author: Van Fleet, Y. C.

text:
    William P. Standish v. Frederick A. Babcock and Caroline M. Babcock.
    1. When trust funds are fraudulently misappropriated in paying off a mortgage, the cestui que trust has a right to have the debt incurred by the misappropriation charged on the land which has been relieved from encumbrance by the fraudulent use of his money.
    2. No person can derive a benefit from a misappropriation of trust funds, unless he shows that he acted in good faith and paid full value.
    3. The separate creditor of a member of a firm stands, as to his debtor’s interest in the partnership property, in the place of his debtor, and can take nothing which his debtor is not entitled to.
    4. Each partner has an equitable lien on the partnership property for the purpose of having it applied to the payment of the partnership debts, and also on the whole surplus assets for his share thereof.
    5. This lien will support a suit against a judgment creditor of one of the copartners' for the purpose of having land, standing in the name of the judgment debtor, declared to be partnership assets.
    6. When it can be done rationally, the law always presumes in favor of . honesty and against fraud.
    7. When a trustee mingles his own funds with trust funds, in an undistinguishable mass, and then takes from the mass a part for his own use, the part taken will be presumed to have been his own and not that which he held as trustee.
    8. A decree of dismissal in a prior suit will not bar a second, between the same parties, founded on a cause of action which was neither tried nor triablein the first.
    On final hearing on bill, answer and proofs.

      Mr. Frank Bergen, for the complainant.

      Mr: Oortlandt Parker, for the defendants.
   Van Fleet, Y. C.

The complainant brings this suit to procure a decree charging a debt of record due to him from the defendant Frederick A. Babcock, on land the title to which stands in the name of the-female defendant, Caroline M. Babcock. Frederick and Caroline are husband and wife. The transactions out of which this suit grew were the following: In March, 1884, the complainant and Frederick A. Babcock and one Joseph W. Moyer entered into partnership to purchase and sell coal lands. About the time the copartnership was formed, the copartners purchased, through the agency of the complainant, one hundred and fifty-one acres of coal lands in Schuylkill county, Pennsylvania, and had the title made to Edward B. Babcock, a son of Frederick. Edward then executed a power of attorney to his father, authorizing him to sell and convey the lands. Under this power, the father, in January, 1889, conveyed the lands and received in payment for them and some railroad stock and bonds $15,000. Immediately on the receipt of this money the father delivered to his son Edward $6,000 of the $15,000, in part payment, as it is alleged, of a debt that the father owed his son, and soon afterwards the father appropriated the other $9,000 to his own purposes. No part of the $15,000 has been paid by Frederick to either of his copartners. He still owes them every penny of their shares. The day after Edward received the $6,000, he applied a little over $4,200 of it in paying off a mortgage on his mother’s house and lot, where she and his father resided, and which mortgage, when the payment was made, was in course of foreclosure. Edward says that he made the payment without the knowledge of either his mother or his father, and without other consideration than love for his mother. The complainant, in October, 1891, recovered a decree in this court against the defendant Frederick for his share of the proceeds of the sale of the lands, and though final process has been issued on that decree nothing has been realized. Frederick appears to be entirely without means of any bind, and such it would seem has been his condition for many years. These are the facts on which the complainant rests his right to the decree lie asks.

Stated generally, the ground on which the complainant bases his right to relief is this: that the money which was used to pay off the mortgage was impressed with a trust in his favor, and that he consequently has a right to pursue, in enforcing the payment of his debt, the thing which the money was used to procure. As a principle of equity jurisprudence nothing is better settled than that, as between eestui que trust and trustee, and all persons claiming under the-trustee, otherwise than by purchase for a valuable consideration without notice, all property belonging to a trust, however it may be changed or altered in its character, and all the fruit of such property, whether in its original or altered state, continues to be subject to and affected by the trust. Lord Ellenborough’s statement of this principle, in Taylor v. Plumer, 3 Mau. & Sel. 562, 575, was adopted by Mr. Justice Van Syckel, in pronouncing the judgment of the court of errors and appeals in Shaler v. Trowbridge, 1 Stew. Eq. 595, 602, and has been recognized, almost universally, as a correct exposition of the law. And this is, in substance, what Lord Ellenborough said: If A is trusted by B with money to purchase a horse for him, and A purchases a carriage with that-money, B is entitled to the carriage. It makes no difference, in reason or in law, into what other form, different from the original, the change has been made, for the product of or substitute for the original thing still follows the nature of the thing itself, as long as it can be ascertained to be such, and the right ceases-only when the means of ascertainment fail.

In the light of this principle, it would seem to be entirely' clear that if it be true, as the complainant asserts, that the money used in paying off the mortgage was held in trust for him, or' was impressed with a trust in his favor, he has a right to have-the land considered in equity to the extent that it has been exonerated from a mortgage debt by the use of his money, as the product of and substitute for his money. In any case where trust funds have been fraudulently misappropriated, so completely is the thing obtained for the money identical with the money itself that in equity, as was said by Mr. Justice Van Syckel, in Shaler v. Trowbridge, 1 Stew. Eq. 603, a distinction, in favor of the fraud-doer, can never be drawn between the money misappropriated and the result of its investment. Nor can a third person derive any benefit from a misappropriation of trust funds unless he shows that he acted in good faith and paid full value. With respect to such ,a person, Mr. Justice Van Syckel, in the same case, said: “When once a fraud has been committed, not only is the person who committed the fraud precluded from deriving any benefit from it, but every innocent person is so likewise unless he has, in good faith, acquired a subsequent interest for value, for a third person, by seeking to derive any benefit under such a transaction, or to retain any benefit resulting therefrom, becomes particeps crimiviis, however innocent of the fraud in the beginning.” Applying these principles to this case, there would seem to be no reason to doubt that the complainant has a right to have his debt charged on the laud in question, to the extent that trust 'funds belonging to him were fraudulently used in discharging the land from its mortgage debt.

This brings the discussion to the vital question of the case, namely, was any part of the money applied in payment of the mortgage subject to a trust or lien in favor of the complainant ? In discussing this question, it will be assumed that when the defendant Frederick paid the $6,000 to his son Edward, he owed Edward a debt of that amount. Edward, however, was not a creditor of the partnership. He was the creditor of a single member of the firm, and as such stood simply in the right of his debtor, and could take nothing out of the firm assets, as against the other members of the firm, which his debtor was not' entitled to. The separate creditor of a member of a firm stands, as to his debtor’s interest in the partnership property, in the place and stead of his debtor, and can take nothing which his debtor.could not take. Hill v. Beach, 1 Beas. 31, 39. The law regulating the rights of copartners inter sese is well settled. No partner has a right to take any part of the partnership property, either during the existence of the partnership or after it has been dissolved, and say that it is his exclusively. 1 Lind. Part. (5th ed. 1888) 339. Each partner has a lien on the partnership property for the payment of the partnership debts, and also on the surplus remaining after the liabilities are discharged, for his share thereof. Lord-Justice Lindley describes this lien or right substantially as follows : Each partner has an equitable lien on the partnership property for the purpose of having it applied in discharge of the debts of the firm; and he has a similar lien on the surplus assets for the purpose of having them applied in payment of what may be due to the partners respectively, after deducting what may be due from them, as partners, to the firm. This lien does not exist for any practical purpose until the affairs of the partnership have to be wound up, but when the partnership accounts have been taken and the shares of the partners have been ascertained, then the lien of the partners on the assets of the partnership, and on each other’s shares, becomes of the greatest importance. 1 Lind. Part. 352. Judge Story, both in his Commentaries on the Law of Partnership and on Equity Jurisprudence, gives a similar description of this right. Story Part. § 97; 2 Story Eq. Jur. § 1243. And Mr. Collyer, in speaking of it, says:

“Each partner has a specific lien on the partnership stock, not only for the amount of his share, but for moneys advanced by him beyond that amount for the use of the partnership, as also for moneys abstracted by his copartner beyond the amount of his share.” Coll. Part. (3d Am. ed.) p. 109 l 1%5.

This lien was recognized by Chancellor Kent in Nicoll v. Mumford, 4 Johns. Ch. 522, 525; by Chief-Justice Shaw in Dyer v. Clark, 5 Metc. 562, 578, and by Mr. Justice Bradley in Hoyt v. Sprague, 103 U. S. 613, 624. Aud "Vice-Chancellor Pitney has held, in an opinion recently filed in Executors of Harney v. First National Bank of Jersey City, 7 Dick. Ch. Rep. 697, that this lien, proprio vigore, constitutes a sufficient foundation to support a suit in equity, by the representative of a deceased copartner against a judgment creditor of the surviving copartner, for the purpose of having it determined whether certain lands standing in the name of the surviving copartner are or are not partnership property, and in case it is decided that they are, then to have the lien of the deceased copartner on the lands declared superior to that of the judgment creditor.

There can be no doubt, then, according to an establishéd principle of equity jurisprudence, that the payment of the $6,000 to Edward B. Babcock was made in fraud of the complainant’s rights; that Edward, as against the complainant, acquired no right to so much of the $6,000 as represented surplus assets of the copartnership, but took the same subject to the complainant’s lien, and that the complainant has an unquestionable right to pursue the product of or substitute for the money until it shall have reached the hands of a person who can show that he obtained it innocently and for full value. This lien, to be of any value to its holder and to answer its fundamental purposes, must continue in full vigor, no matter what transformations the subject of it may undergo, until the debt which it secures is paid— until each partner has received his full share of the surplus assets. The fact that the defendant Frederick had not embezzled or misappropriated any part of the surplus assets when he paid Edward the $6,000, does not in the slightest degree change or impair the complainant’s rights. His lien held within its grasp the whole of the surplus assets, and it was not within the power of Frederick, by any act of his, to discharge any part of them from the burden of this lien, except by the payment of the debt which it secured. I think it should be said, in addition, that the relation existing among copartners is one of mutual agency and trust and of great confidence, and consequently in a case like this, where a single partner sells all the partnership property and receives the money for it, it must be held, according to well-established principle, that he holds the shares of his copartners as trustee, and that the money so received by him is, in the strictest sense of the words, trust funds. The conclusion therefore seems to me to be inevitable that so much of the money paid in satisfaction of the mortgage as was in equity the money of the complainant, must be charged on the land redeemed from encumbrance by the money.

The next question to be considered is,.how much of the complainant’s money can it be justly said was appropriated to the payment of the mortgage? The answer to this question should be such as will rebuke fraud, but at the same time give full protection to every legal right which may be affected by it. The value of the coal lands belonging to the copartners, which the defendant Frederick sold, was ascertained, in the accounting suit, to be $13,590. Frederick, however, received $15,000 from the purchaser, but his sale embraced, in addition to the lands, some railroad stock and bonds which were his own separate property. Deducting the $13,590 from the $15,000 leaves $1,410 as the value of the stock and bonds. Frederick had also expended some of his own money in paying for the lands. The sums so expended, together with interest on them up to the time the $15,000 was paid, amounted to $969, so that $2,379 of the $15,000 was Frederick’s own money. One thousand four hundred and ten dollars belonged to him because it was the proceeds of his own property, and $969 belonged to him because it was due to him as a creditor of the partnership. So far as appears, the partnership had no other creditor. Frederick’s right, then, to the $2,379, as against his copartnérs, would seem to have been perfect, and it would also seem to be clear that he was in a position where he had an indisputable right to exercise complete dominion over it. Now, when he delivered the $6,000 to his son, did- he pass the $2,379.as part of it, or did he retain it ? In answering this question, the court has nothing to guide its judgment but Frederick’s right and Frederick’s act. These are only sufficient to raise a presumption, but the presumption which the law draws from them is well-nigh conclusive. When it can be done rationally, the law always presumes in favor of honesty and against fraud. Wheré an act is equally subject to two interpretations, one making it lawful and innocent, and the other making it unlawful and fraudulent, the law in its benignity declares that that construction shall be adopted which favors innocence and honesty. Sir George Jessel, master of the rolls, in his masterly opinion in Knatchbule v. Hallet, 13 Ch. D. 696, 727, said: “ Nothing can be better settled, either in our own law, or, I suppose, the law of all civilized countries, than this, that where a man does an act which máy be rightfully performed, he cannot say that that act was intentionally, and, in fact, done wrongly.” And then, to show how the principle he had just stated should be applied, in the actual administration of justice, he said: “The simplest case put is the mingling of trust moneys in a bag with money of the trustee’s own. Suppose he has a hundred sovereigns in a bag, and he adds to them another hundred sovereigns of his own, so that they are commingled in such a way that they cannot be distinguished, and the next day he draws out, for his own purposes, £100, is it tolerable for anybody to allege that what he drew out was the first £100 trust money, and that he misappropriated it and left his own £100 in the bag? It is obvious he must have taken away that which he had a right to take away — his own £100.”

It is obvious that, under the pressure of this principle, the court is compelled to presume that the $2,379 formed part of the $6,000 delivered by Frederick to his son Edward. After Edward received the $6,000, the first application- or disposition he made of any part of it was to pay $4,222 in satisfaction of the mortgage on his mother’s land. It would seem, therefore, to follow necessarily that, by force of the principle just mentioned, it must be presumed that the $2,379 constituted a part of the $4,222 paid in satisfaction of the mortgage. This being so, the court must find that the actual amount of trust funds misappropriated in paying the mortgage was $1,843 and not $4,222.

The remaining question is, has complainant a right to have the whole of the $1,843 charged on the land in his favor, or only the one-half of that sum? The surplus assets belonged originally to the complainant, the defendant Frederick and Mr. Moyer in equal shares. Frederick embezzled the whole. When the embezzlement occurred, no division of the surplus assets had been made and no separation of' title or property had been effected, the surplus assets were still held as a unit by joint title. It would seem, therefore, to follow necessarily that Mr. Moyer had precisely the same right in each dollar misappropriated that the complainant had, and also that he has now exactly the same right to the product of each dollar misappropriated that the complainant has. Such being the state of the title to the moneys-misappropriated, it appears to me to be impossible to say that the whole $1,843 embezzled belonged to the complainant, but that it must, on the contrary, be said that the one-half of it belonged to him and the other half to Mr. Moyer. But the female defendant insists that the questions just decided stood concluded, by a prior adjudication, between the complainant and herself when this suit was brought. She was made a party defendant to the suit which the complainant brought against the defendant Frederick to establish a right to a part of the proceeds of the sale of the coal lands. The object in making her a party to that suit was to obtain the same relief against her land which is asked in this, in case the complainant was successful in establishing the right he claimed, and also in showing that money held in trust for him had been used to relieve her land from a mortgage debt. Frederick, by his answer in that suit, denied that the lands which he had sold were partnership property, but claimed, on the contrary, that they were his separate and exclusive property. Standish v. Babcock, 3 Dick. Ch. Rep. 386. It is thus seen that the controlling primary issue in that suit was whether or not the lands in question were partnership property. In the transactions out of which that issue arose, the female defendant had taken no part, and it was not pretended that any right or interest in property of any kind had been cast upon her by them. She could not, therefore, according to any course of regular proceeding, be made a party to such issue nor compelled to try it. Nor was it possible for the complainant to acquire a standing which would give him a right to maintain an action to have his debt charged on her land, until he had first obtained a decree establishing the fact that a debt was due to him. For these reasons the court, ex mero motu, immediately after the pleadings were read, and before the production bf any proofs, dismissed the bill in that suit as against the female defendant. This judicial action was put distinctly on the ground that the female defendant could not be made a party to the contest, as to whether the lands sold by Frederick were partnership property or not, and that until the complainant had judicially established the fact that they were, he could not call upon her by suit to show why her land should not be charged with his debt. There can be no doubt that the judgment of a court of competent jurisdiction, on a point of law or a question of fact, or on a question of blended law and fact, does, so long as it remains unreversed, have the effect, as between the parties and those standing in privity with them, to put the question or matter adjudged at rest finally and forever and for all purposes. But a judgment to have this conclusive force must be on a question or matter which was either tried or triable in the suit or proceeding in which it was pronounced. City of Paterson v. Baker, 6 Dick. Ch. Rep. 49. From what has already been said, it is manifest that the questions heard and determined in this suit were neither tried nor triable in the former suit. For this reason, the decree of dismissal in that suit did not bar the right of action upon which this suit rests.

The complainant is entitled to a decree charging $921.50 with interest from January 10th, 1889, on the land of the female defendant, together with his costs of this suit.


source: Caselaw Access Project

author: Van Fleet, V. C.

license: Public Domain

text:
    Jacob Leuppie v. The Executors of Allan Osborn, deceased.
    1. When a husband deserts or abandons his wife, without making provision for her support, and a third person advances money to her, which she uses to obtain necessaries, an equitable debt is thereby created, which the person making the advance may enforce by suit in equity.
    2. In such a case it can make no difference to the husband whether he is held liable for money or for the price of necessaries, so long as no recovery can be had for money, unless it is shown that it has actually been spent for necessaries.
    3. This rule rests entirely on the fault of the husband, and cannot be applied to a case where the husband’s failure in duty is the result of misfortune.
    On motion to dismiss bill.

      Mr. Hoisted H. Wainwright, for the motion.

      Mr. Frank Durand, for the complainant.
   Van Fleet, V. C.

The object of this suit is to establish an equitable debt and enforce its payment. The complainant rests his right to the relief he asks on the following facts: Allan Osborn died in March, 1893, leaving a will which has been admitted to probate, and by which he directs that all his just debts should be paid as soon as could be conveniently done after his death. For several weeks prior to his death, Mr. Osborn was so weak and helpless that he was unable to sign his name or to give any attention to any business. Before becoming so, he was always possessed of ready money and provided well for his family, and it was his • custom to pay cash for his family supplies. A short time prior to his death, the funds which he had placed in the hands of his wife, became exhausted, and he being unable, in consequence of his helplessness and sickness, to provide additional means, and his wife, being in need of money for the support of his family, .applied to the complainant for a loan of $100 to be expended for that purpose. The loan was made and the money was expended in the purchase of such things as were necessary for the support of Mr. Osborn’s family. Since Mr. Osborn’s death the complainant has requested the executors of his will to pay him, and they have refused. This suit is brought to compel payment. The defendants move the dismissal of the bill, on the ground that the case made by it does not entitle the complainant to relief.

, The complainant contends that, as the money which he loaned to the testator’s wife was spent for the support of the testator’s family, he has a right, according to a well-settled rule of equity jurisprudence, to be subrogated to the rights of those who provided the necessaries, and to have his debt enforced in equity •against the testator’s estate as they might have done at law, if the money which he loaned had not been used to pay for them. In England it is settled by authority, both ancient and modern, that when a husband has deserted his wife without making provision for her support, and a third person advances money to her which she uses to obtain necessaries, an equitable debt is •thereby created which may be enforced against the husband.

The first reported case in which this principle was laid down is Harris v. Lee, 1 P. Wms. 482, decided in 1718. There a husband had twice given his wife “ the foul distemper,” in consequence of which she left him and went to London to be cured. Before going, she borrowed money to pay doctors and for necessaries. The husband subsequently died, leaving a will by which he devised land to trustees for the payment of his debts. On a bill by the person who made the loan, it was held that he was entitled to recover. Sir Joseph Jekyll, master of the rolls, in deciding the case, said: “Admitting the wife cannot at law borrow money, though for necessaries, so as to bind the husband, yet this money being applied to the use of the wife for her cure and for necessaries, the plaintiff that lent this money must in equity stand in the place of the persons who found and provided such necessaries for the wife.” Lord Campbell, in the subsequent case of Jenner v. Morris, 3 De G., F. & J. 45, 52, in trying to give the reason why equity, in such a case, subrogated the lender to the rights of the persons who provided the necessaries, said: “ It may possibly be that equity considers that the tradespeople have, for valuable consideration, assigned to the party who advanced the money the legal debt which would be due to them from the husband on furnishing the necessaries.” So far as the reports show, no attempt was made to enforce the principle established by Harris v. Lee, from 1718, when that case was decided, until 1849, when the case of May v. Skey, 16 Sim. 588, arose. In the case last named, it appeared that a husband had gone abroad and left his wife wholly unprovided for, and that the plaintiff, during the husband’s absence, had lent his wife money, which she had used to obtain necessaries. Vice-Chancellor Shadwell, in deciding it, distinguished it from Harris v. Lee, remarking that in Harris v. Lee there were trusts for the payment of the husband’s debts, and that it was that which gave the court jurisdiction. And then added: “ In this case there is no trust to execute, but the plaintiff sues merely as a creditor of the husband, and as á mere creditor he has no equity against the husband.” The view of the vice-chancellor seems to have been that, in a case where there was no trust or other ground of equity cognizance, the question whether the plaintiff is or is not a creditor of the husband must be determined by a court of law.

Jenner v. Morris was decided by Vice-Chancellor Kindersley in 1860 (1 Drew. & S. 218), and on appeal by Lord Campbell and Lord-Justice Turner in 1861. 3 De G., F. & J. 45. In this case it appeared that a husband had deserted his wife without making any provision for her and without making any imputation of misconduct against her. After the desertion the wife’s brother advanced money to her, which she used to obtain necessaries, and he also paid for necessaries supplied to her by tradesmen. On the question whether or not, under these facts, the husband was liable, no doubt seems to have been entertained. Harris v. Lee was affirmed and followed, and May v. Skey overruled. In answer to an objection made by counsel, that Harris v. Lee was a very old case and did not appear to have been acted upon in modern times, Lord-Justice Turner remarked, in considering old authorities, it must be borne in mind that the decrees of the court very often furnish the very best evidence which can be had of the extent of its jurisdiction and of the principles by which it is guided, and that in disregarding the older decisions there is great danger of breaking in upon its-principles. Deare v. Soutten, L. R. 9 Eq. Cas. 151, was decided by Lord Romilly, master of the rolls, in 1869. In this, as in all the other cases where the husband was adjudged liable, it appeared that the defendant had deserted his wife, leaving her unprovided for, and that the plaintiff had advanced money to her which she had used to obtain necessaries. On the authority of Jenner v. Morris, the husband was held liable.

The principle established by Harris v. Lee was recognized by the supreme court of Pennsylvania, in Walker v. Simpson, 7 Watts & S. 83, and the supreme court of Connecticut, in Kenyon v. Farris, 47 Conn. 510, after a thorough examination of all the authorities, adopted it as an unquestionably sound rule of equity jurisprudence. The reasoning of the court in this last case appears to me to be more convincing than that advanced in any of the prior cases. Stated in substance it is to this effect, that it can make no difference to the husband, whether he is held liable for money or for the prieé of necessaries, so long as no recovery for money can be had, unless it is shown that it has actually been spent for necessaries; that whether the wife obtains what she is entitled to by one means or the other, the law will discharge its whole duty to the husband by protecting him from liability for anything beyond necessaries, but it cannot discharge its duty to her unless it compels him to support her. If he has a choice as to the method in which he will extend support, the law will let him exercise it, but if he refuses to make a choice and does not provide for her in any way, then she should have a right to resort to any means which will give her what she needs. Besides, it is not certain that the husband’s credit will at all times give his wife what she is entitled to — circumstances may arise when nothing but ready money will enable her to get what lie is bound to furnish. This reasoning seems to me to be unanswerable.

By force of the principle under consideration, it is manifest that the husband’s liability rests noton his misfortune, but,on his fault — on his refusal or failure to do his duty to his wife.. It has no other foundation. It is only in cases where he has deserted or abandoned his wife, without making provision for her support, that he has been held liable for money advanced. That is the utmost extent to which his liability, by force of this-principle, has as yet been carried. The bill shows that when the loan in this case was made, the defendants’ testator was unconscious or in a state of complete disability. He was so sick, weak and helpless as to be incapable of doing any business of any kind. How, unless pure misfortune, unmixed with fault of any kind, confers authority upon a wife to pledge the credit of her husband for money to buy necessaries, the wife’s act in this case was wholly unauthorized and imposed no liability on her husband. To hold a husband liable under such circumstances. will unquestionably obliterate all distinction, in cases of this character, between fault and misfortune, and extend the principle under consideration to cases entirely foreign to both its letter and its spirit.

The bill must be dismissed, with costs.


text:
    The Supreme Council of the Royal Arcanum v. Sarah J. Carley and Mary A. Carley.
    1. While the courts of this state must give full faith and credit to the judicial proceedings of sister states, the judgment of the courts of sister states are not like domestic judgments, conclusive on the point of jurisdiction, but "when such judgments are attempted to be enforced here, lack of jurisdiction, ■either over the person against whom judgment is pronounced or in respect to ■ the subject-matter of the suit, may be shown.
    2. This court may refuse to give effect to the judicial proceedings of sister •• states when such proceedings have been procured by fraud, whether such pro■ceedings are put forward as the foundation of an'action or as a ground of defence, but the proof in such a case must be of the most satisfactory and convincing kind, for, until fraud is clearly proved, such proceedings must be accepted here as both honest and just.
    3. Proof that an attorney in such proceedings has exceeded his authority does not, standing alone, furnish the slightest evidence of fraud.
    4. Until the contrary is proved, every presumption must be made here in favor of the validity, regularity and justice of the judicial proceedings of a sister state.
    5. Though convinced that the court of a sister state has been misled by deception, this court has no power to reinstate, in such court, a suit which that has dismissed, or to revive and restore a judgment which that court has nullified.
    On hearing under decree of interpleader, and on answers and facts admitted.

      .Mr. Wilbur A. Heisley, for Sarah J. Carley.

      Mr. Frank P. McDermott, for Mary A. Carley.
   Van Fleet, V. C.

The contest in this case is between two females, each of whom ■.claims to have been the wife of one Harvey Carley during his life, and since his death to be his widow. Carley died January 29th, 1893. Several years prior to his death, Carley became a member of a corporation known as the Supreme Council of the Royal Arcanum and a contributor to its widows’ and orphans’ benefit fund. As such contributor, he procured the corporation, in September, 1882, to issue a certificate by which it promised to pay his wife Sarah, on his death, out of its widows’ and orphans’ fund, a sum not exceeding $3,000, provided, when he ■ died, he was still a member of the corporation in good standing, and the certificate issued to Sarah had not been surrendered and another issued in its place. Sarah and Harvey were married in this state, in May, 1870, and Sarah, since then, has continued to be a citizen of this state. In May, 1891, Harvey brought an action for divorce against Sarah in the county court of Arapahoe county, Colorado. The ground alleged was desertion. Sarah appeared and answered, denying that she had deserted Harvey; but alleging that he had deserted her, and on the 3d day of -October, 1891, after an ex parte hearing, a divorce a vinenlo was granted. ' Twenty-three days afterwards, and on the 26th day of October, 1891, the court, on motion of Harvey’s attorney, vacated the decree pronounced by it on the 3d, and on the 2d ■day of March following, the court gave the same attorney leave to withdraw permanently from the files the plaintiff’s testimony, and on the 2d day of May, 1892, the court, on motion of the same attorney, dismissed Harvey’s suit at his cost. A marriage ceremony was performed between Harvey and the other ■claimant, Mary, in the city of Brooklyn, on the 28th day of October, 1891, two days after the decree of divorce had been vacated. Immediately after the ceremony, Mary went to live with Harvey as his wife, at Summit, 1ST. J., and she continued to live with him there until his death in January, 1893. In January, 1892, Harvey applied for a new benefit certificate. He made oath that the certificate issued in 1882 was withheld by his former wife now divorced; that he renounced all claim •thereto, and requested the issue of a new certificate, payable to Mary as his wife. He also paid the fee which, by the rules of ■the corporation, was payable on the issue of a new certificate. The officers of the corporation, not being satisfied that the certificate held by Sarah could be safely treated as a nullity, requested further evidence of the fact that a divorce had been granted, and subsequently, and after a copy of the whole record had been submitted, they refused to issue a new certificate. Though Harvey knew as early as January or February, 1892— probably much earlier — that the decree made in his favor on the 3d day of October, 1891, had a few days afterwards been set aside, he never, so far as appears, made the slightest effort to have the vacating order set aside and the decree reinstated. When Harvey died, the decree dismissing his Colorado suit stood in full • force and remains so to-day. After Harvey’s death, Sarah made proof of his death, and both she and Mary demanded payment of the sum which became payable by his death-. Sarah attempted to enforce her demand by a suit at law, whereupon the Boyal Arcanum filed the bill in this case and paid the sum in controversy into court. A decree, directing the defendants to interplead and have their respective claims to the money in controversy determined by this court, having been made, the question now to be decided is, to which of the defendants must the money be awarded ?

It is clear beyond all question that the money must be awarded to the person who was Harvey Carley’s wife at the time of his death. The claim of each defendant rests on that ground and on that ground only. Neither claim has any other foundation. Now, while it is true that the Boyal Arcanum refused to issue a certificate to Mary, and never, therefore, became bound by a written promise to pay her anything, yet it would seem to be entirely clear, as an obvious dictate of justice, if such refusal was wrongful and Mary was, in fact, Harvey’s lawful wife when he applied to have the certificate changed from a person who was not his wife to the person who was, that such refusal should not be allowed to defeat the just right of the true wife. Equity, under such circumstances, would consider that Mary was, in right and justice, the owner of the certificate, in obedience to the maxim that that shall be considered as done which ought to have been done; The fact, then, that no written promise has been made to pay the money in dispute to Mary constitutes no reason why it should not be awarded to her. But the money cannot be awarded to her unless she was the wife of Harvey at the time of his death.. Whether she was his wife or not must, of course, depend entirely upon the effect which this court is obliged, by the law of the land, to give to the proceedings in the Colorado suit. If those proceedings must be given effect here according to the plain sense of their express words, then it is absolutely certain that Mary was never Harvey’s wife, for, at the time of their attempted marriage, he was incompetent to contract a valid marriage with Mary, because he" was then the lawful husband of another woman and remained so up to the time of his death.

The effect which must be given by the judicial tribunals of one state to the judicial proceedings of a sister state is prescribed by federal law. The constitution of the United States ordains that full faith and credit shall be given in each state to the judicial proceedings of every other state, and also that congress may prescribe the effect which judicial proceedings had in one state shall be given in each of the others. Congress, in the exercise of this power, after prescribing, how such proceedings shall be authenticated to render them admissible in evidence, has declared that when so authenticated they “shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken.” Rev. Stat. (U. 8.) p. 170 § 90S. While the constitutional provision and federal statute just mentioned have been the subject of much discussion and considerable contrariety of judicial opinion, still certain results have been reached which may now be said, in the language of Chief-Justice Beasley, “ to possess the stability of rules of law. Among them may be pláced the proposition that the judgments of other states are not like domestic judgments, conclusive on the point of jurisdiction. When a decision, pronounced extra territorium, is put in controversy, it is competent, as a defence, to show that the adjudging tribunal had no jurisdiction over the person or the subject-matter. * * * The question of jurisdiction in such cases is always open to inquiry.” Jardine v. Reichert, 10 Vr. 165, 167. The doctrine asserted in this case has been declared in other-cases and must now be considered the settled law of this state. Moulin v. Insurance Co., 4 Zab. 222, 231; Robert v. Hodges, 1 C. E. Gr. 299, 305; Mackay v. Gordon, 5 Vr. 286, 288; Davis v. Headley, 7 C. E. Gr. 115, 121. This court may also refuse to give effect to the judicial proceedings of a sister state-which have been procured by fraud or which are the product of fraud, whether such proceedings are put forward as the foundation of an action or as a ground of defence. Davis v. Headley, 7 C. E. Gr. 115, 121; Doughty v. Doughty, 12 C. E. Gr. 315, 318; S. C. on appeal, 1 Stew. Eq. 581. But in any case where the court is asked to deny to the judicial proceedings of a sister state, on the ground of fraud, the faith and credit which the-constitution and the federal statute command shall be given to them, the truth of the charge, to make the charge successful, must be established by the most satisfactory aud convincing evidence, for the court is bound by its fealty to the constitution and interstate law, as well as by a proper respect for the tribunal whose action is assailed, to make every presumption in favor of the validity and justice of the proceedings. Until fraud is clearly proved the court must accept them as both honest and just. Mackay v. Gordon, 5 Vr. 286, 290. It is thus made plain that the principle by which this court must govern its action is this: Unless want of jurisdiction or fraud has been clearly shown, the same effect, precisely, must be given here to the sentences of vacation and dismissal, pronounced by the Colorado court, that they have by law or usage in the State of Colorado.

No attempt has been made on the part of Mary to show want of jurisdiction in the Colorado court over either Harvey or the subject-matter of the suit he instituted in Colorado. By instituting his suit there, as a citizen of that state, for the purpose of having his marriage dissolved, Harvey voluntarily placed' himself in a position where he became not only unalterably subject to the jurisdiction of the court whose judgment he invoked, but also where he would be conclusively bound, until reversed, by any sentence or decree which that court should see fit to pronounce in his suit. And the court whose judgment he invoked had undoubted power, after pronouncing a decree of divorce,- to set it aside for cause, and by this means put the parties back on the footing of litigants and revive the litigation; and it also had power, after the litigation was thus put in an undetermined state, to dismiss the suit for any cause which it deemed sufficient. So that it would seem to be undeniable that, unless it has been clearly shown that the action of the Colorado court, in setting aside the decree of divorce and in dismissing the suit, was procured by fraud, that action must be held everywhere throughout the United States as valid and conclusively binding on Harvey. The legal effect of that action was to put Harvey back, in matrimonial status, just where he was when, he commenced his suit. He still remained the husband of Sarah.

But it is charged that the judicial action just mentioned was procured by fraud. How, the only proof produced in support of this charge is an admission made in the state of the case that Harvey’s attorney, in moving the vacation of the decree and the dismissal of the suit, acted without Harvey’s authority or knowledge. But, giving this admission its utmost force, it is manifest that it does not prove fraud •, in fact, it is not sufficient to raise even a suspicion of fraud. The most it does is to accuse Harvey’s attorney of having exceeded his authority. This may be true, and yet the conduct of the attorney may have been not only free from the least ta'int of fraud, but highly honorable. Whether the accusation is true or false cannot be decided in the present state of the case, for there is nothing whatever before the court which tends to show why Harvey’s attorney made the motions, which it is charged he made without authority and in violation of his duty, other than the following facts: It appears by the record of the Colorado suit that Harvey’s attorney gave notice, on the 1st day of October, 1891, to the attorney of Sarah, that on the 3d day of the same month he would move the court for a speedy trial of the cause; that such motion was made on the 3d, and the court made an order that Harvey might proceed with the trial of his cause; Sarah failed to appear and defend ; the cause was, on the same 3d day of October, referred to va referee to take and report the testimony; the testimony was, on the same day, taken and reported, and the court, on the same day, examined and considered the testimony and made a decree of divorce. The record also shows that on the 22d day of October, 1891, nineteen days after the decree of divorce was made, the court gave Sarah’s attorney permission to withdraw the papers in the suit from the files and retain them for twenty-four hours, and that four days afterwards the decree of divorce was opened and set aside by the court on motion of Harvey’s attorney. The record further shows that a divorce was granted after an ex parte hearing, despite the fact that Sarah had, by •answer, denied that she had deserted Harvey, but charged him with having deserted her; and also in spite of the fact that she had informed the court that she was a citizen of New Jersey and poor; that her witnesses resided here, and that she could not lay their evidence before the court unless Harvey was required to furnish sufficient money to enable her to do so. The order of October 3d, giving Harvey leave to proceed with the trial of his cause, was made upon this condition: that he might proceed “upon the payment by him into court of the sum of $50.” Whether he complied with this condition or not does not appear. It may be that he did not, and that that was the reason why the decree was set aside. These facts render' it highly probable, if not certain, that Harvey’s attorney, in moving the vacation of .the decree, simply asked the court to undo that which he had induced it to do contrary to justice and right; in other words, that he merely yielded, voluntarily, an unjust advantage which he had unfairly obtained for his client, and which he knew the court would not allow his client to retain.

But suppose the attorney, in moving the vacation of the decree, violated his duty and intended to commit a fraud on his client, does that fact, standing alone, show that the act of the court in vacating the decree -was procured by fraud ? It cannot be believed in the absence of proof that the Colorado court vacated its decfee merely and solely because Harvey’s attorney moved its vacation. According to the general, if not the universal, course of judicial proceedings in such cases, grounds must be alleged or reasons assigned for the judicial action sought. Until the fact is shown to be otherwise, this court must, in obedience to established principle, presume that that was done in this case, and also that the grounds alleged or reasons assigned actually existed and were correctly stated, and also that they were sufficient, in the judgment of the court, to make its order vacating its decree an act of justice. This presumption puts an end to this controversy, for, as the proofs now stand, the case is destitute of the least evidence of fraud, and this court must, therefore, give the same force and effect here to the decrees of vacation and dismissal that they have in Colorado.

But suppose there was sufficient evidence in the case to convince this court that the Colorado court had been deceived and induced to do what it would not have done if no deception had been used, could this court, in the proper exercise of its jurisdiction under interstate law, deny all effect to the action of the Colorado court in setting aside the decree of divorce and dismissing suit, and then adjudge that, by force of such judicial action here, the suit was reinstated in the Colorado court and full force and effect restored to the decree of divorce? This court, as already stated, may deny full faith and credit to the judicial proceedings of a sister state, when it is proved that they are the product of fraud, but the question here goes far deeper and is of much wider import. It is this, can this court, on being convinced that a court of a sister state has been misled by deception, reinstate- in that court a suit which that court has dismissed, and resurrect and give life and vigor to a judgment which that court has nullified? This court, in my judgment, has no such power. To do so would not be merely denying faith and credit to the judicial proceedings of a sister state, but it would be an attempt to pronounce here, in a judicial proceeding once pending in a court of a sister state, such judgment as this court believes that court, on the facts before this, would pronounce. This court would thus attempt to give force and effect here to a judgment which that court has not pronounced. In my judgment, no tribunal, other than the one in which the divorce suit was instituted in Colorado, has power to reinstate that suit or to restore life and vigor to the decree, which, by its judgment as it now stands, is a nullity.

The conclusion is that the money in controversy must be awarded to Sarah. She is also entitled to costs.


text:
    Lucy H. Clark v. Joseph R. Clark.
    1. The validity of a marriage is governed by lex loci.

    2. In contracting marriage, under the law of New York, no solemnization • by priest or magistrate is required, nor is the presence of a witness necessary. Consent is the only requisite, and when a man and woman, capable of making' a marriage contract, exchange promises by which they take each other as husband and wife, from the instant the promises are made they become at once husband and wife by as valid a contract as they can make.
    3. A marriage contract may, like any other fact, be established by any kind of proof which the law regards as legal evidence.
    On final hearing on bill, answer and proofs taken orally.

      Mr. Paul A. Queen, for the complainant.

      Mr. William H. Speer, Jr., for the defendant.
   Van Fleet, V. C.

This case presents but a single question, and that is, is the defendant the husband of thé complainant ? The suit is founded on the twentieth section of our statute concerning divorces, and is brought for the purpose of obtaining a decree compelling the defendant to support the complainant. The defendant denies that he ever, in any way or form, entered into a contract of marriage with the complainant. His defence confesses necessarily abandonment and refusal to support. Hence the complainant’s right to the relief she asks depends entirely upon whether or not the marriage she alleges has been satisfactorily proved.

The contract, on which the complainant rests her right to relief, is alleged to have been made in the city of New York, on the 29th day of May, 1889, at a house near- one of the entrances to Central Park. For nearly a year prior to the date just mentioned, the complainant had lived with the defendant’s father in the village of Lebanon, Hunterdon county, as his housekeeper. The father at this time was about ninety years old, and • his family consisted of nobody but the complainant and himself. The defendant, at the time of the alleged marriage, was a widower, about fifty years old, and the father of three children, and had for several years resided in the city of New York, ■where he was engaged in the business of selling liquors and groceries, by traveling over certain routes, extending through the country adjacent to the city, at stated intervals, to solicit orders. While passing over one of these routes, it was his custom to stop at his father’s house at Lebanon and remain there over night. He did so usually once in each fortnight throughout the year. The complainant went to live with the defendant’s father in July, 1888, and the defendant made her acquaintance there shortly afterwards. She was then a maiden about twenty-six years old. Soon after they became acquainted, the complainant testifies that the defendant made love to her and asked her to marry him. He admits that he kissed her, romped with her, brought her flowers and gave her a silk umbrella. The complainant says that the defendant repeatedly asked her to marry him, but that she did not consent until March, 1889. Then she says he said to her that he loved her so deeply he could not live without her, and asked her if she loved anybody else, and that she replied that she did not, but confessed that she loved him, and promised that she would marry him, but stated that she could not then because she was not ready. The defendant had a brother living in Paterson. A few days before the day on which it is alleged the marriage took place, the complainant went with Austin Clark (the defendant’s father) to Paterson to visit his son. It had been previously arranged, between the complainant and the defendant, that if the complainant would go to New York, while Austin Clark' was in Paterson, the defendant would take her to the Eden Musée. In pursuance of this arrangement, the complainant went from Paterson to New York on the 29th day of May, 1889. She first went to the store where the defendant was employed. From there the defendant took her to a restaurant. While in the restaurant, the complainant swears the defendant reminded her of her promise to marry him, and asked why not do it then. She replied that she was not ready. To which he said that she was as ready then as she ever would be. To this she'said she was not properly dressed to marry — she had an old dress on — and he answered that that was the smallest part of it. They then went to the Eden Musée. While there, the complainant says the defendant again urged her to marry him and that she declined because her gloves were too much soiled, whereupon the defendant said he would get her a new pair, and she then consented. On leaving the Eden Musée, the complainant says the defendant took her to a store near the Eden Musée and. bought her a pair of gloves, and while there told her that he knew a clergyman living near Central Park, whom he would get to solemnize their marriage. They then went to Central Park, and after visiting several places of interest, the complainant says as they came out the defendant took her to a house near the park, which he said was the residence of the Rev. Mr. Smith. On entering this house, the complainant swears the defendant stated that he and she had come there to be married. They were requested to pass into the front room, and that very soon after-wards the person who had admitted them brought in a book and asked her her age, and after she had given it they were directed to write their names in the book, and, after they had done so, they stood up side by side and joined hands. Then the person who had admitted them and brought in the book asked the defendant if he took the complainant as his wife. He replied he did. The complainant was then asked if she took the defendant as her husband. She replied she did. A short prayer followed, and at its conclusion the person who had aslted the questions and made the prayer pronounced them to be husband and wife. The complainant further says that the defendant gave the person who acted the part of a clergyman some money — how much she does not know — and that this person then remarked that he had no blank certificate of marriage, but would make out one and send it to the defendant, whereupon the defendant gave his address at his place of business and not at his residence. As they left the house, the complainant also says the defendant directed her to say nothing about their marriage to anyone, but to return with his father to Lebanon and remain there until the following fall when he would take her to his home. The defendant then went with the complainant to the depot of the Erie railway, and she returned to Paterson, Before they separated, the complainant says it was arranged that the defendant should go to Lebanon the following Saturday and that she should be there to meet him, but that she was prevented from performing her part of the arrangement by a storm which made it imprudent for her to attempt to take Austin Clark to Lebanon on Saturday, and that, in consequence of the storm, they did not return until the following Monday. On Tuesday, the next day after the complainant and Austin returned, the complainant swears that she received a letter from the defendant, addressed to her by her maiden name, and which had been mailed at Yonkers, the opening words of which were “My darling wife,” and the closing, “Your happy husband, Ramsey,” and in which the defendant said he had been at Lebanon the previous Saturday, was disappointed not to find the complainant there, and stayed in the house alone over night and had been so lonesome that he could not sleep, and then expressed a hope that when he came out again he would have an opportunity to see the complainant alone. The complainant' also says that the defendant did not gome to*Lebanon again until Thursday of the following week, and that the marriage was then consummated by sexual intercourse, and that that was the first time that the defendant and she had ever had sexual intercourse.

The defendant admitted that on the 29th day of May, 1889, he took the complainant to the Eden Musée and to Central Park, and that he went with her from the park to the depot of the Erie railway; indeed, he admitted all the occurrences described by the complainant as having taken place on that day, except that then or on any other day he asked her to marry him, or that on that day he bought her a pair of gloves, or that on that day they went into a house near the park and made a contract of marriage. He also denies that on the Tuesday following, or at any other time, he wrote and mailed a letter to the complainant containing the expressions, and of the purport and effect, testified to by her.

The contract on which the complainant rests his right to relief was made in the State of New York, and its validity must, consequently, be determined by the law- of that state. If valid there it must be held to be valid here. Now, there can be no doubt that, if the parties made promises to each other in the manner and of the kind sworn to by the complainant, according to the law of New York they became, by force of such promises, eo instante, husband and wife. And this would be the legal ■effect of an exchange of such promises, whether they were ■exchanged in the presence of a witness possessing neither civil nor ecclesiastical authority, or in the absence of any witness whatever. By the law of New York, marriage is a civil contract. No solemnization by priest or magistrate is required; nor is the presence of a witness necessary. Consent is the only requisite; and when a man and woman capable of making such a contract ■exchange promises by which they take’ each other, from the instant the promises are made, as husband and wife, they become at once husband and wife by as valid a contract as they can make. And the making and existence of such a contract may, like any other fact, be established by any kind of proof which the law recognizes as legal evidence. "While the law, as thus ■stated, has been declared in many cases, but two quotations will be made. The first is from the opinion of Judge Folger, in Brinkley v. Brinkley, 50 N. Y. 184, 197, where he said: The law is well settled that a man and woman, without the presence of a witness, without the intervention of minister or magistrate, by words of present contract between them, may take upon themselves the relation of husband and wife, and be bound to themselves and to society as such.” The other is from the opinion in Clayton v. Wardell, 4 N. Y. 230, 232, where Judge Harris, speaking for the majority of the court, said in substance, that since the Reformation, marriage is no longer regarded as a sacrament, $ut as a civil contract. And like every other contract, all that is necessary for its validity is the deliberate consent of competent parties entering into a present agreement to take each for husband and wife. * * * And the existence

of a marriage contract is a fact which may be proved, like any other fact, either by positive evidence or by evidence from which it may be inferred.” Like views have been expressed in many other cases. In addition to the two already mentioned, four only will be cited. Fenton v. Reed, 4 Johns. 52; Jackson v. Winne, 7 Wend. 47; Canjolle v. Ferrie, 23 N. Y. 90; Gall v. Gall, 114 N. Y. 109.

~We come now to the question on which the decision of the case must turn, namely, is the defendant the husband of the complainant ? Or, stated in another form, has the marriage, on which the complainant’s action rests, been satisfactorily proved ? The burden is on the complainant. Unless the case contains sufficient evidence to produce a clear conviction in the mind of the court that the parties entered into a contract of marriage in the city of New York, on the 29th day of May, 1889, no relief can be awarded to the complainant. The person in whose presence the complainant says the mutual promises were made has not been examined as a witness; The complainant and her counsel, after extended inquiry and diligent search, have been unable to find him or discover the least trace of him. Hor has the complainant been able to identify the house into which she says the defendant took her when they came out of the park. Her inability to remember the house with sufficient clearness to be able, after the lapse of two or three years, to point it out, does not appear to me to be either unnatural or improbable. She was born in a rural country and had lived there all her life. She appears to have been a simple-minded country girl. This was her second or third visit to the city of New York and the first time she had ever been in Central Park. The sights and sounds by which she was surrounded were so new and strange to her as to create, naturally, a'feeling of bewilderment. But, in addition, if her story is true it is highly probable that, as she entered this house her mind and heart were so engrossed with thoughts of her marriage as to have excluded everything else and rendered her unobservant, if not insensible, to her surroundings. Her inability to remember the house, under the circumstances, serves rather, as I think, to confirm than to disprove the truth of her evidence.

The case, in respect to its vital fact, being destitute of other proof than that furnished by the oaths of the parties, it is clear that the complainant cannot prevail unless her evidence in proof of that fact has been so strongly corroborated, or the evidence of the defendant, as to material facts, has been so effectually impeached, as to convince the court that her evidence as to that fact is true and his is false. The conclusion I have reached is that her evidence as to the fact of marriage is true and his is false. That was my impression when the proofs were closed. Since then the argument of counsel and a full and careful consideration of the evidence have resulted in changing what was then but an unsettled and untested belief into a strong conviction.

There was a marked difference in the demeanor of the parties while testifying. The complainant’s demeanor was that of an honest witness, who felt that she was under a supreme obligation to tell the truth regardless of consequences. She gave her evidence with apparent candor, without any attempt at evasion, and never hesitated to testify to the truth because she thought it might hurt her case or lay the foundation for a contradiction. The defendant, on the contrary, testified with a languid, weary air, as though it were an irksome and disagreeable task for him to try to recall that part of his life which had been associated with the complainant. He hesitated when there- was no apparent reason for hesitation. Some of his answers were so improbable as to shock credulity; others were evasive; and one that he gave, which admitted, inferentially, that there had been a secret marriage, he himself afterwards denounced as false. This particular answer was given in describing his last interview with the complainant prior to the birth of their child. From May, 1889, to August, 1891, the defendant visited the complainant every week or every two weeks. He ceased visiting hér altogether in August, 1891. He knew as early as the spring of 1891 that she was pregnant. He was asked whether, during his last visit, in August, 1891, he and the complainant had had any conversation respecting her condition and the birth of their child. He answered that they had had, and that he had told her that if she would ’come to New York to give' birth to the child he would make provision for her and see that she was taken care of and would afterwards take the child. He also said that she was not willing to do this. He was then asked, “What did she say?” and he replied, “She wanted me to publicly marry her.” This question then followed: “ Did she use the word publicly f ” and he answered, “ Ho.” His counsel then asked, “Why, then, did you use the word ‘publicly/ if she did not use it?” to which he replied, “I don’t know; it was-a mere figure of speech; I don’t know how it came into my mind.” What fact he meant to typify by this figure of speech he did not state, but left that involved in as much mystery as he did why or how the figure itself happened to arise in his mind. Heither the manner in which the defendant gave his evidence, nor his evidence itself, inspired my confidence. He appeared to be testifying rather with a purpose to defeat the complainant’s claim than to lay bare the whole truth as he understood it.

The truth of the complainant’s evidence as to the fact of marriage is confirmed by a written admission made by the defendant with deliberation. In October, 1891, about a month before the birth of the child, the defendant wrote a letter to the complainant and sent it to her by mail, addressed as follows: “ Mrs. Lucy Clark, care Austin Clark, Lebanon, H. J.” The envelope is in evidence, and the fact that it was addressed in the form above given, by the defendant, with his own hand, is admitted. It is also an admitted fact that the complainant had, shortly before this letter was written, insisted that the defendant should thereafter, in his correspondence with her, address her as his wife. The circumstances which induced the complainant to make this insistment were, as described in her evidence, as follows: She had, in obedience to the defendant’s request, kept their marriage secret as long as she could do so with safety to her honor; she was now big with child, and every person who looked at her knew her condition; the defendant had just sent her a telegram addressed to her by her maiden name — Miss Lucy Harr; she then wrote to the defendant, stating that he ¡had given her his name; that she had a right to it and he must ¡never again address her by her maiden name. The nest time lie wrote to her, the complainant says,, his letter was enclosed in .the envelope which is in evidence.

The defendant, in attempting to explain how it happened that 'he addressed this letter to the complainant as his wife, manifested :great confusion of recollection. He first said that he was induced .to address this letter in -the way he did by a letter which the ■complainant had written to him and which he had destroyed. He also said that it was his custom to destroy all personal letters soon after reading them. He then gave the contents of this particular letter, repeating the words in which the complainant had made the request, and also the reason she had given for making it. On his cross-examination his attention was called .fo the fact that in his affidavit, read on an application for alimony, he had sworn that the complainant’s request had been •made verbally, at his store in Hudson street, in the city of New York, and not by'letter, and was then asked which statement was true. He answered that the request was made either by letter or verbally, and that if his affidavit stated that it had been made verbally, that “ that must be the correct solution of the matter.” On further cross-examination he said that his recollection about the matter was indefinite, and that he could not swear either way whether the request had been made verbally or by letter. And yet, when this request and his act in pursuance • of it, and the relation in which these parties stood to'each other at the time the. request was made, are remembered and considered, it would seem to be almost beyond belief that even the most trifling incidents of such an affair should not have impressed themselves so deeply upon his memory that he could never forget them. This would unquestionably have been the •case if it had been true that a pregnant woman, who knew she was not his wife, and whom he knew was not his wife, had requested him to address his letters to her as his wife, and he had been weak enough to comply with her request. One thing I think must be regarded as absolutely certain: If his evidence on this point is true, his memory is so utterly untrustworthy that no •confidence can be reposed in his recollection, especially when his recollection differs from that of the complainant.

Nor can I believe that the reason which the defendant gives for addressing this letter to the complainant as his wife, is the •one which actually existed in his mind when he wrote the letter and guided his hand in directing it. He says he did it without .any thought of the consequences, and simply with a desire to do what the complainant wanted him to do. He further said that when the complainant requested him to address her as his wife, ¡•she informed him that she had told her parents and friends that he and she were married, and then said that she wanted to keep her reputation, but could not do so unless he addressed her as his wife. After making this statement, this question was put to ’.him, “ Then you were willing to address her in this way, so that her parents and friends would think that you were married ? ” His answer was: I was willing to do anything to aid her; I didn’t care how I addressed her; I was willing to do anything that would satisfy her.” Now, in deciding whether the least credit can be given to this evidence, it is necessary to observe that when the complainant informed the defendant that she had •told her parents that he and she were married, he does not pretend that he accused her of falsehood, or that he said anything which indicated that he disputed the truth of the statement she had made to her parents, or that he was dissatisfied with or disapproved of what she had done. And in this connection it is important to notice that the very first act the defendant did, in his intercourse with the complainant after he knew that the complainant’s parents had been informed that he and she were husband and wife, was an act which expressly and positively affirmed the truth of the statement.

But, again, in testing the truthfulness of the defendant’s evidence on the point under consideration, it is necessary to call attention to the fact that his description of the complainant’s-conduct and of the relations which had existed between them for years prior to the time when she requested him to recognize her as his wife, render it almost absolutely certain, if the complainant was as lewd and abandoned as he says she was, and he was as free from the least duty or obligation to her as he says he was, that unless he differs widely from other men of ordinary sense and prudence, it would have required something much more persuasive and powerful than a mere desire to aid or satisfy her, to induce him to do anything which would enable her to prove that a falsehood which she had circulated against him was the' truth. He swore that the complainant and he had their first-sexual intercourse in open daylight, in his father’s house, within two or three months after he made her acquaintance, and that the complainant’s conduct on that occasion was so immodest and dissolute as to be equivalent to a shameless solicitation to him to-seize her person and use it; that from that time forth they had sexual intercourse whenever he was at his father’s house, without any talk about marriage or thought of, marriage on his part, and that nothing was ever said about marriage, by either to the-other, until after the complainant became pregnant, but after that the .complainant repeatedly asked him to marry her, and that he on each occasion resolutely refused. Just at this point it is necessary to refer again to what the defendant swore passed between the complainant and himself in their interview in August, 1891. He at first testified, it will be remembered, that she asked him to marry her publicly, and then changed his testimony by testifying that she had not used the word “ publicly,” but had simply asked him to marry her. He also swore' that, in reply to her solicitation, he had told her that he would. not marry her, and that the best he.would do for her was, if she would Come to New York to be confined, he would see that she was taken care of during her confinement and afterwards take the child, and that she replied rather than do that she would •commit suicide. Now, it appears to me, when one part of the defendant’s evidence, just summarized, is contrasted with the other, that no doubt whatever can exist in any discriminating mind, that either his description of the complainant’s conduct, the criminal character of their relations and the attitude he constantly assumed towards her, is a cruel fabrication or that the reason he gives for his recognition of her as his wife is false. I cannot believe that any man, possessing sufficient mind to be able to take care of himself, had, when entirely free from duress, been induced, simply by a desire to please, to deliberately acknowledge a woman as his wife, whom he had repeatedly refused to marry and whom he knew to be entirely destitute of both virtue and modesty.

The truth of the complainant’s evidence as to the fact of marriage is also confirmed by oral admissions made by the defendant under circumstancss which make it very difficult, if not impossible, to believe that he did not speak the truth. The complainant’s child was born November 26th, 1891, in the house of the defendant’s father at Lebanon. A few days after its birth the physician who attended the complainant in her confinement wrote to the defendant, informing him that he had delivered his wife of a son, and enclosed his bill. The defendant received the letter, but did not reply. He neither wrote to the physician nor to the complainant. Neither did he visit the complainant nor do anything for her. About three weeks after the birth of the child, the complainant, accompanied by Miss Mary E. Sheets, went to New York to see the defendant to ascertain the cause of his neglect and inattention. They found him at the store where he was employed. From there he took them to the Cosmopolitan Hotel for dinner, and then went with them to Macy’s store on Fourteenth street, and from there to the depot of the New Jersey Central railroad at Communipaw, where he put them on a train for Lebanon. Miss Sheets swears that, at three different times on that day, the defendant, in reply to questions' put by her to him, admitted that the complainant and he were' married, and also stated that he intended to take the complainant to his home in New York. In narrating what was said when she first put the question to him, Miss Sheets testified as follows:

“ I told him that I wanted to know if they were married, for some of the people out at Lebanon said that they did not believe they were, while others-said they did. He said, ‘We are married.’ Then I said, I want you to tell me the truth, so that I can go home and tell the people. He said, ‘ We are married and you can tell them so.’ ”

She also testified that the defendant on that day said the same-thing twice afterwards. The defendant admits that Miss Slieetsput the questions to him which she swears she did, and that he-answered them, but he says that he invariably answered in this-way : “Ask Lucy, she can tell,” or “ she knows.” He further-said that after making this answer “ nothing further in particular was said,” either by Miss Sheets or himself, and that at neither time, when he gave this answer, did Miss Sheets say that Lucy had already told her that he and she were married. And yet that was the fact. At least three months before Miss Sheets had her interview with the defendant, the complainant had told Miss Sheets of her marriage and made known to her the circumstances attending its celebration. This being so, it cannot be believed that if the defendant had answered Miss Sheets in the way he says he did, that Miss Sheets would not at once, under the pressure of an irresistible impulse created by his words, have said, “ Why, Lucy has already told me — she says you are married.” Those or similar words would undoubtedly have leaped from her lips as the natural and unrestrainable response to such-answers as the defendant says he gave. But if his answers were what Miss Sheets says they were, then there was no reason why anything “ further in particular should be said,” and that, it will be.remembered, was the fact according to the defendant’s testimony, namely, that after he answered Miss Sheets’ questions. “ nothing further in particular was said.” The defendant, when. asked to give the reason why he did not answer Miss Sheets' questions according to the truth, as he now claims the truth to be, and say to her plainly that the complainant and he were not married, answered that he did not know that he was bound to lay himself open to Miss Sheets' criticism and go into details with her. That may have been so, but it must have been perfectly plain to the defendant that if he answered the questions at all, his honor and his duty to himself, as well as his duty to the complainant, required him to speak the truth. He was in a position where he could not avoid seeing, if he believed what he now says is the truth, that he would best shield himself against a false claim of marriage, by a dissolute woman, by declaring the truth boldly, without quibbling or evasion. I believe that he did tell the truth,- and that he gave the answers which Miss Sheets swears he did. This, I think, is strongly confirmed by the general course of the defendant’s conduct as described by himself.

There are other facts in evidence, the effect of which is to confirm, to a greater oy less extent, the truth of the complainant’s evidence. I shall not mention or discuss them. This opinion is already too long. In addition to what has already been said, I shall content myself with simply saying that a full and careful consideration of the entire evidence has resulted in putting my mind as completely at rest, as to the vital fact of the case, as it can be in any case where the evidence in proof and disproof of such fact stands in as sharp conflict as it does in this.

The complainant is entitled to a decree, with costs.

I add — not, however, as a part of my opinion, but for the information of the parties and their counsel — that an allowance will be made to the complainant of $340 a year, payable quarterly in advance, in sums of $85 each. The decree will direct that the defendant shall give security.


author: Bird, Y. C.

text:
    Arthur E. Berry, guardian, v. Lewis C. Potter et al.
    Where a father says to his daughter and son-in-law that he is about to make a will, disposing of his property amongst his children, and that if she will make selections of such portions as she desires, he will give and bequeath those portions to her, and that she and her husband may enter into the possession and enjoy the full benefit and control thereof, subject only to their paying the taxes and to his collecting the rents for tenement-houses on the premises, and they signify their acceptance of such offer and enter into the possession, and the father makes his last will, devising the property so selected by the daughter to her, the relation of landlord and tenant is' not thereby created; nor does any interest in or title to the lands pass under the statute of frauds and perjuries during the lifetime of the father. In such case the right created or given is a mere license to enter into the possession, which continues during the will or pleasure of the licensor or donor, and is terminated by his insanity or death, or by conveyance or demise.
    On final hearing on pleadings and proofs.

      Mr. Ephraim Cutter, for the complainant.

      Mr. Alan II. Strong, for the defendants.
   Bird, Y. C.

In 1886 Samuel Dally, being then about seventy-four years old and being the owner of several tracts of land, and about to make his will, disposing of his estate amongst his children, said to his daughter Anna and her husband, Lewis C. Potter, that as lie was about to make such disposition of _his property, he was willing that she should select such portions of his real estate as she desired, and • in effect said that if she would do so she and her husband might at once take possession of it and occupy it as her own. Such selection was made. The parcels taken were three, one of which was a valuable clay bank. Mr. Dally made his will accordingly. The daughter with her husband and a number of children took possession of the parcels which they had selected, with the full knowledge, consent and approbation of her father, with the distinct understanding that the father should have the rent of the houses on the premises and the daughter should pay all taxes. Mr. Potter commenced working the clay bank at once and continued to work it from that time until the filing of the bill in this suit. On the 29th of November, 1892, the complainant, Arthur E. Berry, was appointed guardian of the person and estate of the said Samuel Dally, the latter having previously been declared a lunatic upon a commission issued out of this court. Immediately after the appointment Berry notified Potter thereof. And after-wards, in March, he gave written notice and claimed possession and required Potter to surrender the possession to him as guardian. Potter refusing to surrender the possession, Dally presented his bill and asked for an injunction, restraining Potter from working the clay bank and disposing of the clay and sand, and that he may be required to account for a reasonable share of the profits of the said clay bank.

Mr. and Mrs. Potter resist the prayers, upon the ground that they took the possession of said premises in compliance with a family settlement and arrangement entered into between them and Mr. Dally, and that for at least six years they had the possession of said premises with the full knowledge and approbation of Mr. Dally and in accordance with such arrangement. It is also claimed that they expended large sums of money in digging trenches and laying pipe to drain the water from these banks so that they could be worked more advantageously.

There was nothing expressed in writing except the making of the will by Mr. Dally. Whatever rights of a legal or equitable nature of which the defendants can claim the benefit must be found in the verbal understanding between Mr. Dally and Mr. and Mrs. Potter-before and at the time the latter took possession and deduced from the circumstances which follow such possession. It is fully established that they took possession of the three parcels of land, paid the tax thereon, worked the clay and sand banks according to their own judgment and pleasure, without any accounting to Mr. Hally. The latter collected the rent for the tenement-houses.. It is true that, at one period during their possession, Mr. Dally made known the fact that he was in need of some ready money, and asked for or claimed the right to sell a certain amount of clay or sand and to retain the proceeds, which was permitted. But this, under the circumstances, I make no account of, for I think, when the relation of the parties is considered, it should not at all influence the judgment of the court. They expended several hundred dollars in digging trenches and laying down pipe to drain the clay banks, and this was done with the full knowledge of Mr. Dally.

Do these facts, thus briefly outlined, constitute a defence which equity should recognize ? And this leads to the inquiry, under what right or color of right, known to the law, did Mr. and Mrs. Potter enter into the possession ? I think, under a mere license — nothing more. When the statute of frauds and perjuries is considered, they had no title or interest in these lands which would have enabled them to resist the claim of Mr. Dally for the possession of them before he became a lunatic or the claim of his guardian since that event.

Upon the argument it was urged that the facts in this case prove that the relation of landlord and tenant existed, and that consequently the defendants were entitled 'to notice to quit if nothing more. This view is incompatible with the doctrine of license. There is nothing in the whole case which shows that the defendants were to render anything whatsoever to Mr. Dally for the use or possession of these lands, and unless there is a contract, expressed or implied, that rent or something of value shall be given for the use and possession, the relation of landlord and tenant does not exist. It is not necessary that there should be an express agreement to that effect, but the court must find from the circumstances of the case that there is a fair implication to that end. It would be very absurd in this case to charge the defendants or either of them with rent, when it is apparent that Mr. Dally never contemplated receiving any nor the defendants giving any. In Brewer v. Conover, 3 Harr. 214, it was said: “ No action can be maintained for use and occupation where the relation of landlord and tenant does not exist. And that relation does not exist where the defendant enters upon land under a contract of purchase and sale or for a deed.” If this be the fair and just conclusion where the vendee is in possession under a written contract of purchase, clearly much more so where the defendant is in possession under a parol gift of the title.

In Den, Richman v. Baldwin, 1 Zab. 395, it was held that no title passes under a parol license, and it is no defence in ejectment.”

In Hetfield v. Central Railroad Co., 5 Dutch. 571, the court said : “A license to enter upon land, not coupled with an interest m the premises, may be revoked at the will of the party granting it. The right to come upon land of another and remain for an indefinite time can be granted only by deed; and where the license is by parol it may be revoked at any time, even if money be paid for it and expense incurred in erecting buildings or other permanent improvements on the premises. Where the charter of a railroad company provides that the company may obtain land by consent of the owner, it means a legal consent; and they can only obtain it' in such manner as existing laws provide for acquiring title to or the right to occupy real estate. Such a clause in the railroad charter does not affect the statute of frauds.” And see 2 Am. Lead. Cas. 575; Miller v. Auburn Railroad Co., 6 Hill 61; Selden v. The Delaware and Hudson Canal Co., 29 N. Y. 639.

In Silsby v. Trotter, 2 Stew. Eq. 228, the court said: “A contract simply giving a right to take ore from a mine, no interest or estate being granted, merely confers a license. Under such license the licensee acquires no right to the ore until he separates it from the freehold.” To the same effect is the case of East Jersey Iron Co. v. Wright, 5 Stew. Eq. 248, in which it is added: “A licensee has an authority to go upon the lands of the licensor and do any act or series of acts there, but possesses no estate or interest in the land.”

These views are fully sustained by the case of Lawrence v. Springer, 4 Dick. Ch. Rep. 289.

I conclude, therefore, that the defendants were licensees and in no sense tenants. It was not disputed upon the argument but that the general doctrine is that a license to enter upon the lands of another may be revoked at any time. It was, however, urged that circumstances may arise which will render it inequitable for the licensor to exercise th'e privilege which he otherwise enjoys, and that, such circumstances exist in this case. That there may be exceptions is very clear from the case of Silsby v. Trotter, supra, and East Jersey Iron Co. v. Wright, supra. Erom these causes it would appear that the licensee may indulge in such expenses and thereby make such improvements or additions to the premises as to justify a court of equity in protecting him against a revocation. But no fact has been presented out of which any such equity can be said to have arisen. The defendants went into possession of these valuable clay banks and worked them solely in their own interests. The trenches which they dug and in which they laid drain-pipe for carrying off the water, were dug that they might mine the clay more readily. They did this because it was less expensive than disposing of the water by machinery.

But it was urged if this should be found to be nothing moro than a license which might be revoked by Mr. Dally before he became a lunatic, that right was hot transmitted to his legal personal representative, the complainant. It was declared in East Jersey Iron Co. v. Wright, supra, that “ unless coupled with an interest, or an equity has been created by acts done in pursuance of a license, a license is always subject to revocation in either of the following methods: First, by the will of the licensor; second, by the death of either of the parties; and third, by a conveyance of' the land upon which it was intended to operate.” Evidently, the principle which controls in the cases given is that, whenever the will of the licensor can no longer act with respect to the license or the thing upon which, or in reference to which, the supposed license applies, the license is necessarily revoked. 2 Am. Lead. Cas. 549; Hunt v. Rousmanier, 8 Wheat. 174, 201. This result follows as well when the licensor becomes a lunatic as when dead, or when he has disposed of this property by will or by conveyance. In Matthiessen v. McMahon’s Administrator, 9 Vr. 537, the court declared : “ The after-occurring insanity of a principal operates, per se, as a revocation or suspension of the powers of his agent, except in all cases where a consideration has been previously advanced in the transaction, so that the power became coupled with an interest, or where a consideration of value is given by a third person, dealing with the agent, relying on his apparent authority, in ignorance of the principal’s incapacity.”

This case was followed and approved by Vice-Chancellor Van Fleet in Hill v. Day, 7 Stew. Eq. 150, 157. In Chew v. The Bank of Baltimore, 14 Md. 299, it was held that a power of attorney might be avoided by the insane person and his committee, upon proceedings in equity instituted for that purpose. See Bus. Ins. § 304; Hazelton v. Putnam, 3 Pinn. 107, 3 Chand. 117; Vandenburgh v. Van Bergen, 13 Johns. 212; Prince v. Case, 10 Conn. 375; 2 Am. Lead. Cas. 549, 550, 553, 586.

It follows that Mr. Potter should not only he enjoined from further working said clay banks, but that he must account for the. rents and profits, or the use of said banks, from the time when the insanity of Mr. Dally became known to him. As there is no clear proof that such insanity was marked or pronounced so as to be clearly manifest to the common understanding, before the date of the return of the inquisition, I think he should not be required to account before that date.

I will advise a decree in accordance with these views.