text:
    Cumberland Trust Company, administrator, &c., of Elmer Biddle, v. Ebenezer Padgett et al.
    [Decided August 22d, 1905.]
    1. An executrix sold her testator’s real estate and took a purchase-money mortgage in her own'name. Subsequently the purchaser executed a mortgage to a third person to secure a loan under an arrangement whereby the purchase-money mortgage was canceled of record so as to make the subsequent mortgage a first lien. Thereafter, the purchaser conveyed the land to a grantee, who assumed the mortgage debts.—Held, that in a suit praying for a decree that the complainant, as substituted administrator with the will annexed of the testator, has a lien on said land for said purchase-money, and that said lien is a prior one, or that said bond and mortgage be reformed so as to make it payable to the executrix as such, and striking out words recognizing the priority of the later mortgage, or that the canceled mortgage be reinstated and be declared a prior mortgage, and that the complainant be subrogated to the position of the executrix as mortgagee, the purchaser and the representative of the deceased executrix are necessary parties.
    2. The act of 1881 prescribing the character of securities to be.takep by executors and trustees when loaning moneys entrusted to them, does not apply -to a mortgage taken by an executrix to secure a part of the purchase-money on the sale of lands as directed by testator’s will.

      On bill, answer and proofs.

      Mr. Walter E. Bacon, for the complainant.

      Mr. Jonatkan IF. Acton, for the defendants Boon and Slape.
   Grey, V. C.

The complainant in this suit is the administrator with the will annexed of Elmer Biddle, succeeding in 1903 to Susanna A. Biddle, who in her lifetime was the sole executrix of that will. The defendants are Ebenezer Padgett, owner of the equity of redemption in the farm hereinafter mentioned, and Sallie B. 'Boon and M. Josephine Slape, mortgagees of that farm and, since this suit, purchasers thereof under a foreclosure proceeding.

The will of Elmer Biddle was made in 1883 and proven in 1884. The testator, Elmer Biddle, was at his death seized in fee of a farm in Cumberland county. By his will he ordered that this farm should be sold “to the best advantage and highest .bidder, one-tliird of the purchase-money being secured upon the place by bond and mortgage, with interest payable semi-annu•ally,” and said interest he gave to his wife, Susanna, during her life. His will afterwards refers to this money as “secured on the farm for her benefit,” and charges it with the payment of her necessary debts and funeral expenses, and after that gives it to his five children.

Susanna, as executrix, sold and conveyed the farm to Edwin C. Biddle for $13,745.68, in 1885, who coincidentally gave his bonds and mortgages on the farm as follows: First, to one Howell, for $5,000; second, to Susanna herself, individually (so far as the mortgage is expressed), for $3,875, and third, to ¡Susanna, as guardian, &e., for $3,100.

This transaction stood unchallenged by anyone until 1891, when Edwin C. Biddle borrowed from the defendants in this suit, Miss Boon and Mrs. Slape, $6,500, by giving, to them what 'it was arranged should be his first bond and mortgage on the farm. This was carried out by canceling all the previous mort-' gages, thus making the Boon and Slape mortgage first. A .second bond and mortgage on the farm was made by Edwin C. Biddle to Susanna, as guardian, &c., for $1,550, and a third to Susanna (apparently individually) for $3,875.

In 1895 Edwin C. Biddle conveyed the farm to Ebenezer Padgett for the named consideration of $10,600, the deed containing a provision that Padgett assumed payment of the Boon and Slape mortgage for $6,500 and the Susanna A. Biddle mortgage for $3,875.

In 1902 Miss Boon and Mrs. Slape foreclosed their mortgage, and in 1904 bought in the farm under their foreclosure.

The complainant, as substituted administrator with the will ■annexed of Elmer Biddle, who died in 1884, files this bill in the interest of his children, or persons claiming under them, who insist that the terms of Elmer’s will imposed upon Susanna, as executrix, a duty, when she sold the farm as such, to secure for their benefit one-third of the purchase-money of the farm by first mortgage thereon. The complainant contends that the mortgage of $3,875, made in 1885 by Edwin O. Biddle to Susanna, was intended to be a compliance with this provision, and it insists that the cancellation of that mortgage in 1891 was induced by Miss Boon and Mrs. Slape, under a mistake of fact and with full notice, &c., in order to make their own a first mortgage on the farm.

The complainant prays that in this cause a decree may be made that, as substituted administrator with the will annexed •of Elmer Biddle, it has a lien on the farm for one-third of the purchase-money for which it was sold by Susanna, as executrix, ■&c., and that said lien is paramount and prior to the Boon and Slape mortgage; or that it be decreed that the bond and mortgage to Susanna made in 1891 by Edwin O. Biddle be reformed by inserting the words “executrix, &c., of Elmer Biddle” wherever Susanna’s name occurs therein, and by striking out therefrom words which recognize the priority of the Boon and Slape mortgage; or that the canceled mortgage to Susanna made in 1885 be reinstated of record and be declared a prior lien to the Boon and Slape mortgage, and that the complainant be subrogated to Susanna’s place, as mortgagee. A prayer for foreclosure is added, and general prayer for relief, &c.

The defendants Miss Boon and Mrs. Slape, while not denying the recorded steps by deed and mortgage affecting the farm, say they know nothing more about those transactions save that they, in 1891, loaned to Edwin C. Biddle $6,500 (at the invitation of the agent of Susanna A. Biddle) upon first mortgage on the farm, and that they paid Edwin the monejq and he used it to discharge the previously existing antecedent mortgages, or part thereof. They deny that as against them the complainant is entitled to any relief, and pray the same advantage, as if they had demurred to the bill of complaint.

In this suit, the only defendants are Ebenezer Padgett, holder of the equity of redemption, and Miss Boon and Mrs. Slape, holders of their joint mortgage.

No decree can be made to give the complainant what it asks without seriously affecting the equities of other parties, whose right to be heard plainly appears on the face of the bill of complaint.

The complainant asks that it be decreed to be entitled to a first lien on the farm, notwithstanding that its bill of complaint shows that Edwin C. Biddle, owner of the farm, gave to Misa Boon and Mrs. Slape his bond, secured by his mortgage on the farm, which declared that the Boon and Slape mortgage was a first lien. The deed from Susanna A. Biddle to Edwin C. Biddle is not challenged. Only the mortgages given on the farm are criticised.

The complainant seeks to change the order of priority of the lien of those mortgages. Such a change will certainly increase and decrease the value of those mortgages and the bonds which are secured to be paid thereby. Edwin C. Biddle is the obligor in those bonds. He certainly is entitled to be heard before any decree alters his contract, in whole or in part.. Yet Edwin C. Biddle is not made a party to this suit.

The same difficulty arises when reformation of Edwin C. Biddle’s bond and mortgage to Susanna A. Biddle is asked. If the bond should be reformed as prayed, then Edwin would owe the sum therein named, not to Susanna A. Biddle’s estate, as is the face of the bond, but to Elmer Biddle’s estate. Yet neither Edwin C. Biddle nor Susanna A. Biddle’s administrator is a party to this bill which seeks to reform' their contract. Both have a right to be heard before decree.

The same impediment stands in the way when the bill seeks to reinstate the canceled mortgage of Edwin 0. Biddle to Susanna A. Biddle, made in 1885, and to malee it prior to the Boon and Slape mortgage, and to subrogate the complainant to Susanna’s place therein. Edwin and Susanna’s representatives ought both to be parties to any suit in which such a decree is asked.

The defendants Miss Boon and Mrs. Slape by their answer pray the same benefit as if they had demurred to the bill of complaint, and on final hearing are entitled to challenge the case made, which they have done.

These difficulties are not removed by Padgett’s covenant in the deed made to hint by Edwin C. Biddle that he will payoff the Boon and Slape and Susanna A. Biddle mortgages. Padgett is a party to this suit, but his covenant to pay does no! and cannot release Edwin C. Biddle from his legal obligation to pay the money due on his bonds. Padgett’s status, arising from his acceptance of Edwin C. Biddle’s deed to him containing the covenant that Padgett should pay the mortgage debts, is regarded in equity as that of the principal debtor, with respect to those debts. Edwin C. Biddle’s status, in view of his liability as obligor in those mortgage bonds and his being grantor in the deed to Padgett, is deemed in equity to be that of surety for the payment of those debts. Klapworth v. Dressler, 13 N. J. Eq. (2 Beas.) 62.

Both Edwin C. Biddle and Padgett have a right to be heard in any suit which may substantially change their contractual relations, as this -litigation seeks to do. But Edwin C. Biddle is not a party to this suit.

It is not possible, therefore, in the present status of this ease, to make any decree in favor of the complainant.

As the cause has been argued on all the points attempted to be presented, it may properly be said that the theory of the complainant, that the will of Elmer Biddle required that a first mortgage lien to the amount of one-third of the purchase-money of the executrix sale should be taken by her, is not sustained by the words of the will. That instrument orders that the farm be sold “to the best advantage and highest bidder, one-third of the purchase-money being secured upon the place by bond and mortgage,” &c.

There is no express requirement that the mortgage here provided for shall be a first lien on the farm. It may be to the best advantage that the mortgage for the one-third should not be a first lien. The circumstances of this case indicate that it is probable that a higher price could be obtained for the farm by not making the purchase-money mortgage to be a first lien. It may be that the testator anticipated this very situation, and therefore did not require the mortgage for the one-third part of the purchase-money to be a first lien on the farm.

To thrust such a limitation upon the discretionary power to sell “to the best advantage” would, in my view, be an unjust variance of the intent of the will from the plainly expressed purpose of the testator.

Nothing in this case indicates that the defendants Miss Boon and Mrs. Slape did any act which induced the postponement of either of the Susanna A. Biddle mortgages. Application was made to them to loan $6,500 on the farm on first mortgage, and they made that loan on those terms. The detail of the arrangement was cared for and carried out by the attorney for Susanna A. Biddle, the applicant for the loan.

The complainant contends that the statute of 1881 (P. L. 1881 p. 130) imposed an obligatory requirement upon Susanna A. Biddle to invest the purchase-money of the farm on bond secured by first mortgage upon real estate estimated to be worth at least twice the amount loaned, &e. This statute has no application to this case. It is intended to protect executors and other trustees when loaning moneys entrusted to them by prescribing in what character of security they may safely invest such moneys.

In this case the mortgage in question was, by the terms of the will, not to be taken as security for a loan of money, but to secure a part of the price of land sold. The will ordered that the land should be sold “to the best advantage and highest bidder.” To secure these characteristics might readily require the purchase-money mortgage to be, not first, but second, because the highest bidder might need to borrow money on first mortgage in order to pay the highest price for the farm.

The complainant's bill should be dismissed, with costs.


source: Caselaw Access Project

author: Obey, V. C.

license: Public Domain

text:
    Willis P. Bainbridge v. Henry Allen and Amanda Richman.
    [Decided August 22d, 1905.]
    1. A plaintiff in attachment has a status to file a bill in chancery to set aside a fraudulent deed which impedes the operation, of the lien of his attachment.
    2. The decree in such a case will nullify the fraudulent deed only to the extent of the property attached.
    3. A judgment in attachment in which the defendant does not appear in person or by attorney is enforceable only in rem upon the property levied on under the attachment.
    On bill, answer, cross-bill and answer, &c.
    The bill of complaint in this cause is filed by Willis P. Bainbridge, who at the time the bill was filed was plaintiff in attachment issued out of the supreme court of this state against one Henry Allen, a non-resident debtor. Tinder the attachment writs was seized the undivided one-eleventh interest of Henry Allen in twenty-nine and sixij'-hundrecltlis acres of land in Camden count]', also in five.and fifteen-hundredths acres in Cumberland county, excepting certain parts theretofore sold; also in the residue of moneys in the hands of the administrator of Jehu L. Allen, deceased, the father of Henry, which sum is appraised .at $25.
    The complainant alleges that the defendant Henry Allen, by a conveyance made October 12th, 1898, to his sister, the defendant Amanda Richman, without valuable consideration, planned to arrange and place the title to his property in the name and control of his sister, Amanda W. Richman; in order and with the intent that he might thereby hinder and prevent the application of said property to the payment of his debt or debts. With, respect to this attached property the complainant prays that the conveyance so made by Henry to his sister, Amanda, may be declared to be fraudulent and void. .
    The complainant further alleges that the defendant Henry Allen became, by descent from his father, Jehu L. Allen, deceased, seized of an interest in certain lands situate in Salem, Camden and Cumberland counties, which were sold by a master of this court in partition proceedings, and that said master, under the aforementioned deed, has paid over said Henry’s share to his sister, Amanda, to the amount of $2,600, or thereabouts, and that Amanda has transmitted that money to said Henry Allen; that said Amanda, under the pretended authority of said deed, has also collected from the administrator of said Jehu L. Allen, deceased, a large sum of monejr, $2,000 and upwards, which she has also forwarded to said defendant Henry Allen.
    All these transfers and payments to said Henry Allen the complainant charges to have been made fraudulently to defeat and hinder his creditors in the collection of his debts, and to save and protect said property for the benefit of said Henry Allen himself.
    The complainant further alleges that the piaster above named is about to sell in partition the residue of said lands and pay over the share of said Henry Allen therein to his sister, the defendant Amanda W. Richman.
    The complainant makes defendants Henry Allen and Amanda W. Richman, and prays discovery touching the alleged fraudulent deed and what moneys have been collected by Amanda thereunder, and what she now holds, and for whose use and benefit; that the said deed may be declared fraudulent and void as to the complainant, and may be canceled; or that Amanda may be declared a trustee for the complainant; or that the master may be ordered to pay complainant’s claim out of the share of which Henry was seized in the lands by said master about to be sold, and for injunction restraining any further conveyance, &e., and for an order 'on the master to pay proceeds into court, &c., and for further relief.
    A decree pro confesso was taken against both defendants. More than a year afterwards, at the instance of the defendant Amanda W. Riehman, upon her paying costs and making immediate answer, it was opened as to her, and she was permitted to defend this suit.
    The defendant Amanda W. Riehman answered the bill of complaint. She denies that the defendant Henry Allen is indebted to the complainant; alleges that the transactions out of which the complainant claims such debt arose took place long after the deed of 1898 from Henry to her was made. She avers that Henry, by his deed made in 1898, conveyed his undivided interest in all the real estate which came to him from his father, Jehu L. Allen, for a valuable consideration, to wit, for $500, which Amanda says it was agreed between Henry and herself she should pay, and which she did pay, to the administrator of Jehu L. Allen’s estate out of her own estate in payment of a balance found to be due from Henry to the other heirs on a compromise settlement between those heirs of Jehu L. Allen who liad received advances and those who had not.
    She admits that she received Henry’s share of the partition sales, after deducting the sums retained to secure his wife’s possible dower and to pay a judgment against Henry which was a lien on his share, but she denies that- she sent the sum she received to Henry. On the contrary, she says she kept it.
    She denies that Henry transferred his interest in his father’s personalty to her, but admits she collected from his father’s administrator quite a large sum under a power of attorney which Henry gave her in 1900. In this money she said she had no interest.
    She admits that the master has now sold-the residue of the lands in the partition suit, and that one-eleventh thereof, amounting to $141.35, has been paid in to the clerk of this court-on January 16th, 1902, and is now on deposit to the credit of the partition suit.
    She denies that the lands attached or the moneys derived from the sale thereof were subject to any lien under said attachment against Henry. She alleges that the claim of the complainant against Henry arose more than a year after the deed of 1898 had been made to her, and that the complainant then had full notice of her ownership under that deed.
    She denies that she has or ever had any moneys or property held for Henry’s use, except that which she collected under his power of attorney and forwarded to him. She insists that in the real estate she has been and is the owner of Henry’s interest, and as to his share of the personalty that she has not claimed it.
    Henry Allen died in 1903 intestate, leaving one child, Laura P. Erost, wife of Ellis. T. Erost. On March 31st, 1903, Mrs. Erost and her husband were admitted as defendants in this suit in the place of Henry Allen, deceased.
    The new defendants filed an answer and cross-bill. They also attack the validity of -the deed of 1898 made by Henry Allen (Mrs. Erost’s father) to the defendant Amanda W. Riehman.
    The defendant Mrs. Riehman moved to strike out the cross-bill in whole and in several parts. The defendant was partially successful on this motion, and Mrs. Erost filed an amended answer and cross-bill challenging the validity of the deed made in 1898 by Henry Allen to Mrs. Riehman, because- the lands attempted to be conveyed were not specifically described by metes and bounds, nor with relation to any township-, city or county of their location, alleging also that the conveyance in question was in fact upon a trust between Mrs. Riehman and Henry Allen, whereby Mrs. Riehman undertook to account to Henry’s heirs for the property received by her and to provide for the inchoate dower of Henry’s wife j that Mrs. Riehman had admitted that she so received that deed, and that she claimed nothing thereunder for herself until after Henry’s'death. Mrs. Frost prays by her cross-bill for a decree that Mrs. Richman shall relinquish all claim to the property conveyed to her by Henry Allen.
    The defendant Mrs. Richman answers, asserting the description of lands conveyed by the deed of 1898 to be sufficient in every particular. She denies any trust under that deed, and says it was absolute. She denies that she ever admitted that there was such a trust under that deed, and insists she was and is the absolute owner of the property by that deed .conveyed.
    On these issues this cause was tried.

      Mr. Isaac 0. Acton, for the complainant.

      Mr. John Meirs, for the defendant Amanda W. Richman.

      Mr. Jonathan W. Acton, for the defendant (cross-bill complainant) Laura Frost.
   Obey, V. C.

The first question to be determined is whether the complainant, being a plaintiff in an attachment which has been levied, can lawfully file this bill in aid of the lien of his attachment.

This question is settled in favor of the complainant by the decision of the court of errors and appeals in the case of Haston v. Castner, 31 N. J. Eq. (4 Stew.) 697, where that court declared that the lien obtained by the levying of an attachment affords to the plaintiff in attachment the- footing requisite to enable him to maintain a bill in equity to set aside a fraudulent deed which impedes the operation of the writ.

- The next contention is as to the sufficiency of the description of the property in the deed of October, 1898, from Henry Allen to his sister, Amanda W. Richman. It is not necessary that the description of property conveyed by a deed shall define it by metes and bounds, or by reference to specific location, in order to pass title. If from all words in the deed the lands intended to be conveyed can be identified, title to such lands will pass. In this deed the words of location used are: “All the interest of the said Henry Allen (the grantor) in and to the lands whereof his father, Jehu L. Allen, died seized, situate, lying and being in the State of New Jersey and the State of Delaware, wheresoever the same may be,” &c. There would be no serious difficulty in ascertaining of what lands in New Jersey and Delaware Jehu L. Allen died seized. This case proves that, for in all the pleadings and proofs the lands affected by this deed have been readily located and ascertained. The deed does not fail for want of a sufficiently specific description.

The complainant contends that this deed was made without valuable consideration, in order to hinder the creditors of Henry Allen in the collection of just debts -which he might owe. The ■ defendant Amanda W. Richman insists in her answer that the deed was made to her absolutely for a valuable consideration, which she paid for Henry to the administrator of Jehu L. Allen’s estate. The testimony clearly shows that Mrs. Rich-man’s claim is false. One of those administrators testifies that Amanda never made any such payment to them. Mrs. Richman then attempted to shift her explanation of the payment of a valuable consideration for the deed of 1898 by testifying that in a settlement made between the heirs of Jehu L. Allen she ■was charged and had to pay $700 or more for Henry’s debt. But her own testimony plainly shows that this also is a pretence, because she admits that this settlement was made several years after she took the deed from Henry, and that she did not know until the settlement was actually being presented to her that she would be asked to( pay this debt of Henry’s. In short, she allowed this to be charged against her, not because she had previously agreed with Henry that she would pay it as the consideration for the deed, but because the other heirs forced her to pay Henry’s debt to the estate, she having, by the deed of 1898, taken title to Henry’s share of the estate. Mrs. Richman’s letters written after 1898 to Henry Allen, over a period of several years, show that (notwithstanding the deed conveyed to her an estate which was absolute on its face) she acknowledged that Henry still had the right to direct what should be done with the property it conveyed, and even to pass it by his will, and always, in writing to Henry, spoke of it as “your share,” never as her own.

The testimony satisfies me that Mrs. Richman neither paid nor agreed to pay any valuable consideration for the deed made to her by Henry Allen in October, 1898.

The next question is, Has this conveyance been shown to have been made with an intent to hinder and defeat the creditors of the grantor, Henry Allen?

The evidence shows that at the time the deed was made in 1898 Henry Allen was in debt. A judgment in favor of one McAlister had been entered against him. He was considerably otherwise indebted, and suits wrere feared. He had gone to California. His sister was in Salem county. The estate of his father was located in Hew Jersey and Delaware, and an undivided interest had descended to Henry. He was obviously afraid that his creditors might seize it, to his disadvantage. His sister, Mrs. Richman, has.shown in this ease that she was ready to help him conceal his real interest in the property. The plan is plainly proven to have been that. Mrs. Richman should hold the absolute title to the property conveyed, but that Henry should continue to have the control and disposal of it. Such a transaction was clearly obnoxious to the statute of frauds as a conveyance which hindered and prevented creditors from collecting their claims, and tainted by the presence of an actual intent to defraud creditors.

The defendant objects that at the time the deed was made, the claim of the present complainant, Bainbridge, had not yet come into existence, and that the deed of 1898 was therefore not made in fraud of the complainant’s claim.

This point does not relieve the disputed deed from the operation of the statute of frauds. It simply alters the character of the proof which must appear in order that the statute shall be applicable. The law presumes that all conveyances made by a debtor without valuable consideration are fraudulent, with relation to the claims of existing creditors of that debtor.

This presumption will, in such cases, arise as a conclusion of law without any proof that there was in fact an intent to defraud creditors in making the conveyance of the debtor’s property.

If a creditor seeks to impugn a conveyance made by his debtor before the claim of the creditor came into existence, it is incumbent on the creditor to make proof that the challenged conveyance of the debtor’s property was made pursuant to an actual intention to defeat and hinder his creditors from collecting their claims from him.

In this case, upon all the evidence submitted, I am satisfied that the deed of 1898 was made with an actual purpose to hinder and delay Henry Allen’s creditors in the collection of their claims against him, and that the defendant Mrs. Bichman participated in the fraudulent purpose.

This finding entitles the complainant in this suit to a decree declaring the deed of 1898 to be null and void so far as it may affect the title of the property attached.

This result necessarily defeats the claim of Mrs. Erost in her cross-bill to the effect that the deed of 1898 was in fact a trust deed, &c., for Henry Allen’s benefit, descending to her as the heir-at-law of Henry Allen.

A fraudulent conveyance is good as between the grantor and the grantee. The heirs of the grantor who take by descent are volunteers. They cannot successfully demand that their father’s fraudulent conveyance shall be set aside for their benefit.

The proceedings in the complainant’s attachment have been prosecuted, to final - judgment during the pendency of this suit. This judgment, is wholly in rem against the specific property levied upon in the attachment suit, and not in personam, a general judgment to be made from any property of the defendant wheresoever found.

There was no appearance in the attachment suit by the defendant Henry Allen, either in person or by attorney. The decree in this case must therefore be limited to the nullification of the deed of 1898 so far only as it affects the property attached.

The complainant, though claiming under an attachment, a proceeding in rem which did not affect all of the defendant’s property, yet seeks by this bill to give to that attachment the force of a general judgment in personam, binding generally all the property of the defendant, whether levied on under the attachment or not.

The complainant is not entitled in this suit to such extensive relief.

The rule is entirely well established that, in order to support a bill of complaint of that character, the complainant must show that he has, at the time of filing his bill, a lien against the specific property of the defendant, with respect to which he seeks the favoring decree of this court. Haston v. Castner (at p. 699). In the case at bar the only lien which the defendant had when he filed this bill wras the lien obtained by the levying of the attachment.

When this suit was begun Henry Allen was alive, and was made a party. Subsequently to the initiation of this suit the defendant Henry Alien departed this life. Neither the complainant’s bill of complaint nor any other of the proceedings in this cause have been framed or remodeled, as to parties, allegation, charge, prayer or proofs, to assert any rights in Henry Allen’s estate in the hands of his heirs or administrators. The decision in Easton v. Gastner, ubi supra,, holding that unadjudicated claims against the lands of deceased debtors are such liens that they may be the. basis of a suit in equity cannot be applied to this ease.

The result is that the complainant is entitled to a decree as above indicated, with costs.

The cross-bill of Mrs. 'Erost should be dismissed, but- without costs.


author: Gkey, Y. C.

text:
    Anna R. McGrath v. William F. Norcross.
    [Decided August 22d, 1905.]
    1. On a bill to quiet title to lands under the statute where an answer denies that the statutory conditions exist, the issue so raised' will be determined by the court of chancery before sending the question of title to be tried in a court of law.
    2. In such suit in case of wild or unenclosed lands the complainant may be.the owner, or a person claiming to own the lands in fee under a deed or other instrument.
    3. Where defendant, claiming wild, unenclosed land, entered and constructed certain stakes along the boundary line, built a small slab stable thereon in full view of the public road, and with his predecessors in title cut timber therefrom, such acts did not constitute possession as against the holder of the record title so as to preclude her from maintaining a bill to quiet title under the statute.
    On bill to quiet title, answer and proofs.
    This canse has been tried on an amended bill, which includes the substantial allegations of the original bill and the answer to} the original bill, which, it has been agreed, shall stand as the defendant’s answer to the amended bill also.
    The bill of complaint, as amended, recites a title in fee-simple, absolute in the complainant herself, to certain lands in Atlantic county described in the bill of complaint, which lands are therein alleged to be extensive, wild, wooded, unenclosed and unimproved, by reason whereof the complainant alleges she is not in the actual possession of them, but she declares that she is the owner of said lands in fee under deeds and instruments of title which are recorded: that said lands have been assessed for taxes to her and her grantors for five consecutive years immediately prior to the commencement of this suit, and that she has paid said taxes, and that no other person is in possession of said lands.

      The amended bill further charges that the defendant, William E. Norcross, claims- to own some interest in said lands; that no suit is pending to enforce his said claim, and it is without foundation, unjust and vexatious; that it so affects the complainant’s lands that by reason thereof they cannot be sold; that the defendant upon request refuses to relinquish his said claim. The bill is framed under the statute found in P. L. 'h9\0:l pp. ffl, 158.

    The complainant prays that the defendant may declare specifically what title in said lands he claims and' by what instruments it was created, and that this court may decree upon the rights of the parties to this suit in and to said lands; that complainant may be decreed to have a perfect title and the defendant to have no interest therein, and that his claim thereto is unjust, vexatious and void, and for further and other relief, &c.
    The defendant’s answer denies every substantial allegation of the bill of complaint, and says he claims an absolute title in fee to the whole of said lands, which title was created by a survey to Emund lliff for seven hundred acres, mentioned in and excepted from a resurvey for seventy-eight thousand and sixty acres made to the West Jersey Society pn May 24th, 25th, 26th and 27th, 1773, and returned May 5th, 1774, and by the several conveyances from said lliff and his successors in title to "said defendant.
    Pending this suit, and before the hearing of the cause on that phase of it which is disposed of by this opinion, the defendant filed his petition, alleging that numerous questions of fact, and also a question of purely legal title to the premises in dispute, are raised by. the pleadings, which are peculiarly within the province of a court of law to determine, and which the petitioner is, by the law of the land, entitled to have determined by a court of law and a jury. The petitioner-defendant prays that the complainant may be directed to bring an action at law against the petitioner-defendant to determine the title to the lands in dispute. Before any disposition has been made of the petition for an issue at law to try the questions of title, this hearing was had in this court to settle the preliminary question whether in this case the conditions which the statute, requires do actually exist, so that the defendant ought to he ordered to assume the burden of primary proof of his title to the lands in dispute, as is the practice on bills to quiet title, &c.

      Mr. Clarence L. Cole, for the complainant.

      Mr. Thomas E. French, for the defendant.
   Gkey, Y. C.

It is the established practice of this court, where the answer denies the complainant's allegations that the statutory conditions exist, to try these matters here before sending the question of title to be tried in the law court. Powell v. Mayo, 24 N. J. Eq. (9 C. E. Gr.) 178; Beale v. Blalce, 45 N. J. Eq. (18 Stew.) 668; Oberon Land Co. v. Dunn, 56 N. J. Eq. (11 Dick.) 749.

This hearing is had solely to ascertain whether in this case these statutory conditions exist. The complainant alleges that they do exist, and the defendant denies it.

It will be noticed that the bill of complaint in this cause is framed under the somewhat peculiar provisions of the amendment to the statute authorizing suits in this court to compel the determination of claims to real estate in certain cases and to quiet the title to the same. P. L. 1901 pp. 57, 58.

The original statute on this subject, as it appears in S' Gen. Stat. p. 8486 § 1, declares that if any person be in the peaceable possession of Muds, claiming to own them, and some other person- claims to own the land, or some part thereof j and no suit shall be pending which may test the validity of the latter claim, then 'tire person in possession may bring a suit in chancery to settle the title to said lands, and call upon the other claimant to set forth his title and the instrument under which he claims, &c.

The amendment of 1901 provides that in cases where by reason of the extent of the lands in dispute, or because of their being wild, wood, waste, unenclosed or unimproved lands, they shall not be in tire actual peaceable possession of the person claiming to own them, then the person who claims to own them in fee under an instrument duly recorded in this state, who shall have paid the taxes upon said lands, and to whom or to whose grantors the taxes thereon shall have been assessed for five consecutive years immediately prior to the commencement of the suit, shall be presumed to be in the peaceable possession of said lands within the meaning of said act, provided no other person be in possession thereof; and the person so presumed to be in possession may bring a suit in chancery to settle the title to said lands, and may have all the benefits of the statute dealing with that subject.

The only question here and now to be determined is whether the complainant in this cause has shown herself to be within the provision of this amending act .of 1901.

Upon the proofs which have been submitted it has, I think, been shown substantially without dispute that the lands in question lie within the county of Atlantic, in this state; that no suit is pending which may test the validity of the defendant’s claim to those lands; that they consist in great part of unenclosed and unimproved wood and waste lands, partially covered by timber of varying size, and that the extent of the tract is seven hundred acres or more.

It is, I thixdc, clearly proven that, by reason of the large area of the lands, and their character as unenclosed and unimproved wood and waste lands, they are not in the actual possession of the complainant.

The complainant insists that she claims to own these lands in fee under deeds duly recorded as mentioned in the statute. She produces such a deed under which she claims title, in which Sarah R. Colwell and others are grantors and the complainant, named in the deed as Anna R. Colwell, is the grantee. This deed is dated December 9th, 1879, and was recorded in Atlantic county clerk’s office, in book No. 73 of deeds, folio 498, &c., on the 18th day of December, 1879, and purports to convey to the complainant eighteen thousand and sixty-two acres of land lying in Atlantic county. The complainant proves by witnesses and illustrating map that the outbounds of the lands described in1 this deed include as part thereof the seven hundred acres of land in dispute in this case. In 1892 the complainant, who was then Anna Richards Coxe, wife of Robert L. Coxe, conveyed by deed that part of the eighteen-thousand-and-sixty-two-acre tract which lies south of the West Jersey and Atlantic railroad, and contains eight thousand and fifty acres, including therein the seven hundred acres here in dispute, to the Mizpah Agricultural and Industrial Company. This deed was recorded in Atlantic county clerk’s office, in book No. 161 of deeds, page 141, &c., on the 12th day of February, 1892. The grantee company made a mortgage to the complainant to secure the payment of part of the purchase-money upon the lands convej^ed, which the complainant assigned to the State Trust Company. The trust company, by a ‘foreclosure suit in this, court, entitled “The State Trust Company, complainant, and the Mizpah Agricultural and Industrial Company and others, defendants,” foreclosed this mortgage and sold the mortgaged premises, and at the sheriff’s sale purchased them. Subsequently, by a deed dated February 10th, 1897, recorded on May 24th, 1897, in Atlantic county clerk’s office, in book No. 213 of deeds, folio 242, the State Trust Company conveyed the mortgaged premises back again to the complainant, who had then become Mrs. Anna R. McGrath.

• The defendant contends that the complainant is not the owner of the disputed lands, because the deeds which the complainant produces do not include, the locus in quo as part of the lands thereby conveyed. He insists that the original survey of those lands, under which these conveyances produced by the complainant are succeeding steps, did not include the lands in dispute, and that the deeds themselves do not in their descriptions include those lands, and that the complainant is thus shown not to be the owner of them.

This contention of the defendant is based on a misapprehension of the statute. It does not limit the benefits of the act to actual owners of the disputed premises. On the contrary, the statute prescribes that the complainant may be either tire owner or a “person claiming to own the same in fee, under a deed or other instrument.” The words of the act are simple and 'of clear meaning. They need no interpretation or construction. Arguments based upon the possible injustice of the operation of the act, if it be given its manifest meaning, may properly be addressed to the legislature, but not to the courts. It is but fair to say that in the present case I am unable to see that it works an]r hardship.

The practical operation of the statute saves this question of the actual inclusion of the locus in quo within the title deeds which are claimed to convéy it for the determination of the jury on the trial at law. This point in the case is not here adjudicated. All that I find on this phase of the matter is that the complainant claims to own in fee, under certain recorded deeds, the lands in dispute. That she has so claimed title is made plain enough by her attempts to sell and convey under those deeds, and to put her grantees into possession, and by her cutting of timber and hauling and carrying it away from the disputed lands. The identity of the lands regarding which these claiming acts took place is practically shown by the proof that the defendant personally sought to defeat these efforts of the complainant. Indeed, the evidence on' both sides shows that a struggle on some part of the lands in dispute has been going on for years between the complainant and her grantors and the defendant and persons under whom he claims.

The next disputed point is whether the complainant has shown that the taxes on the lands which she claims to own have been assessed to her for five years successively, immediately prior to the commencement of this suit, and that she has paid the taxes on such lands. The proof, substantially uncontradicted, is that the complainant has been assessed for taxes as owner of a large tract of land which includes the premises in dispute. She produces regular tax receipts showing such assessments of taxes against her upon the larger tracts, and proves that they include the seven hundred acres which constitute the locus in quo. These receipts are for taxes for the years 1896, 1897, 1898, 1899 and 1900. This suit was commenced in 1901.

The defendant insists that under the statute the proof must show that the seven hundred acres in dispute were specifically and separately assessed for taxes to the complainant; that a showing of assessments of larger tracts, even if they include the locus, is not a compliance with the. statute. He further contends that the tax receipts produced and other proofs do not show that the property taxed did in fact include that which is in dispute.

The statute must be reasonably construed. It ought not to be held to nullify the axiom that the statement of the greater includes the less. The large tracts on which taxes are shown to have been paid are proven to include within their general out-bounds and quantity the lands in dispute.

The result of this showing on the part of the complainant is, by the express terms of the statute of 1901 (at p. 58), that she shall be presumed to be in peaceable possession of the lands in dispute, within the meaning of the act, provided no other person be in possession thereof.

This presents the last incident necessary to the establishment of the complainant’s status as a party entitled to file her bill to quiet title to the premises in dispute.

The defendant contends that he himself is in possession of those lands. The undisputed evidence is that the premises in question consist of seven hundred acres or more of unenclosed lands, on parts of which timber is standing in various stages of growth. None of the land is cultivated. None of it is so fenced as to enclose it, or to suggest a boundary or exclusion of other lands.

The defendant insists that for many years he has maintained a line of stakes on two sides of the tract, which stand about as high as a man’s shoulder, and which are from about one chain to one chain and a half apart; that he and his predecessors in holding the title have cut timber on it; that he has built of slabs a small stable, which stands on a clearing on the property in full view of the public road, and that he has gone over the lands every few days and has always driven other people oil of it.

The characterization of the defendant’s alleged acts in assertion of his occupation of these lands, in my opinion, shows nothing which can be deemed such a possession as the statute contemplates. The act is intended to remedy a vexatious condition in which a person may find himself to be who honestly claims that his recorded title .gives him the ownership of a large tract -of wild, unimproved and unenclosed lands, which have been -assessed to him for five j^ears, and on which he has paid the taxes, in which property another person, who does not occupy the lands, yet insists that he has an interest which he does not •disclose in support of his claim; who brings no suit to establish that claim, but himself physically enforces his alleged right by the cutting of timber and other acts of intrusion on the property.

The original act which authorized suits to quiet titles to land required that the complainant should be in the peaceable pos•session of the land the title to which was to be quieted.

Peaceable possession of a large' area of wild land is, under •ordinary conditions, practically impossible. The amending .statute of 1901 is intended to raise a presumption of peaceable possession of such wild lands in favor of persons who have deeds dor such property which have been recorded; who for five years have been recognized by the local taxing officers as owners ■thereof, and who have manifested the good faith of their claim to ownership of those lands by the payment.of the taxes.

But the amending statute does not apply in cases where the lands in question are in the possession of any person other than the party who holds the recorded deed therefor and has paid taxes thereon.

I think it quite clear that by this proviso the statute intends to avoid creating by presumption a possession in the eomplain.ant in any case where possession in fact exists in another person. The possession of that other person which will defeat the operation of the statute must therefore be an actual, as contrasted ■with a presumptive or constructive, possession. The defendant who sets up such a possession must show that it has characteristics which would of themselves give notice that he was in possession of the premises in dispute.

In the case at bar the defendant attempts to make such proof. It seems to me to be clear that no one who saw the occasional ■stakes on part of the tract, or the unoccupied slab stable, or the •cut timber, could have reasonably believed that anyone was in possession of the seven hundred acres of land in dispute. The acts alleged to have been done were wholly unrelated to any defined territory, and might be asserted to apply just as forcefully to show a possession of the land on one side of the wide-apart non-closing line of stakes as of the land on the other side of that line. An unoccupied slab-built shed, such as the stable evidently was, gave warning, not of occupation, but rather of abandonment. Occasional cutting of timber over part of an undefined tract is too common a trespass to be held to indicate possession of a defined territory which is not in any way enclosed or separated from surrounding timber of like general character.

The defendant himself does not appear to have done any act whereby he even colorably defined the lands which he claims. He has recorded no deed which conveys those lands to him, nor has he done any act which has in any way distinguished the lands which he claims from surrounding lands of the same character.

In my view, considering all of the evidence, it is shown that no other person than the complainant is in possession of the lands in dispute.

This condition of the proofs entitles the complainant to maintain her bill of complaint in this court, for she has here proven the existence of all the required jurisdictional facts.

I will advise a decree accordingly, with costs to the complainant.


author: Grey, Y. C.

text:
    Esther R. Moore et al. v. Annie E. Matthews.
    [Decided September 12th, 1905.]
    A testator gave the income from his undivided interest in a house and lot of land to his widow during her natural life; on the death of his wife he gave that income to H. and 0. during their joint and several lives; then follow these words: “On the death of the said H. and 0., my entire interest in said house, No. 31 North Second street, Oamden, N. X, to be given in fee-simple in equal parts to Amy X Roberts and Hetty Roberts (now Moore).”—Held, the devise over to Amy and Hetty passed to them an estate in fee, as tenants in common, in equal shares, which vested immediately upon the death of the testator.
    On bill, answer and proofs.
    The bill of complaint in this case is filed by Esther R. Moore and others to quiet the title to seven undivided twenty-fourth parts of a house and lot of land on Second street, in the city of Camden, of which the complainants are in peaceable possession.
    The rights of the complainants are disputed, as to. those seven twenty-fourth parts, by the defendant, Annie E. Matthews.
    The complainants pray that she may set forth her title, and from whom and how derived; that the rights of the parties may be ascertained and settled, and that the complainants may be decreed to have a perfect title to the undivided seven twenty-fourths in dispute, and the defendant, Annie E. Matthews, to have no interest in the premises.
    The defendant, Annie E. Matthews, answers, contending that she is the owner of the undivided seven twenty-fourth parts of the premises in question. She claims that this portion descended to her as the only child and heir-at-law of one Joseph H. Brooks, a former owner thereof. She formally denies that the complainants are in peaceable possession of the premises; denies that her claim is in anywise unjust and without foundation, and avers that she has a vested estate in fee in the undivided seven twenty-fourths interest whereof Joseph H.- Brooks died seized, which was devised to Amy J. Roberts.
    At the hearing the parties agreed in open court upon the jurisdictional statutory facts, that the peaceable possession of the premises is in the complainants, claiming to own the same, and that their title is disputed by the defendant, and have filed a stipulation showing the steps in the title whereby both complainants and defendant claim to be the owners of the undivided seven twenty-fourths part which is in dispute, and have submitted all the points in dispute to the decision of this court.

      Mr. E. Lawrence Dudley and Mr. William D. Lippincott, for the complainants.

      Mr. John Broolcs Beits, for the defendant.
   Grey, Y. C.

The stipulation admits the essential facts necessary to prevent the questions of law, among others, that Joseph H. Brooks, at the time of his death, was seized in fee of seven-twelfths of the premises in question; that he died in 1879 testate. His will, dated March 28th, 1878, contained the following clauses affecting the matter here in issue;

“Fourth. I give, devise and bequeath to my beloved wife, Amy J. Brooks, all the income of the remainder of my estate, both real and personal, to be paid quarterly, if possible, during her natural life; this includes my interest in house No. 31 North Second street, Camden, N. J.”
“Eighth. On the death of my beloved wife, Amy J. Brooks, the income from my interest in house No. 31 North Second street, Camden, N. J., is to be given equally to the said Hannah J. Roberts and Catharine La-Coney, during their joint natural lives, and wholly to the survivor of them, during her natural life.
“Ninth. On the death of the said Hannah J. Roberts and Catharine LaConey, my entire interest in said house, No.' 31 North Second street, Camden, N. J., to be given in fee-simple, in- equal parts, to Amy J. Roberts and Hetty Roberts (now Moore).”
“Twelfth. I appoint Hood S. Somers my sole executor and trustee of this my last will and testament, and authorize and empower him to sell or dispose of any of my personal or real estate, at public or private sale, of which I may die seized, and grant and convey the same to the purchaser or purchasers, in fee-simple, without liability on the part of any purchaser to see to the application of the purchase-money.”

The will contains no residuary clause.

At the time of his death Joseph H. Brooks left him surviving his wife, Amy J. Brooks; his sister-in-law, Hannah J. Roberts; his friend, Catharine LaConey; also, Hetty Roberts (now the complainant Esther R. Moore) and Amy J. Roberts, and the' defendant, his daughter, Ann Elizabeth Matthews, all mentioned in his will.

It is undisputed that a life estate in the undivided seven-twelfths of the premises whereof Joseph H. Brooks died seized was by his will devised to his surviving widow, Amy J. Brooks, and that, succeeding that estate devised to the' widow, another life estate was by the will devised to Hannah J. Roberts and Catharine LaConey during their joint lives and the life of the survivor of them.

In actual fact, the life devises came into- effect or failed as follows: Amy J. Brooks took her life estate on the death of the testator in 1879, and enjoyed it until her death on August 26th, 1899.

Catharine LaConey died in 1891, and Hannah J. Roberts in 1895, both during the life of the widow, Amy J. Roberts, so that the life estate devised to Hannah and Catharine and the survivor of them (which was to follow the life estate devised to Amy J. Brooks) never came into actual enjoyment in either of them.

That this was the operation of the devises for life created by Joseph H. Brooks’ will, and the order of death of the life devisees, is admitted by both sides.

The essential dispute between the parties in this cause relates, not to these several succeeding life estates, but to the devise of the fee in one-half of the undivided seven-twelfths part whereof Joseph H. Brooks died seized.

At the time of Joseph H. Brooks’ death, Amy J. Brooks and Hetty Roberts (now Esther R. Moore), the two devisees of the fee mentioned in the ninth clause of his will, were both living. Hetty Roberts (now Esther R. Moore) survived all the life tenants, and is still living. There is no dispute that an undivided one-half part of the testator’s seven-twelfths of the fee, namely, seven twenty-fourths, passed by this devise to Esther R. Moore, who, as stated, has survived all the life tenants.

The dispute between the parties affects only the other half part of the fee (seven twenty-fourths) whereof the testator (Joseph H. Brooks) died seized, which he devised to Amy J. Roberts. The latter died in December, 1891, eight days after the death of the life tenant Catharine LaConsy, but before the death of Hannah J. Roberts, who died in 1895, or the death of the first life tenant, Amy J. Brooks, who died in 1899.

The complainant contends that under the provisions of the fourth, eighth and ninth clauses of Joseph H. Brooks’ will (above quoted) Amy J. Roberts and Esther R. Moore each took an estate in fee-simple, which vested upon the testator’s death, in seven undivided twenty-fourths parts of the premises in question, subject to the preceding life estates given to Amy J. Brooks and Hannah J. Roberts and Catharine LaConey.

The defendant, Annie E. Matthews, who is the only child and heir-at-law of the testator, Joseph Ii. Brooks, contends that by the true construction of his will the devise of the remainders to Amy J. Roberts and Hetty Roberts (now Esther R. Moore), which are manifestly estates in common, did not vest upon the death of the testator, but were contingent interests to vest in Amy and in Esther as each survived both the life tenants, Hannah J. Roberts and Catharine LaConey; that Esther R. Moore has, as to her seven twenty-fourths, survived both these life tenants, and Esther’s portion has therefore vested, but that inasmuch as Amy J. Roberts died preceding the death of Hannah J. Roberts, the share in remainder devised to Amy J. Roberts failed to vest; that as there is no residuary clause in Joseph H. Brooks’ will, the testator, as to the seven twenty-fourths part devised to Amy J. Roberts, died intestate, and that portion descended to the defendant, Annie E. Matthews, his only child and sole heir-at-law.

The construction of this devise must be based, as in all like cases, upon the intent of the testator, as expressed in the whole will. The defendant contends that the words of the ninth clause of the will, “On the death of Hannah J. Roberts and Catharine LaConey, the income from my interest * * * io he given in fee-simple, in equal parts, to Amy J. Roberts and Hetty Roberts (now Moore),” are to be construed as a conclusive declaration of his intent that the gift in fee to Amy and Hetty shall not vest in them until Hannah and Catharine shall have precedents died. The defendant’s counsel also insists that this view is supported by clause 12 of the will (above quoted), by which he contends that the testator, as a precaution against the fee being in abeyance, appointed a trustee and placed in him the disposition of the fee.

The defendant cites the case of Gifford v. Thorn, 9 N. J. Eq. (1 Stock.) 729, as controlling the construction of Joseph H. Brooks’ devise of the fee to Amy J. Roberts in the case at bar. Gifford v. Thorn was decided in this court by Chief-Justice Green, sitting for the chancellor. His judgment was affirmed on appeal. In that case the bequest was in these words: “I give and bequeath all the residue and remainder of my property * * * to the said W. J. T. when he arrives at the age of twenty-one years ” &c. Chief-Justice Green held this gift to be contingent, to vest'only when W. J. T. should arrive at the age of ttventy-one years.

It will be noted that the gift depended oar the happening of an eveaat which was uncertain, i. e., whether W. J. T. should arrive at the named age. The case at bar is different, for tire gift over to Amy J. Roberts takes effect upon an event which was certain to happen, namely, the death of Hannah J. Roberts and Catharine LaConey. The testator did not make the gift over to Aany depeaad on the uncertainty -of her surviving Hannah and Catharine by declaring that Amy should be given the legacy in case she should survive them. He made the testing incident to be, arot the life of Aany at a certain time, which was uncertain, and might have created a contingency, but the death of Hannah and Catharine, which was certain to happen.

The limitation over to Amy and Hetty is like that found in ilie case of Weehawken Ferry Co. v. Sisson, 17 N. J. Eq. (2 C. E. Gr.) 479. The court of errors and appeals in that case accepted Mr. Fearne’s description of a vested remainder, i. e.,

“one that is so limited to a person in being and ascertained that it is-capable of taking effect in possession or enjoyment on the certain determination of the particular estate without requiring the concurrence of any collateral contingency.”

At any time that the particular estates given to Brooks’ widow and Hannah and Catharine should end, Amy and Hetty were capable of taking instant possession, irrespective of any other circumstance.

If the event is uncertain, the legacy is contingent, though the time is fixed; if certain, the legacy is vested, though the time be uncertain. Beatty v. Montgomery, 21 N. J. Eq. (16 G. E. Gr.) 82b. Iu that case the gift was, “from and after the death of my wife, I give and bequeath the principal sum of $6,000 to-my sister Eliza Beatt}r’s children.” This was held to vest an estate in the children immediately on the testator’s death. To> the same effect is Kinkeacl v. By an, Ob N. J. Eq. (19 Diclc.) Ifib; affirmed on appeal on this point, 6S N. J. Eq. (20 Dick.) 720; Howell v. Gifford, 6b H. J. Eq. (1& Dick.) 180.

The learned Chief-Justice Green, after deciding Gifford v. Thorn, became chancellor, and pronounced the judgment in the-case of Howell’s Executor v. Green’s Administrator, 31 N. J. Law (2 Vr.) 572, in the court of errors and appeals, which in every substantial particular resembles the case at bar. In Howell’s Executor v. Green’s Administrator the will gave a life estate in the interest of' $1,000 to M. It then declared, “and after her decease I give and bequeath the said $1,000 to D. and S.” It happened that D. survived the testator, but predeceased M. • The question was whether the gift over to D. “after the decease” of M. should be construed to have vested at the death of the testator, whom she survived, or to have been contingent upon D.’s living until after the decease of M., which D. did not do.

The learned chancellor referred to the decision of Gifford v. Thorn, which declares that a gift “at” or “when” or “after” a given event occurs vests only upon the happening of the event, but declared the rule to be equally well established that where in the whole will it appears that an absolute property is given in fractional interests in succession, at periods which must arrive, the interests of the first and subsequent takers will vest together. He repeated with approval the illustration of the court below, which held that the language of the Howell will was equivalent to saying, “I give this $1,000 to my sister and her two children, she to have it during her life, they to have it after her death.”

This decision of the court of errors and appeals fits the circumstances of the case at bar, and controls this case. The testator by the whole will shows that he intended to dispose of his entire estate in the Second street house to the named beneficiaries, to be enjoyed by them in succession. Nothing in the will indicates any purpose to create a contingency, as to the fee, which might defeat the estate given over to Amy and Hetty. There is no specification of any uncertain event on the happening of which the fee should go over to some other persons than Amy and Hetty.

The defendant refers to the twelfth clause of the will, which appoints the executor and trustee of the will and authorizes him to sell any of the real estate, as showing a purpose on the part of the testator to preserve the fee while it might be in abeyance, and the defendant suggests that this indicates an intent that the gift over to Amy and Hetty was to be contingent.

I am unable to perceive that the twelfth clause indicates any other intent than it expresses. It vests no title in the executor and trustee. While it authorizes him to sell, it does not order him to do so. Nothing in any of the dispositions made of the testator’s interest in the Second street house contemplates a sale of it under any contingency. Nor does the will anywhere direct what disposition shall be made of the proceeds of any sale that the executor may make under the power given him. If there be enough personal property to pay the testator’s debts, the legacies and expenses of settlement, the executor would not be permitted to exercise such a mere naked power in order to divest the estate either of a devisee or of the heir in the lands. Brearley v. Brearley, 9 N. J. Eq. (1 Stock.) 21.

Another principle of construction set forth in the case of Howell v. Green, ubi supra (at p. 573), supports the view that the limitation over to Amy and Hetty is a vested devise. It is there declared that where it is apparent, from the terms of the will, that the future gift is postponed to let in some pther interest, that gift is vested.

The court of errors and appeals, in Post v. Herbert’s Executor, 27 N. J. Eq. (12 C. E. Gr.) 543, recognizes the rule contended for by the defendant that a gift to take effect in .A “at” or “when,” &c., is prima facie contingent, but clearly demonstrates that if, from the whole will, it appears that the gift over is only postponed to let in the earlier interests, then the gift 'over is vested, notwithstanding the enjoyment of it may be postponed.

• In the case at bar the obvious j> rimary purpose of the testator was to see that his widow had an income during her life; that his friends Hannah, and Catharine should, during their joint and several lives, have the income from the Second street house, and that all the rest of the testator’s interest in that property should go to Amy and Hetty. He gave no indication of any intent that Amy and Hetty’s estate in the property should depend on any contingency, if the widow and Hannah and Catharine should, because of their death, have no further use for it. He plainly postponed Amy and Hetty’s enjoyment of it in order to let in the earlier interests of his widow, Hannah and Catharine, and for no other reason.

Taking all the provisions of the will of Joseph PI. Brooks into consideration, it must be held that the undivided seven twenty-fourths of the fee in the Second street house devised to Amy J. Roberts was a vested interest.

A decree to that effect will be advised.


author: Gkey, V. C.

text:
    Conrad Haberman v. Mary Kaufer et al.
    [Decided September 13, 1905.]
    1. Where testatrix, after making certain pecuniary legacies, devised the residue of her estate to complainant, and the personal estate was insufficient to pay such legacies and the debts, complainant took the realty in fee, charged' with the payment of the legacies.
    2. Evidence 7f.eZ<Z insufficient to establish the making of a contract by complainant’s parents to give him certain real estate at their death, in consideration for his services in caring for them, so as to entitle him to specific performance after their death.
    3. That a son takes care of his father and mother and looks after their business proves no contractual relation, and no implication of an undertaking on the part of the father or mother to whom such service is rendered to pay for them will arise, but proof of express agreement so to do must be shown.
    On bill, answer, cross-bill, and answer and proofs.
    This bill of complaint is filed by Conrad Haberman, the son of Michael and Caroline Haberman, against his sister, Mary Kanfer, and her husband, and against his brothers, George, Joseph and William Haberman, his nephew, Nicholas Kaufer, and St. John’s German Catholic Church, legatees under the will of his mother, Caroline Haberman.
    The object of this suit is to compel the specific performance of a contract, which the complainant alleges his father, Michael Haberman, made with him in 1894, to convey to the complainant two tenement-houses in New Brunswick, in which Michael kept a cheap lodging-house. The complainant alleges that he agreed with Michael to serve him and Ms wife, Caroline (who were old and infirm in health), in the conduct of the lodging-house business for the remainder of their lives, and that Michael agreed. in consideration thereof, that they, Michael and Caroline, on their death, would leave the lodging-house properties to the complainant in fee.
    The complainant alleges that Michael died in December, 1'896, testate, and by his will, dated November 30th, 1896, devised all his estate to Caroline in fee, and appointed her sole executrix of his will; that Caroline proved the will on January 12th, 1897; took possession of the lodging-houses, and told the complainant that after her death his agreement, made with Michael, would be carried out in all respects, and the lodging-houses would belong to him, Conrad Haberman.
    The complainant further alleges that Caroline died September 14th, 1897, testate, and by her will, dated January 11th, 1897, gave money legacies to her daughter, Mary Kaufer, and to her sons, George, Joseph and William; to her grandson, Nicholas Kaufer, and to St. John’s German Catholic' Church, .■amounting in all to $2,000, and the residue of her estate she ■devised to him, the complainant, Conrad Haberman, whom she ■appointed sole executor of her said will.
    On September 23d, 1897, the complainant, as sole executor of his mother’s (Caroline Haberman) will, duly proved it and undertook its execution.
    The complainant alleges that he has fully and faithfully per"formed his part of his above-recited agreement with Michael, ■continued and consented to by Caroline; that the effect of her will is to charge the lodging-house property with the payment ■of the legacies, amounting in all to $2,000; that the debts have absorbed the rest of Caroline’s estate; that said lodging-house property is so located and in such bad condition that it is difficult to find a purchaser thereof for the price of $2,000; that by his above-named agreement he was to have the said lodging-house property clear of any charge; that Michael and Caroline have, as above shown, violated that agreement, and that the legatees under Caroline’s will insist on the raising of their legacies by the sale of said lodging-houses.
    The complainant prays that the defendant legatees of Caroline Haberman may be decreed to specifically perform the abovexecitecl contract; that the lodging-houses may he decreed to belong to the complainant in fee, clear of all claims of the defendants, either as legatees or as heirs-at-law of either Michael or Caroline, and for further relief.
    The defendants, except the church, joined in an answer denying in substance every averment of the complainant’s bill which either sets up the alleged contract with Michael to convey the lodging-houses or its confirmation by Caroline, and they deny that there was any performance of any such contract by the complainant. They further allege that the complainant, after the death of both Michael and Caroline, never mentioned that there was any such contract, nor pretended to have any right of compensation for such services as are set forth in his bill, until he had unsuccessfully endeavored to raise the money necessary to pay off-the defendants’ legacies; that in October, 1898, nearly two jrears after Michael’s death, and over a year after the death of Caroline, the complainant conceived the idea of claiming pay for the services mentioned in his bill of complaint, and exhibited to himself, as executor of Caroline’s will, a claim therefor against her estate to the amount of $1,700, and against her, as devisee under Michael’s will, for $1,600. Both these claims are verified by the oath of the complainant to be “justly due and owing” to him; that the complainant presented these claims to. the orphans court of Middlesex county, and petitioned -that court, in view of the insufficiency of Caroline’s personal estate to pay her debts, to order a sale of her real estate, and obtained an order to show cause, &c.; that exceptions were filed to the account so exhibited, and thereafter the complainant withdrew his application by orders made June 5th, 1899, and on that day filed his bill of complaint in this court, setting up the alleged agreement of Michael to convey said lodging-houses, &e., and asking its specific performance. The defendants insist that the exhibition by the complainant of the above-named claims for money compensation for his alleged services and the proceedings thereon were a conclusive election on his part to be paid in mono3*, and a Av.aiver of any benefit of his alleged contract for a conveyance, &c.

      The defendants, by cross-bill against the complainant, Conrad Haberman, and St. John’s German Catholic Church, aver that their legacies under Caroline Haberman’s will are charged upon, said lodging-houses, and they pray that they may be sold to pay those legacies, and for further relief.
    The complainant moved to strike out this answer and cross-bill. This was refused. Haberman v. Kaufer, 60 N. J. Eq. (15 Dick.) 271.

    This complainant thereupon voluntarily amended his bill of complaint by inserting therein his own name as defendant, as “executor, &c., of Caroline Haberman, deceased,” thus making himself, in a representative capacity, a party to this suit.
    The complainant afterwards answered the cross-bill, setting up his alleged contract with Michael for a conveyance as against and superior to the legacies charged under Caroline’s will.
    The cause came to a hearing on these pleadings.

      Mr. Freeman Woodbridge, for the complainant.

      Mr. Alan R. Strong, for the defendants.
   Gkey, V. C.

The title to the lodging-houses passed from Michael Haber-man, by his will, to Caroline Haberman, in fee, in December, 1896. By the next step it passed from Caroline Haberman, by her will, to her son, Conrad Haberman, in fee, in September, 1897. The effect of her bequests of legacies, and the subsequent gift of tire residue of her estate to Conrad, charged her lands (passing as residue), among which were the lodging-houses, with the payment of those legacies. Corwine v. Corwine, 24 N. J. Eq. (9 C. E. Gr.) 579; Haberman v. Kaufer, 60 N. J. Eq. (15 Dick.) 271. No title to the lodging-houses is claimed by anyone by descent.

The effort of the complainant in this suit is to release the lodging-houses, title to which is now in him, from the charge of the legacies by establishing his claim that he had a contract with Michael Haberman that he, the complainant, for services to be rendered by him to Michael and Caroline, his father and mother, should have the lodging-houses in fee, clear of all encumbrances. To accomplish this he asks that this alleged contract shall be established, and that a decree be made that it be specifically performed by the defendant legatees under Caroline’s will, releasing the charge of their legacies on the lodging-houses.'

íhe burden is upon the complainant to establish the fact that the contract which he sets up in his bill of complaint was actually made, and that it was obligatory, not only upon Michael and Caroline, but also upon himself.

That the services of caretaking of his father and mother and looking after their business were performed by the complainant proves no contractual relation. Those services are in the law presumed to have been rendered in recognition of family duty and affection. No implication of an undertaking on the part of the father or mother, to whom such services were rendered, to pay for them will arise. Proof of an express agreement to pay for such services must be exhibited which is sufficient to overcome the presumption that they were voluntarily rendered.

The contract to convey lands which the complainant seeks to prove is not in writing, either in whole or in part. The evidence offered presents no definite parol agreement between the parties, except as the complainant’s own testimony seeks to give that impression.. The effort is to show a contract by various unrelated parol statements made by Michael and Caroline, the sum of which it is contended prove the agreement set up by the complainant.

Of course, a contract to convey lands which is not in writing is obnoxious to the statute of frauds. The complainant endeavors to escape this difficulty by claiming that he has performed his side of the agreement, and that it would be inequitable, and in fact a fraud, if Michael and Caroline should be permitted to receive the benefits of the complainant’s performance and yet retain from him the lands they agreed to give him therefor.

The wills made by Michael and Caroline are in effect denials that they had made any such agreement as the complainant now asserts. The complainant accepted both these wills without a suggestion of protest. He formally proved Caroline's will, as its executor, and by Ms oatli as executor undertook to carry it into effect. lie recognized the force of its provisions, and for nearly two years sought to borrow the money necessary to pay the very legacies which he is now trying to defeat. He presented to himself, as Caroline's executor, claims that he swore Were "justly due and owing to him” for money compensation for his alleged services, and took legal steps to force their payment in money, not setting up the presently-alleged contract to convey, and asking damages for its breach, but claiming payment in money for services rendered, with no hint that there ever had been such an agreement to convey as is now asserted.

It was only when these efforts to raise the legacies had failed, and the legatees gave signs of action to cómpel their realization by the sale of the lands, that the complainant brought forward Iris present claim that in 1894, long before the legacies had been given by Ms mother's will, his father had contracted to pay for the complainant’s care and attention by conveying or devising the lodging-houses to him.

When the complainant's own conduct throws so much doubt upon the existence of such a contract, the testimony of other persons on the subject will be examined with careful scrutiny.

The evidence of other witnesses presented by the complainant in support of in's claim is qiiite voluminous. Almost all of it relates parol declarations of the parents of the complainant, made to casual bystanders, which gratefully recognized the complainant's attentions to his father and mother during their illness, and their inability to care for themselves or their business, and their wish and purpose to reward him. Very little of it tends to show any contractual undertaking by either Michael or Caroline to convey or devise the lands in question to the complainant in consideration of the complainant’s agreement to’ serve them. One or two witnesses, who are closely associated with and dependent upon the complainant, did phrase their testimony in a way that suggests a contract. The manner of these witnesses in giving their testimony did not impress me with their truthfulness. Most of; the witnesses by whom the complainant sought to prove admissions by Michael and Caro-line that they had contracted to convey the lodging-houses to the complainant testified to language which indicated that Michael and Caroline had a sense of freedom to dispose of their property in recognition of kindness rendered which was quite inconsistent with a consciousness that they were bound to convey or devise it to the •complainant by a contract which they were obliged to perform.

Hone of the supposed admissions defines the whole contract. Hone shows that the complainant contracted with Michael and Caroline to render the alleged services. They are evidently narrations of passing allusions by Michael and Caroline to the complainant's care of them, and of their desire and purpose to reward him. Such evidence does not prove a contract to convey lands with that certainty which ought to be before any court which is asked to decree the specific performance. The case presented closely resembles in principle that of Wolfinger v. McFarland, 67 N. J. Eq. 687.

On the whole of the proofs I am satisfied that the complainant in fact never had any such contract, and that his present claim is the result of his discovery that his father and mother had, to several people, spokcai appreciatively of his services to them in their old age, and of their gratitude and intention to reward him. This his mother, in all probability, believed she was doing bv her gift to him of the residue of her estate.

The complainant has failed to present evidence which sufficiently proves the contract alleged. His bill should be dismissed, with costs.

This result being reached, I have not found it to be necessary to consider the numerous points (wholly dependent on this primary one) which the complainant has discussed in his elaborate brief.

The facts necessary to sustain the cross-bill of the defendants are substantially undisputed. The principles of law which justify a decree in favor of the cross-bill prayer have already been declared in the previous judgment of Haberman v. Kaufer, 60 N. J. Eq. (15 Dick.) 271. Such a decree should be made.

A decree will be advised according to the views above expressed.


author: Gbex, Y. C.

text:
    Somers Brick Company v. Frank A. Souder et al.
    [Decided September 13th, 1905.]
    1. Under the act of 1892 to secure the payment of mechanics and materialmen furnishing labor or materials on any public improvement, a claimant must file his claim before the whole work is completed, or within fifteen days after it is completed or accepted, whichever of the latter dates may come first.
    2. There is no prohibition against anticipated payments, no inchoate lien on the fund, and no provision making the owner who prepays liable to a subsequent lien claimant, and the lien attaches only to that portion of the contract price which remains unpaid when the lien claim is filed.
    Seven consolidated causes. On bills, answers and proofs.
    In 1902 the defendant, Frank A. Souder, made a written contract with Atlantic City to build and complete for that municipality a fire-house on Tennessee avenue, to be known as the United States Fire-House. The total contract price for all the work and materials was $2o,oS7.
    The building was to be erected under the direction and supervision of Mr. Vaughan, as architect.
    The contractor, Souder, agreed to have the building completely finished within a period of six months from the date when possession of the building site was given to him, which date should be determined by the architect’s certificate, and that $20 liquidated damages for each day’s delay in finishing the building should be deducted from the contract juice.
    Atlantic City, by the contract, agreed to pay $25,587, upon the certificate of the architect that the same is due under the contract, as follows: When all the second floor joists were laid, $7,000; when the entire roof was completely finished, $8,000; the balance upon the completion of all the work under the contract and the acceptance of the building.

      It was expressly agreed that the final installment of the contract price should not be paid until the architect should certify that the contract had been fully complied with and the work completely finished in every respect, and further, that the final installment should not be payable until all the mechanics and materialmen who did work and furnished material for the building should in writing acknowledge that they had therefor been fully paid.
    The contract was filed on August 20th, 1902, with A. M. Heston, comptroller of Atlantic City.
    The contractor proceeded with the construction of the building, and the city made the following payments on account of ^ the contract price:
    On May 15th, 1902........................ $3,000 00
    On August 20th, 1902...................... 7,000 00 .
    On November 13th, 1902................... 8,000 00
    ■On November 30th, 1903................... 129 60
    $18,129 60
    The first payment of $3,000 appears to have been made under a resolution of the city council,' and without any certificate of the architect. The second, of $1,000, and the third, of $8,000, were made under the certificate of the architect. The fourth, of $129.60, was made to one Turner to pay him for finishing part of the contract work left undone by Contractor Souder.
    The contractor did not complete the work required by the contract to be done. He did not pay debts incurred for considerable quantities of material furnished to him and used in the construction of the building.
    In consequence of his failure to pay these bills, claims were filed by various materialmen under the provisions of the act of March 30th, 1892 (P. L. 1€9'2 ¶. S-69), to secure the payment of claims for materials furnished or work done on public improvements in a municipality of this state.
    Eight suits have been brought by the claimants in this court to enforce the claims against that portion of the contract price for which it is contended Atlantic City is liable under the provisions of the statute of 1892 above cited.

      By an order made on the 3d day of May, 1904, all these canses have been consolidated under the provisions of section 10 of the act of 1892, on the application of Atlantic City.
    The names of the complainants in the several suits which have been consolidated, the time when their several claims were filed and their several suits brought, and the amounts of their claims, are as follows:
    Time when When suit
    Names of Claimants. claim filed. 'brought. Amount.
    Michael J. Horan....... May 15,1903. Ang. 11,1903. $1,074 35
    Somers Brick Company.. “ 20, “ “ 24, “ 636 25
    Lucy E. Freeman....... June 27, “ Sept. 8, “ 1,075 00
    , Atlantic City Lumber
    Company............ July 2, “ “ 8, “ 4,635 35
    Italian Marble Mosaic
    Company............ “ 11, “ No suit brought. 573 00
    James Conover......... Aug. 20, “ Aug. 24,1903. 395 00
    John M. Frere......... Sept. 8, “ Oct. 3, “ 302 52
    Excelsior Terra Cotta
    Company............ “ ' 26, “ Nov. 30, “ 3,314 32
    The several complainants in the consolidated causes insist on their right, under section 5 of the act of 1892, to have such portion of the contract price as at the time of filing their several claims may have been due, or about to grow due to the contractor from Atlantic City under the contract appropriated to the payment of their several claims in the order that they were filed.
    Answers have been filed by Atlantic City and by the several claimants on the fund, and the consolidated causes have come to a hearing.

      Mr. Harry R. Coulomb, for Excelsior Terra Cotta Company.

      Mr. Albert H. Darnell, for John M. Frere.

      Mr. Burrows C. Godfrey, for Michael J. Iioran and Lucy E. Freeman.

      Mr. Clarence L. Cole, for Somers Brick Company, James Con-over and Atlantic City Lumber Company.

      Mr. Harry Wootton, for Atlantic City.
   Gbex, Y. C.

There is an indisputable principle at the base of all these suits, which must control them.

The several complainants have not recovered judgments at law against their alleged debtor, Prank A. Souder, nor have they any grounds for relief against him or against the city of Atlantic City, on any equitable principle. Yet they all seek to - obtain decrees in this court which will take from Atlantic City the contract price which it has agreed to pay to Souder, and give it to them to satisfy the debts which they say Souder owes to them.

It is obvious that such procedures must be based upon some right or equity created by statute. The complainants all insist that their right to the contract price arises by operation of the above-cited statute of 1892 (P. L. 18&2 p. 369) and their conformity to the requirements of its provisions.

As the right of the claimants is wholly dependent upon the force of that statute, the omission of any claimant to comply with its requirements must operate to defeat his claim.

The statute, in section 2,- provides that any claimant, -at any time before and within fifteen days after the whole work to be performed by the contractor is completed or accepted by the city, may file notice of his claim with the chairman, or the head man in charge of the work, or with the financial officer of the city, &e. The financial officer shall enter in a book the name, &c., of the claimant, and the date of filing, &c.

Section 4 pf the act of 1892 (P. L. J.89'2 p. 370) declares that no lien provided for in the act shall be binding, &e., unless an action be commenced within ninety days from filing the same, and notice of pendency thereof be served on the financial officer of the municipality. y

The statute creates a right of action which theretofore had no existence. It prescribes certain conditions and limitations, and declares that if they be not observed, the right, given only by the statute, shall not arise, or shall be defeated.

In such cases the observance of the prescribed statutory conditions is necessary to the acquirement or maintenance of the right. It is for the legislature only, and not for the courts, to change the requirements of those statutory conditions. The courts do not make/they only administer the law.

There are eight complainants named in the consolidating order. The Italian Marble Mosaic Company is named as a complainant probably in mistake. No suit by such a complainant appears. No proofs have been submitted for that company.

Of the other seven complainants named in the consolidating order, the Somers Brick Company’s suit was commenced ninety-six days after its claim was filed, and no notice of its pendency appears to have been given. The Excelsior Terra Cotta Company and James Conover do not appear to have given any notice of pendency of their suits.

The statute disposes of these claims by declaring, in section 4, that no lien shall be binding unless suit be commenced within ninety days of filing the same, and a notice of pendency be filed with the financial officer of the municipality.

Only four complainants brought their suits within ninety days after filing their claims and gave to the financial officer of Atlantic City the notice of pendency of such suits, as required by section 4 of the statute of 1892. These four are: Michael J. Horan, Lucjr E. Freeman, Atlantic City Lumber Company, John M. Frere.

The claims of Horan, of Freeman and of Atlantic City Lumber Company were not challenged on the argument of the consolidated causes. •• ■

That of John M. Frere is opposed by Atlantic City on the ground that section 2 of the statute requires the notice of claim to bo filed before the whole work is completed, or within fifteen days after it is so completed or accepted. It is admitted that, by resolution of the property committee of Atlantic City’s council, the work was accepted on August 1st, 1903, and that actual possession on behalf of the city was then taken of the premises; that Frere’s lien claim notice was not filed until September 8th, 1903, which was more than fifteen days after the city had accepted the work.

The complainant Frere insists that the statute (section 3) must be construed to give to bim the choice of three periods within which to file his lien claim notice—either before the work was completed, or within fifteen days after it was accepted, or within fifteen days after it shall at any time be completed, whether accepted or not.

In my view, but two periods are offered by the statute during which the lien claim notices may be filed. First, before the whole work is completed; second, within fifteen days after it is either completed or is accepted, whichever date may come first. The arrival of the one is intended to exclude the other. It is not to be supposed that after the city has finally accepted the work, a period for the filing of liens against the contract price may continue to run until fifteen days after the work shall, at a. date no matter how remote, finally be completed, or that after all the work has been completed, a lien period may continue until the city shall have formally accepted it.

Mr. Erere’s lien claim notice, having been filed more than fifteen days after the city had accepted the work, does not comply with the requirements of the statute.

This is also an additional and successful objection made by Atlantic City to the lien claim notices filed by James Conover on August 20th, 1903, and by Excelsior Terra Cotta Company on September 26th, 1903.

On the argument of these consolidated causes some reference was made to an order given on January 23d, 1903, to the Excelsior Terra Cotta Company by Souder, upon the contract price, directing Atlantic City to pay the Terra Cotta Company $3,359.32.

The counsel for that company contended that under the pleadings his client should have the benefit of this order as an •equitable assignment, &c. An inspection of the terra cotta company’s bill of complaint will show that there is in it no presentation of any right under the above-named order. The bill of •conrplaint is limited strictly to the assertion of the lien claim filed on September 26th, 1903. There is no pleading to which any proofs touching the order of January 23d, 1903, can relate, and no prayer for relief thereon.

The claimants insist that the portion of the contract price for which Atlantic City m-aSt respond in these suits must include the first payment of $3,000, made Ma}r loth, 1902, without any certificate of the architect and before the second floor joists were' laid, as provided in the contract. This payment was made under the authority of a resolution of Atlantic City council passed on May 12th, 1902. It is contended that by the statute (section 5) the lien extends to any funds which majr be due or to grow due to the contractor under the contract when the lien claim is filed; that the city had no power to make payments in advance of the period named in the contract, &e.

This argument assumes that the furnishers of work or material have, under the statute, some lien or charge on the contract price before tire filing of the lien claim, or possess antecedently to the time of filing the lien claims some right to require the city to pay only according to the terms of the contract.

The claimant, under the act of 1892, secures his lien for the first time when he files his notice of claim. This is the effect of the statute. Vice-Chancellor Eeed so held in Harris v. Garretson, 57 Atl. Rep. 414. Preceding the filing of the notice of lien claim, tire contractor might transfer his interest in the contract price. So also the contractor and the city, before any claims are filed, being the sole parties to the contract, may postpone' or anticipate payments thereunder.

This was the ease under notices by virtue of the third section of the Mechanics’ Lien act (Craig v. Smith, 37 N. J. Law (8 Vr.) 549) before the supplement of March, 1895, changed its operation and gave an inchoate lien to the workmen and materialmen before notice served. Slingerland v. Binns, 56 N. J. Eq. (11 Dick.) 413. In the act of 1892, now under consideration, there is no prohibition against anticipated payments, no inchoate -lien on the fund, and no provision making the owner who prepays liable to a subsequent lien claimant.

The words fixing the lien upon any funds which may “be due or to grow due under the contract” clearly refer to the portion of the contract price which remains unpaid when the lien claim is filed. The city passed its resolution allowing the contractor this $3,000 on his contract on May 12th, 1902, and notified the comptroller on Máy 13th, 1902, and the $3,000 was actually paid on May 15th, 1902. This was a year before any lien claim notice was filed. The city cannot he held to respond to the lien claimants for the advance payment of $3,000 made May 15th, 1902.

The result is that the only lien claims which are shown to have complied with the requirements of the statute of 1892 are those of Michael J. Horan, which became a lien on May 15th, 1903; Lucy E. Freeman, which became a lien on June 27th, 1903, and Atlantic City Lumber Company, which became a lien on July 2d, 1903.

These lien claims became a charge at the above dates on the portion of the contract price due or to grow due from the city at or after the filing of the lien claim notices, less, of course, the ¿mount necessarily expended by the city in completing the contract.

The account of Atlantic City’s liability stands as follows:

Whole contract price...................... $25,587 00
Paid out before May 15th, 1903,
the date of filing of first lien, $18,000 00 ‘ Expended for completing contract, 129 60
- 18,129 60 '
Amount of contract price liable to liens...... $7,457 40

On this sum the above liens are successive charges in the order of their filing: First, Michael J. Horan, for $1,074.35; second, Lucy E. Ereeman, for $1,075; third, Atlantic City Lumber Company, for $4,635.54.

A decree will he advised in accordance with the views above expressed.