulating that, on payment of a certain specified sum on such several mortgages, a certain tract therein designated should be released from the lien thereof, the owner of such tract could discharge it from such lien by the payment of the stipulated amount at any time before the equity of redemption was foreclosed, notwithstanding the filing of a bill to foreclose by the holder of one of such mortgages ; but the money, with interest thereon to the date of payment and the costs to such time, should be paid into court.

      Mr. Leonard J. Tynan aud Mr. George S. Iiilton, for the complainant.

      Mr. James G. Blauvelt, for the defendants David M. Demarest and Nicholas H. Jeroleman.

      Messrs. Hawkins & Durand,, for the defendants Asbury Park and Ocean Grove Bank and William J. Larabee.

      Mr. John E. Banning, for the defendants John A. Githens and wife.
   Reed, V. C.

On March 23d, 1897, there were six pieces of land, owned as follows: Lots 1 and 2, by John A. Githens; lot 3, by Githens and William Larabee; lots 4 and 5, by William Larabee, and lot 6, by Mrs. Larabee, the' wife of William Larabee.

Upon lot No. 1 there were two mortgages then existing, one for $2,500, made to the Asbury Park and Ocean Grove Bank, and another for $6,500, made to the Mutual Life Insurance Company. On that date the owners of these six lots joined in executing three mortgages, each covering all the six lots. One was made to the complainant, the American Net and Twine Company, for $5,219, another to Demarest and Jeroleman, for $5,860, and the third to the Asbury Park and Ocean Grove Bank, for $5,553. These mortgages were made payable in eight months from their date, and so matured on November 23d, 1897. Each mortgage contained a clause that its lien was to be concurrent with the lien of the other two mortgages. Each also contained the following clause :

It is understood and agreed by and between the parties hereto that when the pre-existing mortgages upon the tract of land herein described are reduced to the sum of $4,000 the tract of land herein secondly described shall be released from the lien of these mortgages, that is to say, the tract on Mattison avenue.”

The clause also contained a provision that upon the payment of a certain sum, lot No. 6 should be released from the lien of the mortgages. The sum named in two of the mortgages, including complainant’s, was $650, and in one of the mortgages, $700, so that a release from all three of the mortgages required a payment of $2,000 on account of the three concurrent mortgages.

It is in these provisions for the release of lots Nos. 2 and 6 that the questions mooted in this case have their root.

The American Net and Twine Company, the mortgagee in one of the three concurrent mortgages, filed its bill on January 6th, 1898, to foreclose its mortgage as a subsisting lien upon all of these lots. The various answers filed set up that the preexisting mortgages were reduced to $4,000, by which lot No. 2 was discharged from the lien of the three mortgages, one of which mortgages was that of the complainant. The answer of the Larabees set up that the sum of $2,000 was tendered as a payment upon the three mortgages, and so lot No. 6 was discharged.

By cross-bill, the respective defendants ask for the specific performance of the agreement for the release contained in the three mortgages. It was proved on the hearing that before the maturity of the three concurrent mortgages $4,900 had been paid on the pre-existing mortgages on lot No. 1, and that after the maturity of these mortgages, but before the bill in this cause was filed, $1,100 was paid, by which payment the amount of the pre-existing mortgages was reduced to $4,000. It is proved that after the bill was filed an offer was made to the proper parties to pay $2,000 and interest upon that sum to the time of payment and the costs of suit up to that time, which payment was refused.

The first question is, does lot No. 2 stand released? I will remark that there is nothing iii the fact that the money applied in the reduction of the pre-existing mortgages was in part moneys paid by the insurance company for losses incurred by a fire, which occurred previous to the execution of the concurrent mortgages. There was no agreement proved that it should be used for other purposes.

The principal insistence of the complainant is that lot No. 1 is not released because all the money by which the pre existing mortgages were reduced to $4,000 was not paid before the maturity of the concurrent mortgages. I am of the opinion that it was not essential that it should be so paid. There was no limitation as to the time of payment contained in the clause providing for the release. The case of Reed v. Jones, 133 Mass., decided by a divided court, rests upon its own facts. The whole of the mortgaged property was a single tract owned by the same mortgagor and the parts to be released were to be selected by the mortgagee. In the present case the lots are distinct, they are held by four different titles, and the release is to operate upon particular lots described in the mortgage. The clause really provided for the release of lot No. 2 by the payment of $5,000 in reduction of the prior encumbrances upon these lots, and the right of redemption existed until it was foreclosed.

The facts in respect to the release of lot No. 6 differ from the facts in regard to the release of lot No. 2 in two particu lars — -first, the money to be paid was to be paid in reduction of the concurrent mortgages, not of the pre-existing mortgages; and secondly, it was not paid or tendered until after this bill was filed.

The first particular manifestly creates no substantial difference. Nor, in my judgment, does the second, under the facts in this case, for I remark concerning this lot, as I have just observed in regard to the other lot, that the provision for a release fixed the sum, upon the payment of which this lot should be redeemed from the encumbrance of the mortgage.

The title of this lot was held by Mrs. Larabee alone. I think that a fair construction of the contract between her and the mortgagees was that she could discharge her lot from the lien by the payment of a stipulated amount at any time before her equity of redemption was foreclosed. She was bound, with the rest of the mortgagors, however, to pay interest upon the mortgages, and it is equitable that she should pay the interest upon the part of the debt which was in this sense imposed upon this lot. This liability was recognized by her tender. The money should have been paid into court to complete the efficacy of the tender. It may now be paid in, but the tender will only date from the time of the payment of the sum into court, and interest should be paid upon the $2,000 up to that date. She included in her tender the costs of this suit up to that time. This amount should also be paid into court.

I will not advise a decree until the expiration of fifteen days from the filing of these conclusions, within which time the defendant Mrs. Larabee may perfect her tender by paying the proper amount into court. I will then advise a decree for the execution of releases for the two lots and the usual decree to foreclose the equity of redemption in the other lots.

If the money tendered and interest are not paid within the fifteen days the decree of foreclosure will also include lot No. 6.


text:
    Sarah Ann Hart v. Levi E. Hart and Carrie Hart.
    [Filed January 13th, 1899.]
    1. An agreement giving a stepson the entire management of his stepmother’s estate, she to receive the profits and to make a will appointing him executor and make his wife sole legatee, to take effect after the decease of her son, in consideration of the stepson’s promise to take care of herself and her imhecile son, who has an expectancy of eleven years, is supported by a sufficient consideration.
    2. When she, being over eighty years of age, without counsel, and living with her stepson under the above agreement, afterwards transferred her entire estate to him — Meld, that the transfer was without consideration, and voidable for undue influence.

      Messrs. Coddington & Swaehhamer and Mr. Charles A. Reed, for the complainant.

      Mr. Abraham V. Sehenelc,'for the defendants.
   Reed, V. C.

Sarah Ann Hart, over eighty years of age, was in the beginning of the year 1896 living in a house of her own at Scotch Plains, in company with Manning Parse, a feeble-minded son, by a former husband. The property where she lived was worth from twelve hundred to fifteen hundred dollars. She also owned -a mortgage of $3,500 and another mortgage of $1,000, and a wood-lot worth perhaps $250. She thought the income from her property was insufficient to support herself and son, and had conceived the notion of giving her property to some one who would keep her and her son during his and her life. On February 7th, 1897, she wrote to her stepson, Levi E. Hart, to ■come and see her on business. He went. He says that she wanted to break up housekeeping, and said that her income was insufficient to support herself and Manning (her imbecile son), and she wanted to know whether he would support her and take the property. Mr. Hart afterwards took his wife to see Mrs. Sarah Ann Hart, who told the latter that they would take her and Manning only on the terms, that after Manning’s death she would give them her property.

On or about February 22d, Sarah Ann Hart came to her stepson’s, and soon afterwards Mr. Marsh was employed to draw an agreement and will. This is the agreement:

“This agreement made this twenty-seventh day of February, one thousand eight hundred and ninety-seven, by and between Sarah A. Hart of Scotch Plains, Union county, New Jersey, of the first part, and Levi E. Hart of Westfield, Union county, New Jersey, of the second part, witnesseth:
“Said party of the second part, for and in consideration of the sum of one dollar and the covenants and agreements hereinafter mentioned, does hereby agree to and with said Sarah A. Hart to take good care of and support her and her imbecile son, Manning Parse, during their natural lives, and also to have charge and look after all of her estate both real and personal wheresoever situate.
“ Said party of the first part, Sarah A. Hart, in consideration of the above agreement, I do hereby make, constitute and appoint, and by these presents do make, constitute and appoint, said Levi E. Hart my true and lawful attorney for and in my name, place and stead, to look after and take care of and dispose of any or all my estate both real and personal of whatsoever kind, to execute good and sufficient deeds for same, and out of the income of my estate to pay to me such portions as I may desire for my own use, giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully to all intents and purposes as I might or could do if personally persent, hereby ratify and confirm all that my said attorney shall lawfully do or cause to be done by virtue hereof.
“ I hereby agree, as part of the consideration of this agreement, to make my last will and testament bearing even date herewith, appointing said Levi E. Hart executor of my said will, and to devise and bequeath to my niece, Carrie Hart, all my estate both real and personal, after the decease of myself and son, Manning Parse.
“Witness our hands and seals the day and year first above written.
“Signed, sealed and delivered in presence
“Mildred P. Marsh, Sarah A. Hart,
“John M. C. Marsh. Levi E. Hart.”

At the same time Mrs. Sarah Ann Hart made a will leaving all her property to Levi E. Hart, her executor, for the support and maintenance of Manning Parse during his natural life, and, after the death of Manning, leaving the balance of her estate to Carrie Hart, the wife of Levi E. Hart, and in case of the death of Carrie, before the death of Manning, then to Levi E. Hart.

On March 3d, 1897, Manning Parse was brought to Levi and Carrie Hart’s. He lived there until his death, which occurred on June 30th of the same year.

On August 9th following, Sarah Ann Hart conveyed to Levi E. Hart all her real estate and assigned to him her mortgages. On November 7th following, Sarah Ann Hart left the home of Levi and Carrie Hart, and went to her brother’s, William Smock. She never returned to her stepson’s, but afterwards filed this bill to set aside the conveyances and assignments of the mortgages, upon the ground that they were executed by her, being unduly influenced thereto by Levi E. and Carrie Hart.

The original agreement of February 27th, 1897, is not attacked by the bill filed in this case. The attack is made solely against the conveyances of the real estate and the assignment of the mortgages.

The testimony, however, dealt with the entire transactions between Sarah Ann Hart and Levi E. and Carrie Hart, from the time that Sarah Ann Hart first came to the house of the latter until the execution of the conveyances and assignments.

Nor does there seem to be any substantial ground for an attack upon that agreement, for although Sarah Ann Hart was not of robust mentality, she possessed ample capacity to make a contract, if such agreement was not improvident. This agreement was in no way improvident. Levi E. Hart was to keep her and her imbecile son during their lives. The son had a life expectancy of over eleven years. His habits were such that his care was a great burden to his keepers, and I am quite sure that very few responsible persons would have taken him in their families upon the same terms. That he happened to die shortly after the agreement was executed, is no reason for disregarding the validity of the agreement. Each party took the chances of his early or late death. Nor is there a particle of evidence of coercion or improper influence on the part of the stepson, for it is clear that Mrs. Sarah Ann Hart solicited the interviews which led to the agreement. But apart from any consideration of the testimony in respect to the validity of this agreement, it is sufficient to say that the complainant has not attacked it, and the agreement therefore must be regarded as entirely valid.

But I am of the opinion that the deeds and assignments of August 9th should not be permitted to stand. They were clearly improvident acts of an old lady of easily influenced mental disposition, who lived in the family of the grantee. The proof of the fairness of the transaction is thrown upon him. The improvidence of these transfers is obvious. She had already an agreement with Levi E. Hart that he would support her during her life. This agreement left her the free use of the income of her property during her life. The agreement provided that Levi E. Hart was to support her and her son and to pay to her such part of the income as she might desire. What the Harts got under the agreement was a promise to execute a will in their favor, which promise, if supported by a good consideration, a court of equity will enforce. Duvale v. Duvale, 9 Dick. Ch. Rep. 581; S. C. on appeal, 10 Dick. Ch. Rep. 375.

The transfers of the real and personal property, therefore, were purely voluntary. The unsigned paper prepared in November, 1897, was intended to give her nothing that she did not already have under the February agreement. Her position, after .the execution of the instrument of August 9th was, that she, by the operation of those conveyances, was stripped at once of all her property, both corpus and income.

. The account given by Mr. Hart, to the effect that Sarah Ann Hart was induced to make the transfer to prevent Mr. Stanbery from collecting from her estate, after her death, anything for his services in transacting her business, is probably true. But it is not the whole truth. I have not the least doubt he told her of the demand of Mr. Stanbery nor do I doubt that he suggested this transfer as a foil to Mr. Stanbery’s proposed claim, and that these suggestions led to her consenting to the transfers. They were made without consultation with any disinterested person, without consideration, in favor of those in whose house and in whose care she lived. I am of the opinion that there must be a decree annulling the conveyances and assignments.

The relief in regard to the reconveyance of the lands and the re-assignment of the $1,000 mortgage is simple. But in respect to the $3,500 mortgage, which has been paid to Levi E. Hart, the proper relief is not so clear. Most of the proceeds of this mortgage went to the payment of the Robinson mortgage, which was an encumbrance upon the property of Mrs. Carrie Hart. If Mr. Brown, the brother-in-law of Mr. Hart, to whom a new mortgage has been made upon the property of Carrie Hart, was a party to this suit, the facts, as they now appear, are such that the amount paid by Levi E. Hart in liquidating the Robinson mortgage, could be impressed upon the mortgaged lands as a lien in favor of Sarah Ann Hart superior to the lien of Mr. Brown; but as Mr. Brown is not a party, no such decree can be made.

I will advise a decree, therefore, that in regard to those moneys, Levi E. Hart shall account or furnish adequate real estate mortgage security to Mrs. Sarah Ann Hart, for the payment of this money in the place of the mortgage paid off.