text:
    Jacob S. Nilkin, complainant, v. Pinkas F. Silverman and Etta Silverman, his wife, defendants.
    [Decided February 20th, 1924.]
    A mortgage given to a surety to secure the payment of a note may be assigned to the holder of the note. Such assignment simply clothes him with the legal title to that which in equity would be his by subrogation.

      Mr. Abraham Henig, for the complainant.

      Mr. Benjamin M. Weinberg, for the defendants.
   Backes, Y. C.

This case is before me on an agreed state of facts. The bill is to foreclose a mortgage on real estate given by the defendants to Brown-Hñnkele Corporation, and by it assigned to the complainant. The provision in the mortgage is that if the mortgagors shall pay to the mortgagee

“The sum of forty-five hundred dollars represented by a promissory note of even date herewith, made by the party of the second part and given to Max Silverman, or any renewal or renewals of the same (this mortgage is given to secure the party of the second part from any and all liability by reason of the delivery by the party of the second part to Max Silverman, of a promissory note on which the sum of $4,500 is due in three months from the date hereof, or any renewal or renewals of said note, and in the event said note is paid when due, or paid at any renewal date, the within mortgage is to be immediately canceled, otherwise to remiain in full force and effect).”

The note was endorsed by Max Silverman to the complainant, an innocent purchaser for value, and when it came due it was protested for non-pajunent. T'he Hunkele company thereupon assigned the mortgage to the complainant. Without going into the antecedents of the note it is sufficient to say that it was given by the Brown-Hunkele Corporation for the accommodation of Max Silverman, and that the latter is the primary debtor and the corporation the surety.

The defense is that the mortgage is personal to the BrownHunkele Corporation to secure it against liability on the note; that it is not assignable, and that it can be foreclosed only by the mortgagee. The position is not sound.

The mortgage was given not only to indemnify the surety against liability on the note, but also to pay the debt, and the holder of the note is entitled to the benefit of the security. The assignment of the mortgage to the complainant simply clothed him with the legal title to that which in equity would be his by subrogation. In Demott v. Stockton Paper Ware Manufacturing Co., 32 N. J. Eq. 124, 131, it is laid down that “as a general rule, where a surety or a person standing in the situation of a surety for the payment of a debt, receives security for his indemnity and to discharge such indebtedness, the principal creditor is in equity entitled to the full benefit of that security; and it makes no difference that such principal creditor did not act upon the credit of such security in the first instance. And the right of the creditor is the same when the security is a mortgage or other lien given to the surety by the principal after the principal and surety have both become bound, even though there may have been no previous agreement that indemnity should be given, and to entitle the creditor to enforce this right in equity, it is not necessary that he should have exhausted his remedies at law or have reduced his debt to judgment. Brandt Sur. § 282.

If the mortgage had been given to the surety only as indemnity against liability the creditor would be entitled to subrogation. Meyers v. Campbell, 59 N. J. Law 378; Johnson v. Martin, L. R. A. 1916 c. 1057.

The complainant is entitled to a decree.


source: Caselaw Access Project

author: Backes, Y. C.

license: Public Domain

text:
    Elizabeth Merrill, petitioner, v. George H. Merrill, Jr., defendant.
    [Decided March 3d, 1924.]
    X. Where an action for divorce for desertion is dismissed the time consumed cannot ordinarily be reckoned in a second suit as part of the statutory period, since the law sanctions the parties living apart during the pendency of the suit.
    2. Where an action for divorce for desertion was improvidently brought, but not brought in bad faith, the statutory period did not run during the time of its pendency.
    3. A dismissal of a suit “without prejudice’’ means nothing more than that it may be brought again.
    On petition for divorce. On exception to master’s 'report.

      Mr. Joseph II. Bloom, for the exceptant.
   Backes, Y. C.

The petition was filed September 26th, 1922, and alleges willful, continued and obstinate desertion from. August 6th, 1920. Previously, on March- 18th, 1921, the petitioner filed a! petition for divorce. That suit was not dismissed until September 22d, 1922, and the master advised against a divorce. The petitioner’s counsel recognizes the rule that the time consumed by another action cannot ordinarily be reckoned as part of the statutory period, since the law sanctions the parties living apart during the pendency of the suit and does not regard the separation during that time to be willful and obstinate. Barbour v. Barbour, 94 N. J. Eq. 7. But he contends that the rule should not be applied in this case because the former suit was not brought in good faith, and he cites Hartpence v. Hartpence, 121 Atl. Rep. 513. The former petition, filed March 18th, 1921, alleged that the desertion began January 2d, 1919. This, counsel says, was a mistake, which he discovered shortly before he dismissed the suit, and which, with the consent of defendant’s solicitor, he sought to have dismissed “without prejudice,” but which the court would not allow. The action was improvidently brought; but I fail to see that it was not brougnt in good faith. It was brought by the present petitioner and, on its face, for legal cause, and, obviously, during that time the statutory period did not run. Counsel is of the impression that because the defendant’s solicitor consented to the dismissal of the prior suit, “without prejudice” it indicated that notwithstanding its pendency the defendant persisted in the desertion, willfully and obstinately. I am unable to draw that inference, even if the inference would aid him, which I doubt. A dismissal of a suit “without prejudice” means nothing more than that it may be brought again.

Exception overruled. .


text:
    George D. Pappas, complainant, v. Foster Screen Company, Incorporated, a corporation, defendant.
    [Decided March 1st, 1924.]
    1. AYhere a jierson acts for another who accepts the fruit of Ilia efforts the latter must be deemed to have. adopted the methods employed, as he may not, though innocent, receive the benefits and at 'the same time disclaim responsibility for the measures by which they were acquired.
    2. Where a man contracts with agents under circumstances sufficient to impress him that the agents were not acting within the scope of their authority he is chargeable with their fraud and he cannot rescind his contract with the principal when he finds that he will ¡ose thereby.

      3. Where a contract of subscription to stock was fraudulently altered before it reached the company the minds of the parties did not meet and the subscriber may have relief against the company for the transaction involved.
    On final hearing.

      Mr. Frank F. Bradner, for the complainant.

      Messi's. Lwn, Tamblyn & Colyer (Mr. Lum), for the defendant.
   Backes, Y. C.

The complainant seeks to rescind three sales of preferred capital stock of the defendant company and to recover the purchase price. The first cause of action involves two of the sales. As to the first sale, the action is abandoned, and as to the second, relief is denied for failure to sustain the cause for action, in law and in fact.

The company’s authorized preferred capital stock is $250,000, shares $10 each, and thirty-seven thousand five hundred shares of non-par value. The latter was originally issued for property purchased—patent rights appraised at $50,000. Of the non-par value shares, twelve thousand five hundred were returned to the treasury of the company to be given to purchasers of the preferred stock as bonus, at the rate of one share to two of the preferred. The complainant owned sixty shares of the preferred stock, for which he had paid $600, and thirty of the bonus shares when the third “sale,” the subject of the second cause of action, was negotiated. At that time, and for some time before, the company was looking for capital to extend its operations and had retained Stone & Company, of New York, stock sales promoters, to market its stock. Brown, a salesman for Stone & Company, called on the complainant, a prospect, with the stock last and then recently bought by him—ten shares preferred and five non-par value. With him was one Williams, a confederate, whom he introduced as also a Stone & Company salesman. Williams, in the presence of Brown, represented that the company was offering exclusively to its stockholders shares at $20 a unit—a unit being two shares of preferred and one of non-par value—and that he had a customer for the shares at $30 per unit, and if the complainant would buy one hundred and twenty units for $2,400, he would bring him a certified check for $3,600 in ten days. The offer was so alluring that the complainant took Brown to Mr. Colyer, the president of the company, not to verify it, but, as he says, ,to be sure that any business transaction he may have with Brown would be “on the level,” and of this, he says, he was assured without revealing the nature of the business. Evidently, more than that took place, for Mr. Colyer, speaking of the occurrence, says, and I believe him, that the complainant asked if Brown was all right to deal with in buying their stock, and that he replied he certainly was, that he had authority to sell it; that the complainant related that Brown had represented that he wanted to buy stock; that it had been over-subscribed, and that they had orders for it at $30 a unit, and asked whether it would be all right to deal on that basis, whereupon he (Colyer) reprimanded Brown for suggesting anything of that kind, and told the complainant not to buy stock on that basis, that if he wanted to buy stock in the company as an investment to go ahead and do it, but not to do it if he expected the company at any time to buy any of its stock back, and that the company was selling and not buying. He says he repeated this a second time. Later, Brown, Williams and the complainant continued their negotiations at the complainant’s store. The complainant had but $1,400—$1,050 in liberty bonds and $350 in cash. Williams generously loaned him his check for $1,000. These were turned over to Brown, together with the subscription for the shares, signed by the complainant, on a printed form furnished by the company, which, as originally filled out, read: “I hereby subscribe for one hundred and twenty units, each unit consisting of two shares of preferred and one share of common stock, fully paid and non-assessable, of the Foster Screen Company, Inc., at $20 per unit, and accompany this subscription with the full payment thereon, $2,400 cash.” Brown gave the complainant a receipt on the company’s printed form for the subscription for one hundred and twenty'units and $1,400 cash and $1,000 check. In the course of the trial it developed that Brown altered the subscription to seventy units and the amount received to $1,400 in cash. The subscription blank thus altered and $1,400 in cash were remitted to Stone & Co. and by them forwarded to the company, which issued certificates for the seventy units and sent them to Stone & Company, who mailed them to the complainant, but he refused to receive them, it having dawned upon him that he had been tricked. A few days later an accomplice had called and. tried to get him to furnish cash instead of Williams’ check, upon the false plea that the laws of New York prohibited brokers lending money with which to buy stock.

There can be no doubt that the sale was brought about by a cheat and that it was accomplished substantially in the manner related by the complainant, except, perhaps, that Williams referred to the company or Stone & Company as the “customer,” which complainant, hi his eagerness to win his suit, may have wittingly suppressed. His testimony is not above criticism, for he stubbornly denied his signature to the subscription, even after persuasion that he was in error; but his story, in the main, is supported by the altered subscription blank and the spurious check given by Williams and noted on the receipt for the subscription.

The complainant relies on the well-established principle of law that where a person acts for another, who accepts the frnits of his efforts, the latter must be deemed to have adopted the methods employed, as he may not, even though innocent, receive the benefits and at the same time disclaim responsibility for the measures by which they were acquired. With the benefits of the contract he must accept the responsibilities. 21 R. C. L. 932; Marsh, v. Buchan, 46 N. J. Eq. 595; Mick v. Corporation of Royal Exchange, 87 N. J. Law 607; Hubing v. Liberty Trust Co., 88 N. J. Eq. 322. The remedy is to rescind and sue for the benefits. Keen v. James, 39 N. J. Eq. 527; Kennedy v. McKay, 43 N. J. Law 288; Decker v. Fredericks, 47 N. J. Law 489. The principle cannot be invoked here. The complainant is an intelligent Greek. He has been in this country thirty years, and for the most part engaged in business. The fanciful story that led up to his undoing was in itself sufficient to impress him that the agents were not acting within the scope of their authority, and further, the fact that he gave no intimation of the nature of the transaction to the president of the company, and concealed what was afoot when he should have spoken, reveals not only his own cunning but his appreciation that he was venturing with Brown and Williams not as agents, but independently, and dissociated from the company. He wanted to be sure of Brown’s integrity, not his authority. Besides, he was fully warned that the representations were without authority of the company. The contention that the warning by the president not to buy the stock on the basis represented by Brown was only that the company would not repurchase the stock at the increased price, and not that others would not, is a shallow evasion of the spirit of the repudiation of the fraud, for it embraced whatever scheme was related to the president, and if his words did not extend to the real situation it was because the. complainant concealed it. It was sufficiently comprehensive to put him fully on his guard, and if he chose to understand it more narrowly the fault lies with him. If his cupidity overreached his judgment he has but himself to blame. It was his privilege to disregard the advice of the president and to chance with the swindlers, but in the gamble he had no right to reckon with the principal as a responsible factor in case he lost. The complainant, not the company, is chargeable with the duplicity complained of.

But it would seem that the complainant is not without relief in a proper case. In his present bill he counts simply on the false pretense of the company’s agents, which has been held to be not imputable to the defendant. This is the only issue decided. The contract of subscription was for one hundred and twenty units of stock; it was fraudulently altered to seventy units before it reached the defendant company, and therefore their minds did not meet. Hubing v. Liberty Trust Co., supra. The bill may be amended and further hearing will be given if desired.


text:
    Charles Haldane Johnson, substituted administrator cum testamento annexo, complainant, v. Elizabeth P. Haldane et al., defendants.
    [Decided March 17th, 1924.]
    1. The rule that the provisions o£ á later clause in a will must prevail over provisions in a former clause will not be applied except on the failure of every attempt to give the whole will such a construction as will render every part of it effective.
    2. In construing a will the predominant idea of the testator’s mind, if apparent, is heeded as against all doubtful and conflicting provisions which might of themselves defeat it. A clear gift in one clause cannot be taken away or cut down by doubtful expressions in another clause, but only by express words or by clear implication.
    3. Where a testator in the seventh clause of his will directed that his property should be divided between his great-grandchildren, the children of C. and the children of his son Wt, and by the ninth clause of his will provided that his estate be divided equally among his great-grandchildren, and after the testator’s death two other great-grandchildren were born, the meaning of the testator is apparent that the estate should be divided among the persons designated in the seventh clause of the will.
    On final hearing.

      Mr. Arthur II. Bissell, for the complainant.

      Mr. Harold Bouton, for the defendant Johnson.

      Messrs. Edwin B. & Philip Goodell. for the defendant Huckel.
   Backes, Y. C.

George W. Haldane, by his last will and testament, gave the interest of his estate to his wife for life, during widowhood, and then, after certain pecuniary bequests, disposed of the remainder as follows:

“Seventh—After the death of Emma C. Haldane and my son William H. Haldane and my daughter Henrietta Johnson, the principal shall be divided between my great-grandchildren, the children of Charles H. Johnson and the children of my son William H. Haldane, should he have any heirs.
“Eighth—To my three grandchildren, Elizabeth, Florence and Edith Johnson, I give two hundred dollars ($200) each, and to Charles H. Johnson I give five hundred dollars ($500), he also being my grandson.
“Ninth—The balance of my estate I leave to be divided equally among my great-grandchildren, with one exception, which is, that to my great-grandson Haldane Johnson, the first bom son of Charles H. Johnson, to him I give a double portion, to all of my other great-grandchildren. In the event of my son William HI Haldane having a son or daughter, the same amount as given to Haldane Johnson, my great-grandson, shall be given to the son or daughter first bom to my only son William H. Haldane. Should my son have other children, then they shall share equally with my great-grand- . children in the division of my estate. I also give to my grandson Haldane Johnson my silver watch and the gold coin attached to it. dated 1821.”

When the will was made and at his death the testator’s kin were:

Children—William H. Haldane and Henrietta Johnson, widow of Charles H. Johnson.

Grandchildren—Children of Mrs. Johnson: Charles H. Johnson, Elizabeth, Florence 'and Edith Johnson.

Great-grandchildren—Children of grandson Charles E. Johnson: Charles Haldane Johnson, Kenneth, Allen and Elizabeth Johnson.

After the testator died, Elizabeth Johnson, grandchild, now Mrs. Huckel, had two sons, Alfred W. aud Martin J. Huckel.

The time for distribution has arrived, and the substituted administrator asks to be instructed whether the principal is to be paid over as directed by the seventh clause of the will to tbe testator’s great-grandchildren, the children of his grandson Charles H. Johnson, or whether the balance of the estate is to be divided among all the great-grandchildren, which would include the Huekels.

There is no uncertainty as to the testator’s intention expressed in the seventh clause of the will, that his great-grandchildren, children of his grandson Charles H. Johnson, and the children of his son William II. Ilaldahe, were to share the remainder of his estate. Nor is there any apparent inconsistency on the face of the will. But the unforeseen advent of the Huekels has created confusion, as they answer the description of great-grandchildren in the ninth clause, and it is claimed on their behalf that the provision of the seventh and ninth clauses in respect of great-grandchildren are irreconcilable, and that under a well-established rule of construction the provisions of the ninth clause must prevail as being the latest expression of the testator’s intention. Hendershot v. Shields, 42 N. J. Eq. 317. That rule is the last resort. It will not be applied except on the failure of every attempt to give the whole will such a construction as will render every part of it effective. Rogers v. Rogers, 49 N. J. Eq. 98. In construing a will the predominant idea of the testator’s mind, if apparent, is heeded as against all doubtful and conflicting provisions which might of themselves defeat it. Schoul. Wil. §’ 476; Carter v. Gray, 58 N. J. Eq. 411; Burroughs v. Jamieson, 62 N. J. Eq. 651. A clear gift in one clause cannot be taken a.wav or cut down by doubtful expression in another clause, but only by express words or by clear implication. 40 Cyc. 1415. The court in construing a will must search for testator’s intention in the light of the facts, placing itself as nearly as possible in his position. Howell v. Steelman, 76 N. J. Eq. 423; affirmed, 77 N. J. Eq. 586.

The prominent thing in the testator’s mind, and his predominant intent and purpose as expressed, obviously, was that the children of his grandson Charles H. Johnson (there were none other living at the time of the will) were to share his estate with the children of his son William. The great-grandchildren then in being were his chief concern. The possibility of the coming of others, of a different branch, was not mentally visualized. He did not intend, and plainly did not in fact, by the ninth clause, make another gift of the balance of his estate to a class of great-grandchildren as distinguished from the class mentioned in the seventh clause, to which latter class he had previously given all he possessed, but only enlarged the gift to the first born of his son and the first born of his grandson by giving each of them a double portion. It is scarcely conceivable that by the word great-grandchildren in the ninth clause he intended great-grandchildren generally, and meant thereby to destroy the bequests just made to great-grandchildren in being. The language of the ninth clause, “the balance of my estate I leave to be divided equally among by great-grandchildren,” &c., will not admit of the construction that'the testator intended the balance of his estate to be divided among all his great-grandchildren, for, by both clauses, the seventh and the ninth, his son’s children are to share in the balance, and, manifestly, he referred to that “balance” which by the previous clause he had given to the great-grandchildren therein pointed out. In other words, -to his “said” great-grandchildren, to whom he had given it by the seventh clause. This view removes the apparent inconsistency between the two clauses and permits both to stand.

A decree will be advised directing the administrator, in making distribution, to exclude the, great-grandchildren Huckels.


text:
    Board of Public Utility Commissioners, complainant, v. Frederick D. Sheldon and Louis Sheldon, defendants.
    [Decided March 18th, 1924.]
    1. The board of public utility commissioners has general supervision and regulation, jurisdiction and control over all public utilities.
    2. A jitney the route of which in whole or in part parallels upon the same street the line of any street railway is a public utility.
    3. A municipal license to operate a public utility is not valid until approved by the board of public utility commissioners, and such approval may be conditional. The privilege to approve the municipal license implies the power to revoke the approval for breach of condition or any lawful cause.
    4. A license issued under the M'otor Vehicle act does not confer the right to operate a public utility jitney.
    5. Where one operated a line of jitney buses under the authority of the hoard of public utilities of New Jersey, which authority provided that the buses should not discharge or take on passengers on a certain street between limits named, and also under an ordinance of a town, the revocation of the authority to operate because of violation of the condition as to discharging and taking on passengers within the limits- named, did not place the operators in the position of violating the ordinance of the town.
    G. The public interest, as against the unlawful operation of public utility jitneys, may be protected by injunction at the suit of the board of public utility commissioners.

      Mr. Thomas Brown, for the complainant.

      Mr. James E. Bolitho, for the.defendants.
   Backes, Y. C.

The defendants and one Jewell obtained a license from the town of Dover to- operate two jitney buses over a route in the town, which route extends into- the adjoining borough of Wharton. Wharton has no bus ordinance. The route, in part, parallels, upon the same street, the street railway of the Morris County Traction Company. The board of public utility commissioners approved the municipal license, but imposed the condition:

“That the operation of said buses, while operating on Main street and Blackwell street, shall not lake on or discharge passengers who begin and end their trips between the intersection of Salem street and Blackwell street, town of Dover, and the intersection of Main street and Morris canal bridge, borough of Wharton,” and “that said approval shall be revocable for violation of the board’s rules, regulations and restrictions or for other good cause.”

The defendants violated the conditions and thereupon the board, after notice and hearing, revoked its approval and ordgred the defendants “to cease the operation of any auto bus or buses upon a route which, in whole or in part, parallels on the same street the lines of the said Morris County Traction Company,” i. e., between the intersection of Salem street and Blackwell street in the town, of Dover and the intersection of Main street and Morris canal bridge in the borough of Wharton. The defendants refused to ston and thq^board filed tbi^b'dl *o restrain them. Ajmgjimjnary injunction issued The defendants set up that the board is without power to impose the conditions because

“Such conditions amounted to a confiscation of defendants’ license or consent obtained in the town of Dover and interfered with the rights obtained by the defendants under that license or permit, and the license obtained by the defendants from the motor vehicle department of the State of New Jersey”; that the conditions “placed defendants in a position where they either had to incur a penalty or suffer a forfeiture by reason of violation of the ordinance of the town of Dover under which they had obtained their license or consent, or incur a penalty or suffer a forfeiture imposed by complainant for violation of its alleged regulation or order,” and that equity is without jurisdiction because there is an adequate remedy at law.

(1) The board has “general supervision and regulation, jurisdiction and control over all public utilities and also over their property, property rights, equipment facilities and franchises so far as may be necessary fox the purpose of carrying on the provisions of this act.” P. L. 1911 ¶. 374. ' And a jitney, “the route of which, in whole or in part,, parallels upon the same street the line of any street railway or traction railway,” is a.public utility. P. L. 1921 p. 390. A municipal license to operate a public utilitj1' jitney is not valid until approved by the board, and sudh approval may be conditional under section 24 of the Utility act of 1911. The privilege to approve the municipal license implies the power to revoke the approval for breach of condition or for any other lawful cause. The right to operate a public utility jitney depends upon the coincidence of the municipal license and the approval of the board, and no rights are acquired by the license without the approval, and none are invaded by the lawful revocation of the approval. The municipal grant is inchoate and ripens into a right only upon the board’s approval, and falls with the withdrawal of the approval: consequently, there can be no1 “confiscation” of property rights by the board withholding its approval of a municipal license to operate a public utility jitney, and none ■ when such approval is lawfully withdrawn.

(2) A license issued under the Motor Vehicle act of 1921 (P. L. 1921 p. 643) does not confer ihe right to operate a public utility jitney, -nor does section 15 of that act, which provides that “no owner or purchaser or driver of a motor vehicle who shall have complied wnth the requirements of the provisions of this act shall be required to obtain any other license or permit to use or operate the same,” dispense with the requirement of a municipal license and the approval of the board to operate a jitney for public hire. A motor vehicle license is requisite to the operation of a jitne}-, but not an authorization to operate it as a public utility.

(3) By section 17 of the Utility act of 1911 the board has power to, by order in writing, require every public utility “to comply with the laws of this state,” and section 32 provides that:

“In default of compliance with any order of the board when the same shall become effective the person or public utility affected thereby shall be subject to a penalty of $100 per day for every day during which such default continues, to be recovered in an action of debt in the name of the state, and ohseygaaea-af tile orders of the board may be enforced, hv mai.ulamn,s or injunction u.i—n-naropriate caaes, or by suit in equity to TOmpeLJAM^peeifl^^prformnrmpnf the order or orders so made, or of~the dntier '-------1 1—----- —=’• public utility.” duties imposed by law upon such

The order to the defendants to cease the unlawful operation of their jitneys is an order to comply with the laws of the state within the meaning of section 17, and is such as is enforcible under section 32. That the board has jurisdiction to make such an order is not assailed, and that the order was made in a lawful way is not challenged.

The jurisdiction of equity to protect the rights of the state is one of common exercis attomey-gmergl—^But where, as here, the duty of protecting the^rüblícinterest as against the unlawful operation of public utility jitneys is vested by the state in the board, the authority to vindicate the public right is conferred by necqssaryimp'Jication, it nS'lrby express^tenns, and the functions of the attorney-general "are bestowed. Proceedings at lawby certiorari or mandamus are obviously inappropriate. The board’s action may be reviewed by certiorari, and mandamus issues only to enforce legal rights, not to restrain unlawful acts.’ 18 R. C. L. 90; State v. Paterson, Newark and New York Railroad Co., 43 N. J. Law 505; Board of Freeholders of Essex v. Newark National Bank, 48 N. J. Eq. 51. And if the defendants’ municipal license, coupled with the board’s approval, be regarded as a franchise, an information in the nature of a quo warranto will lie to forfeit the franchise. 22 R. C. L. 668, 670. Jurisdiction of equity does not, however, depend upon the absence of an adequate remedy at law. The attorney-general, and here the board, may choose the remedy, either at law or in equity, whichever may the more speedily and effectively produce relief. Stockton v. Central Railroad Co., 50 N. J. Eq. 52, 79.

The defendants* contention that the only remedy is by the enforcement of the pecuniary penalty prescribed by section 32, above quoted, is not sound. That remedy is cumulative, not exclusive, as the statute plainly shows, and, manifestly, it is not adequate to accomplish the purpose here sought.

The board is entitled to an injunction.


author: Grikfin, Y. C.

text:
    Mungo J. Currie et al., executors, &c., complainants, v. Mayor and Aldermen of Jersey City and Factory Site Corporation, defendants.
    [Submitted March 5th, 1924.
    Decided March 26th, 1924.]
    1. Where a map is filed showing certain streets delineated thereon, and no conveyance has been made according thereto, this alone is not sufficient to establish a dedication or a tender of dedication of the streets to the city.
    2. The owner of land may map and lay it out into streets, avenues and blocks at his own free will, and the public will acquire no interest therein until, by some decisive and irrevocable act, either toward the public or toward a grantee, he renders it improper and unjust to permit him to deny the public use and character of the highway; he is then estopped, but not before.
    3. The filing of a map in the county clerk’s office was for the convenience of vendors and purchasers. It might have been filed with a title company, or retained in the maker’s possession—the effect would be the same in the law. (At the time the map was filed there was no provision of law for the filing of the same.)
    4. Where resolutions were passed by the city authorities appointing the chief engineer to report the proper grades for some seventy streets in the vicinity of the lands delineated. on the map filed, and the engineer reported the grades, and no objections being made, the grades were confirmed, and for almost half a century no grade has been worked nor anything done by the city in the premises, there could be no acceptance by these resolutions, as there was neither dedication nor tender by the owner, and no estoppel could arise.

      5. Where city maps were made conforming to the filed map, and taxes assessed thereon, and the property sold for taxes, this, standing alone, does not show an intent to dedicate.
    6. Where taxes were assessed on the lands according bo the map, and the taxes afterwards adjusted by commissioners under the Martin act and the lands were sold to the city under such adjustment, such acts display no donative intent on the part of the owner of the lands, nor do they operate as an estoppel.
    7. The city, by the conveyance to it, acquired the fee in the lands fronting on the street; it did not own the easement of way on Princeton avenue, the fee in which was well vested in the complainants. It afterwards sold to the complainants. One of the most important present incidents of a fee-simple is the right of a free and unlimited alienation. It might sell to anyone, including the complainants, placing all purchasers on an even footing. If it could ruo-t sell to the complainants on the same terms as it might sell to a stranger, this would be a limitation on the fee. If it sold to a stranger, the easement of way in the street would not pass thereby. Held, that under the sale to the complainants, with no agreement on the part of the complainants contained in the deed to the contrary, the complainants took the same title as would have passed to- a stranger, and thus the acceptance could not be regarded as a dedication or tender thereof
    8. Where complainants conveyed an underground easement to the Passaic valley sewerage commission by reference to the streets on the map, the deeds in each case expressly stating that the map was used for convenience in description, and not with intent to dedicate, does not evidence a dedication.
    9. Where a petition yvas presented to the city praying the vacation of a street, stating that the application was made without prejudice to the right of the petitioner to claim that such streets had not been dedicated to public use, the petition being merely to remove what might be a cloud on the title, does not operate as a dedication.
    On bill, &C.

      Mr. Richard Boardman, Jor the complainants.

      Mr. Thomas J. Brogan and Mr. Franlc J. Reardon, for the mayor and aldermen of Jersey City.
   Grikfin, Y. C.

The bill in this canse is filed to quiet the title to- lands lying within the lines of a certain street shown on the city ma.p as Princeton avenue. The city claims that there was a dedication. This the complainants deny. The priman' circumstances tending to- show dedication as contended for by the city is this: In 1872 the estate of James Currie made a map and filed the same with the county clerk on April 27th, 1872, on which Princeton avenue is laid down as Avenue E. No- conveyances have been made according to this map. In this posture there was neither a dedication nor a tender of dedication to the city. The elementary rule in this situation is stated in Vannatta v. Jones, 42 N. J. Law 561, where Mr. Justice Magie said: “The owner, of lands may map and lay them out into streets and avenues and blocks at his own free will, and the public will acquire no interest therein until by some decisive and irrevocable act, either toward the public or toward a grantee, he renders it improper and unjust to permit him to deny the public use and character of the highway. He is then estopped, but not before.”

To the same effect is New York and Long Branch Railroad Co. v. South Amboy, 57 N. J. Law 252, 258, cited with approval in Keyport v. Freehold, &c., Railroad Co., 74 N. J. Law 480, 482; 2 Dill. Mun. Corp. (3d ed.) 638, § 640.

It is quite likely that when the executors made and filed this map (and their authority is not questioned) they were then minded to sell according thereto-, as then being the best plan to carry out their trust in disposing of the property.

At the time this map was filed, there was no provision in the law therefor. It might have been filed with a title company or retained in the makers’ possession, the effect would be the same in law.

The filing in the clerk’s office where conveyances were recorded was a mere matter of convenience to- the executors in selling and purchasers, in that if the lands were sold by lot and block number, according to- the map, without a particular description, the map was readily obtainable to establish the location of the lot conveyed.

The next point the city makes is that on August 30th, 1877, a resolution was passed, under the city charter of 1871 (P. L. 1871 p. 1094 § 56), appointing the chief engineer to report the proper grades for some seventy streets in the vicinity of Princeton avenue (Avenue E); and on October 2d, 1877, the engineer having reported the grades, and no objections having been made, the grades were confirmed, and during the period since elapsed (almost a half a century) no grade has been worked, nor did the city turn over a spade of earth on the premises. My view on this point is that, as there was neither a dedication nor a tender of dedication by the owner, there could be no acceptance by these resolutions, and, as tire city has never done anything in furtherance of the resolutions, no estoppel could arise.

The next point made is that city maps were made conforming to the filed map, and the Martin act commissioners made maps conforming to the filed map, under which the property was sold for taxes. It does not appear in this case that the complainants paid any taxes according to the map prior to 1875, and, even if they had, I would not regard this, standing alone, as an intent to dedicate. I find no cases in this state on the subject, but a number of cases from other states appear in Ell. Roads, &c. (8d ed.), 213 §• 185. In City of Ottawa v. Yentzer, 160 Ill. 509; 48 N. E. Rep. 601, 604, the supreme court of Illinois cites an earlier edition of EU. Roads, dec. (which is now § 185, supra), to this effect:

“The payment of taxes assessed by the local authorities is evidence tending to. defeat the presumption of a dedication. It is, however, under most circumstances, a matter of but small probative force, and if the land is. in fact, dedicated to the public for a highway, the fact that it has been taxed will not prevent the public from claiming the use of such land for a public road.”

To substantially the same effect is Town of Lake View v. Le Bahm, 120 Ill. 92; 9 N. E. Rep. 269, 273.

In Poole v. City of Lake Forest, 238 Ill. 305; 87 N. E. Rep. 820, the court said: “The law does not demand the forfeiture of title simply because the owner of property does not cause it to be listed for taxation. The utmost that can be claimed by appellant from this circumstance is that the failure of the public authorities and the owner to have the premises listed and taxed is an evidentiary fact tending to prove that the premises were regarded as public property. This fact, while entitled to consideration and due weight, is not conclusive upon the owner.”

The general rule deducible from these authorities seems to place the municipality and the owner upon an equal footing on the question of the assessment and the payment of taxes on lands claimed to be dedicated, on the one hand, and the failure to assess and the consequent non-payment of taxes upon lands against which a similar claim is asserted, on the other. And in either case such payment or non-assessment and non-payment, as the case may be, is some evidence for or against the fact of dedication, but is nos conclusive.

Coming to the next claim of the city, the taxes assessed against the lots fronting on Princeton avenue, being unpaid from 1875 to 1892, were adjusted by the commissioners of adjustment under the Martin act, and were sold to the city by the city collector in 1899. In view of what has been said, the action of the Martin act commissioners in making their map and adjusting the taxes according thereto, and the sale by the city collector to the city according to the same description, displayed no donative intent on the part of the complainants, nor did it operate as an estoppel against them.

The last and most serious point is that, after the city acquired title, it conveyed to the complainants according to the map showing Princton avenue delineated thereon. Mjr first thought was that, b3r accepting this Constance, an estoppel might possibly have arisen against the complainants to deny the existence of the street. But, upon anatyzing the situation, this position arises: The city owned the fee in lands fronting on the street. It did not own the easement of way in Princeton avenue, the fee in which was well vested in the complainants.

One of the most important present incidents to a fee-simple is the right of free and unlimited alienation. Washb. Real Prop., § llt-1 (6th ed.). I have not overlooked the fact that there may be a restraint which is limited or partial. Feit v. Richards, 64 N. J. Eq. 16, 20. But in this case the city took an unlimited fee without any restraint on alienation. It therefore could convey at any time to anyone^ including the complainants, the title to the lands which it had acquired, which,, as above pointed out, did not include the easement in Princeton avenue. And in making the conveyance, the grantee, whether it happened to be the complainants or someone else, would acquire the same identical estate and right, title and interest in the lands so conveyed. If sold to the complainants it would no more operate to dedicate the street than if sold to a stranger; otherwise, the conveyance to the city would not possess the attributes of a fee, because thereby it would be excluded from selling to the complainants on the same terms as to a stranger.

Therefore, the mere acceptance of a deed from the city containing no agreement on the part of complainants to the contrary, did not operate as an estoppel against complainants denying that Princeton avenue was thereby dedicated to public use.

None of the facts appearing in this case, to my mind, show a donative intent on the part of the complainants, nor anything from which an estoppel may arise.

In Green v. Chelsea, 24 Pick. 71, 80, the supreme judicial court of Massachusetts said: “Dedication must originate in the voluntary donation of the owner of the land and be completed by the acceptance of the public.”

In closing, I may add that- the city also- asserts that, by reason of the complainants describing a certain underground easement recently conveyed to the Passaic valley sewerage commission by reference to the streets on the map, this showed a donative intent. This is clearly not so-, for the complainants in the very grant declared in substance that the reference to the streets was made for convenience in description and not with intent to dedicate.

And the same may also be said as to the petition presented by the Factory Site Corporation assented to by one of complainants, which prayed the vacation of several streets, including Princeton avenue, but in said petition it is stated that the application was made without prejudice to the right of the petitioner to claim that such streets had not been dedicated to public use. This petition was merely filed to remove what might be a cloud on the title.

The decree will be for the complainants.


author: Foster, V. C.

text:
    Ethel C. Burmeister, complainant, v. Frederick H. Burmeister, defendant.
    [Submitted October 9th, 1923.
    Decided October 31st, 1923.]
    1. A writ of sequestration binds from the time of awarding a commission and not from the time of executing it.
    2. Where, after final decree on an uncontested bill for maintenance, a writ of sequestration was issued and served the next day on the executors and trustees of an estate in which the defendant had an interest, the payment of which was postponed in part until the testator’s daughter attained her majority, and in part during the lifetime of the testator’s widow, and later after the happening of those two events the sequestrator collected a sum of money, the writ of sequestration takes precedence over an undisclosed assignment of part of the fund, and over two judgments on which no execution was issued or levy made.
    On petition, &c.

      Mr. George W. Flaache, for the complainant.

      Mr. William F. Nies, for the petitioning creditor.
   Foster, V. C.

On November 22d, 1916, complainant filed her bill against her husband, the defendant, for separate maintenance, under the statute. The action was uncontested. The defendant disappeared in 1915 and has never returned to the state. A final decree for complainant was entered on August 27th, 1917, by which it was provided that from defendant’s estate property and effects and the rents, issues and profits thereof, which had been sequestered, there should be paid to complainant for the support and maintenance of herself and the two infant children of the marriage the sum of $25 weekly, to commence on November 22d, 1916, the date of filing her bill, and to continue until this court should otherwise order.

On November 28th, 1916, a writ of sequestration was duly issued in the cause, directed to Frank W. Hastings, Esq., one of the masters of the court, for the immediate sequestration of the estate, property and effects of the defendant -within the state, and the rents, issues and profits thereof.

Prior to the issuance of the writ, Charles H. Burmeister, the father of defendant, had died testate on July 11th, 1913, leaving a widow and four children, including the defendant, and William H. Assenbeck and Walter Montford were appointed and qualified as the executors and trustees of his estate. By the terms of his father’s will defendant was bequeathed a share of the estate;, but the payment of this share was postponed in part until testator’s daughter attained her majority and in part during the lifetime of testator’s widow, and at the date the writ of sequestration was issued defendant had no property in this state except this interest in his father’s estate.

On November 29th, 1916, the sequestrator executed the writ by serving it upon the executors and, trustees of the estate of Charles H. Burmeister, deceased, and as he made return “covering the share or interest of the defendant, Frederick H. Burmeister, in the estate of said Charles H. Burmeister.”

The daughter of testator attained her majority some two or three years ago and his widow died during the present year. Hnder date of September 13th, 1923, the sequestrator reported that there had been paid to him on the final settlement of the estate, in settlement of defendant’s share or interest therein, $7,848.19.

No part of the allowance granted complainant by the terms of the final decree has been paid, and there is now due her thereunder over $9,100, besides interest and costs, or an excess of over $1,800 above the amount realized from the sequestration. Payment to complainant of the full amount thus realized is resisted by the petitioner, Anna E. Assenbeck, as executrix and sole legatee of William H. Assenbeck, who died on September 24th, 1918, on the following grounds set forth in her petition filed herein on July 24th, 1923: William II. Assenbeck was one of the executors of Charles H. Burmeister; on July 2d, 1915, the defendant, Frederick H. Burmeister, was indebted to Mr. Assenbeck in the sum of $1,198, and to secure the payment of this debt defendant on that date assigned to Mr. Assenbeck such an interest in his father’s estate as would equal the amount of this debt, together with interest, to the date of its payment, and he directed the executors of his father’s estate to pay this amount to Mr. Assenbeck.

On November 21st, 1916, the day before complainant’s bill was filed, but with knowledge that she contemplated bringing such an action, for she inquired of him about defendant’s residence, Mr. Assenbeck recovered two judgments, without contest, against the defendant in the district court of Hudson county, one for $222.45 and the other for $397.83.

Neither the pétition nor the affidavit filed in support of it show that Walter Montford, the other executor and trustee of Charles H. Burmeister’s estate, ever had notice of the assignment made by the defendant to Mr. Assenbeck, or of the judgments mentioned, and the petition and affidavits further fail to show that any effort was made by execution and levy, or otherwise, to collect the amount of these judgments, or the amount due on the assignment.

At the time this assignment was executed and these judgments obtained, it appears (from the references to the will given in the briefs of counsel, the only information I have on the subject) that the first distribution of any part of the estate in excess of $25,000 was postponed until defendant’s sister arrived at the age of twenty-one years, which she did some time after the date of the assignment and the entry of the judgments, and that final distribution was postponed until the death of testator’s widow, which occurred this year.

The contention on behalf of the petitioner on these facts' is, that as the assignment was executed and as both judgments were obtained prior to the issuance of the writ of sequestration, they take priority over the sequestration and must be first paid, with interest, before anything can be paid complainant on the amount due her under the- final decree. -

An assignment of such a partial interest has no validity in law, but is sometimes recognized, as a matter of equity, and if it were merely equitable rights between the parties that were now presented for determination, such consideration might be given this assignment. The facts, however, do not require any such consideration, for while Mr. Assenbeck individually, as assignor, of course, knew of the assignment before the writ,of sequestration issued, his co-executor had no notice of it, and, so far as the record discloses, the representatives of the estate, as such, never knew of the assignment, nor of the judgments, nor of any effort to collect or to levy on, or to secure a lien for any or all of them, on defendant’s interest in the estate, although Mr. Mountfo-rd continued to act as an executor and as surviving executor after Mr. Assenbeck’s death in 1918, until he died in July, 1922. These facts present no equity that entitles petitioner to the payment of the amount due on the assignment prior to the payment of the amount due complainant.

Respecting the two judgments, as I have stated, no execution was ever issued, and no levy or other effort was ever made to collect them until the present time, and the mere fact that they were entered prior to the date when the writ of sequestration was issued and executed by service upon the executors,.cannot give these judgments any priority over the rights of complainant.

The court of errors and appeals in Wood v. Price, 79 N. J. Eq. 620, affirming the chancellor’s decision in the same case, 79 N. J. Eq. 1, said: “The books say that a sequestration out of chancery is more effectual than an execution at law, and binds from the time of awarding a commission and not from the time of executing it.” 1 Vern. 58.

While the court further held that because the writ in that case antedated the deed in question, it was unnecessary for it to hold that sequestration binds before its execution. There is nothing in the opinion, nor in that of Chancellor PitneWs which it affirmed, to indicate that the court would not hold, if necessary to make the sequestration effective, that in accordance with the authorities the writ binds from the date of its issue, and not from the time of executing it. Burdett v. Rockley, 1 Vern. 58; Dixon v. Rowe (W. N., 1876) 266; Ward v. Booth, L. R., 14 N. J. Eq. 195; Ex parte Nelson, 14 Chit. Desc. 41; Dan. Ch. Pl. & Pr (6th Am. ed.) 1050, 1057. The writ in this case was executed by service upon both executors the day after it was issued. Both from the date it was issued, as well as from the date it was executed, the writ had priority over the undisclosed assignment and also over the mere entry of the district court judgments in favor of petitioner’s testator. I will therefore advise that the petition be dismissed, and that the funds now in the hands of the sequestrator be paid to complainant on account of the amount due her under the final decree, less such allowances as may be made to- the sequestrator and counsel.

Application for such allowances may be made on two days’ notice.


author: Foster, Y. C.

text:
    Buchanan & Smock Lumber Co., complainant, v. Mary A. Brower et al., defendants.
    [Submitted January 23d, 1924.
    Decided January 31st, 1924.]
    Under section 58 of the Obancery act (1 Comp. Stut. p. J/SB), the owner of a mortgage not recorded at the time a bill is- filed to foreclose a prior mortgage upon the same premises is barred by the decree in such foreclosure as effectively as if he had been made a party and appeared.

      On motion to dismiss.

      Messrs. Patterson, Rhome & Morgan, for the complainant.

      Mr. J. Everett Newman, for the defendants.
   Foster, Y. C.

Complainant’s bill is filed to foreclose a mortgage given by one William D. Bryant, and covering property in Monmouth county owned by the defendant Mary A. Brower. Mrs. Brower purchased the property from one Lillian Sachs on November 19th, 1923. On July 30th, 1923, Lillian Sachs bought the property at a sheriff’s sale, in a foreclosure proceeding, wherein she, Lillian Sachs, was complainant and William D. Bryant was defendant. The bill in this suit of Sachs against Bryant was filed on February 3d, 1923; on February 13th, ten days later, the complainant herein recorded.the mortgage now in suit, which bears date October, 1922, but was not executed nor acknowledged until February 9th, 1923. On February 16th the subpoenas in the suit of Sachs against Bryant were issued.

Sachs had no actual knowledge at the time the bill was filed and the subpoenas issued of complainant’s mortgage, and consequently did not make complainant a party to that suit, and complainant had no knowledge of the Sachs’ foreclosrrre proceedings until the deed from the sheriff to Sachs was recorded, and therefore did not apply to intervene in the Sachs suit.

Counsel for defendant Brower contends that notwithstanding this situation complainant’s mortgage now in suit, so far as Mrs. Brower’s property is concerned, was barred by the Sachs foreclosure as effectively as if complainant had been made a party thereto, and in support of this contention and of his motion to dismiss complainant’s bill, so far as it relates to Mrs. Brower’s property, he relies upon section 58 of the Chancery act (1 Comp. Stat. p. 432), which provides that:

“In any suit for the foreclosure of a mortgage * :i; * all persons claiming a lien on such property by a mortgage which by any provision of law could be recorded * * ' * and which shall not be so recorded * * * at the time of the filing of the bill in such suit, shall be bound by the proceedings in such suit in the same manner as if he had been made a party.”

Complainant, in answer, claims that an action in chancery is commenced with the issuing of process or subpoena and not when the bill is filed, and the cases of Haughwout v. Pomeroy, 24 N. J. Eq. 531; Herman v. Mexican Petroleum Corp., 85 N. J. Eq. 367; Houpt v. Board of Education, 87 N. J. Eq. 862, and Delaware River Quarry Co. v. Freeholders, 88 N. J. Eq. 507, are cited to support this contention, and based on these authorities complainant’s argument is, that as its mortgage was recorded three days before the subpoena was issued in the Sachs suit, although ten days after the bill therein was filed, it was incumbent on Sachs to make complainant as the holder of a lien of record at and before the commencement of the'action, i. e., the issiiing of subpoenas, a party defendant in order to bind complainant, or to bar, or foreclose its mortgage lien.

Section 58 of the Chancery act has been considered in several cases in this court and in the court of errors and appeals, and it has uniformly been held, as stated by the court of errors and appeals in Sibell v. Weeks, 65 N. J. Eq. 714, that under this statute, the owner of a mortgage not recorded, when a bill is filed to foreclose another mortgage upon the mortgaged premises is barred by the decree in such foreclosure as effectively as if he had been made a party and had appeared.

In Dinsmore v. Wescott, 25 N. J. Eq. 302, and in Leonard v. New York Bay Co., 28 N. J. Eq. 192, it was held that under this statute if the unrecorded title had come to the-knowledge of complainant during the pendency of his suit, no duty would thereby have been cast upon him to have the owner made a party.

And in McCrea v. Newman, 46 N. J. Eq. 478, it was held that this section of the act affords the complainant in a foreclosure proceeding and a purchaser under him complete protection from an encumbrance unrecorded when the bill was filed. See, also, Raymond v. Post, 25 N. J. Eq. 447; Cannon v. Wright, 49 N. J. Eq. 17, and Stiles v. Galbreath, 69 N. J. Eq. 222.

This section of the act does not, as counsel for the parties claim, change the rule of the cases that an action in chancery is begun when process issues, nor does it, as claimed, fix a different time or make any distinction as to the time when a foreclosure action is begun. What the statute does is to fix a definite time in foreclosure cases, viz., at the time of filing the bill, when unrecorded liens of the classes expressly specified in the act are bound and barred by the proceedings in such cases, in the same manner as if the holder of any such lien had been made a party to the suit. That is the exact situation here, for the mortgage of complainant was not recorded at the time of the filing of the bill in the Sachs foreclosure, and it was therefore under the statute barred by the proceedings in that section. I will advise that the bill be dismissed as to the defendant Mrs. Brower and also as to the property purchased by her from Sachs under the latter’s foreclosure proceedings.


author: Poster, V. C.

text:
    Daniel J. Friel et ux., complainants, v. Ida Turk and husband, and Helen Potoker and husband, defendants.
    [Submitted January 7th, 1924.
    Decided January 31st, 1924.]
    1. Where one erects a 'building by mistake on the lands of another, who knows nothing about it, and, of course, cannot acquiesce, he has •no relief on the ground of mistake only.

      2. Equity will not grant a man the relief now sought whose condition is attributable solely to his failure to exercise that diligence which may be fully expected from a reasonable person, nor if the negligence was that of the parties’ counsel.
    On bill, &c.

      Messrs. John 8. Applegate & Son, for the complainants.

      Mr. William Greenfield, for the defendants Turk.

      Mr. Benjamin M. Weinberg, for the defendants Potoker.
   Poster, V. C.

Complainants seek relief, by a decree for specific performance, or for an equitable lien, because of the situation arising out of the following circumstances:

Por some years prior to 1921 complainants had been the owners of lots Nos. 85 and 86, on a map> of New Point Comfort Beach, at Keansburg, in Monmouth county, on which they had built a house, which they conducted as a boardinghouse. Under an order from the state tenement-house commission they were required in 1921 to discontinue the use of the kitchen in their boarding-house and to locate it elsewhere.

To comply with this order they undertook to purchase from the defendant Mrs. Turk the lot adjoining their property and which is known as lot No. 84 on the map mentioned, and by agreement dated May 3, 1921, Mrs. Turk and her husband a,greed to convey to complainants lot No. 84 for $1,100. After the execution- of this agreement and with the consent of the Turks complainants entered into possession of lot No. 84, and b}r the time the deed from the Turks to them had been delivered, about July 11th, 1921, complainants had erected buildings and other improvements on this lot at a cost of about $4,800.

Some time in .1922, in connection with an application for a loan to be secured by a mortgage on lot No. 84 and the buildings and improvements thereon, complainants had a search made against this property and they then learned that the Turks had conveyed to them lot No. 83 instead of No. 84, and that lot No. 84 was not and had never been owned by Mrs. Turk; but was and for years had been the property of the defendant Helen Potoker.

Neither the Turks nor the Potokers live in Keansburg. The Potokers have owned lot No. 84 for many years and have seen it but a few times, and they did not know that complainants had built upon their lot until February, 1923, about twenty months after the date of this transaction.

The Turks, like complainants, apparently did not know and did not take the trouble to find out if the lot they were selling complainants was No. 83 or No. 84, and the attorneys (not complainants’ present solicitors) who drew the contract and the deed, acting for both buyer and seller, were equally careless and negligent. The deed appears to have been drawn before the contract, but was not executed and delivered until about two months later. It bears evidence on its face of some change or erasure in the lot number and in the description, which no one explains.

Counsel for complainants concedes that an unconditional decree for specific performance cannot be granted against the Turks because they do not own lot No. 84; but it is suggested they may be decreed to acquire lot No. 84 from the Potokers by the conveyance to the latter of lot No. 83, or on other satisfactory terms, or in the alternative that they be required to compensate complainants for the loss they have sustained through the Turks’ failure to convey lot No. 84 as agreed; and complainants further'aslc that a decree may be made to compel the Potokers to convey lot No. 84 to complainants or to the Turks, so that the latter may specifically perform their contract.

This latter request is based upon the contention that such a decree would not be prejudicial to the rights of the Potokers and would save complainants from great loss and hardship.

The case of McKelway v. Armour, 10 N. J. Eq. 115, is cited as authority for the relief which complainants now seek; in that case a lien was enforced in favor of one who had innocently built a valuable house upon the lands of another because the lot owner had participated in the mistake by standing by and seeing the improvements made upon his property without objection, and while it appeared that he did not realize that it was. his property that was being improved, it was held that he had at least equal opportunity with complainant to know the boundary lines of his lot.

In the McKelway Case there were present, several important features that are absent from the instant one. In that case Armour had stood by and had seen the improvements being made upon his property. In the present case the proofs do not show that the Turks knew of the improvements complainants were making on lot No. 84, and admittedly the Potokers, owners of the property being built on, had no knowledge of the matter for nearly two years after the improvements were completed.

In the McKelway Case the owner of the property, Armour, saw his property being improved. In the instant case neither Potoker, the owner, nor Turk, the pretended owner, ever saw or knew of the improvements until after they were completed.

Assuming, for the purpose of bringing this situation within the McKeltvcuy Case, that the Turks saw the improvements being made; still they never were, and they are not now, the owners of the property so improved, and there is no power in the court to compel the Potokers to sell their lot, or to enforce a lien against Potokers property, to compensate complainants for the loss sustained through complainants’ own mistake, and which I have merely assumed, for the purposes of the argument, was participated in by the Turks.

The McKelway Case has been reviewed in Haggerty v. McCanna, 25 N. J. Eq. 48; Dillett v. Kemble, 25 N. J. Eq. 66; Camden, &c., Land Co. v. Mason, 91 N. J. Eq. 25, and Magnolia Contraction Co. v. McQuillan, 94 N. J. Eq. 342; and from the consideration thus given it, the conclusion is that the relief granted in the McKelway Case rested on the rule of mutual mistake.

The mutuality of the mistake in that case arises from Armour’s knowledge of the improvements being made upon his property, and of the equal opportunity he had with complainant to ascertain that this was the fact.

It is true, as counsel claims, that this is a case of a mistake producing great hardship to complainants; but it is equally true that this situation is the direct result of complainant’s own inexcusable negligence; and the evidence discloses that it is not such a mistake from the consequence of which equity 'can grant relief. The authorities are in accord in holding that, “If one erects a building by mistake, on the land of another, who knows nothing about it and, of course, cannot acquiesce, he has no relief on the ground of mistake only.” Chancellor Zabriskie in Dillett v. Kemble, 25 N. J. Eq. 66.

In the instant case the situation is produced solely by the culpable negligence of complainants and the attorneys who then represented them in the transaction, in failing to make any effort to learn the name of the owner of the property they attempted to purchase and which they improved, as well as in failing to learn the number of the lot they intended to buy or the location of the lot which was conveyed to them by the Turks. All of this information was readily available to them in the Keansburg office of the land company from whom the lot was originally purchased; in the office of the borough tax assessor and in the records in the county clerk’s office, where the deeds for both lots in question had been recorded for some years.

Equity will not grant a man the relief now sought whose condition is attributable solely to his failure to exercise that diligence which may be fully expected from a reasonable person. And this rule has been applied where the negligence was that of the parties’ counsel. Dillett v. Kemble, supra; Haggerty v. McCanna, supra.

And it follows therefore that the relief specifically asked for by complainants must be denied. There is, however, one ground on which the court can afford complainants some relief against ■ the defendant Mrs. Turk for her failure to perform her contract to convey to complainant lot No. 84, and that is to direct that the purchase price of $1,100, paid by complainants to her at the time she conveyed lot No. 83 to them, be refunded to complainants, with interest from the date of the conveyance, on the reconveyance by complainants to her of lot No. 83, if complainants elect so to do. Hnder the facts in the case, complainants would be entitled to this relief at law and should therefore have it granted to them here.

The authority of the court to grant this relief rests upon the principle adopted in courts of equity, that where the matter is before the court properly for relief, which can only be had in equity, the court, in denying specific performance or other relief asked for, will grant instead such relief arising out of the facts of the case to which the party is entitled, although this relief could be had at law. But in such case the court will only grant such relief as the complainant is entitled to at law. Bullock v. Adams' Executors, 20 N. J. Eq. 367.

A decree will be advised accordingly and its terms can be settled on notice.


text:
    Alexander Cadoo, Jr., complainant, v. Sarah E. F. Cadoo, sole acting executrix, &c., of Alexander Cadoo, deceased, et al., defendants.
    [Submitted February 7th, 1924.
    Decided February 29th, 1924.]
    1. Where lands, which are subject to a mortgage, are devised, resort must first- be had to the residuary personal estate for the payment of the mortgage, if it is to be paid' at all from testator’s estate.

      2. Where testator directed the payment of all his just debts, and gave his executors express power of sale of his residuary real estate, and devised other real estate which was subject to a mortgage which he had recently .placed thereon, upon the residuary personal estate proving insufficient to pay all his debts, resort cannot be had to the residuary real estate for the payment of this mortgage, unless an intention to make the mortgage a charge upon the residuary real estate is expressed in or can be inferred from the provisions of the will.
    On bill, &c.

      Messrs. Ackerson .& Ackerson, for the complainant.

      Mr. William A. Goddington and Mr. William D. Murray, for the defendants.
   Foster, Y. C.

This action is brought to obtain the construction of the will of Alexander Cadoo, deceased, on these questions:

First. Does complainant take certain real estate in Hobo-ken which testator devised to him, freed from a $30,000 mortgage thereon? and

Second. Is the gift of $20,000 which the testator made to his widow in settlement and discharge of an antenuptial agreement, and in lieu of dower, a preferred claim against his estate, to be paid before the above-mentioned mortgage? Testator died on July 3d, 1919, leaving him surviving the complainant, his son by his first marriage; the defendant Sarah E. F. Cadoo, his second wife, and the other defendants, two daughters of his second marriage.

Testator made his will on June 18th, 1913, about three months after he had placed a mortgage for $30,000 on the Hoboken property, which he devised to his son.

By the first article of his will, testator directed his executors "to pay all my just debts and funeral expenses.”

By the second article he devised to complainant the real, estate in Hoboken without reference to or mention of the mortgage thereon. This property was assessed in 1919 at a value of $68,600.

By the third article he devised to his two daughters certain real estate in the borough of Manhattan, in New York City. Thjs property was assessed in 1919 at $55,000.

By the ninth article he gave to his widow, the defendant, $20,000, and directed tnat there should be paid her “said sum to be received by her in full satisfaction and discharge of the antenuptial agreement made between us and in lieu of all right of dower in my real estate.”

By the tenth article the residue of the estate was given to the widow and the three children, to be divided among them equally.

The real estate included in this residue is valued at $40,-925, and none of the real estate left by testator, except the Hoboken propertj', is encumbered by mortgage or other liens.

The net personal estate after, the payment of inheritance tax, &e., and including therein $1,050, the proceeds of the sale of a lot at Leonardo1, now amounts to $1,301.49.

Testator at the time of his death was about eighty-six years old, and was a resident of Summit, to which place he had removed from New York City about 1903.

Most of his income-producing property was in New York City'-, and he and his son managed his properties and collected the rents. Complainant’s only source of income was what his father paid him, and he and his family lived in a house in Summit, which his father had given him, valued at $6,000.

Testator’s attorney was Richard J. Lewis, of the New York bar, and he drew the will in question.

Prior to his marriage to his second wife, testator entered into an antenuptial agreement to pay her $20,000 in lieu of dower; this amount was not paid, and it is claimed by defendant that its payment was preferred and provided for by the ninth article of the will.

The specific legacies amount to $28,000, including the one to the widow, and the personal estate is insufficient to pay them, amounting, as stated, to only $1,3 00*

Testator told his widow he had made provision for her in "his will, and that the antenuptial agreement was no longer necessary, and it was thereupon destroyed. Testator about this time gave her as a gift property on Eighth avenue, in New York City, valued in 1919 at $42,000, on which there was then a mortgage of $20,000, whicn has since been reduced to $16,000, and he also gave her certain properties in Summit, valued at $23,500’.

The executors are expressly authorized to sell and convey all real estate not specifically devised, and until the residuary real estate is sold the expenses of its upkeep testator directed should be borne by his son paying one-half and his two daughters jointly paying the balance; the widow is not required to make any contribution for such upkeep.

On the valuations. mentioned, it appears the widow received prior to testator’s death property valued at $49,500 above encumbrances; that under the will the two daughters between them receive property valued at $55,000, and the equity in the Hoboken property given to the son is valued at $38,600.

In the determination of the first question submitted, viz.: Whether complainant takes the devise of the Hoboken property freed from the lien of the $30,000 mortgage thereon. I find the law well settled in this state to the effect that where lands which are specifically devised are subject to mortgages made by the testator, the personal estate is primarily liable for the discharge of such mortgages. Keen v. Munn, 16 N. J. Eq. 398; Campbell v. Campbell, 30 N. J. Eq. 417; Crowell v. Hospital of St. Barnabas, 27 N. J. Eq. 650; Higbie v. Morris, 53 N. J. Eq. 173; Hill v. Hill, 93 N. J. Eq. 567; affirmed, 95 N. J. Eq. 233.

In the present situation the personal estate is admittedly insufficient to respond to such payment, and the question thereupon is whether the residuary real estate, after the personal estate has been exhausted, can be called upon to pay this mortgage.

The mortgage was placed by testator less than three months before his death; he personally received either the proceeds or the benefits of it; he has directed his executors to pay all his just debts and funeral expenses, and he has expressly given them unlimited power of sale of his residuary real estate.

Complainant contends that from these circumstances and the intimate relation between the father and son, as well as from the difference in value between the property devised to complainant and that given and’devised to the widow and her two daughters, the court is warranted in finding an intention on the part of testator to charge the residuary real estate with the debt in exoneration of the mortgaged premises.

Defendants contend these circumstances do not justify the inference that testator intended this bond and moragage should be paid from his residuary estate, and claim that this is further shown by the fact that the will was drawn by a New York lawyer familiar with the real property law of that state, which, by section 250, provides, “that where real property, subject to a mortgage executed by * * * the testator * * * passes to a devisee * * * such devisee must satisfy the mortgage out of his own property * * * unless there be an express direction in the will that such mortgage be otherwise paid.” Defendants also call attention to the fact that if the son pays the mortgage the equity devised to him is valued at $38,600, while the property devised to each of the daughters is only valued at $27,-500. Defendants further show that if this mortgage is not charged upon the residuary real estate, there will be sufficient funds realized therefrom to enable the executors to pay all testator’s debts and funeral expenses and all specific legacies, including the amount due the widow under the antenuptial agreement and in settlement of her dower rights, and will leave a small surplus to- be divided among the widow and the three children.

From these circumstances, and in view of the fact that the will appears to have been carefully drawn by a competent lawyer, I am unable to find any intention on the part of testator to- charge this debt against his residuary real estate, in exoneration of the mortgaged premises.

. This conclusion is also due to the fact that testator, although advanced in years, appears to have been a competent business naan, in the full use and possession of his faculties, which he apparently exercised in the preparation of his will, with due care, under the advice of competent counsel.

It cannot be assumed that testator had forgotten about this mortgage, which he had placed upon the Hoboken property only a few weeks before he devised it to his son. On the contrary, it is only reasonable to believe that his failure to mention or refer to it in his will was because he intended that his son should take this devise subject to' the mortgage, for he had done exactly the same thing when he made a gift of the property on Eighth avenue in New York City to his wife, subject to the $20,000 mortgage thereon.

The cases cited, as I understand them, hold: That the geiaeral directioaas of a testator for the payment of his debts, even if coupled with an express power of sale of the residuary-real estate, is not sufficient to charge against such residue a mortgage debt upon lands specifically devised, unless air intention to make such a charge is expressed in, or can be inferred from, the provisions of the will.

In the present situation I am unable to find such aaa intention.

This conclusion disposes of the second question submitted, for complainant’s sole objection to the bequest made to the widow in settlement and discharge of the antenuptial agreement, and in lieu of her dower, is that its payment should be postpoaied until the mortgage upon the premises devised to him had been paid.

As I have found to the contrary, this objection cannot, of course, be sustained.

A decree will be advised in accordance with the views herein expressed.


text:
    Blanche O’Brien, individually and as executrix, &c., complainant, v. Augustine L. Humes, executor, &c., et al., defendants.
    [Submitted February 4th, 1924.
    Decided February 28th, 1924.]
    Where testator made adequate and independent provisions in his will for the education, support and maintenance of his children, and by a subsequent provision gave his widow the discretion and authority to establish and maintain as many homes and places of residence as she thought proper, “for the benefit of herself and testator’s children,” and directed that the cost of the upkeep and maintenance of such homes and places of residence should be borne and paid for in equal shares by the widow and from the income of each of the children’s share in the residuary estate during their minority; upon the remarriage of the widow and the permanent residence of her second husband in such homes or places of residence, the executors and trustees are not authorized to charge against or to pay from the income of any of the ^children any part of the additional cost of such upkeep and maintenance which is due to, or is caused by, the permanent residence in such homes or places of residence of the widow’s second husband.
    On bill, &C.

      Messrs. Pitney, Hardin & Skinner (Mr. John R. Hardin), for the complainant.

      Messrs. Lindabury, Depue & Faulks (Mr. Frederic. J. Faulks), for the defendants.
   Foster, V. C.

This action is brought to obtain a construction of certain provisions of the will of Karl G-. Koebling, who died on May 29th, 1921, leaving him surviving his widow, the complainant, and a son, who is now nineteen years old, and two daughters, who are now sixteen and twelve years old, respectively.

Buring his lifetime testator maintained :two homes, one in Trenton and the other in Spring'Lake.

On April 4th, 1923, the widow remarried, her second husband being Arthur O’Brien, of Washington, B. C., and since her remarriage she has maintained homes at Washington and Spring Lake for herself and her second husband and the children, although the residence at Spring Lake has not been occupied since her remarriage. The cost of maintaining these homes has been about the same as testatpr expended for such purposes.

■ It is admitted that Mr. O’Brien does not contribute anything to the cost of the upkeep, and maintenance of either home, although admittedly he has the same enjoyments and benefits therefrom which they provide for complainant and her children.

This situation has caused a difference of opinion between the executors on the construction to be given to paragraph 8 of the fourth article of testator’s will. This article, after dividing generally the residuary estate into four equal parts among the widow and children, by a number of paragraphs makes certain specific provisions for them viz.:

Paragraph 1 gives one share of the residuary estate to complainant absolutely.

Paragraph 3 gives the three remaining shares in trust for the benefit of each of his children, with directions to the trustees to collect the income therefrom and pay over, or to apply the net income thereof, or so much as may be deemed advisable, in their discretion, for the education, support and maintenance of each child until he or she shall attain the age of twenty-one years, when such share, with all accumulated income thereof, is to be paid to such child. Paragraphs 5 and 7 provide for the disposition of the share of any child not attaining his or her majority.

Paragraph 8, the main cause of this controversy, is as follows :

“VIIr. If my said wife shall survive me T direct that the costs and expenses of the upkeep and maintenance from time to time of all residences and homes kept or maintained by my ■ said wife for the benefit of herself and for- the benefit of my children, (including both my children specifically named and any children of my marriage born subsequent to the execution of this mj' will, who shall survive me, or who shall be born after my death) or for the benefit of one or more of my children, shall be divided into a number of parts equal to one more than the number of all such of my children for whose benefit such residences and homes shall be maintained, who shall from time to time be living, who shall not have attained the age of twenty-one years and who shall remain unmarried, to deduct an amount equivalent bo one such part from each share of the rents, incomes, dividends and profits of my residuary estate, hereinbefore directed by Paragraphs III., V. (C) and VII. of this Article Fourth of this my will, to be applicable to the education, support and .maintenance of each such child of mine, and to pay the amount of each such part of said costs and expenses to my wife, to' be utilized by her as the share of such child of mine in defraying the said costs and expenses of upkeep and maintenance.”

Until the remarriage of the complainant the executors were in accord in charging, under the directions of paragraph 8, the complainant and each of the three children with one-quarter of the cost of the upkeep and maintenance of the homes in Trenton and at Spring Lake, which amounted to from $60,000 to $80,000 annually, and ■which was about what it cost to maintain these homes while testator was living.

The marriage of complainant to Mr. O’Brien, and the fact that he has become and will continue to be a permanent resident of, and one of those for whose benefit the present residences are maintained, caused the defendant executor to question the legalitj1' of hereafter continuing to charge one-quarter of the entire cost of the upkeep and maintenance of these homes to each of the children.

Defendant’s contention is that Mr. O’Brien should contribute his proportionate share of such cost, or, to state it differently, that the children’s share of the income from their respective portions of the residuary estate should not be called upon to pay any additional cost of the upkeep and mainte'nance of these homes which is due to, or is caused by, the fact that Mr. O’Brien is now a permanent resident therein and is receiving, the equal benefits of these homes with complainant and testator’s children.

Complainant contends that inasmuch as testator imposed no restrictions upon her remarrying, and gave her absolute discretion as to the number of places of residence and homes she could establish and maintain, and imposed no limitation upon those who should be entitled to reside therein, that the court is without authority to relieve the children from contributing their proportionate share of the total cost of the maintenance of such homes, and that for the court to do so, would be in effect to write a new will for the testator.

Both of these contentions axe based apparently upon the assumption that the residence of Mr. O’Brien in these homes will of necessity add materially to the-cost of their upkeep and maintenance.

Prom this recital it will be seen that the question presented for determination is this: Does the fact that complainant’s second husband is receiving, and will continue to receive, without cost to him, the benefits and advantages of the homes which complainant is maintaining in Washington and at Spring Lake, relieve testator’s children in any way. or to any extent, from each contributing one-quarter of the total present and future cost of the maintenance of these homes ?

The court cannot, of course, write a new will for testator, nor can it place any additional burden upon testator’s children, nor enlarge or increase the charge upon their respective income, for the purposes stated, than the testator himself imposed.

It is quite clear that testator had certain definite objects in mind which he desired to have carried into effect by the provisions of the fourth article of his Will.

By paragraph 3 he made special and independent provision for the education, support and maintenance of his children, and under this provision the boy is now in college, the older girl is in a boarding school, and the youngest child is living at home with complainant while attending day school. Bjy paragraph 8 testator gave his widow authority to establish and maintain one or more homes or places of residence “for the benefit of herself and for the benefit of my children.” The only opportunity the older children have to derive any benefit from such homes or residences is during their vacations.

The cost of the upkeep and maintenance of these homes and places of residence testator directed should be borne equally by those for whose benefit he authorized their establishment and maintenance, viz., his widow and children.

Unless it can be said that the expression “for the benefit of herself,” used by testator in this connection, is sufficiently comprehensive to include the second husband of his widow, I cannot understand how it can be claimed that testator by the use of this expression (or by any other' expression or statement in his will) contemplated the possible remarriage of his widow, and intentionally imposed upon his children, upon the happening of such an event, the duty and obligation of paying from the income of their respective shares of his residuary estate, a proportionate part of the increased cost of maintaining a home or homes for the benefit, in part at least, of his widow’s second husband. The strange and peculiar position in which testator would thus be placing his children would be more pronounced if complainant had married a widower with several children, all of whom made their home with her, or if, as a result of her marriage, children are born to her and live with her in the homes she has or may establish and maintain under paragraph 8.

There are authorities among the English cases giving some support to complainant’s contention, but as Chancellor Zabriskie pointed out in McKnight’s Exrs. v. Walsh, 23 N. J. Eq. 136; affirmed, 24 N. J. Eq. 498, these cases are founded upon the law of primogeniture, and the established custom among the nobility and gentry by which the heir upon whom the family seats devolves, ns well in infancy, as when of age, is by their custom bound to keep the family mansion as a home for all members of the family.

Fortunately, such custom does not prevail here, and, of course, it does not, and it could not, help complainant’s position, even if the provisions of the will were not expressly to the contrary.

Counsel for complainant insists upon a .strict and literal construction of paragraph 8, and he should have it. But in my view such construction does not support his contention, nor produce the result he desires. For what this construction requires, and it is all it requires, is that testator’s children shall contribute a proportionate share to the payment of the cost of the upkeep and maintenance of such homes as complainant may see fit to establish and maintain “for the benefit of herself and for the benefit of my (testator’s) children.”

If complainant sees fit to increase the cost of such maintenance by adding to those testator specifically designated, others who receive the benefits of such homes, she may do so, but she cannot charge such additional cost to testator’s children.

My conclusion is that under the provisions of paragraph 8 of the fourth article of the will, the executors are not authorized to pay from, the income of any of the children’s share of the residuary estate any part of the additional cost of the maintenance of these residences and homes, which is caused by, or is due to, the permanent residence therein of Mr. O’Brien.

A decree will be advised accordingly.


author: Buci-ianan, V. C.

text:
    Department of Health of the State of New Jersey, complainant, v. City of North Wildwood, defendant.
    [Decided December 15th, 1923.]
    1. To a hill under P. L. 1907 oh. 1S5, by the state department of health for injunction to compel such city to cease the pollution of waters of the state and to provide a proper means for disposal of its sewage, the fact that the bonded indebtedness of a city already equals the statutory limit thereof, does not constitute a defence.
    2. The court of chancery has no power to entertain an appeal from the findings of the state sewage commission (now the state department of health) after the expiration of the time limited for such appeal in the statute.
    On motion to strike out answer.

      The Attorney-General, for the complainant.

      Mr. Robert Bright, for tlie defendant.
   Buci-ianan, V. C.

Succinctly, the allegations of the bill (omitting formal matters not pertinent to this issue) are, that complainant in 1911 investigated a complaint that defendant was polluting certain waters of this state by its sewage disposal system; ascertained that defendant was so polluting such waters; made a formal finding to that effect; adopted formal resolution that defendant prior to June 1st, 1912, must cease such pollution and make such other disposition of its sewage as shall be approved by complainant; and served formal notice of the foregoing on defendant on October 23d, 1911. That defendant did not, and has not yet, ceased such pollution, nor made other disposition of its sewage; but still continues the pollution. It prays a mandatory injunction to terminate thé pollution and compel a different and proper sewage disposal system.

The bill and the proceedings recited therein axe all pursuant to the provisions of the several statutes in that behalf enacted by the legislature of this state.

The answer admits every allegation of the bill—most of them specifically and the remainder by failure to make any denial thereof. By way of attempted affirmative defence it alleges:

(ft) That it has directed its city engineer to prepare plans for a proper sewage disposal plant and submit them to coin plainant.

It does not say when this was done—and in any event it is obvious that this is no defence to the bill.

(b) That the cost of erecting a proper sewage disposal plant will be $300,000; (and in substance) that its bonded indebtedness is very close to the limit prescribed by law, and at.no time has it been possible for it to pay for the erection of a proper plant by an issue of bonds, without exceeding this legal limit; although it has tried to reduce its bonded indebtedness by “diligently attempting” to collect large arrearages of taxes and assessments; and that it will endeavor to have the legislature at the coming session raise the present limitation of its authorized bonded indebtedness.

Clearly, to my mind, there is nothing in any of this which constitutes a defence to the bill. The legislature has imposed upon defendant the obligation to do the very thing .of which complainant prays this court to enforce the performance of and has provided that complainant may apply to this court for such enforcement. The mere fact that defendant cannot legally perform by means of issuing bonds does not show that it cannot legally perform at all. It has the taxing power wherewith to raise funds for the purpose; possibly also the power to do so by special assessment. There is not even a showing that the raising of the requisite sum of taxation would substantially increase its tax rate; although I do not mean to be understood that if such proof were' made it would constitute any defence.

The complainant’s objection that the answer discloses no defence must be sustained.

The answer asks leave to appeal from the finding and determination of complainant hereinbefore mentioned. That is no proper part of the answer and the matter was not mentioned in the argument; but it may be added here that this court would not and could not grant such an application if it were made.

It could not grant it, because the statute fixes the limitation of six months’ time within which such appeal must be taken (long since elapsed) and does not give this court 'the right to extend such time.

It would not be granted, even if the court had the power, because there is no proof, or even allegation, that the finding and determination were erroneous—that any meritorious ground exists for such an appeal.