text:
    Forstmann & Huffman Company, a corporation, complainant, v. The United Front Committee of Textile Workers of Passaic and Vicinity, Albert Weisbrod et al., defendants.
    [Decided May 12th, 1926.]
    1. Picketing may be either legal or illegal, and may not amount to a trespass upon another’s rights.
    2. It is legal for one man to accost another, and an offer by one to communicate and discuss information with another with a view of Influencing the other's action is not regarded as aggression or a violation of that other’s right, but if that privilege is abused by violence, persistence against the other’s wish, or otherwise, the employer is entitled to have the striker enjoined from such illegal practice, where it tends to intimidate or unduly annoy others wishing to work in the employer’s factory.
    3. The number of pickets may of itself make the picketing unlawful since it may amount to intimidation, as threats of bodily harm may be made by mere show of force without violence of language or breach of the peace, and such picketing will be enjoined in this case.
    4. Keuffel &' Esser v. International Association of Machinists, 93 N. J. Eq. 429, and American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184, followed.
    On bill for injunction.

      Messrs. McCarter é English, for tbe complainant.

      Mr. Sigmond Unger, Mr. Joseph A. Feder, Mr. Arthur T. Vanderbilt (Mr. Alexander Simpson, of counsel), for tbe defendants.
   Bentley, V. C.

The complainant is engaged in the manufacture of woolen products, and employs at its mills, approximately, three thousand hands. In the vicinity of its mills there are a number of others, owned and operated by other persons. During the month of January, 1926, a strike was declared affecting the employes in all of these mills except, it is said, the two owned and operated by the complainant. Upon the sworn ■ representation that no' strike existed among the' complainant’s employes, and further proof of illegal interference with such employes by those of the other mills who had gone on a strike, a most drastic and sweeping ad interim, restraint was imposed upon the strikers, and they were ordered do show cause why--a-preliminary injunction should not issue.

Upon the return of the order, exhaustive proofs were read in answer to the bill and verifying affidavaits and exhibits. It would be intolerable to set out at length and in detail all of the defendants’ proofs as well as those annexed to the bill of complaint. It is abundantly clear to me that they establish three facts which are controlling for the purpose of' this' motion, and they are — (1) that many of the employes,'in fact, by far the greater number employed in complainant’s mill, were on strike at the time of the filing of the bill, and still are on strike; (2) that no acts of violence or intimidation have been proved to have been committed by the strikers, and (3) that the strikers have picketed the complainant’s plants in large numbers, in some instances, I think, by as many as two thousand individuals at one time. Upon the first point, almost the only evidence submitted by the complainant of there being no strike at its mills is the affidavit of the complainant’s personnel manager. It is true that about twenty men have sworn that they, or some of them, 'are employed by the complainant, but I strongly incline to believe that what the defendants say as to this fact is true, namely, that the affiants are a maintenance crew and not ordinary workmen. My conclusion as to the second point arises from-the paucity of proofs submitted by the complainant to show physical violence or intimidation practiced by the strikers, in connection with the full and complete denials in the defendants’ affidavits. It seems to me that corroboration of some of the alleged acts of violence might have been secured if they were true. Eor example, Dorothy Knapp tells of an assault committed upon a Avoman named Mrs. Winters, and .of being bitten upon her own hand severely by one of the assailants. Neither the affidavit of Mrs. Winters is produced nor that of anyone who attended to the serious injury the affiant sustained. Again, as was so earnestly pressed at the hearing, not one affidardt by a peace officer was submitted, and it is notorious'that the sheriffs of trvo counties had charge of the situation, with many deputies and regular police officers. The Remaining point is abundantly proved by exhibits annexed Ho the bill of complaint. One of the exhibits is a publication issued by the leaders of the strike, many of whom are defendants in this-cause, and shows a picture of a long line of men and women having thereunder the title “Baby Leads Picket Line of 6,000.” Prom these conclusions, it seems to me inevitable that a preliminary injunction should be allowed, but that there should be a material modification of the terms of the restraining order.

■ My understanding of the law in this state is drawn from the pronouncement of the court of errors and appeals in Keuffel & Esser v. International Association Machinists, 93 N. J. Eq. 429. I do not understand that anything therein said is in any Avay overruled or modified by the later case in that court, New Jersey Painting Co. v. Local, No. 26, &c., 96 N. J. Eq. 632. In the later case the only pertinent portion-thereof is that part which overrules so much of the opinion in Jonas Glass Co. v. Glass Bottle Blowers’ Asso., 77 N. J. Eq. 219, with regard to the effect of an act entitled “An act relative--to persons combining and encouraging other persons to combine.”- P. L. 1888 p. 86. In the Keuffel & Esser Case, the opinion of the chief-justice of the United States, in American Steel foundries v. Tri-City Central Trades Council, 257 U. S. 184, was adopted, and it was pointed out by Mr. Justice • Swayze that the rights of employer and employe were discussed from the- common law standpoint as well as under the so-called Clayton 'act. 6 Fed: Stat. Anno. (2d ed.) HI. Under these opinions, I take it, picketing in itself, for all its militant name, may be legal or illegal in a dispute between employer and employe, according to the manner in which it is carried on. Of course, the time has passed when laboring men were forbidden to strike or to associate themselves together for the purpose of winning strikes initiated for bettering their living or working conditions, although it appears that as recently as 1867 these constituted indictable offenses. State v. Donaldson, 32 N. J. Law 151. Chief-Justice Taft (at pp. 208, 210), in the opinion in the American Steel Foundries Case, says:

“Is interference of a labor organization by persuasion and appeal to induce a strike against low wages, under such circumstances, without lawful excuse and malicious? We think not. Labor unions are recognized by the Clayton act as legal when instituted for mutual help and lawfully carried out their legitimate objects. They have long been thus recognized by the courts. They were organized out of the necessities of the situation.^ A single employe was helpless in dealing with an employer. He was dependent, ordinarily, on his daily wage for the maintenance of himself and family. If the employer refused to pay him the wages that he thought fair, he was, nevertheless, unable to leave the employ and to resist arbitrary and unfair treatment. Union was essential to give laborers opportunity to deal on equality with their employer. They united to exert influence upon him and to leave him in a body, in order, by this inconvenience, to induce him to make better terms with them. They were withholding their labor of economic value to make him pay what they thought it was worth. The right to combine for such a lawful purpose has, in many years, not been denied by any court. The strike became a lawful instrument in a lawful economic struggle or competition between employer and employes as to the share or division between them of the joint product of labor and capital. To render this combination at all effective, employes must make their combination extend beyond one shop. It is helpful to have as many as may be in the same trade in the same community united, because, in the competition between employers, they axe bound to be affected by the standard of wages of their trade in the neighborhood. Therefore, they may use all lawful propaganda to enlarge their membership, and especially among those whose labor at lower wages will injure their whole guild. It is impossible to hold such persuasion and propaganda, without more, to be without excuse and malicious. The principle' of the unlawfulness of maliciously enticing laborers still remains, and action may be maintained therefor in proper cases, but to make it applicable to local labor unions in such a case as this seems to us to be unreasonable.”

With regard to picketing he says, on page 204:

“We are a social people, and the accosting by one of another in an inoffensive way, and an offer by one to communicate and discuss information, with a view to influencing the other’s action, are not regarded as aggression or a violation of that other’s rights.”

If, however, this privilege is abused by violence, persistence against the other’s wish, annoyance or otherwise,- he points out, then the employer is entitled to have the striker enjoined from such illegal practice. This shows that it is the opinion of the supreme court of the United States and of the court of errors and appeals of this state that picketing, as such, may not amount to a trespass upon another’s rights. To grant to labor the right to organize and strike, and deny it the right to picket in a labor market, such as the one in which the complainant’s mills are located, would be similar to the legislature granting the right of suffrage to a citizen and then denying him the use of an official ballot upon which his choices would be required to be evidenced. Of course, in a place like Passaic county or Bergen county, in times of industrial depression,'it would be idle for a substantial number of employes to strike for better wages, when by the very terms of this proposition the market would be glutted with others ready to take their employment. Under these eircumstanaces, and so long as they do not resort to interdicted conduct, every dictate of reason and fair play requires that they should be given an opportunity to lawfully discuss their grievance, or supposed grievance, with either their fellow-employes or others who may offer themselves to take their places, unless, indeed, labor is to be returned to that state of bondage that succeeded legal serfdom in England.

It is appreciated that many learned judges have declared that picketing in all forms, and by its very aims, objects and methods, is illegal and not to be permitted. But I think an examination of the authorities will disclose that this was no more than the personal opinion and judicial dictum of the judge who has so pronounced. Eor example, in Keuffel & Esser v. International Association Machinists, supra, Judge White, in his concurring opinion, undoubtedly expresses this thought, but it is equally true that the opinion adopted by a majority of the members of the court did not agree with him. The opinion of the court says (at p. 481) :

“Picketing may or may not be lawful, .depending on whether or not it has an immediate tendency to intimidation of the other party to the controversy [to which we add ‘if he has ordinary firmness of mind’], or an immediate tendency to obstruct free passage such as the streets afford, consistent with the right of others to enjoy the same privilege.”

Again, it is frequently said that where picketing is allowed, violence, intimidation and annoyances are practiced which it is impossible to prove. A less lawyer-like argument it would be difficult to evolve. To adopt such reasoning and apply it to other justiciable controversies would permit the destruction of all personal and property rights that are so jealously guarded by the law. It would amount to the power to punish without convicting. It would result in substituting the charge for the judgment. Not only is it ridiculous to urge such a rule of convenience where the most vital rights of laboring men are concerned, but its falsity is demonstrated by the many convictions that have resulted, such as those in Bijur Motor Appliance Co. v. International Association of Machinists, 92 N. J. Eq. 183; affirmed in same volume (at p. 644).

Believing, as I do, that it is the legal right of employes to organize, to strike, and to attempt peacefully to persuade fellow-employes to do likewise, and to that end to picket in the manner indicated, the injunctive order will be so framed only to prohibit picketing by the defendants or any others working under them, in a manner calculated to intimidate or unduly annoy others wishing to remain at their employment in the complainant’s mills or reasonably likely to amount thereto. This, of course, will include an injunction to prevent picketing by groups sufficiently large in numbers to accomplish the illegal purposes just referred to. ' While this strike has been singularly free from acts of violence by the defendants and their sympathizers, it cannot be denied that they do not understand- or willfully disregard their legal duties with regard to mass picketing. The controlling opinions in the Keuffel & Esser Case, supra, and American Steel Foundries Case, supra, clearly lay down the rule. Eor example, in the former case the opinion of the court says: “The number of pickets may, of itself, make the picketing unlawful, since it may amount to intimidation. Everyone knows that threats of bodily harm may be made by a mere show of force without violence of language or breach of the peace, and that mere numbers may intimidate.”

Therefore, picketing, as heretofore carried on in this connection, will be enjoined, and I will hear counsel as to the form of the order in that respect.

It is argued with great force and apparent earnestness that the discretion of the court should not be exercised in the defendants’ favor, because of the rule laid down in the case of Citizens’ Coach Co. v. Camden Horse Railroad Co., 29 N. J. Eq. 299, declaring that where the complainant’s proofs are fully and satisfactorily met by those of the defendants, no injunction will go in advance of the final hearing. The answer to this is, that so far as the illegal picketing by large numbers of strikers is concerned, I do not recall that it is even denied, and certainly there is no denial that would persuadé any rational being, in view of the exhibits in the nature of declarations against interests. It is also said that under the case of Atkins v. Fletcher Co., 65 N. J. Eq. 658, turning on the necessity of a showing of irreparable injury even in a labor case, that the complainant’s motion ought to be denied. It cannot be said that an irresponsible committee, not even affiliated with any regular labor organization and a horde of employes attempting to support families on wages of $15 or $20 a week, could possibly respond to a judgment in an action at law.

The defendants also feel aggrieved by a combination of all the mill owners of the region into an association to. which all applicants for employment were referred. It is said that there was kept by that association a record of all employes, and that when it was found from such records that the employment of a man would be unsatisfactory from the standpoint of the employers, he was effectually blacklisted by giving to him a card which he would be obliged to exhibit, before any of the associates would employ him, and upon which card there would appear a code number, indicative of undesirability. It is also charged that from this central body spies were sent out among the employes, even in time of peace, to secretly bring back confidential reports about the various individuals. Erom this it is argued that the complainant does not come into court with clean hands. It does not seem to me that this offends the maxim. Certainly, the employers have exactly the same right to organize and protect their interests that the law affords to the employes. In the minds of the defendants this appears to have been aggravated by the fact that the complainant had organized among its employes a sort of a governing and welfare body, at the same time retaining in its hands control of the affairs thereof, and that this was done for the purpose of forestalling any combination or affiliation with organized labor upon the part of the employes. I do not understand that it is illegal or in any other way offensive for an employer of labor to attempt to operate a shop with workmen who are not members of a trade union, and any such action upon the part of this complainant can have no bearing upon a determination of its right to be free from illegal actions upon the part of its emploj'-es who have refused to continue at their work.

I will advise an order in accordance with the views hereinabove set forth, but will require that notice thereof be given.


source: Caselaw Access Project

author: Berry, V. C.

license: Public Domain

text:
    John A. Murphy and Michael A. Murphy, as executors of the last will and testament of Michael Murphy, deceased, complainants, v. Morrisey & Walker, Incorporated, body corporate, defendant.
    [Decided February 11th, 1926.]
    1. The validity or invalidity of a trust declared in a will is determined by the law of the testator’s domicile at the time of his death.
    2. If some of the trusts declared in a will are valid, the legal title of the lands held in trust is in the trustee's, subject to the trusts that are valid, and even if the trusts fail entirely, the legal title is still in the trustees who hold for the heirs-at-law and next of kin of the testator.
    3. Where a will authorizes trustees to sell or mortgage any of of the testator’s real estate, without liability on the part of the purchaser to see to the application of the purchase-money, the power of sale is not terminated so long as the duties of the trustee, in aid of which the power is given, remain unperformed or uncompleted, and the title of the heir is subject to divestment by the exercise of the power of sale.
    On bill, &c.

      Mr. William J. Leonard, for the complainants.

      Messrs. Snyder & Roberts, for the defendant.
   Berry, V. C.

The bill in this cause is filed for the specific performance of a contract for the sale of land. The matter is submitted on the pleadings and an agreed state of facts. The agreement which is sought to be enforced is between the complainants, executors' and trustees of the will of Michael Murphy, who died a resident of, and domiciled in, Montgomery county, Pennsylvania, on March 10th, 1911?, as vendors, and the defendant as vendee. This will was duly probated in that county. The agreed state of facts shows tender of performance by complainants and refusal by defendant, such refusal being based upon the contention that the complainants, as executors and trustees under said will, do not hold legal title to the lands in question, and that they cannot, therefore, convey good title to the defendants; and this proposition is based upon the further contention that the residuary clause of said will is void because violative of the rule against perpetuities, and that, therefore, the title to the land, the subject of this contract, and which is a part of the residuary estate, is in the heirs-at-law of the testator, and that they only can make a valid conveyance.

The clause of the will, the validity of which is attacked, is the twenty-third clause, which reads, in part, as follows:

“XXIII. AH the rest, residue and remainder of my estate, real, personal and mixed, of whatever kind and wheresoever situate, I give, devise and bequeath to my executors and trustees hereinafter named, in trust nevertheless to invest and reinvest the same and to use the net income therefrom for the following uses and purposes:
“I direct that the sum of twenty-five hundred dollars [$2,500] per annum shaH be paid to, or for 'the support and maintenance of, my son, Matthew F. Murpliy, so long as he lives, in such amounts and at such times, and in such manner, as my executors and trustees shall deem best.
“After the payment of the bequest of income to or for my son Matthew F. Murphy, as above recited, I direct that the remainder of the net income from said trust estate shall he divided by my executors and trustees at such times and in such manner as may be most convenient and practicable for the proper management ®f said trust estate, as follows:
* * * # *
“To my son John A. Murphy, one-sixth [y0] of said net income for and during the term of his natural life, and on his death I direct that his share of said income shall be divided share and share alike among Ms children, or the child or children of any deceased child or children, such child or children of my said deceased child or children of my said son to take his. her or their parent’s share.
“I hereby direct that after the death of my wife and all my children, and after the arrival of my youngest grandchild' — that is to say, the youngest child of any of my children now living, whether or not said grandchild was living at the time of my death — at the age of thirty [SO] years, the principal of said trust estate shall be divided among said grandchildren peí- capita and not per stirpes.”

The following stipulation also appears in the agreed state of facts:

“That in the State of Pennsylvania a decree was entered in the proper court declaring that the clause in the said will of said Michael Murphy, deceased, attempting to dispose of the residue of his said estate, was against the rule of perpetuities, and was declared null and void, and that the said Michael Murphy, as to the residue of his estate, died intestate.”

If the question as to the authority of the complainants to convey were dependent upon the validity of the residuary clause in this will, I should be obliged to hold that the complainants were without power to convej’-, because this clause has, according to the agreed state of facts, been already declared null and void. The law which determines the validity or invalidity of a trust is the law of the testator’s domicile at the time of his death. Hewitt v. Green, 77 N. J. Eq. 345, 362.

The twenty-third clause of the will is also, in part, violative of the rule against perpetuities in this state. Graves v. Graves, 94. N. J. Eq. 268. It is not void in toto, as in the second paragraph of that clause provision is made for the payment of $2,500 per annum to Matthew E. Murphy, son of the testator, during his lifetime. It is conceded by counsel on both sides that this portion of the twenty-third clause is valid and is not affected by the invalidity of the subsequent paragraphs of that clause; and, indeed, that seems to have been the decision of the Pennsylvania court. It would, therefore, appear that the legal title to the lands in question is in the trustees, subject to the trusts, which are valid, and for all lawful purposes. Camden Safe Deposit and Trust Co. v. Guerin, 87 N. J. Eq. 72.

Even if the entire trust fails, the legal title is still in the trustees, who hold for the heirs-at-law and next of kin of the testator. Smith v. Smith, 54 N. J. Eq. 1; Condit v. Reynolds, 66 N. J. Law 242.

But, in my judgment, the issue here presented is not to he decided according to the validity or invalidity of the -residuary clause of the will. The twenty-fourth clause of said will, in part, reads as follows:

“I authorize my executors and trustees hereafter named to; sell or mortgage any real estate of which I may die siezed without liability on the part of the purchaser or purchasers, mortgagee or mortgagees, to see to the application of the purchase or mortgage money.”

By the twenty-fifth clause the complainants are appointed as executors and trustees.

The twenty-fourth and twenty-fifth clauses are entirely separate and distinct from the twenty-third clause, and the invalidity of the twenty-third clause will not affect .the validity of the twenty-fourth clause, which contains the power of sale, or the twenty-fifth clause, which appoints the executors and trustees. McGill v. Trust Co., 94 N. J. Eq. 657; Foulkes Perp. §§ 375, 463; Gray Perp. (3d ed.) §§ 249(e), 449(g); 21 R. C. L. § 57; Westfield Trust Co. v. Beekman, 99 N. J. Eq. 298.

There is, therefore, no doubt in my mind but that, under the twenty-fourth clause of this will the executors and trustees were given complete authority to sell and convey the premises in question.

However, an interesting question, not adverted to in.the briefs of counsel on either side, arises as to whether or not this power of sale has expired by limitation, either express or implied.

Obviously, there is no express limitation; nor would the fact that title to this land descended to the heirs-at-law,.be-; cause of the invalidity of the twenty-third clause of the will, operate as an implied limitation on the power of sale. Foley v. Levine, 95 N. J. Eq. 473. In that case Vice-Chancellor Buchanan said:

“1 take it as undoubtedly the law, therefore, that a power of sale, in trust, without limitation by express words as to the time of its exercise, is in all cases deemed to be limited in that regard by the objects and purposes in aid of which it was given; it is to be deemed that testator intends it to exist no longer than there remains unfulfilled any object or purpose for the furtherance of which it was created.

“On the other hand, it is, of course, equally true that where it is apparent that there remains undone something wdrich the testator intended the trustee should or might do, and in aid of which he intended the power of sale should or might be exercised, the power is still alive and may be validly exercised, except in those cases where t'he only person or persons intended to be benefited by such exercise elect the contrary.”

It Would appear that an executor’s or trustee’s unlimited power of sale is not terminated so long as the duties of the executor or trustee, in aid of which the power was given, remain unperformed or uncompleted, and that the title of the heir is subject to divestment by the exercise of the power of sale. Morse v. Hackensack Savings Bank, 47 N. J. Eq. 279.

An inspection of the will of Michael Murphy discloses a direction for the payment of debts and funeral expenses, and there are no less than ten separate and distinct trusts established by the will, the validity of which is not in any way questioned. There is nothing in the agreed state of facts indicating that the purposes of the will in aid of which the power of sale was given have been accomplished, and it appears that the executors and trustees are still actively engaged in administering the trusts and performing the duties devolving upon them under the will. It would appear beyond question, therefore, that this power of sale still exists.

I, therefore, find that the complainants have complete right and authority to convey, and I will advise a decree accordingly..


text:
    Morris Breitman et al., complainants, v. Henry Jaehnal et al., defendants.
    [Decided February 10th, 1926.]
    1. A tenant in common in possession and enjoyment of a common property occupies a confidential relation to his co-tenants, and because of this relation there is an implied obligation on his part to sustain and protect the title.
    2. A purchaser of real property is chargeable with notice of such facts affecting the title as may be ascertained by reference to the chain of title of such property as spread forth upon the public records.
    3. Where there is a doubtful question of law or fact affecting the title of the vendor of lands, specific performance of a contract for sale of these lands will not be enforced.
    4. Evidence examined, and held that there are enough doubtful questions of law and fact in the title to the lands involved to induce the court to refrain from specifically enforcing the contract of their sale.
    On bill, &c.

      Mr. Benjamin Newman, for the complainants.

      Messrs E. A. & W. A. Schilling, for the defendants.
   Berry, V. C.

This is a bill for specific performance of a contract for the sale of land. The complainants are the vendors and the defendants the vendees. The matter is submitted to me on the pleadings and an agreed state of facts. The defense to this suit is that the complainants are unable to convey a marketable title, and that there is a strong probability that the defendants will be subjecting themselves to litigation if they take title and be obliged at some future time to defend their title against claims of persons not now mi juris, and that claim is based on the facts as they appear in the stipulation. Those facts, so far as it is necessary to detail them here, are as follows:

On August 1st, 1911, Salvatore Dicomo, Guiseppe Russo and Guiseppe Dicomo acquired,- as tenants in common, by deed, a tract of land in Irvington, New Jersey, of which the premises involved in this suit are a part. On January 19th, 1915, these co-tenants, with their wives, joined in a mortgage covering the whole tract. Guiseppe Dicomo, one of the co-tenants, died on December 33d, 1917', intestate, leaving him surviving his wife and three children, all of which children were and still are minors. The mortgage became due after the death of Guiseppe Dicomo-, and demand for payment was made by the mortgagee upon all parties in interest. Payment being refused, foreclosure proceedings were instituted which resulted in a sale of the premises, and at that sale Salvatore Dicomo, one of the co-tenants, became the purchaser. Immediately after receiving the sheriff’s deed, Salvatore Dicomo conveyed an undivided one-fourth interest in the property so purchased, to Guiseppe Russo, one of the original co-tenants. In 1933 Russo reconveyed this interest to Salvatore Dicomo. The widow and infant children of Guiseppe Dicomo were made parties defendant to the foreclosure suit, a guardian at litem was appointed for the infant children, and due appearance and answer was entered and filed by the guardian. At the foreclosure sale the property sold for $6,000, the then reasonable value of the lands, and the sale also produced a surplus which was deposited with the clerk of this court, and which was thereafter distributed amongst the parties entitled thereto, including the widow and the guardian of the infant heirs-at-law of Guiseppe Dicomo.

The deeds and mortgage hereinabove referred to were all duly recorded and all the facts above recited are matters of public record. In January, 1934, Salvatore Dicomo- conveyed a portion of the property which he purchased at the foreclosure sale to the complainant Morris Breitman, and Breitman in turn conveyed a half interest in those premises to Nathan Turkel, the other complainant. The premises which are the subject of this suit are a portion of the lands conveyed by Salvatore Dicomo to Breitman, in January, 1934. Since the date of this conveyance the complainants have erected three large buildings on the premises purchased by them, and one of those buildings is located on the lands which the complainants agreed to convey to the defendants.

Breitman and Turkel are Iona, fide purchasers for a valuable consideration without notice of any outstanding equities or trust interests except such as may be inferred from the records. The complainants are ready and willing to perform but the defendants have declined to accept a conveyance, alleging that the complainants have not a marketable title.

The first question here presented is whether or not Salvator Dicomo acquired absolute title to the premises of which he became the purchaser at the foreclosure sale, or whether or not that property was, upon such purchase, impressed with a trust in favor of the other co-tenants. This is, to my mind, a mixed question of law and fact, and no one not a party to this suit is bound by the stipulated facts. Second, if so impressed, whether or not the complainants took title' to the premises, the subject of this suit, with notice of that trust, and third, whether under all the circumstances the title is unmarketable.

1.

The general rule in this country is that “a tenant in common in possession and enjoyment of a common property occupies a confidential relation to his co-tenants, and because of this relation there is an implied obligation on his part to sustain and protect the common title. Therefore, if a co-tenant in possession of common property purchases that property, either directly or indirectly, at a sale under foreclosure or a mortgage or deed of trust, the purchase will be deemed to have been made for the benefit of all of the co-tenants; provided, however, the other co-tenants elect within a reasonable time so to consider the purchase and offer to contribute their respective proportions of the purchase price. 7 R. C. L. 857 § 51 et seq.; 19 L. R. A. (N. S.) 591 note; 7 Am. L. Rep. 297, and cases cited; 38 Cyc. 40; 1 Washb. Real Prop. 430 ch. 13 § 14.

' That this general rule, in principle, obtains in New Jersey is shown by Weller v. Rolason, 17 N. J. Eq. 13, where it was held that “where two or more persons having an interest in lands claim under an imperfect title-, and one of them buys in the outstanding title, such purchase will inure to the common benefit upon contribution made to repay the purchase-money.” See, also, United New Jersey Railroad and Canal Co. v. Consolidated Fruit Jar Co., 55 Atl. Rep. 46; Ennis v. Hutchinson, 30 N. J. Eq. 110; Roll v. Everett, 73 N. J. Eq. 697.

In the case of Ennis v. Hutchinson the principle was applied to the purchase at a judicial sale by one co-tenant of the interest of the other co-tenants in a boat; and in Roll v. Everett the principle was applied to the purchase of a tax title to common property by one of the co-tenants. I have found no reported case in New Jersey where the rights of infant co-tenants in the common lands purchased by an adult co-tenant at foreclosure sale, under the circumstances of this case, have been determined. Counsel for complainants has directed my attention to the unreported case of Abram-son v. Abramson (docket 55, page 199), in which he claims that this question was there decided in this court adversely to these defendants. I understand that ease was tried on its merits and the bill was dismissed. Biut what moved the court to that action is purely a matter of conjecture, as no opinion was filed, and, therefore, I do not feel that it' is dispositive of the issue here. Nor do I deem it either necessary or proper for me to here attempt to determine whether or not the infant heirs of Guiseppe Dicomo have any interest in the lands here involved, because any conclusion to which I might arrive with respect to that question would not be binding upon them nor would it be binding upon Salvatore Dicomo, the purchaser at the foreclosure sale, because none of these persons are parties to this suit and their r-ights ought not to be prejvidiced by my pronouncement here; and second, because it is not necessary that I determine definitely that there is air outstanding interest in these infant heirs, or the extent of that interest, if it exists, in order to sustain the defense here, but only that there is a “doubtful question of law or fact affecting the title.” I have-referred to the foregoing rule and cited authorities to show its general application, and that the principle therein involved obtains in this state, merely for the purpose of indicating that there is a strong probability that the defendants, if they accepted the title which the complainants offer, would be subjecting themselves to serious litigation.

2.

Assuming, but not deciding, that the premises purchased by Salvatore Dicomo became immediately impressed with a trust in favor of his other co-tenants, it seems to me clear that the complainants acquired title with full notice of whatever outstanding equities or trusts this property was charged with as a result of the circumstances above detailed. A purchaser of real property is chargeable with notice of such facts affecting the title as may be ascertained by reference to the chain of title of such property as spread forth upon the public records. Den v. McKnight, 11 N. J. Law 385 (at p. 393); Mitchell v. D'Olier, 68 N. J. Law 375; Bock v. Koch, 99 N. J. Eq. 184.

As all of the facts upon which the infant heirs of Guiseppe Dicomo might base their claim to an interest in this property are matters of record, the complainants’ title is subject to whatever claim these infants have (7 R. G. L. 868 § 55), and as they are still infants, such claim as they do have is not barred by their failure to press their claim up to this time.

The next question to be considered is whether or not the situation existing here renders the title to the premises in question unmarketable, and, therefore, justifies the defendants in refusing to perform.

It has been uniformly held in this state that a court will ¡never compel a purchaser to take a title unless it be one which puts the purchaser in all reasonable security that no flaw- or doubt will come up to disturb its marketable title, provided that the doubt be real and not'fanciful. Barger v. Gery, 64 N. J. Eq. 263; Methodist Episcopal Church v. Roberson, 68 N. J. Eq. 433; Potter v. Ogden, 68 N. J. Eq. 412; Zelman v. Kaufherr, 76 N. J. Eq. 52; Deseumeur v. Rondel, 76 N. J. Eq. 402; Kohlrepp v. Ram, 79 N. J. Eq. 386; Gosman v. Pfistner, 80 N. J. Eq. 432.

In Gosman v. Pfistner, supra, which was a suit for- specific performance where the record title to land showed! a conveyance by the trustee to a third person and a reconveyance to-the - trustee individually, the court refused to compel the-purchaser to take the title. In that case Vice-Chancellor Howell,- referring to the ease of Tillotson v. Gesner, 33 N. J. Eq. 313, said:

. “That was a case for specific performance in which it appeared that there was a conveyance of land voluntary on its. face made by the defendant in a suit just before a judgment for a large sum was rendered against him, which would have been a lien on the land if such conveyance had not been made. Specific performance of the agreement was not enforced upon the ground that there was apparent upon the Tace of the papers a situation which might subject the purchaser to litigation and make the title doubtful, and that if the title to land be doubtful, equity will not compel the defendant to take it and so expose himself to the hazard of litigation. Upon this theory courts of equity have frequently declined to compel a purchaser to accept title which, though questionable, the court believed to be good. * * * I am therefore driven to the conclusion that the record title contains a notice to any purchaser that the title to the land in question might become subject to litigation to which he could be made a party on the ground of notice.”

There is here presented, at least, “a doubtful question of law or fact affecting the title of the vendor,” and it seems to me all too plain that if the defendants were obliged to accept the title to these premises, under the circumstances, they would very likely be purchasing a law suit, and it is not necessary fox me to forecast the result of that law suit in order to dispose of the question of specific performance here.

Eor the reasons above stated, I am of the opinion that the defendants ought not to be compelled to perform, and I will therefore advise a decree dismissing the bill.


text:
    Simon Schneider, complainant, v. Annie M. Crawford, defendant.
    [Decided January 29th, 1926.]
    Specific performance will not be decreed of a contract for the sale of land, where the writing sued upon is on its face preliminary and not final, and it appears that there are terms left open for negotiation and agreement.
    On bill, &c. On motion to strike out bill of complaint.

      Mr. Joseph Silverstein, for the complainant.

      Messrs. Durand, Ivins & Garton, for the defendant.
   Berry, V. C.

The bill is filed for the specific performance of an alleged contract of sale of land. The defendant moves to strike out the bill of complaint for lack of equity, claiming that the alleged agreement was incomplete, that no legal contract ever existed between the parties and that the alleged contract is, on its face, preliminary and not final.

The alleged agreement on which suit is brought is in the followdng form:

“Received from Simon Schneider, cheek for five hundred dollars as part of the purchase price of my property known as the Crawford House, No. 600 and 002, Grand avenue, northeast corner of Grand avenue and Munroe avenue, Ashury Park, iN. J. The purchase price thereof being the sum of twenty-nine thousand dollars, and I, Annie M. Crawford, am to have the money obtained through the rental of said property for the season of 1925. Said Simon Schneider to take title to said property on or about October 1st, 1925, and to pay to me on that date the sum of five thousand five hundred dollars [making a total of six thousand dollars!, I to take back second mortgage for balance due. * * * The said mortgage to run for three years, and said Simon Schneider to have privilege of paying said mortgage in full at any interest-paying period. All furniture, linen, dishes, &c., included.
Regular agreement of this sale to be drawn and signed by both parties hereto at any time before October 1, 1925.
Dated April 11th, 1925.
'[Signed,] Annie M. Crawford.
Witness:
T. A. Fury.”

This case is governed by the cases of Bettcher v. Knapp, 94. N. J. Eq. 433; Kuskin v. Guttman, 99 N. J. Eq. 754, and Tansey v. Suckoneck, 98 N. J. Eq. 669. It will be noted that the alleged contract herein provides that “regular agreement of this sale to be drawn and signed by both-parties hereto at any time before October 1st, 1925.” From this it would clearly appear that the parties did not intend that they should be bound until the formal contract which was here termed the “regular agreement” should be executed.

There are a number of particulars in respect to which the defendant claims that the alleged contract is deficient. It is necessary to mention but one. The writing provides, “I to take back second mortgage for balance due.” There is nothing in this writing to indicate the amount of the first mortgage, its term, rate of interest, or whether it would be executed at settlement, or whether it was of record at the time of this writing. Complainant claims in his brief that “the second mortgage would be the difference between $23,000 and the first mortgage, now a lien, pursuant to the record.” certainly there is nothing in this writing to indicate that that was the intention of the parties. The amount of the second mortgage would be dependent upon the amount of the first mortgage if the second mortgage was to represent the balance due, whatever that may be.

It seems to me perfectly apparent that the minds of the parties had never met on a final and complete contract, and that it was not intended that the parties should be bound until the formal contract was entered into.

The motion is therefore granted.


text:
    Lester C. Lovett and John P. Lovett, complainants v. Montague Lessler et al., defendants.
    [Submitted January 18th, 1926.
    Decided January 30th, 1926.]
    Interest accrued on a bond and mortgage is not barred by the statute of limitations until the principal debt is barred, unless and until the interest obligation has been separated from the bond and mortgage.
    On bill to foreclose. On exceptions to master’s report.

      Mr. Aaron A. Melniker, for the exceptant.

      Messrs. Wilson & Smock, contra.

   Berry, V. C.

The only question here presented is whether the complainant is entitled to recover interest on his mortgage which accrued more than six years prior to the commencement of this suit. The question is raised by the defendant Denis Maloney, a subsequent encumbrancer, the payment of whose claim depends upon whether or not interest accruing more than six years before commencement of the suit is allowed. The master reported the full amount of the principal of the mortgage, together with interest from its date in 1911, due the complainant. This interest, at five per cent., the rate specified in the mortgage, would amount to, approximate^, $2,900. If the defendant’s contention is correct, the amount of interest collectible would amount to, approximately, $1,200; the difference is about equal to the amount of the exceptant’s lien.

The exceptant claims that where interest is payable annually, so much of the interest as accrued more than the statutory period before the action was brought is barred, notwithstanding the principal debt may not be barred, citing 33 Corp. Jur. 257; May v. Ball, 108 Ky. 180; Dear-born v. Parks, 5 Me. 81; Heburn v. Reynolds, 132 N. Y. Supp. 460; Quackenbush v. Mapes, 105 N. Y. Supp. 654. He also claims that the New Jersey decisions, in which it has been held that unpaid coupons detached from the bonds which they accompanied are barred in six years by the statute, are, by analogy, authority for this same proposition.

I cannot agree with the exceptant in this contention. Whatever may be the rule in other jurisdictions, the rule in this state is that interest is not barred until the principal debt is barred. There is an exception to this rule in the case of bonds to which interest coupons are attached, and it has been held in a number of cases in this state that such coupons, when detached, form a separate and distinct obligation from the bond to which they were formerly attached; that when detached they do not partake of the nature of the bond; that they are merely promises to pay, not under seal, and that they are therefore barred in six years; but these cases have no application to a mortgage or other sealed instrument bearing interest, but to which interest coupons were not attached. Detached interest coupons,'which have been held barred by the statute of limitations, in six years are payable to bearer and pass by delivery. On the other hand, interest accruing on a bond and mortgage, so long as not separated from the principal debt by the substitution of notes, assignment or otherwise, is as much a part of the principal debt as the principal itself. It is therefore not barred so long as the principal debt secured by the mortgage is not barred.

That this is so is conclusively shown by Colton v. Depew, 60 N. J. Eq. 454, and Chancellor v. Seiberlich, 75 N. J. Eq. 501. In the first ease, foreclosure was sought of a mortgage for $17,000 on which no payment of interest had been made from December 22d, 1876, to December 18th, 1896, the date the bill was filed. Interest was allowed for the full period. In Chancellor v. Seiberlich the mortgage, which was the subject of foreclosure, was for $5,392.70, on which there had never been any payment of interest. The mortgage was dated May 12th, 1882; the case was decided April 21, 1909; interest amounting to $9,300 was allowed for this whole period, nearly twenty-seven years. The statute of limitations was interposed as a defense in both suits.

Examples of the rule respecting detached coupons are Mack v. American Telephone Co., 79 N. J. Law 109; Fidelity Insurance Co. v. Wilkes-Barre Railroad, 98 N. J. Law 507; Dickerson v. Wilkes-Barre Railroad Co., 124 Atl. Rep. 512. All of these cases are based on the idea that the detached coupon forms a separate and distinct negotiable obligation, and is free from all conditions and limitations contained in the bond itself.

The exceptions are therefore overruled.


text:
    Albert Hollander, complainant, v. Anna Ruskin Abrams, also known as Anna Ruskins, defendant.
    [Decided February 4th, 1926.]
    1. A married woman is estopped in equity to interpose the defense of coverture in a suit for specific performance of her contract for the sale of her lands, where, at the time of the execution and acknowledgment of that contract, she falsely represented herself to be a widow and accepted a part of the purchase price, the vendee relying on such false representation.
    2. A married woman’s contract for the sale of land, unenforceable at its date because not joined in by her husband, is enforceable in equity if at the time fixed for performance she has become dis-covert by death or divorce.
    3. Section 8-p of the Married Women’s act (8 Gomp. Stat. p. 8283) empowers a married woman living in a state of separation from her husband to convey land of the character described in the act without joinder of her husband, but she cannot by such conveyance affect his interest in -that land. Her contract for the sale of such land, made while living in such state of separation, is enforceable in equity as to her interest although that contract was not joined in by her husband.
    On bill for specific performance. On motion to strike out answer and to enter decree.

      Messrs. Leber & BubacJc, for the complainant.

      Mr. Millón M. TJnger, for the defendant.
   Berry, V. C.

This is a bill for specific performance of an agreement for the sale of land. The complainant is the vendee and the defendant the vendor. The sole defense to the bill is that the defendant, at the date of the contract, was a married woman, and that the contract was executed and acknowledged by her alone, without the joinder of her husband. The matter comes before me on motion to strike out the answer and enter decree. While the answer admits most of the facts set out in the. bill of complaint, the solicitors of the respective parties have filed a stipulation containing an agreed state of facts for the purposes of this motion. Erom this stiprüation it appears that on May 22d, 1925, the defendant, under the name of Anna Ruskin, executed and acknowledged the written agreement which is the subject of this suit, and that at that time she represented herself to be a widow, and was so described in the agreement of sale. The contract was duly executed by the complainant, and he thereupon paid the sum of $500 on account of the purchase price and in accordance with' the terms of the agreement. The time fixed, for closing was July 1st, 1925, but owing to the absence of the defendant at that time settlement was postponed, by mutual agreement, until August 5th, 1925. On August 4th, 1925, there was submitted to the attorney of the complainant, for his approval, a deed for the property, the subject of the sale, which deed was executed and acknowledged by the defendant under the name of Anna Ruskin Abrams, and also by one Abraham Abrams, who was described in the deed as the husband of the defendant. This deed was approved by the complainant’s attorney and returned to the attorney of the defendant. On the following morning the parties, with their attorneys, met for the purpose of settlement. The complainant tendered the balance of the purchase price, but the defendant declined to receive it, and instructed her attorney not to deliver the deed and refused to perform the agreement, claiming that she was not obliged to do so, because at the time of making the contract she was a married woman, and the contract was not joined in by her husband. Neither the complainant nor his attorney knew the defendant had a living husband until the submission of the deed for approval as above mentioned, the complainant relying on the defendant’s representation that she was a widow. The property which is the subject of the agreement was acquired by the defendant by deed prior to her marriage to Abraham Abrams. At the time of the execution of the agreement she was living in a state of separation from her husband, and divorce proceedings were then pending between them and a final decree, dissolving the bonds of matrimony, was entered in that suit on July 7th, 1925. No issue was ever born of the marriage.

This motion is based upon the following grounds as stated by the solicitor of complainant:

1. The defendant is estopped in equity because of her fraud from setting up the defense of coverture.

2. The disability of coverture having been removed before the time fixed for performance, the contract is enforceable against the defendant as a feme sole.

3. That a sufficient concurrence by the defendant’s husband in her said agreement is evidenced and manifested by the deed of conveyance executed by him, together with the defendant, which deed af conveyance the defendant, after its due execution, refused to deliver to complainant.

4. There was no necessity for the husband’s concurrence in the agreement in question, because section 8-p of the Married "Women’s act qualifies and enables a married woman, circumstanced as was the defendant at the time of the making of the contract, to convey without the concurrence of her husband.

The defendant counters with the following propositions:

1. The doctrine of estoppel is inapplicable and cannot be invoked in this ease.

2. Although the divorce from her husband may have operated to make the defendant a feme sole as to contracts made subsequent to the divorce decree, nevertheless, contracts made prior to the dissolution of the marriage ties, being invalid and unenforceable at that time, carry that “taint” with them thereafter, and, consequently, are unenforceable.

3. It is elementary that a deed, even though duly executed with all due form and solemnity, is a nonentity unless its execution is attended by delivery.

4. In view of the foregoing, section 8-p of the Married Women’s act has no application.

I will consider these opposing propositions in their order—

1.

The first question which arises is as to the application-of the doctrine of equitable estoppel under the circumstances of this case. The general rule of equitable estoppel as applied to married women is stated by Professor Pomeroy in his work on 2 Pom. Eq. Jur. (4th ed.) 814, thus:

“Upon the question how far the doctrine -of equitable estoppel by conduct applies to married women, there is some conflict among the decisions. The tendency of modern authority, however, is strongly towards the enforcement of the estoppel against married women' as against persons sni jwris, with little or no limitation on account of their disability. This is plainly -so in states where the legislation has freed their property from all interest or control of their husbands, and has clothed them with partial or complete capacity to deal with it as though they were single. Even independently of this legislation there is a decided preponderance of authority sustaining the estoppel against her, either when she is attempting to enforce an alleged right or to maintain a defense.”

That the doctrine of estoppel is applicable to married women in New Jersey, both at law and in equity, is shown by the following cases: Brinkerhoff v. Brinkerhoff, 23 N. J. Eq. 477; Besson v. Eveland, 26 N. J. Eq. 468; National Bank v. Hamilton, 34 N. J. Eq. 158; Francis v. Lawrence, 48 N. J. Eq. 508; Ruckelschaus v. Oehme, 48 N. J. Eq. 436; Hamlen’s Administrator v. Bennett, 52 N. J. Eq. 70; Ruckelschaus v. Borcherling, 54 N. J. Eq. 344; affirmed, 55 N. J. Eq. 589; Wheeler & Wilson Manufacturing Co. v. Lit-win, 57 N. J. Eq. 660; Mertens v. Schlemme, 68 N. J. Eq. 544; Mayer v. Kane, 69 N. J. Eq. 733; Neslor v. Grove, 90 N. J. Eq. 554; National Bank v. Rutter, 91 N. J. Law 424; affirmed, 92 N. J. Law 621.

It is contended by the defendant, however, that the doctrine of estoppel is not here applicable, and he cites as authority for this contention the case of Belmar Bank v. Shumard, 91 N. J. Law 379; but that case, whatever may be its authority at law, is not, in my judgment, authority for the proposition that a married woman may not be estopped in equity. In that case, which was a suit at law on a promissory note, it was held that a married woman was not liable as an accommodation endorser, and that she' was not estopped from setting up coverture as a defense by her representation made at the time of the endorsement that she was then a widow; but that was an action at law, and the weight of this decision is now questioned by counsel for complainant in view of the later case of La Rosa v. Nichols, 92 N. J. Law 375.

In the Shumard Case Mr. Justice Swayze said: “The case of a married woman is like the case of an infant, except in so far as her incapacity has been removed,” and then refers to the case of Parker v. Hayes, 39 N. J. Eq. 469; 41 N. J. Eq. 630, for a statement of the rule of application of the doctrine of estoppel to infants. In this' latter case Vice-Chancellor Van Eleefsaid (at p. 1¡.78) :

“It is no answer at law to the fact of infancy that the person dealing with the infant was induced to do so by the infant’s fraudulent representation that he was of full age. * * * The rule in equity, however, is different. In equity, in the language of Lord King, infants have no privilege to cheat men. If an infant obtains property by fraudulently representing himself to be of full age, equity will compel him either to pay for the property or to surrender it.

“The justice of this rule is manifest. At law an infant is incompetent to make a valid contract except in certain exceptional instances. He may be" old enough, and cunning enough, to contrive and carry out a fraud, yet, if he does, the law is powerless to give redress. The law cannot prevent him from using the shield which was intended simply as a protection, as a cover for his own cheating. Equity, to correct this wrong,- steps in and declares that when an infant induces another to deal with him by fraudulently representing himself to be of full age, that, to the extent that the contract is just and fair to him, and also to the extent to which it is necessary to hold him to it to prevent him from reaping the fruits of his fraud, he shall be compelled to abide by it.”

On appeal, the court of errors and appeals approved this statement of the equitable rule of estoppel.

In La Rosa v. Nichols, 92 N. J. Law 375, the court of errors and appeals held, however, that the doctrine of estoppel was applicable at law to an infant who had represented himself to be of full age and had thereby obtained credit. Chancellor Walker, who wrote the opinion, said: “If this suit were in the court of chancery a plea of infancy in the circumstances of this case would not be tolerated.”

If the common law disability of a married woman is like the common law disability of an infant, as was said in the Shumard Case, and as was said also in the later ease of Bank v. Rutter, 92 N. J. Law 621, and if the defense of infancy would not have been tolerated in equity in the La Rosa Case, then the defense of coverture ought not to be tolerated here. The case of Bank v. Rutter, 91 N. J. Law 424, and on appeal affirmed in 92 N. J. Law 621, is not opposed to complainant’s contention here. The Rutter Case was a suit against a married woman who was an accommodation maker of a note to the order of her brother. After the words “value received,” on the note, the words “for my own use and benefit” were written. As a matter of fact, the married woman obtained no benefit whatever from this note, and the jury found as a fact that the statement that the note was for her own use and benefit was known by the bank officials to be untrue. This representation, therefore, did not deceive the bank, -and, of course, under those circumstances, there could be no estoppel.

The case of Corby v. Drew, 55 N. J. Eq. 387, is mainly relied upon by counsel for the defendant in support of his contention that this contract is unenforceable. Numerous other cases are cited by counsel for defendant to show that the rule of Corby v. Drew is still the law, and among them the following: Goldstein v. Curtis, 63 N. J. Eq. 454, Schwarz v. Regan, 64 N. J. Eq. 139; Ten Eyck v. Saville, 64 N. J. Eq. 611; Moore v. Baker, 65 N. J. Eq. 104; Wolff v. Meyer, 75 N. J. Law 181; Schickhaus v. Sanford, 83 N. J. Eq. 454; Chassman v. Wiese, 90 N. J. Eq. 108; Patter son v. Loiseaux Lumber Co., 92 N. J. Eq. 569; Kotok v. Rossi, 94 N. J. Eq. 327; Kolinsky v. Pilz, 94 N. J. Eq. 796; Chianese v. Cachiai, 3 N. J. Mis. R. 1229.

Corby v. Drew held that equity would not specifically enforce a married woman’s contract to convey her lands without reference to whether or not her- husband joined therein. In that case Vice-Chancellor Stevens said: “But if she cannot convey without the concurrence of her husband, it would seem, to follow that she cannot agree to convey without that concurrence.”

This language is seized upon by counsel for the defendant in support of his contention that the defendant’s contract is unenforceable. In the previous case of Union Brick and Tile Co. v. Lorillard, 45 N. J. Eq. 289, the question of the capacity of a married woman to contract without the joinder of her husband was also left undecided. Both of these cases, however, were decided prior to the revision of the Conveyancing act of 1898. Also the case of Moore v. Baker, although decided after the revision, had under consideration a contract made prior to that revision. None of these cases are wholly applicable to the case at bar.

The first case involving a contract of a married woman to convey lands after the revision was Goldstein v. Curtis, supra. In that case Vice-Chancellor Pitney held that a married woman’s contract for the sale of land which was duly acknowledged and joined in by her husband was enforceable in equity. That case is not opposed to complainant’s contention in the case at bar.

Wolff v. Mayer was a suit against a married woman for damages for breach of her contract to convey land. Her husband did not join in the contract nor was it acknowledged by her. Mr. Justice Swayze, speaking for the supreme court, said: “It was suggested, but not decided, in Corby v. Drew, that if a married woman could not convey without the concurrence of her husband, she could not agree to convey without that concurrence. The impossibility of performance of a contract to convey made by a married woman alone is, however, not, strictly speaking, an impossibility in law such as would make the contract void. It is an impossibility which may or may not arise, and is dependent on the will of her husband. One authorized to contract may make a valid contract although the possibility of performing depends upon the will of another.”

The defendant was held liable in damages. Goldstein v. Curtis and Wolff v. Mayer show that the authority of Corby v. Drew is somewhat modified.

But the possibility of performance of the contract here does not depend upon the will of another. It is dependent upon the defendant alone. If a married woman’s unacknowledged contract is valid at law, as was held in Wolff v. Mayer, a fortiori is her acknowledged contract good in equity? .

The cases of Schwartz v. Regan and Chianese v. Wiese have no application here, as the only point involved in those cases was the lack of an acknowledgment to the contract of sale. Schiclchaus v. Sanford is not applicable because there the question was as to the validity of certain building restrictions. Whatever was said by Vice-Chancellor Emery in that case in reference to specific performance of married women’s contracts requiring conveyances of lands in consummation thereof, was dictum. In Kotok v. Rossi the question there before the court was as to the effect of a married woman’s unacknowledged power of attorney as a conveyance. It was very properly held that, the power of attorney being unacknowledged, the contract signed and acknowledged by the agent, pursuant to that power, was unenforceable. The “river could rise no higher than its source.” In Kolinsky v. Pilz the lease which was construed to be a contract of sale was not acknowledged by the defendant married Woman separate and apart from her husband, as required by law at its date, and this was held to preclude specific performance. In Ten Eyck v. Saville, as in Schwarz v. Regan and Chassman v. Wiese, one of the points involved was that the contract was not' acknowledged by the married woman, and it was on that account held unenforceable. In Chianese v. Cachia, 3 N. J. Mis. R. 1229, cited by counsel for defendant to show that Corby v. Drew is still the law, the court found as a fact that the husband was dead when the contract was executed by the defendant who set up coverture as a defense. In none of these cases did the question of estoppel arise. In Patterson v. Loiseaux Lumber Company the estoppel claimed was based upon complainant's letter, but the letter'itself was induced by a misrepresentation of the defendant, and the court held that the complainant, a married woman, was not estopped by her letter because of that misrepresentation. But there was no suggestion in that case that the doctrine of estoppel was not applicable to a married woman in a proper case.

There is ample authority in other jurisdictions supporting the application of the doctrine of estoppel to a married woman in cases similar to this case, and supporting the text from Pomeroy, above quoted. See Roberson v. Goldsmith, 57 So. Rep. 908; Keller v. Lindow, 133 S. W. Rep. 304; Townsend v. Woodworth, 169 N. W. Rep. 752; Overcast v. Lawrence (Ky.), 131 S. W. Rep. 1029; Bigelow v. Foss, 59 Me. 162; Engholm v. Ekrem (N. D.), 119 N. W. Rep. 85; Galbraith v. Lunsford, (Tenn.), 1 L. R. A. 522; Stafford v. Stafford, 58 Eng. Ch. 150 (44 Reprint 697); Mathews v. Murchison, 17 Fed. Rep. 760; Graham v. Meneilly, 16 Grant U. C. Ch. 661.

In McCoy v. Niblick (Pa.), 77 Atl. Rep. 551; 30 L. R. A. (N. S.) 353, it was held that a married woman whose husband does not refuse to join in a deed of her real estate cannot avoid her contract to make the sale on the theory that he has not joined, where the statute gives her the same right to sell her real estate as though she were sole, except that her husband must join in the deed. That was a suit in ejectment. It appeared that the husband had not joined in the contract of sale. The married woman vendor refused to perform, alleging coverture and non-joinder of the husband as an excuse. It appeared that the husband had not refused to join in the conveyance and had not even been asked to join. The court held that the wife was bound to affirmatively show a refusal by her husband to. join in the conveyance. This she was unable to do, but on the contrary the husband testified that he was willing to join, in the conveyance. The court held that it was no more her privilege to refuse to perform than if she had been a single woman. The court said:

“When a married woman cannot perform her contract for the sale of her real estate the law will not make her, but when she simply will not, it will not help her to escape her covenant. When she cannot carry out an honest contract to sell she is not morally felamable, and the law will exact nothing more from her than compensation to her vendee for any loss he may have sustained in reliance upon the contract; but when she capriciously will not perform, she becomes not only persona non grata in foro conscientice, but a plaintiff without cause of action in a suit at law in repudiation of her contract.”

The restriction on conveyances by married women is much the same under the Pennsylvania and Few Jersey statutes, so that the language of the court in the case last cited is quite applicable here. A married woman’s contract being enforceable only at the will of the husband, as was said in Wolff v. Mayer, supra, she cannot substitute her will for his. While the husband may refuse to join in the deed for any reason or no reason at all, she has no right to refuse because of mere whim or caprice. The law excuses her if she cannot perform because of her husband’s refusal, but it does not excuse her merely because she will not perform. One who can but will not ought to be made to perform. That is the situai tion here.

In order to determine just what are the rights of a married woman with respect to contracts and conveyances affecting her separate estate, as applied to the instant case, it is necessary to consider sections 5 and Í4 of the Married Women’s act (3 Comp. Stat. pp. 3226, 3237), together with sections 21 and 39 of the act respecting conveyances. 1 Gum. Supp. Comp. Stat. pp. 627, 632. Section 5 of the Married Women’s act fully and completely empowers a married woman to bind herself by contract to the same extent as though she were unmarried, with certain specified exceptions, and such, contracts are made enforceable both at law and in equity.. The only restriction on this poAver with which we are here; concerned is that contained in section 14 of the Married Women’s act, which prevents an actual conveyance of her land without the joinder of her husband, except in certain specified instances. Section 39 of the act respecting conveyances provides that “every deed or instrument of the nature or. description set forth in the twenty-first section of this act,” executed and acknowledged by a married woman, “shall be good and effectual, to convey or affect” her lands. Agreements of sale are specifically included in the list of instruments mentioned in section 21 of that act. In Goldstein v. Curtis, supra, Vice-Chancellor Pitney (at p. 461), said:

“A familiar way to 'affect’ the interest of a person in land is to contract to convey it; and the only mode in which.such a contract can be made 'good and effectual’ is to compel its. specific performance by a decree of this court.”

It appear?, therefore, that a married woman is as free to contract with respect to lands of her separate estate as a feme .sole, except for the restriction that she cannot convey. or encumber her lands without the joinder of her husband. The purpose of this restriction, as contained in section 14 of the Married Women’s act, was to protect her husband in his rights in his wife’s property; to prevent her from conveying or encumbering his rights as a tenant by the courtesy without his consent. Lorillard v. Union Brick and Tile Manufacturing Co., 44 N. J. Eq. 5.

In Wolff v. Meyer, 75 N. J. Law 181, Mr. Justice Swayze said: “An agreement to convey is obviously not a conveyance,” and in Sullivan v. Barry, 46 N. J. Law 1, Chief-Justice Beasley held that the word “encumber,” as used in section 14 of the Married Women’s act, was used in its ordinary and not its technical sense, and that agreements to convey were not encumbrances within the meaning of the word. In Kotok v. Rossi, 94. N. J. Eq. 327, Vice-Chancellor Buchanan said that a contract for the sale of lands is. an equitable conveyance, and if invalid as a conveyance is unenforceable as a contract; but that language was intended to apply only to the state of facts which was then before the court, and so far as it is applied to any other state of facts it is dictum.

But it is insisted by counsel for defendant that a married woman occupies a status sui generis, and that the law throws around her a “cloak of protection” which protects her from the “outside world” and prevents her from making a contract or conveyance affecting her lands without the joinder of her husband. In so far as this contention assumes that the common law disabilities of the married woman were designed for her protection I am unable to subscribe to it. My notion of the reason for the common law disabilities of the married woman is not that she required greater protection of the law than a feme sole. These disabilities were not a “cloak of protection from the outside world.” The disability provisions of the common law had two objects — fir si, to protect the husband in his rights acquired by the marriage, and second, to protect the wife from undue influence of her husband. 1 Bl. (Lewis’ ed.) 44% note 75. At common law the effect of marriage was to merge the existence of the wife into the legal life of -the husband, so that with respect to property and civil rights, she, as a separate person, had no recognition. Perkins v. Elliott, 23 N. J. Eq. 526.

Upon marriage the husband became vested with such an interest in his wife’s property, real and personal, that it was subject to his debts, and he had the power of disposal. Bristol v. Skerry, 64 N. J. Eq. 624. As a result of this rigorous rule there was built up the equitable doctrine of the wife’s “separate estate” for her protection. It had its beginning as early as the seventeenth century, but as late as 1722 some of the English judges denied the right of a married woman to have a separate estate. Powell v. Hankey, 2 P. W. 82 (Old English). All the modern enabling acts enlarging the rights and powers of married women are the outgrowth of this equitable doctrine. The “cloak” which the law has thrown around the married woman was, therefore, never for her protection from the “outside world.” Its paramount purpose was the protection of the husband. The “cloak” of present-day law is enabling, not restrictive. The requirement of joinder of the husband in the wife’s conveyance is but a survival of that ancient common law which vested in him all his wife’s property and subjected it to the payment of his debts. Her right now to contract with respect to her separate estate and her right to convey are merely extensions of the equitable doctrine of the wife’s separate estate, which was originally built up for her benefit. This equitable doctrine has been enlarged and extended by both courts and legislative bodies to the point where, since the adoption of the nineteenth amendment to the federal constitution, practically all of the disabilities of women, both married and single, have been removed, so that to-day she has practically all the rights and privileges of the male citizen. Cl There is now, therefore, no real reason for any different application of the rule of estoppel to a married woman than to a feme sole, or to the male citizen. It is neither right nor just that, having come into the possession of all these rights and privileges, she should cling to them with one hand while retaining with the other some part of those ancient common law disabilities as a cloak for her fraud. Modern woman, generally speaking, needs no protection at law which is not afforded to man. The idea that woman is man’s inferior in business, professional or political life, has long since been thrown into the discard. She has been placed on a plane of practical equality with man, and in most, if not all, fields of endeavor to which she has applied herself, has proven herself man’s equal. Why then should she need a “cloak of protection ?” She has, of course, retained her individuality in her intrinsic womanhood, and in this respect does now, and always will, occupy a loftier plane than mere man, and laws designed to protect her in this respect are, of course, an exception to chis rale of necessity. But while the law protects her, it gives her no license to commit fraud. If, therefore, she has equal rights with man, she should assume equal responsibilities. Why should not the wife’s contract, not joined in by the husband, stand in the same position as the husband’s contract not joined in by the wife? There is, in principle, no reason. The requirement of joinder in both cases is a survival of an archaic law. In a .proper case the husband’s contract will be enforced with an abatement on account of the wife’s dower, as where he procured her dissent by fraud. South Jersey Furniture Co. v. Dorsey, 95 N. J. Eq. 530; Luczak v. Mariove, 92 N. J. Eq. 377. In my judgment, the modern Married Women’s law, as reflected in our statutes governing married women’s contracts, does not have the effect claimed for it by counsel for the defendant. I see no reason why the rule of estoppel should not be applied to the defendant under the circumstances of this case. If it be said that this decision marks a departure from established rules and precedents, that this is, in effect, an enlargement of the rights and powers of a feme covert over her separate estate, my answer is that, while not admitting such departure or enlargement, changing conditions in the world of business from time to time, require modifications in the rules of law and equity previously promulgated to meet different circumstances, and for this proposition I have no less authority than Chief-Justice Beasley, speaking for the court of errors and appeals in Perkins v. Elliott, supra, where he said:

“My examination has satisfied me that this entire subject, with respect to the power of the feme covert over her separate estate, has been the creation of the court of equity, and that the system has been from time to time circumscribed or extended, not under the coercion of any inflexible rules or established principles, but in accordance with judicial opinion founded on very general considerations as to the propriety or policy of the particular circumscription or expansion.”

With the enlargement and extension of the rights and privileges of both married and single women, so should their liabilities and responsibilities correspondingly enlarge and extend.

Counsel for the defendant says that, as “equity follows the law,” the legal rule of estoppel should be applied here. It is true that “equity follows the law” in the sense of obeying the law. An example of this is in the application of the statute of limitations in equity. But this maxim “operates within very narrow limits. Throughout the great mass of its jurisprudence, equity, instead of following the law, either ignores or openly disregards and opposes the law. The maxim is very partial and limited in its application.” 1 Pom. Eq. Jur. (4th ed.) § 4®7-

As a matter of fact, the whole equitable doctrine of a married woman's separate estate has been built up in equity in direct violation of legal rules.

In my judgment, the first point on which the complainant bases his motion is well taken.

2.

Having come to the conclusion that the defense of coverture is not now available to the defendant because of the application of the doctrine of estoppel, this pronouncement might very well stop here; but because I feel that the other objections raised by the complainant^to the interposition of the defense of coverture here are sufficient to warrant the decree which I have determined to advise, I will also consider the other points advanced.

The next question, therefore, is as to what effect should be given to the entry of the decree of divorce between the defendant and her former husband before the time fixed for the performance of her contract. It appearing, as herein-before pointed out, that the restriction on married women for the sale of lands was imposed for the protection of the husband, it would seem that, when the reason for this restriction ceases to exist, the restriction itself should be removed. In Union Brick and Tile Co. v. Lorrillard, 44 N. J. Eq. 5, the court said:

“At the death of the husband the limitation upon the execution of the contract by conveyance, and, with it, the objection to the specific performance of the contract, is removed. I coneeive that the only purpose of the limitation is to enable the husband to preserve from alienation a property in which he may acquire an estate. The possibility of such acquisition is extinguished at his death.”

The possibility of the husband’s acquiring any interest in his wife’s property is as effectually extinguished by divorce as by death. Supreme Council Americal Legion of Honor v. Smith, 45 N. J. Eq. 466; Bucci v. Popovich, 93 N. J. Eq. 121.

Counsel for defendant insists, however, that a contract which was invalid and unenforceable during coverture cannot be made valid and enforceable • thereafter. The difficulty with that proposition is that it is based on.a wrong premise. A married woman’s contract for the sale of land is not invalid. In fact, it is made both valid and enforceable by the statute. Married Women’s act, § 5; 3 Comp. Stat. p. 3226. It is only unenforceable at the will of the husband. The law gives him the right to protect his interest in his wife’s lands by giving him the privilege of refusing to join in a conveyance, and has thus rendered the contract enforceable only at his will; but when this right to exercise that will ceases to exist, performance is no longer subject to his will. In my judgment, the removal of the disability of coverture before the time fixed for performance renders the contract enforceable, irrespective of the fact that the former husband has already executed the deed in pursuance of that contract.

3.

The defendant contends that the deed which has been executed by the defendant and her former husband, until delivered, is ineffective as a conveyance. This undoubtedly is the law. Ten Eyclc v. Saville, supra. Nor is the deed an acknowledged agreement within the meaning of the Conveyancing act; but if this contract is- enforceable for ether reasons, this court may direct the delivery of the deed already executed, if necessary. It is sufficient evidence of the husband’s willingness to convey if any such evidence were necessary. Hulmes v. Thorpe, 5 N. J. Eq. 415 (at p. 423); Krah v. Wassmer, 75 N. J. Eq. 109; South Jersey Furniture Co. v. Dorsey, 95 N. J. Eq. 530; Luczak v. Mariove, 92 N. J. Eq. 377.

4.

Complainant’s contention that there was originally no necessity for the concurrence of the husband in the agreement in question because of the provisions of section 8-p of the Married Women’s act is not entirely correct. The case of Wolfe v. Clohessy, 40 N. J. L. J. 299, is cited in support of this proposition. That was a case in the supreme court, tried before Judge Spear at the Hudson circuit, and it was there held that a deed of a married woman coming within the provisions of this act conveyed an estate in fee-simple, and that her heirs were estopped from questioning its validity; but it has uniformly been held in this court that the acts authorizing conveyances bj1' married women who are living in a state of separation from their husbands authorize a conveyance only of the interest of the wife, subject to whatever interest the husband may have. The latest case on this subject is that of Mullen v. Mullen, 98 N. J. Eq. 90, 727, 728.

In the case sub judice, the stipulation of facts brings the defendant clearly within the provisions of this act. She could, by virtue of this statute, contract and convey all of her interest in her lands, subject to whatever rights her husband had. She could not convey clear of those rights, but as divorce has put an end to whatever rights her former husband had, a discussion of the effect of her conveyance on his interest is purely academic. The complainant being now willing to accept a conveyance of such interest as the defendant has, and the defendant being within the provisions of this statute, the contract is enforceable.

Under all the circumstances I feel that the complainant’s motion should prevail. I.can imagine no more glaring lack of respect for the obligation of a contract than that here displayed. A mere recital of the facts is sufficient to shock the conscience of the court. The first thought which comes to mind upon hearing this recital of facts is that the defendant ought to be made to perform. In equity, wherever there is an “ought,” there is a remedy. To refuse to enforce this contract would, in my mind, be to set the stamp of this court’s approval on dishonest business transactions. The world’s business to-day is grounded on faith and reliance upon the obligation of contract. This is known as credit’. Women as well as men should be taught to respect their obligations if this business credit is to be maintained.

The complainant’s motion is granted and I will advise a decree'in accordance with these conclusions.