author: Pitney, V. C.

text:
    Abraham Steiner and Jacob Steiner v. Louis Peterman and Rachel, his wife.
    [Submitted March 7th, 1906.
    Decided March 11th, 1906.]
    The reservation in the deed of property, No. 297 K. street: “The said parties of the first part hereby reserve the right to connect wash lines from the yard of the property at No. 299 K. street, now owned by them, with the yard of the property hereby conveyed,” is an easement in favor 1 of the actual tenants and occupants of No. 299 to use wash lines extended, as at the time of the conveyance, from said property to- a pole on No. 297.
    On order to show cause why an injunction should not issue. Heard on bill and affidavits annexed, and on answering affidavits.

      Mr. Leo Siein, for the complainants.

      Mr. Samuel F. Leber, for the defendants.
   Pitney, V. C.

The complainants and the defendants are the owners, respectively, of adjoining premises in the city of Newark, and the com plain ants claim the right for the tenants and occupants of their premises to an easement over the adjoining tenement of the defendants of stretching clothes lines across the lands of the defendants and hanging and drying laundried clothing thereon.

The circumstances are these:

In the year 1892 tire complainants were the owners, as tenants in common, of a house and lot known as No. 299 West Kinney street, on the corner of Boyd street, being twenty-five feet front on West Kinney street and one hundred feet deep on Boyd street.

Later on in the same year of 1892 Steiner became the owner of the adjoining lot facing on West Kinney street, known as No. 297, and having the same dimensions, namely, twenty-five feet front by one hundred feet deep.

On the corner lot there stood or was erected shortly'after the acquisition of the title above mentioned the following buildings: On the front part of the corner lot a four-story frame tenement-house, twenty-five feet wide and about fifty-five feet deep; on the rear of the lot, and covering about twenty feet of its width, was a three-story tenement-house, reaching within a few feet of tire front lot, leaving a small yard between the two buildings and a small passageway between the rear building of the corner lot and the line of the adjoining lot. At that point the lots were divided by a low fence.

Upon the adjoining lot, No. 297, was a two-and-one-half-story house, about forty feet deep, leaving about sixty feet of the rear of the lot open.

For the convenience of the tenants occupying these several buildings a large wash line pole was erected in the rear of lot 297, and as far away as practicable from lot 299, leaving, however, a passageway between it and the farther side of the lot, as appears by the map hereto annexed.

The several families occupying these premises (they were used as ordinary tenement-houses and rented by the month) were in the habit of' stretching their clothes drying lines from the windows of their several tenements across tire open space on lot 297, and attaching .them by pulleys to the pole above mentioned and using the lines so stretched for drying their clothing.

This state of tilings continued until the year 1901, a period of nearly nine years.

On the 29th of March of that year the complainant Steiner, together with his wife, conveyed No. 297 AVest Kinney street to one Barnett Super, by an ordinary deed of conveyance, which was immediately afterwards duly recorded, and which contained a reservation in the following words:

“The said parties of the first part hereby reserve the right to connect wash lines from the yard of the property at No. 299 West Kinney street, now owned by them, with the yard of the property hereby conveyed.”

Subsequently, in December of 1901, Super and his wife conveyed 297 AArest Kinney street to Jacob Finkelstein by a deed of conveyance which states that it is made subject to the same conditions mentioned in the deed from Steiner to Super.

Later on, in January, 1905, .Finkelstein conveyed the premises 297 A¥est Kinney street to Louis Peterman, the defendant herein, by a deed which makes no mention of the reservation in question.

Peterman swears that through failure to examine the title to the premises he had no actual notice of the reservation.

Shortly before the Fling of the bill Peterman and his wife, being annoyed by the great extent to which the privilege so reserved was used, took means to abridge it, and, apparently, to confine it within what they thought and claim was a reasonable use.

They built a vertical addition to the fence dividing the two lots, whereby they made it difficult and impracticable, if not impossible, for the tenants of 299 to cross over and have access to the rear of 297 to readjust or reaffix the clothes line, if necessary, and also to recover any article which might drop from the lines to the ground.

They further erected a high wire fence diagonally across their lot, which will and does, unless broken down, prevent the tenants of 299 from reaching the base of the pole. They also displaced several of the wash lines connected with 299 and forbade, with threats of violence, the tenants of 299 to enter upon 297. Whereupon complainants filed their bill praying for relief.

The situation of the premises and of the wash pole and obstructions are shown on the diagram annexed to the bill and hereto annexed on page 108.

Counsel for defendants, in his argument, took two principal gr bunds.

First, that the reservation in question did not reserve or create an easement proper.

lie argued that there was no such easement known to the law as an easement of stringing clothes lines across one piece of land for the benefit of another piece of land.

And second, that the reservation here was merety a license to the complainants individually, for their personal benefit, which was not transferable by them to their tenants, and that as the affidavits show that neither of the complainants occupied the premises in person they could have no relief.

As to the first point, I find in the fourth edition of Gale’s valuable treatise on easements (Gale Easem. (Gibbons’ ed., 1868) 20, 21), a list of examples in England of affirmative and negative easements, and among them (s.tp. 21) is “right to hang-clothes on lines passing over neighboring soil,” supported by the case of Grewell v. Towler, 3 Barn. & Ad. 735.

That was a case of special pleading, in which the very right was set up in a pleading, and the jury found that the right existed, but not so broadly as set out in the pleading. Counsel argued that it was sufficiently broad to cover the trespass complained of, and that the pleader should be permitted to amend. The court at bar, after hearing counsel, held that while counsel’s contention was - probably right, yet they would order a nonsuit and let tire plaintiff begin again.

The validity of such an eásement was not disputed.

That case, like the case in our own courts of Lee v. Hagerty, 45 N. J. Eq. (18 Stew.) 1, 255; 54. N. J. Law (25 Vr.) 580; 48 N. J. Eq. (3 Dick.) 98; 50 N. J. Eq. (5 Dick.) 464, shows the great convenience and propriety of having the rights of parties in such cases settled and distinctly defined in advance, thereby saving the necessity and costs of doing some act to provoke an action at law. In Hagerty v. Lee, I have never been able to perceive why the same court, which ultimately, in 5J¡. N. J. LjO/w, decided the rights of tide owner of the dominant tenement, might not have as well decided it when it was before it in Jf5 N. J. Eg.

In this case the question whether the right here in question is an easement, as distinguished from a mere license, depends on the language of the reservation, and that seems plain enough. The right is to connect wash lines from the yard of 299 with the yard of 297. It is a right from a given place to- a given place, and mentions no individual whatever. Thus, it seems to me, it is as far as possible from a personal privilege or license, and, if anything, it is a reservation in favor of the actual tenants and occupants of 299. True, it does not use that language as well as it might. It need hardly be said that a conveyancer of very ordinary capacity would have used the language “reserve to the owners and occupants for the time being of No. 299 West Kinney street,” and the only question that I can perceive that remains in the case is whether that language is to be supplied by implication. The familiar rule in construing all written instruments is to so construe them that they will mean something and accomplish some office, and not be wholly nugatory —or, as the maxim expresses it, ut res magis valeat quam pereat—and that such meaning shall be given to the instrument as may carry out and effectuate the intention of the parties to the fullest extent. Broom’s Legal Max. 5J¡-0.

Now, the language here used implies that some person or persons should make use of the wash lines, and there can be no doubt that the intention of the parties was that those persons should be the owner and the occupants of the complainants’ premises.

Then, in construing this clause, we must take into consideration the physical situation at the time of the conveyance by the complainant to Super when the reservation was made. As to this the affidavits show that the pole on which these lines were attached was already in existence and the lines attached thereto and in use—all, of course, being within plain sight of Super, the grantee.

Now, I take it that in seeking for the intention of the parties in this language in connection, as we may, with the then condition of affair's, there can be no difficulty in arriving at the conclusion that the intention of the parties was to reserve to the complainants, by their tenants and occupants of No. 299, the right to connect and use wash lines in the manner then being used and connected. The affidavits show, and it is common knowledge, that the various lines were attached to the pole by pulleys and hooks, so that the clothes could be hung on the line in the yard or tenement of 299 and pulled out over the yard of 297 by pulling on the other end of the line, and then, when dried, be regained by their owners by reversing and retracing the course of the lines. All this required, ordinarily, no entrance by tire foot upon the lot of 297 except to recover an article of clothing which might accidentally become detached, or to rearrange a disordered or replace a broken line. 1 say this, not intending, here and now, on ex parte affidavits, to lay down any final rule or special limit of use of these wash lines, but simply to indicate the practicability of defining reasonable limits to the use of this easement.

For these reasons, I am of the opinion that the clause in question reserved to the complainants an easement in the nature indicated for the benefit of their property at No. 299 West Kinney street, to be enjoyed by the actual owners and occupants thereof. Since the decision of the court of errors and appeals in Lee v. Hagerty, I cannot conceive that there is the least doubt as to complainants’ right.

Of course, it is impossible for the defendant to escape the burden of this easement upon tire ground of his failure to discover it in his chain of title, and his counsel did not make any such claim.

The easement may be a serious burden upon the defendant’s property, resulting in a serious depreciation in its value, but the presumption of law and fact is that that matter was taken into consideration between his predecessor in title, Super, and the complainant Steiner, when they bargained for the conveyance of the defendant’s property, and that a much lower price was paid and accepted therefor than would have been so paid and accepted if no burden had been cast upon it.

The affidavits of the defendant indicate that the immediate cause of his adopting obstructive measures was the annoyance which he and his family suffered from the-lower or first story line of wash lines. The assertion is that they hung so low as to render it inconvenient and impracticable for him and his family to pass to and fro in the back yard. I find nothing in the affidavits to show precisely how high the supporting pole is or how far distant from the ground the lowest line is attached. Nor can I infer from the affidavits how far it is practicable to so arrange the lines and tighten them that they will not droop, under the weight of the wet clothes, so low as to obstruct pedestrians. I think they should be so arranged and used as to interfere as little as practicable with the use by the defendant and his family and tenants in the back yard.

I will advise an order upon hearing counsel.

As in Lee v. Hagerty, there is no occasion at this time to determine whether the easement will be determined by the death of Steiner, since he is still living. 1 will, however, venture the remark that 1 am unable to perceive how the hard and fast rule that the word “heirs” is necessary in any kind of a grant to create an estate of inheritance has any logical application to a reservation where the estate out of which the reservation is made is already a fee-simple.


source: Caselaw Access Project

author: Emery, V. G.

license: Public Domain

text:
    Lewis G. McDowell et al. v. The Avon-by-the-Sea Land and Improvement Company.
    [Decided February 6th, 1906.]
    1. In the'absence of any Us pendens, a suit brought by a prior owner of property in question against a water company to restrain it from cutting off the supply for a particular year to such, owner’s tenants does not constitute constructive notice to such owner’s grantees of the water company’s claim against complainant’s grantor for water rents in arrears.
    2. Where mandamus to compel defendants to refrain from refusing to furnish water to complainant’s hotel would be ineffective as to the lessees, and the deprivation of such supply involved the comfortable enjoyment of such hotel, complainant and his tenants are entitled to relief by injunction.
    3. In the absence of statute expressly authorizing it or making arrearages for water rents a lien on land on which the water has been used, a water company has no right to cut off the supply to the premises unless and until the arrears due from a former owner are paid.
    4. Buies of a private water company which purport to authorize the water company to refuse to furnish water to certain premises until arrears for water rents standing against a prior owner were paid, are void for unreasonableness.
    On final hearing on bill, answers, replication and proofs.

      Mr. Samuel A. Patterson, for the complainants.

      Mr. Acton G. Hartsliorne, for the defendant.
   Emery, V. G.

The complainants are the lessees and the owners of a summer hotel at Avon-by-the-Sea, and the object of the bill is to restrain the defendant, a water company, from cutting off the water-supply to- the hotel. Defendant claims the right to cut off the water because of the failure of a previous owner of the property (the grantor of the owners named in the bill) to pay the arrears of water rent clue for water furnished during the years 1897, 1899 and 1900. Injunction pending suit was ordered, the lessees paying the current water rent, and also entering into bond to pay the arrears (which had been established by judgment) if the bill was finally dismissed. The former owner, Mrs. Albertson, liad filed a previous bill, in the year 1900, to restrain cutting off the supply for that jrear to her tenants (who were the present lessees), and alleged that the bill for arrears was disputed. On this bill an injunction pendente lile was also granted on the tenns of paying the amount admitted to be due and of appearing at once in suit at law brought for the purpose of settling the amount due. Judgment in suit at law for the arrears, amounting to $643.23, was obtained in November, 1900, and Mrs. Albertson, failing to pay this amount, her injunction was dissolved on February 18th, 1901, and her bill finally dismissed in August, 1901. On April 9th, 1901, Mrs. Albertson conveyed the hotel property (along with other real estate) to the complainant Thompson, who took title, however, only as trustee, and as holding for the benefit of the building and loan association, complainant, who' held the sixth and seventh mortgages on the property. These conveyances to Thompson were mads to vest the benéfieial title in the mortgagees without the expense of foreclosure, the title being taken by Thompson to prevent a merger. No consideration was paid for the conveyance, and in the answer it is claimed that the conveyances were fraudulent and made for the purpose of defeating defendant’s claim, but at the hearing it was proved that the property was sold on foreclosure for less than the prior mortgages, and the charge of fraud was abandoned. . The water company insist that the conveyances were made with notice of their claim for the arrears. I do not think actual notice to Thompson or his beneficiaries has been made out, and the suit brought by Mrs. Albertson, which was pending at the transfer, was not of itself, and in the absence of any Us pendens, constructive notice of the defendant’s claim against her on the property.

The plain issue in the whole case, therefore, so far as the owners are concerned, is whether the defendant has the right to turn oil the water from the premises because of the failure of a previous owner to pay the arrearages. Defendant is not a company organized under the Water .Companies acts (Gen. Stat. pp. .2199, 2208), but is incorporated linder the General Corporation laws, and by ordinance of the borough of Neptune City was granted the franchise of laying its pipes along and through the streets of the borough for the purpose of supplying the borough and its inhabitants with water. It is the sole source of public water-supply to the inhabitants of the borough, and complainants, considered merely as owners and occupiers of lands in the borough, are entitled to the benefit of this public service and to the enforcement by'some court of their right to an actual supply, on paying for its use.

Defendant insists that a court of equity has no jurisdiction, and that the proper and only remedy is by mandamus. No decision granting' a mandamus has, however, been cited, and this court has in several cases exercised the jurisdiction. Dayton v. Quigley, 29 N. J. Eq. (2 Stew.) 77 (Chancellor Runyon, 1875); Coe v. Railway Company, 30 N. J. Eq. (3 Stew.) 440 (1879). Tn neither of these cases does the question of the exercise, of equitable jurisdiction appear to have been specially raised or considered, but in a later case—Johnston v. Belmar, 58 N. J. Eq. (13 Dick.) 354 (1899)—the point was considered and decided, and 1 concluded that a right of this character involved the reasonable and comfortable enjoyment of a home or residence for the owner and his tenants, and that the only effective method of protecting complainant’s right in that case was by-injunction. Tn Johnson v. Atlantic City Water Co., 65 N. J. Eq. (20 Dick.) 129 (1903), Vice-Chancellor Eeecl, in a case heard on demurrer to a bill, held that equitable relief by way of injunction should not be extended to require the furnishing of gas by a gas company, because this could be compelled by manda-, mus, if the company were under a public duty to furnish it. This related, however, to the relief upon final decree, and it was expressly stated in his opinion that no facts were disclosed in the bill which made the relief by mandamus inadequate. Inasmuch as the previous cases exercising the jurisdiction to require a supply of water were not cited or referred to, it must be assumed, I think, that it was not intended to overrule or disapprove the doctrine of the previous cases.

Cutting oil the supply of water for domestic purposes is damage of that grievous nature which falls within the principle of the decisions of the court of chancery as to irreparable damage. Hayward v. East London Water Works Co., L. R. 28 Ch. Div. 138; 54 L. J. Ch. 523, 527 (Justice Chitiy, 1885). And before the Judicature acts, it was tire constant practice of the chancery court, in England, to intervene by injunction in proper cases for the protection of the plaintiff, pending the trial of the legal right and until that right could be determined at law. Hayward v. East London Water Works Co., L. R. 28 Ch. Div. 138; 54 L. J. Ch. 523, 527 (Justice Chitty, 1885). Ordinarily, this temporary protection is adequate for the enforcement of complainant’s rights, but where the remedy at law is inadequate it may be necessary, for the full protection of all rights, that tire court of chancery settle the disputed question, either of law or fact, as incident to such protection. In Hart v. Leonard, 42 N. J. Eq. (15 Stew.) 416 (Court of Errors and Appeals, 1886), it was said that the protection of one’s dwelling-house from wrongs which render its occupancy uncomfortable has always been recognized as an occasion for equitable jurisdiction relating to title to lands, and the cases cited (at p. 420) show that this protection is either temporary or final, as the circumstances of the case seem to require. In the present case relief by mandamus would have been ineffective, as tire original complainants, the lessees, would not have been able, in the regular course of procedure, to obtain an adjudication on their right to relief until after the expiration of their lease. It is a case, therefore, where, for the further protection of both parties, the question of right, as incidental to tire question of necessary temporary protection, should be disposed of on final hearing, and with this necessity in view the bond above referred to was required to be conditioned for the payment of the arrears, if the bill should be dismissed. This course was taken in McEntee v. Kingston Water Co., 165 N. Y. 27, 32 (1900), where the amount of the bill for arrears was fairly disputed, and an injunction was granted against cutting off the supply, pending final hearing as to the amount due. A dispute as to the amount due could not have been settled on proceedings for mandamus, and if fairly made would be a bar to such relief. Mackin v. Portland Gas Co., 51 Cent. L. J. 130 (Oregon Supreme, Court, 1900), and cases cited in note. In such eases, equity will protect the supply pending settlement of dispute, either in a court of law or at final hearing. For these reasons, therefore, and for the additional reasons that the cases relied on in Johnson v. Atlamtic City Water Co. to support the remedy by mandamus, related to rights of an entirely different character from that of the comfort or enjoyment of a home or residence, and that there has as yet been no decision of our courts of law allowing a mandamus in these cases, I think this decision should not he considered as controlling the present ease on the question of the exercise of equitable jurisdiction', but that the complainants’ case should be considered on its merits.

On the merits of the case my opinion is, that in the absence of any statute expressly authorizing it, or making the arrearages a lien on-the lands, the water company has no right to cut off the supply to complainants’ premises unless and until the arrears due from a former owner are paid. Many charters- or statutes providing for a water-supply by municipalities give this right expressly or create the lien, and in these cases subsequent purchasers acquire the land subject to the burden or penalty, and in the absence of circumstances creating special equities the legal right to enforce the penalty or to collect the debt from the land charged will not be interfered with.

The basis on which the right is rested in the present case is the right to make reasonable rules and regulations, under which authority two rules or regulations applicable to the case are claimed to have been adopted by the company. One is rule 16, that if water rents remain unpaid at the expiration of ten days from the time they are due the water may be stopped off the premises; and the other, rule 11, that where the water has been turned off for non-payjnent of water rent, it shall not be turned on again until the expense of turning off and on again of the water, together with the rent, are paid. The formal adoption of these rules and regulations by the company has not been proved, and the evidence as to their existence, offered as binding on the consumers, is that since 1897 these rules, with others, have been printed on the bills for water regularly sent out. These bills seem to have been made out to the owners, and not to the lessees or occupants, and it is not shown that the present owner ever saw them or knew of the regulations. But assuming that the evidence of their formal adoption has been lost, or that the course of business of the company for several years is sufficient evidence of their adoption, or, putting the case on the right of the water company to impose reasonable conditions in any form as to the use of the water, I will, for the purposes of this case, consider the existence of the regulation or condition as sufficiently established. The question, then, is as to the reasonableness of a rule requiring the payment of arrearages due from a previous owner of the same property, as a condition of supplying the grantee or his tenants. This has not been expressly decided by any of our courts. In Dayton v. Quigley, supra, it was held that a regulation requiring an owner of premises to pay arrearages due from his tenant for water-supplied to the tenant on other premises belonging to another landlord would be unreasonable, and in Coe v. Railway Company, supra, it was held that the refusal to furnish the receivers of a railway, operating it under orders of the court, with water for their locomotive engines, except on condition that the arrearages due from the insolvent corporation were paid, was an unreasonable condition, and the fact that the receivers were acting for the public was considered important. In the Belmar Case, no rules or regulations had been made imposing the condition (the compliance with plumbing regulations), and in the absence of anything showing any nuisance or danger to health, it was held that the condition was unreasonable. The question has, however, been examined in the courts of other states, and the conclusions in many of the cases rest on the right to lien or to cut off supply, expressly given by tire statutory or other authority. These cases, many of which have been cited by defendant’s counsel, give little assistance. In Turner v. Revere Wader Co., 171 Mass. 329 (1898), water was cut off from a lessee because of the default of the owner for previous years, and in pursuance of a regulation of tbe company, made, however, in the absence of any statutory authority, to cut off the water for non-payment or making the rates a lien. After a very full and careful examination of the authorities, both English and American, it was decided that in the absence of such statutory authority the regulation was unreasonable. It was considered as imposing a burden or penalty upon the transfer of lands and interests therein which should not be put upon a purchaser in the absence of statute.

These regulations of a company are not matters of public record, but are private transactions, ascertainable ultimately only from the company’s records or books, which are also the source of information as to the amount of arrearages due or claimed to be due. As liens on the property of the consumer, the arrearages clearly have no standing in the purchaser’s hands, nor should the transfers or contracts for transfer of real estate be embarrassed by the necessity of an inquiry as to liens, except such as are required by the statutes creating liens. And if the arrearages-are not liens, and the property may, under the transfer acts, be conveyed without their burden, it is not reasonable, in my opinion, that the subsequent beneficial use of the property should be impaired in the purchaser’s hands by conditions or penalties which require the performance of obligations resting on the former owner. The enforcement of such conditions or penalties against the purchaser amount substantially and practically to making the property, or its convenient use, subject to liens for the prior owner’s debt, and in the absence of statutory authority the regulation or condition must be held to be unreasonable. The defendant will therefore be enjoined from'cutting off the 'water-supply by reason of the non-payment of these arrears.


author: Emery, Y. C.

text:
    The Avon-by-the-Sea Land and Improvement Company v. Louis G. McDowell et al.
    [Decided February 6th, 1906.]
    1. Where goods of a judgment debtor were in possession of a mortgagee thereof, the taking from the mortgagee of a list of the chattels already agreed on between the mortgagee and the judgment debtor, the mortgagor, for the purpose of an inventory, and annexing such inventory to the levy, was sufficient as a legal levy, although the officer did not see the goods.
    2. Where the owner or purchaser of property subject to several encumbrances pays off a prior encumbrance with his own money, the payment inures to the benefit of the subsequent encumbrances, against which the prior encumbrance cannot be kept alive for the owner’s benefit, even by express agreement.
    On final hearing on bill, answer, replication and proofs.

      Mr. Acton G. J-Iartshorne, for the complainant.

      Mr. Samuel A. Patterson, for the defendants.
   Emery, Y. C.

Complainant is a judgment and execution creditor of a Mrs. Albertson, and the defendant Thompson is the purchaser, and the defendants McDowell and Eaust are the lessees, of personal property of the judgment debtor levied on, or claimed to be levied on the property, prior to the purchase and lease. The lessees, at the time of the levy claimed, were also in possession of the personal property under a lease from-the judgment debtor, and McDowell, one of the lessees, was at that time holder of two chattel mortgages on the property for the sum of $860. Both the mortgages were then due, and expressly authorized the mortgagee, in case of judgments against the mortgagor, to take immediate possession of the mortgaged chattels and sell them to pay the mortgage debt. The judgment was recovered on November &8th, 1900; the execution returned with a levy on real estate and personal property of tlie debtor at the January Term (1901) of the Monmouth circuit, and the conveyances of the real estate and personal property by the debtor to the defendant Thompson were made on or about April 9th, 1901. On May 14th, 1901, Thompson leased the hotel and furniture in question to McDowell and Faust lor five months, at the rent of seventeen and one-ha-lf per cent, of the gross receipts of the business during the tenancy, $47'5 to be paid in cash at the time of signing the lease, the balance at the termination of the lease, or sooner closing of the hotel. The lease contained the further provision that the lessees should have the right on the final settlement to deduct from the rents the amounts due on the two notes given to McDowell by Mrs. Albertson, then amounting to $915.20, principal and interest, which wrere to be credited as so much paid on the rent, provided the seventeen and one-half per cent, amounted to a sum equal to the cash paid and the amount then due on the notes, and if the percentage was not sufficient to satisfy the whole amount of the notes, the lessees were to credit-on the notes only the amount of the balance due on the rentals. These notes to McDowell were the notes secured by the chattel mortgages on the furniture, and it was admitted on the hearing that $300 over and above the amount due on the mortgages has accrued as rent under the lease. Complainant, in August, 1901, became the purchaser, at sale under the execution, of the right, title and interest of the judgment debtor in the furniture for the sum of $30. The furniture was not taken from the possession of the lessees and mortgagee by the purchaser, but has been sold since the filing of the bill, by consent of the parties, and the proceeds of sale deposited subject to the joint order of their attorneys. Complainant’s bill, resting on its title as judgment and execution creditor and purchaser at the sale, was filed before the termination of the lease, and alleged that the mortgages were paid by the rental percentages, and prayed an account of the amount due on these mortgages. The light to an account is resisted by both purchaser and lessees on two grounds. The first is that the levy under the execution is illegal and void, for the reason that it was made by the sheriff without his actually seeing the property levied on. The return to the execution shows a levy on the personal property, with an inventory annexed, and the under sheriff, to whom the execution was delivered by the plaintiff’s attorney, together with the list of chattels taken from the chattel mortgages, says that he sent the execution to an officer at Asbury Park to go down and make the levy. This officer’s evidence has not been produced by the defendants, and in its absence I must hold that the sheriff’s return of a levy actually made on the goods has not been so contradicted or shown to be untrue that the sale under it can be affected because of the supposed irregularity in making the levy. But on this point my further conclusion is that under our decisions the levy, by annexing the inventory, was sufficient in this case, without actually seeing the goods, for the reason that the goods levied on were, at the time of the levy, in the actual possession of the mortgagee. The sheriff was not entitled to take the goods from the possession of the mortgagee, and his possession under any levy could only be constructive. Fox v. Cronan, 47 N. J. Law (18 Vr.) 493, 509, 510. And so far as the levy was concerned, his only right was to see the goods for the purpose of making the levy. Talcing from the chattel mortgage a list of the chattels already agreed on by the mortgagor and mortgagee, and annexing this list as the inventory, is, I think, sufficient as a constructive seizure for the purpose of a legal levy. Making air inventory from a list given by the defendant for the purpose o'f the inventory, and without seeing the goods, operates as a constructive seizure, and is valid against defendant. Caldwell v. Fifield, 24 N. J. Law (4 Zab.) 150, 160 (Supreme Court, 1858). And although it has not in the later cases been expressly held that a list or inventory made without seeing the goods, and without the defendant’s consent, would lie valid where the officer has the right to take the goods into his possession, I think that where he has no such right, but must levy and sell subject to the mortgage, an inventory of the goods in a mortgagee’s possession, taken from the mortgage, is a sufficient constructive seizure for the purpose of the levy as against both mortgagor and mortgagee, and that they, or persons claiming under them, have no right to demand an actual view as necessary to a valid levy on the mortgaged chattels.

Second. It is insisted that if the mortgages of McDowell are paid, the payment was made from Thompson’s funds, being the rental of his property, and he is therefore in equity entitled to be subrogated to the rights of the chattel mortgages. But if the levy was valid, Thompson took title to the chattels subject to the execution as well as the mortgages, and the law is settled that where the owner or purchaser of property subject-to several encumbrances pays off a prior encumbrance by his own money, the payment enures to the benefit of the subsequent encumbrances, and as against them the prior encumbrances cannot be kept alive for the owner’s benéfity even by express agreement. Bolles v. Wade, 4 N. J. Eq. (3 Gr. Ch.) 458; Traphagen v. Lyons, 28 N. J. Eq. (11 Stew.) 613, 616 (Court of Errors and Appeals, 1884.). A fortiori"on such payment by the owner, without any agreement for subrogation or keeping the security alive, a court of equity will not revive the prior encumbrance against subsequent encumbrances by the application of the equitable doctrine of subrogation in favor of the owner.

Complainant is entitled to a declaration that the mortgages have been paid, and that the sale of the goods to Thompson was subject to the lien of its judgment and execution. At the settlement of the decree I will hear counsel on the right to further relief. This may depend on the terms of the agreement for sale of the mortgaged chattels made by consent of parties after filing the bill.


author: ■Emery, Y. C.

text:
    James McDevitt v. Margaret Connell and Margaret O’Brien.
    [Decided April 5th, 1906.]
    1. A district court is a court of record of general jurisdiction, though the amount of its jurisdiction is limited, and does not depend on the residence of the defendant, and its judgment cannot be attached collaterally on the ground that the jurisdiction to enter the judgment in the class of cases within its jurisdiction is not shown affirmatively on the face of the proceedings.

      2. Where a bill by a judgment creditor to set aside a conveyance by the debtor as fraudulent shows that the judgment was obtained in a district court on a debt and for an amount within its jurisdiction, it must be presumed that the judgment was properly obtained, and a demurrer to the bill on the ground that it was not properly obtained must be overruled.
    3. An answer to the whole or. part of a bill, the whole of which is demurred to, overrules the demurrer.
    Oil demurrer of defendant Connell to bill of complaint.

      Messrs. Perry & Stolces, for the demurrant.

      Mr. S. Cameron Hinkle, for the complainant.
   ■Emery, Y. C.

Complainant files his bill as a judgment creditor of defendant Connell to set aside a conveyance of lands made by the judgment debtor to defendant O’Brien previous to the recovery of the judgment, upon the ground that the conveyance was fraudulent. The judgment is alleged to have been originally obtained in the district court of Atlantic City on May 26th, 1904, and after a return of execution unsatisfied the judgment was docketed in the court of common pleas of Atlantic county. The debt upon which the judgment was obtained was alleged to have been incurred prior to the conveyance in question, which is alleged to have been without consideration. The character of the process or of the service of process in the suit is not set out, nor does it appear whether it was commenced by service of process on the defendant within the jurisdiction. The only allegation of the bill in this respect is that on the 18th day of April, 1904, the complainant instituted suit against the defendant Connell in the district court for the recovery of a debt of $150, and that on the 26th day of May, 1904, he obtained a judgment in this court for $112.41 and $11.57 costs.

The defendant Connell demurs to the bill, assigning as a reason that the judgment was obtained in a suit commenced by a writ of attachment, which, under the District Court law, was operative only by the attachment of personal property, and that the attachment was executed only by attaching the lands now in question. It is therefore claimed that the judgment is void; that complainant is not a judgment creditor, and the bill should be dismissed.

On a demurrer the validity of the bill must be determined upon the facts set up therein as to the judgment, and the statement of the demurrer as to other facts alleged to be the foundation of the judgment cannot be considered on this hearing. Black v. Shreeve, 7 N. J. Eq. (3 Halst.) 440, 458 (Chancellor Halsted, 1848); Teeter v. Veitch, 66 N. J. Eq. (21 Dick) 162, 171 (Vice-Chancellor Grey, 1904). The demurrer in such case must be overruled as what has been sometimes termed a speaking demurrer, unless these statements can be rejected as surplusage, and the demurrer sustained without regard to the new facts set up. 1 Dan. Ch. Pr. (6th Am. ed.) *687; Story Bq. PI. § bk8. Rejecting these statements, the only question is whether the allegation of the institution of the suit and the recovery of judgment in the district court is sufficient, or whether it is necessary to the validity of the judgment that the bill should also show how jurisdiction over the person of the defendant was acquired.

Judgments of a superior court of record of general jurisdiction are prima facie valid, and in proceeding upon such judgments it is not necessary to set out the facts conferring jurisdiction, as in such cases the presumption is in favor of the jurisdiction and of all things requisite to tire validity of the judgment. -2 Blade ■Juclg. § 966. Under the District Court acts (Prevision 1898; P. L. 1898 p. -56k §§ 29; 30), this court is a court of record, and although the amount of its jurisdiction is limited it has general jurisdiction in all cases up to this amount, except where title to lands is in question. The jurisdiction does not depend on the residence of the defendant, and may be acquired against a nonresident, by service of process or by his voluntary appearance. Funck v. Smith, 46 N. J. Law (17 Vr.) 484 (Supreme Court, 1884). And, as a court of record possessing this limited but general jurisdiction over specified classes of cases, its judgments cannot be attacked collaterally, merely for the reason that the jurisdiction to enter the judgment in this class of eases is not shown affirmatively on the face of the proceedings. Russell v. Work, 35 N. J. Law (6 Vr.) 316, 320 (Supreme Court, 1872); Craig v. Somers, 55 N. J. Law (26 Vr.) 525, 527 (Supreme Court, 1393). If the judgment can he collaterally attacked for the reasons set out in the demurrer, or for want of jurisdiction over the person of the defendant, the facts showing this lack of jurisdiction must be alleged and proved. This was the procedure1 adopted in Miller v. Dungan, 36 N. J. Law (7 Vr.) 21 (Supreme Court, 1872), where the validity of a personal judgment entered in proceedings commenced by attachment was determined adversely upon pleas setting up facts showing want of jurisdiction to enter the judgment sued on. Inasmuch, therefore, as it appears by the bill that the judgment was obtained upon a debt and for an amount within the limited jurisdiction of the district court, it must, for the purposes of this hearing, be taken to have been a judgment properly obtained, and the demurrer must be overruled.

The state of the case sent up with the briefs contains copies of an answer to the whole bill by the demurrant, and upon examining the record, since writing the above conclusion, I find that such answer was filed. As the demurrer (which was also to the whole bill) prays judgment, in the usual form, whether defendant should be required to answer, it is clear that by answering the whole matter demurred to the demurrer is waived. The general rule is settled that a plea or answer to the whole or part of a bill, the whole of which is demurred to, overrules the demurrer. 1 Dan. Ch. Pr. (6lh Am. ed.) *589-; Story Eq. PI. § 688; Clark v. Phelps, 6 Johns. Ch. 214; Stearns v. Page, 1 Story 204; 22 Fed. Cas. 1188, No. 13, 339; Corlie v. Corlie’s Executors, 23 N. J. Eq. (8 C. E. Gr.) 197. In some cases, as where the demurrer is -to the jurisdiction, the benefit of the demurrer, if claimed by the answer, may be given at the final hearing on tire bill and answer; but the general rule applies to this case, and the demurrer will be overruled, with costs. The answer filed will stand, with leave to complainant to reply or file exceptions within thirty days.


author: Stevens, Y. C.

text:
    Richard Siegman v. Rudolph H. Kissel et al.
    [Decided February 19th, 1906.]
    The Corporation act (P. L. 1896 p. 286) provides that no corporation shall make dividends except from the surplus or net profits, and that directors, under whose administration a violation of the statute may occur, shall be liable to the corporation and to its creditors.—Held, that where a director of a corporation voted for the payment of a dividend, knowing that it was to be paid from capital, the mere fact that a committee appointed by a new board of directors, and the board itself, and a majority of the stockholders, deemed an action against the director in question ‘‘inexpedient,” was no bar to the maintenance of an action against him by a stockholder.

      Mr. Richard V. Lindabury, for the complainant.

      Mr. James E. Howell, for the defendants.
   Stevens, Y. C.

The question raised by the plea has been very recently twice considered—first, by Yice-Chancellor Garrison, in Groel v. United Electric Co., 69 N. J. Eq. (3 Rob.) 397, and then by Judge Banning, in Siegman v. Electric Vehicle Co., 140 Fed. Rep. 117. In both cases the plea was overruled. The case in the United States circuit court is identical with the one in hand. Were it not that an appeal is to be taken, I should not think it necessary to write an opinion. As it is, I shall state, as briefly as possible, the ground upon which I think the suit is sustainable.

The complainant bases his case upon section 30 of the Corporation act, which provides that no corporation shall make dividends except from the surplus or net profits arising from its business, and that in case of a violation of the provision the directors under whose administration the same may happen "shall be jointly and severally liable at any time within six years after paying such dividend to the corporation and to its creditors in the event of its dissolution or insolvency.-” In Appleton v. American Malting Co., 65 N. J. Eq. (20 Dick.) 375, the court of errors and appeals construed this provision and held that it gave a remedy not only in cases of insolvency or dissolution, but also in cases where the company was going and solvent.

The bill alleges that on April 1st, 1889, the board of directors of the Electric Vehicle Company declared a dividend of eight per cent, on the preferred stock and two per cent, on the common stock, and that these dividends aggregated $184,800, and that on June 30th, 1899, they declared a further dividend of $140,000. It then alleges that the defendant Rudolph H. Kissel, a director of the company, at meetings of its directors, voted to declare said dividends, and that the same, to the knowledge of Kissel, were declared and paid, not out of the surplus or net profits,. but out of capital. Under the decision above cited, Kissel thus became liable to make them good. Now, the plea does not deny these allegations. What it sets up, and all that it sets up, is this: That after the deeláration and payment of these dividends, an entirely new board of directors was chosen; that such board, after being requested to sue, appointed a committee to examine and report upon the matter; that the committee reported against bringing suit, and that the board, after examination, approved the report and adopted a resolution that the company should not sue unless a majority in interest of the stockholders, other than the former directors, so ordered; that at the demand of complainant a meeting of stockholders was called, at which complainant was represented, and that by a vote of one hundred and twenty-four thousand seven hundred and fifty-nine to six hundred and fifty it was resolved by them that no just ground for suit against the former directors existed, and that, it not being expedient or for the interest of the company to bring suit, the action of the directors in refusing to do so was ratified and approved.

This plea does not deny that the dividends in question were declared and paid out of capital, and that Kissel knew that they were. Consequently it does not deny that there was a clear cause of action against ICissel for $324,800. All that it sets up in excuse or justification for not bringing suit is that the present directors and a large majority of the stockholders now think that no just ground exists therefor, and that it is not for the interest of the company to prosecute. In other words, admitting that, under the statute, Kissel is liable to refund the money, it is not thought fair to him or expedient for the company to enforce the liability. Now, as I understand the decisions, and as Judge Banning, on an identical state of facts, decides, .neither of these reasons is good as against dissenting stockholders.

In Dunphy v. Travellers’ Newspaper Association, 146 Mass. 495, the court said that it is not always best to insist upon all one’s rights; that a corporation, acting by its directors or by vote of its members, may properly refuse to bring a suit which one of its stockholders believes should be prosecuted, and that in such case, the will of the majority must control; but they add, “the court cannot interfere with the management of corporations in matters which are properly within their discretion, so long as their discretion is fairly exercised.”

In Corbus v. Alaska Treadwell Gold Mining Co., 187 U. S. 455, Mr. Justice Brewer says: “This court will examine the bill in its entirety and determine whether under all the circumstances the plaintiff has made such a showing of wrong on the part of the corporation or its officers and injury to himself as will justify the suit. The directors represent all the stockholders, and are presumed to act honestly and according to their best judgment for the interest of all. Their judgment as to any matter lawfully confided to their discretion may not lightly be challenged by any stockholder or at his instance submitted for review to a court of equity. The directors may sometimes properly waive a legal right vested in the corporation in the belief that its best interests will be prompted by not insisting on such right. They may regard the expense of enforcing the right or the furtherance of the general business of the corporation in determining whether to waive or insist upon the right. As was said in Dodge v. Woolsey, 18 How. 844, “the circumstances of each case must determine the jurisdiction of a court of equity to give the relief sought.”

' In the Gorbus Case the relief was denied. In the Dodge v. Woolsey Case it was granted under the following circumstances: Woolsey was a shareholder in the Branch Bank of Cleveland. The bank was incorporated under an act of the State of Ohio, which provided that it should be taxed in a certain mode. It was subsequently sought to impose a greater tax. The contention on behalf of the bank was that the ñrst act constituted a contract on the subject of taxation which the subsequent legislation impaired, and such was the view taken by the supreme court. The directors, it was alleged in the bill, had been requested by Woolsey to take measures, by suit or otherwise, to assert the franchises of the bank against the collection of the unconstitutional tax, and while admitting the illegality of the tax, had refused, “because of the many obstacles in the way of testing the law in the courts of the state.” Although the case was devoid of anj' element of ultra vires, fraud or oppression, the supreme court held that the suit was maintainable. In other words, the constitutional right to protection against the imposition of a further tax being adjudged, the stockholder was permitted, as the representative of the company, to override the judgment of the directors on the question of the expediency of testing the right in the courts.

This case appears to me to control the decision of the case in hand. We must, as the pleadings stand, regard the right of recovery against Kissel to be clear, for, as I have said, it is expressly averred in the bill that he knew that the dividends were all paid out of capital, and, notwithstanding this knowledge, voted for their payment. This malees a perfectly clear 'case against him, however the matter ma)r stand as to the others. The fact that a committee of the directors may have thought that as to the liability of the directors generally in office when the dividends were declared there might be some doubt or question is immaterial, for, talcing the facts to be as alleged by the bill and not denied by the plea, this doubt does not extend to Kissel. Then the only other ground assigned for not suing is found in the bare statement that suit is inexpedient., But if the circumstances of each case are to determine' the question of jurisdiction, then, the right being clear, it ought to appear why it is inexpedient. If Kissel be solvent (and there is no intimation of insol vencí'-), and if the right to recover so large a sum ($324,000) be undoubted, some good reason should be given for not suing. But no reason whatever is given. The case, therefore, as it now stands, must be regarded as falling rather within the ruling of Dodge v. Woolsey, 18 How. (U. S.) 344, than within that of Hawes v. Oakland, 104 U. S. 450, and Corbus v. Mining Company, 187 U. S. 455.


author: Stevens, V. C.

text:
    William D. Kellogg, administrator, v. Jessie L. Randolph et al.
    [Decided May 1st, 1906.]
    Tln-ee mortgages executed by the same mortgagor to the same mortgagee contained an identical description, by metes and bounds, describing the property as situated at the intersection of certain named avenues. The mortgages in fact were intended to cover the same property, but the one first executed mistakenly designated the township in which it lay, while the second named the township correctly, and the third erroneously stated that the property lay in a certain city.—Held, that the peculiar coincidence of the identity of the description by metes and bounds in all three mortgages being rationally explainable only on the theory of mistake in the location given, the mortgages were sufficient to put a subsequent mortgagee on inquiry and charge him with knowledge of the existence of all three mortgages.
    On bill, &c.

      Mr. Jerome T. Conglelon, for the complainant.

      Mr. J. Fred. Wherry, for the defendants.
   Stevens, V. C.

I think that the three mortgages made by Mrs. Randolph to Eugene E. Crane, trustee, dated, respectively, September 11th, 1897; July 80th, 1900,'and April 22d, 1901, have priority over the mortgage given by Mrs. Randolph to Garret I. Miller, dated July 24th, 1901. They were all recorded in the order of their dates. The point made on behalf of Mr. Miller’s estate is that it does not appear that he made any search; that, consequently, he is only affected with notice of the existence of tire prior mortgages, so far as the registry shows that they covered the property mortgaged to himself, and that in the case of two of those mortgages tire registry does not so show.

In all the mortgages, both those made to Crane and that made to Miller, we find identically tire same description. It reads as follows;

“Beginning at the intersection of the west line of Watchung avenue and the north line of Ridge avenue, running thence northwesterly, along the north line of Ridge, avenue one hundred feet; thence northeasterly, on a line parallel with the west line of Watchung avenue one hundred and twenty-five feet; thence southeasterly, to the west line of Watchung avenue one hundred feet; thence southwesterly, along the west line of Watchung avenue one hundred and twenty-five feet to the place of beginning.”

In .the first of the mortgages given to Crane the property is described as lying in the township of East Orange; in the second, as lying in the township of West Orange, where in fact it does lie; in the third, as tying in the city of Newark. These mistakes appear to have been due to the gross carelessness of the scrivener. In the Miller mortgage the property is correctly described as tying in the township of West Orange.

The law is that a purchaser will not be bound by the record of a conveyance which fails to disclose or specify the property granted. Le Neve v. Le Neve, 2 L. C. Eq. (3d Am. ed.) 179. The registry is itself notice of no other facts than those that appear on the record. Plume v. Bone, 13 N. J. Law (1 Gr.) 63. The constructive notice thus arising is equivalent, in law, to actual notice. Jackson v. Turrell, 39 N. J. Law (10 Vr.) 331. If there be any ambiguity on the face of the record it may be, and ordinarily will be, sufficient to put purchasers upon inquiry. Lee v. Woodworth, 3 N. J. Eq. (2 Gr.) 36. “As intending purchasers,” said Justice Danforth, in McPherson v. Rollins, 107 N. Y. 316, “they must be presumed to investigate the title and to examine every deed or instrument forming a part of it, especially if recorded. They must therefore be deemed to have known every fact so disclosed and every other fact which an inquiry suggested by those records would have led up to.”

Miller, of course, knew that the property was in West Orange, because it is so stated in his own mortgage. He also knew, constructively, beyond all controversy, that Mrs. Randolph had mortgaged it to Eugene E. Crane, for the record of the $1,000 mortgage so shows. In this mortgage the property is correctly stated to be in West Orange. He had also constructive notice of the fact that the same mortgagor had twice mortgaged to the same mortgagee a property described by metes and bounds which were identical with those contained in his own mortgage. In both of them the lot was described as beginning in the intersection of the west line of Watchung avenue and the north line of Ridge avenue, and the courses and distances were precisely the same. Now, it is possible that a person residing in Boonton (where, according to the mortgage, Miller lived) might have thought that there might have been in East Orange two intersecting streets by the name of Ridge avenue (not street) and Watchung avenue, and that on the identical northwest corner formed by the intersection of those streets Mrs. Randolph owned another lot of precisely similar dimensions. But if appears to me to transcend belief that anyone would have thought it likely that there were two streets of the same name in Newark also, whose general direction with respect to the points of the compass was the same, and which intersected each other in precisely the same way, and that Mrs. Randolph owned on the identical northwest corner of these streets a lot of precisely the same size, described by the surveyor, or whoever framed the description, in absolutely the same words. The idea suggested to any intelligent mind, ^professional or lay, would have been that here was a mistake; that it must have been intended to describe the same lot and that the towns were misnamed. It may be said that the record is only notice of property in Miller’s chain of title; that different towns being named, these two lots did not appear to be in that chain; and that, consequently, he had no constructive notice of them, but the answer is that the whole of the contents of these mortgages, if in fact in the chain of title, is presumed to have been within the consciousness of the mortgagee. Westervelt v. Wychoff, 32 N. J. Eq. (5 Stew.) 188; Wallace v. Silsby, 42 N. J. Law (13 Vr.) 1. And this being so, the mortgages themselves contain, . on their face, enough to show the error and to suggest the proper correction. At all events, they show enough to have put Miller upon inquiry, and slight inquiry would have shown the fact. “Whatever puts a party upon inquiry,” says Chancellor Green, in Smallwood v. Lewin, 15 N. J. Eq. (2 McCart.) 60, “amounts in judgment of law to notice, provided the inquiry, becomes a duty, as in the case of purchasers and creditors, and could lead to the knowledge of the requisite fact by the exercise of ordinary diligence and understanding.”

For these reasons, I think complainants are entitled to the relief prayed.


text:
    Joseph O. Nichols v. The Newark Hospital et al.
    [Decided May 4th, 1906.]
    1. Where a testator made a devise to a hospital association chartered in 1857 (P■ L. 1857 p. 44), but which has never taken any further steps since its organization, and is incapable of doing the work for which it was organized, the devise will be paid to another general hospital in the same city and having the same objects in view, under the doctrine of cy pres.

    2. Where a devise is made to a hospital, the charter Of which provides that no regulation of its directors shall allow any preference to patients on account of difference in religious faith, or on account of birthplace or parentage of the parties, and the devise is to be paid to another hospital under the doctrine of oy pres, the designated hospital must be in a position to comply with this proviso.

      Mr. Charles C Titsworth, for the complainant.

      Mr. Gortlandt Parker, for the Newark Hospital.

      Mr. Harris, Mr. Nichols and Mr. Ernest E. Goe, for the other defendants.
   Stevens, Y. C.

It seems to me that the principle upon which this case is to be decided is clear. “The Newark Hospital” was incorporated by special act of the legislature, approved February 27th, 1857. An organization under the charter was perfected shortly thereafter, but first the panic of 1857 and then the Civil war put a stop to the raising of the subscriptions necessary to put the hospital on its feet as a going charity. The corporation has néver done anything more than organize. Most of its directors and all of its officers, with the exception of its vice-president, are now dead. There does not, so far as the proofs go, seem to be a quorum for the transaction of business.

By his will, dated March 21st, 1861, Joseph Nichols bequeathed and devised all tire residue of his estate to the Newark Hospital, its heirs and assigns, and he described it as “a benevolent society lately incorporated by the legislature of New Jersey.” He died July 1st, 1866. The residue, with its accumulations, now amounts to $24,812.78. Why the surviving executor did not file his bill for directions before, does not appear, and is not now material.

The question is, To whom shall the executor pay the money ?

That the Newark Hospital is a charity is admitted. Hadden v. Dandy, 51 N. J. Eq. (6 Dick.) 154; S. C. on appeal, 51 N. J. Eq. 330; American Bible Society v. American Tract Society, 62 N. J. Eq. (17 Dick.) 219. Its charitable object, as stated in the preamble of its act of incorporation, is the “erecting of a general hospital' in the city of Newark, fitting it with all proper conveniences and appurtenances, and furnishing necessary attendance for the sick and- disabled.” This object it has, confessedly, never executed. It is now without funds and without effective organization, and it is apparently incapable of doing any work. But nothing is better settled than that the law does not permit a charitable trust, capable of execution, to remain unexecuted for want of a competent trustee, and if the trust cannot be literally performed, the court itself, to use the words of Judge Green, in Mackenzie v. Trustees, 67 N. J. Eq. 652 (at p. 673), “will apply the property as nearly as possible according to the donor’s intentions, when those intentions cannot be exactly carried out.” Pennington v. Metropolitan Museum of Art, 165 N. J. Eq. (20 Dick.) 11. If the present trustee of this charity cannot act, then it would appear that the donor’s intentions can be effectuated, cy pres, by giving the fund to one or more hospitals in the city of Newark having the same object, viz., “the furnishing necessary attendance for the sick and disabled,” and inasmuch as the seventh section of its charter provides

“that no regulation of said directors shall allow of any preference being shown in the admission of patients or in granting relief to the sick or disabled on account of difference in religious faith or on account of the birthplace or parentage of the parties,”

it would seem that the designated hospital must be in a position to comply-with this proviso.

There should be a reference to a master to- ascertain whether the Newark Hospital is now able to- execute the trust imposed upon it, or will, within a reasonable time, be in a position to do' so, and if not, then the master shall consider and report a scheme for the management and disposition of the trust funds upon the lines indicated in this opinion.