text:
    Edward T. Welsh, appellant, v. John J. Lawler, respondent.
    [Submitted July 9th, 1907.
    Decided November 18th, 1907.]
    1. A complainant in a foreclosure suit cannot, after the entry of the final decree and the issue of a fieri faeias thereon, prohibit' the sale of the mortgaged premises against the will of ,a. junior encumbrancer, whose claim has been adjudicated by the decree and is commanded to be satisfied by the fieri faeias.

      2. A writ of fieri faeias issued in a forecolsure suit to execute ,a. decree settling- the rights of various encumbrancers is multiform in substance, and the sheriff must execute it, unless all of the parties for whose benefit it was issued consent that it shall not be executed, or unless there is a satisfaction of their several encumbrances.
    On appeal from an order of the court of chancery.

      Mr. John Milton, for the appellant.

      Mr Frank P. McDermott, for the respondent.
   The opinion of the court was delivered by

G-ummere, Chief-Justice.

Welsh, the complainant below and appellant here, filed a bill to foreclose a mortgage held by him upon property of one Quinn. He joined, as defendants, the respondent Lawler and other parties holding encumbrances upon the mortgaged premises. In due course a final decree .was entered, by which it was ordered that the mortgaged premises be sold to raise and pay the several sums of money due to Welsh, to Lawler, and to the other defendants who held encumbrances in the order of the priority of their respective liens, and that a writ of fieri facias issue to the sheriff of Monmouth county, where the mortgaged premises were situate, commanding him: to make sale thereof, and out of the proceeds of the sale to pay to the complainant and to the several defendants holding encumbrances their respective debts in their proper order of priority. In pursuance of the command of the decree the writ was issued and delivered to the sheriff, who thereupon proceeded to advertise the mortgaged premises for sale. Pending the sale the complainant’s claim was in some way adjusted, and his solicitor then directed the sheriff not to proceed further with the sale under the execution. In this situation of affairs application was made to the chancellor, on behalf of Lawler, for an order compelling the sheriff to. proceed and make sale of the mortgaged premises according to the command of the writ, notwithstanding the instruction of the complainant’s solicitor. This application was granted and the sheriff ordered to proceed with the sale and distribute the moneys arising therefrom, as directed by the writ. From this order the complainant appeals.

The theory upon which the appeal is founded is that the complainant as magisler liiis has complete control of the decree and the execution issued upon it, and that he cannot be divested of that control by the chancellor without his consent. This theory, in our opinion, is untenable. If, during the progress of a foreclosure proceeding, the complainant desires to abandon its further prosecution he may do so. He cannot be compelled to carry it on to final decree against his will. But after the prosecution of the cause has been concluded by the entry of a decree, by which the rights not only of the complainant, but also of those defendants who hold liens, have been finally fixed and determined, the complainant’s control of the suit is, in large measure, ended. The decree being equally for the benefit of all the lien holders whose rights have been adjudicated by it — in other words, it being, in its legal effect, a separate judgment in favor of each of such lien holders — each one of them is entitled to have it executed so- far as it establishes his particular lien; and consequently the writ of fieri facias which is issued for the purpose of executing the decree, although usually sued out by the complainant, directs the sale of the mortgaged premises to be made, not for tire purpose of satisfying the complainant’s lien alone, but all the liens which ha.ve been established by the decree. The duty of a sheriff holding such a writ is similar to that which rests upon him where he has received from a court of law a number of executions against the same judgment debtor, and in favor of different plaintiffs. In such a ease his dutjr is to execute the mandate of each of the junior writs, as well as that contained in the writ which first comes to his hands, and the judgment creditor who is entitled to priority in payment out of the proceeds of the sale made under such executions, although he may prevent such sale being made under the execution issued upon his particular judgment, by satisfying his own claim, or otherwise, cannot, by so doing, prevent sale being made for the purpose of satisfying the claims of the junior encumbrancers. A writ of fieri facias issued on a decree in foreclosure for the purpose of satisfying the claims of several encumbrancers, although single in its frame, is multiform in substance, and the only two ways by which the sheriff can be relieved from the duty of executing it, are the consent of all the parties for whose benefit it has been issued, or tire satisfaction 'of their several encumbrances. The waiver by one of them of his right to have the mortgaged premises sold to satisfy his debt, no matter in what order of priority that debt is entitled to be paid, merely nullifies the writ so far as his own claim is concerned. It has no effect upon the right of his fellow encumbrancers to have the writ executed for the purpose of raising the moneys which have been adjudicated by the decree to be due to them severally.

The order appealed from was properly made, and will be affirmed.

For affirmance — The Chief-Justice, Garrison, Hendrickson, Pitney, Swayze, Eeed, Trenchard, Bogert, Vredenburgh, Vroom, Green, Gray, Díll — 13.

For reversal — None.


source: Caselaw Access Project

author: Garrison, J.

license: Public Domain

text:
    C. Edward Murray et al., respondents, v. William H. Skirm, Jr., appellant.
    [Submitted July 12th, 1907.
    Decided April 3d, 1908.]
    A court of equity, in the exercise of a sound discretion, will direct one judgment to be set off against another whenever such relief does not run counter to any established principle of law or equity.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Bergen, who filed the following opinion:
    “The complainants allege that, September 15th, 1903, the complainant Murray recovered a judgment in the supreme court of this state against the defendant for $3,341.74, under which the sheriff levied on two hundred and forty-one shares of the capital stock of the Empire Rubber Manufacturing Company, which was appraised by the sheriff and persons selected for that purpose by him, at $100 per share, and after setting off to the defendant two shares to satisfy the exemption allowed him as a debtor having a family, the residue was, on October 11th, 1903, sold by the sheriff at public auction for $50; that there yet remains due on said judgment $3,303.99; that October 12th, 1903, said judgment was assigned by Murray to a third person, and by him immediately reassigned to the complainants; that October 15th, 1903, the defendant recovered a judgment in the said court against the complainants for $4,175.32. The prayer of the bill is that the judgment so assigned be set off against the judgment recovered by the defendant against the complainants’ judgment, so far as it will extend.
    “The defendant, answering the bill, admits all the material allegations contained therein, but in an answer by way of cross-bill exhibited against the' complainants, and also against A. Boyd Cornell and the Mechanics National Bank of Trenton, charges that on July 9th, 1902, the defendant loaned to the complainants the sum of money for which he afterwards recovered his judgment against them; that when he brought his suit for the recovery thereof the complainants filed a plea of general issue, which they afterwards relinquished, and charges that the plea was filed for the sole purpose of preventing the recovery of the judgment until the complainants had recovered their judgment against the defendant, and sold under it the property of the defendant, as hereinafter set out; that the foundation of the complainants’ judgment was a note made by the defendant, and endorsed as an accommodation by Murray, to the Mechanics National Bank in Trenton, and to secure the payment of which the defendant pledged as collateral with said bank fifty shares of the capital stock of said rubber company; that when said note matured, Murray and Baker, having refused to pay their debt to the defendant, he was unable to provide for its payment, whereupon the bank caused said stock to be sold at public auction on August 20th, 1903, where it was'struck off and sold to A. Boyd Cornell for $350, Cornell beihg the brother-in-law of Murray; that on the sixteenth day of October, 1903, the defendant tendered to Murray the principal and interest due upon the judgment against him, the defendant, demanding of Murray the fifty shares sold to Cornell, which tender Murray declined. The prayer of the cross-bill is that -the sale of the fifty shares of stock may be decreed to have been fraudulently made, and that the same be set aside, and that a similar decree be made with reference to the sale of the two hundred and thirty-nine shares sold under the judgment against the defendant. No evidence was introduced with reference to the sale of - the two hundred and thirijr-nine shares, so that the further consideration of that question may be dismissed. With regard to the fifty shares, the evidence shows that the defendant was unable to pay his loan to the Mechanics National Ban,k at the maturity of his note, upon which Murray was liable as endorser, and to secure which the fifty shares of stock had been deposited, and that this inability was caused by the neglect or refusal of the complainants to pay to him a much larger sum, for which he held their past-due obligations, and it further appears that the defendant-tendered to Murray all that he had been required to pay in satisfaction of his liability as endorser.
    “After reading the evidence, and giving this matter most careful consideration, I do not find myself able to justify the claim of the defendant. The bill of complaint is in the ordinary form,.asking for an equitable set-off, the material facts are all admitted, and the only defence offered is by way of cross-bill, asking this court to refuse the ordinary relief in such cases because the stock held by the bank as collateral was sold by it at public auction to Cornell. There is not a particle of evidence justifying the slightest criticism of the conduct of the bank; the defendant was notified by the officers of the bank more than once that if he did not provide for his obligations the stock would be offered for sale. He paid no attention to these notices, at least so far as the evidence discloses, and the bank, after fully advertising the sale, had it sold in a public manner at a place where such sales usually take place. The purchaser of this stock was a brother-in-law of Murray, and immediately upon the purchase and transfer pledged it for a loan of $3,000. at the same bank. Of this money $350 was used to pay the purchase price, the balance, $2,650, was loaned to Murray, and by him used, with other moneys, to pay the balance due on the endorsed paper. Under this evidence I am asked to declare that Cornell is not the owner of this stock; that he bought it in trust for Murray, and that the whole proceedings was a scheme to cheat and defraud the defendant. If the proceedings complained of were corruptly instituted to deprive the defendant of his property, the bank must have been a party to it, and, as I have said, there is no evidence to sustain that allegation. Nor is there any evidence that Cornell is not the bona fide holder and owner of the stock, and while some of the circumstances may justify the suspicion of a conspiracy to defraud, there is no proof of any fraud. On the argument, it was earnestly insisted that this sale was for a price so grossly inadequate that a court of conscience ought to set it aside for that reason, but I am unable to say that the price for which this stock was sold was so grossly inadequate. It was the stock of an industrial company, and its market value was an .uncertain quantity. This stock was sold on the 20th day of August, 1902, and on the 15th day of September following two hundred and thirty-nine shares of the stock of the company1' was sold at public auction for $50, the defendant apparently taking no interest in protecting it, or at least not enough to attend a public sale, and bid for it. In addition to what I have said I am of the opinion that the affirmative relief sought by the defendant cannot be allowed under these pleadings. The bill seeks to set off the two judgments. The cross-bill does not deny the validity of the complainants’ judgment, but seeks to have set aside, first, a sale made under the judgment, and secondly, a sale of securities deposited as collateral to a loan made to the defendant, the deposit being with, and the sale made by, a corporation in no way related to any of the parties, and in my judgment, the relief sought should have been the subject of an original bill. However, the determination of this case does not depend on the question of pleadings, as I shall advise a decree for the complainants upon the merits, and dismiss the cross-bill.”

      Mr. John E. Baches, for the appellant.

      Mr. Edwin Robert Walker, for the respondents.
   The opinion of the court was delivered by '

Garrison, J.

The bill in this case was filed by Murray and Baker to have a judgment that they held against William H. Skirm set off against a judgment that he held against them. The controversy arises over the case made by Skirm under a cross-bill. The nature of the controversy and the facts involved are fully set forth in the conclusions of the learned vice-chancellor who heard the cause. Upon the issue tried before him the material facts found are — first, that the conduct of the bank in selling the shares of stock pledged to it as collateral by Skirm is not open to adverse criticism; second, that Skirm, in the face of repeated notices from the bank, abandoned his collateral to be Sold at public auction; third, that there was no proof of fraud on the part of Cornell, who was the highest bidder at the sale, or on the part of Murray; fourth, that Cornell is a bona fide purchaser and owner of the stock; fifth, that in view of Skirm’s conduct with respect to his collateral the discrepancy, if any, between the-amount at which it sold and the problematical value of the stock, was not a ground for nullifying a sale in other respects valid; and lastly, that no established principle of equity is contravened by granting the offset sought by the bill. The learned vice-chancellor also intimated, indeed he expressed the opinion, that the relief sought by the defendant, Skirm, was not the proper subject of a cross-bill. In this we think he was mistaken. In granting, or denying applications to have one judgment set off' against another courts of equity and courts- of law acting upon equitable principles, exercise what is called in the books a discretion ; but the discretion thus exercised is not an untrammeled one; it is conditioned upon, if not- actually circumscribed by,, established principles of equity. Subject, therefore, to the determination of matters that fall within these established principles, the right of offset is as determinate as is that of specific-performance, of which it was said in Page v. Martin, 46 N. J. Eq. (1 Dick.) 585, that while such relief rested in discretion, it was-as much a matter of course for courts of equity in a proper case-to decree the specific performance of a contract as it was for courts of law to give damages for its breach. It is in this sense,, and not in that of an arbitrary volition, that the term is used in our cases touching the offsetting of judgments.

Observing this distinction the rule is correctly stated in a. leading work of reference to be that:

“A party applying to a court of equity to have one judgment set off against another is entitled to such relief under proper circumstances as a matter of right. It is not a matter of discretion, but the court is bound to determine the rights of the parties according to established principles of equity.” %5 Am. & Eng. Encycl. L. S14.

It follows therefore that any state of facts that, according to-the. established principles of equity, would lead to the denial of the set-off sought by a complainant is a .proper matter of defence,, the exhibition of .which by way of a. cross-bill is not subject to-justifiable criticism. In every such case, and hence in the present case, .the substantial and controlling question is whether the facts proved under such pleading invoke the application of any established principle of equity that would be violated by granting the set-off that is sought.

Upon the facts found by the learned vice-chancellor in the present case he decided that ho such principle intervened to prevent the .granting of the set-off sought by the bill, and it must be admitted upon all sides that on the facts thus found such decision must indubitably follow. The appellant has, however, brought the entire case into this court for review, both as to the law and the facts upon “the points upon which he means to rely.” (Court Rule No.' 19.) If, therefore, on any point thus relied upon, the appellant convinces us that the testimony taken in the court below established any state of facts calling for the application of any recognized principle of equity that is violated by the decree, he is entitled to have such decree reversed. The points relied upon by the appellant to this end will therefore be considered in the order of his brief, the cause having been argued on briefs.

The first point is that “the pledgee cannot purchase at his own sale.” This assumes, at the outset, a matter of fact upon which the finding of the court below is directly to the contrary, viz., that Cornell was acting not for himself but for Murray. “I am asked,” said the vice-chancellor, in reviewing the evidence, “to declare that Cornell is not the owner of this stock; that he bought it in trust for Murray;” to which his answer was that there is not “any evidence that Cornell is not the tona fide holder and owner of the stock,” and indeed unless surmises and suspicions are to be substituted for proof this finding of the vice-chancellor is unassailable. If, however, it be admitted that the identity of Cornell is merged in that of Murray, we are unable to see the relevancy of the point taken unless Murray be held also to have absorbed the bank, otherwise he was in no sense the “pledgee” and the sale by the bank was in no sense “his sale.” But all the evidence is that the pledge was to the bank and that the sale was made by the bank; indeed, it could have been made by no one else. That the bank was not even induced by Murray or by anyone else to make the sale is testified to categorically by Governor Stokes, the president of the bank. The cases cited under this point to the effect that a pledgee cannot buy at his own sale are lacking in any element of pertinency to the admitted and uneontroverted facts of the present case.

The second point relied upon for reversal is “the securities were not sold as a separate lot.” As the appellant never had, and is not now seeking to have, the sale set aside, I do not feel justified in taking up time over this point.

The third and last point taken in the brief is that “the purchase price was grossly inadequate.”

In so far as this contention seeks to reverse the finding of fact of the court below (bearing in mind that this is not an application to have the sale set aside or its confirmation denied), we are not inclined to accede to it.

If, in the absence of fraud, it be admitted that the question of the value of the stock is at all relevant to the present controversy it must also be admitted that strictly speaking the market value of the stock was not proved. In lieu of market value, testimony was offered to show its intrinsic value by book valuations spread on the minutes of the company by reports of auditors and by the declarations of dividends. It was also claimed as an admission in pais that the price paid for stock in order to secure control of the company was some evidence of its worth, and it was also insisted that the face value of the stock, i. o,., its par value, was proof of its market value. As opposed to this line of proof stood the testimony as to the gradual reduction of dividends and the actual recall of the dividend last declared because of the condition of the company’s affairs and also the circumstance that the attendance and competition or the lack of it at a local sale of the stock of a local concern were some indication of its reputed value. The vice-chancellor properly declined to take par value as the equivalent of market value and he also rightly recognized that the price paid for stock to get a controlling interest was not a reliable criterion of the market value of the outstanding minority shares. He also took into consideration and gave' weight to the admitted fact that Mr. Skirm, who was intimately acquainted with the state of the company’s affairs, ignored the repeated notices of'the bank that his stock was to be put up at public auction and apparently took no steps whatsoever indicative of his faith in its selling value. Other circumstances recited by the vice-chancellor are to the same effect, touching the appellant’s attitude toward the stock pledged to the bank and toward a much larger block sold at about the same time. On the question of the problematical value of the appellant’s stock, his own conduct, as adduced by him as a witness before the vice-chancellor, was certainly entitled to weight.

Whatever surmises may be indulged in as matters of conjecture, it cannot be said that we are constrained, by the testimony, to the conclusion that the vice-chancellor erred in dealing with this branch of the case, even if the matter be deemed pertinent to any point raised by the appellant, in view of his reiterated assertion of the propriety of the action of the bank in making sale of his stock. “We repeat,” he says in his brief, “that no fraud is charged against the bank,” and again, “Nothing is sought against the bank.” Assuming, therefore, as we must, that the sale was lawful and proper, that it was rightly made and was never objected to or sought to be set aside, on what principle of law or equity can it now be collaterally attacked, in the absence of fraud, even if it be admitted that the highest bidder got the stock for less than its intrinsic value ? I confess that I know of none and certainly none is suggested by the appellant. Apparently, moreover, the effort is not even to set aside the sale or to impugn its validity; on the contrary, as I understand it, the sale is to stand and the successful bidder is to be compelled, because of some supposed equity, to increase the amount of his bid until it equals, what sum1? The market value of the stock, its book value, its intrinsic value, the total debt for which the stock was pledged, or some other indeterminate sum? To whom, moreover, is this posthumous increase to be paid ? To the bank which held and sold the pledge, or to the parties to the note to pay which the stock was sold? And if to the parties, why to Skirm rather than to Murray, who, as the matter stands, having paid the note is the only one immediately injured by the price brought by the collateral? The appellant directs us to no authority of law or principle of equity by force of which a sale, valid when made and never contested, can, in the absence of fraud, be after-wards collaterally attacked and in effect nullified; and upon the question of fraud the determination of the court below is not even pointed out as a matter for our review, and if it were, we could not, upon the testimony, say that the vice-chancellor was in the wrong.

Our conclusion is that upon none of the points relied on has the appellant satisfied us of the errancy of the decree from which he has appealed, which consequently must be affirmed.

Although no such point is made by the appellant, the question has nevertheless been mooted whether the circumstance that at the time of the sale of Skirm’s stock, Murray and Baker were in his debt to an amount in excess of the debt for which the stock was held as collateral, prevented them from buying at the sale saving as his trustees or imposed upon them the duty of protecting their creditor’s collateral by bidding it up to the limit of the debt for which it was sold or to some other sum based on its actual value; in fine, whether the complainant’s indebtedness to Skirm makes them, in equity, his indemnificators as to the difference between the amount for which the stock sold and the ■amount of the debt for which it was pledged. If the case had been tried or argued upon any such theory the answer, I apprehend, would be that the proposition thus advanced rests fundamentally upon the mistaken assumption that the failure to pay a legal debt makes the debtor in equity the indemnificator of his creditor against losses resulting from such non-payment. In view of the millions of instances in which debts have not been punctually paid, the circumstance that our attention can be directed to no case in which such legal defaults were visited in equity with other than their legal incidents, is doubtlessly due to the universal acceptance of the doctrine that where the law prescribes a legal measure of damage for the breach of a legal contract the parties are deemed to have contracted with reference to such measure of damage and courts of equity are bound to so regard their undertaking.

Marsden v. White, 71 N. J. Eq. (1 Buch.) 244, in this court, is a decision in point. In that cause the effort was made to build up an equity upon the breach of a legal covenant. In deciding against the.existence-of such an equity it was said, in the 'opinion: “The law prescribes Just what one party may recover from the other for the breach of these covenants and this measure •of redress by legal intendment forms part of the contract of the parties so that the mere existence of such a covenant implies that the parties have agreed with each other the one to accord and the other to. accept upon the happening of a certain event a known measure of damages. * * * That the court of chancery is bound by the legal rule thus established, at least in the opinion of Vice-Chancellor Van Fleet, is shown in Post v. Stiger, 29 N. J. Eq. (2 Stew.) 554, where he said: Tts breach was coeval with its existence and the complainant’s right accrued as soon as the covenant was made. His damages were certain and fixed, being limited inflexibly to the consideration paid and interest.’ ”

Equity, therefore, even regarded as a general “avenger of wrongs,” draws the line where purely legal rules control and also it may be added where relief from the operation of such rules is sought upon benevolent or ethical considerations. Under this latter head, Chief-Justice Beasley, in the case of Davis v. Flagg, refused to give the sanction of this court to the doctrine that a legal right would not be enforced by the court of chancery “if the motive leading to the acquisition of such right has been immoral or otherwise censurable,” saying that “the adoption of such rule would be, as it would seem, quite at variance with some of the most primary principles of our system of jurisprudence,” and that “the abstract precepts of the moral code, disconnected from property and the rights of persons, are neither enforced nor noticed by courts of law or by courts of equity.” 35 N. J. Eq. (8 Stew.) 491, 495.

The mooted matter need not, however, be further pursued as the questions presented by this appeal have been fully considered and disposed of. The decree of the court below is affirmed.

For affirmance — The Chief-Justice, Garrison, Trenchard, Bogert, Green, Gran, Dill — 7.

For reversal — The Chancellor, Swayze, Reed, Vredenburgii — 4.


author: Swavme, J.

text:
    Rachel VanHouten, appellant, v. Joseph C. Hall et al., respondents.
    [Submitted June 25th, 1907.
    Decided November 18th, 1907.]
    A testatrix devised and bequeathed property to a grandson for life, and, if he should die without issue, gave one-half thereof to E. H. and the other half to be equally divided between Caty, and, if she be dead, her children, and the child or children of George in fee. George died before the life tenant, leaving one child; Caty died before the life tenant, leaving six children.' — Held, that the one-half must be distributed between Caty’s children and George’s child per stwpes and not per capita.

    On appeal of Rachel VanHouten and others from a decree advised by Vice-Chancellor Bergen, whose opinion is reported in 71 N. J. Eq. (1 Buck.) ¡626.

      Mr. Preston Stevenson, for the appellants.

      Mr. Rokert Williams, for the respondent.
   The opinion of the court was delivered by

Swavme, J.

The question involved is the construction of the following clause in the will of Rachel VanHouten:

“I give the remaining one-third of said residue to my grandson, the said Adrian Post, and, if he shall die leaving children, then to his children, but, if he shall die without issue, then X give one-half thereof to Elizabeth Hall and the other half to be equally divided between Caty, and, if she be dead, her children, and the child or children of George, in fee.”

Caty was Catherine VanHouten, a daughter of the testatrix; George was a 'son and -Adrian was a grandson. We have heretofore decided'that Adrian took only a life estate under the will. Post v. VanHouten, 41 N. J. Eq. (14 Stew.) 82; affirmed, 43 N. J. Eq. (16 Stew.) 296. He .died in November, 1905. Catherine VanHouten died in. 1897,'leaving six children her surviving, the appellants; a seventh had died years before. George Post died in 1884, leaving an only child, William H. Post, who died in 1891; the respondent has succeeded by will to his rights.

The appellants claim that the distribution should be per capita; the respondent that it should be per stirpes. The learned vice-chancellor took the latter view.

The question is not exactly whether the gift to Catherine VanHouten’s children is substitutionary in the technical sense as distinguished from a substantive original gift. This distinction sometimes becomes important where the legacy would lapse if it was only. substitutionary, as in a case where the original legatee dies before the testator. No such difficulty arises here. Assuming that the children of Mrs. VanHouten take as original or alternative legatees, the question is do they take each a several share in his own right or jointly their mother’s share by way of representation. It might avoid confusion to say that they are representative legatees, but the books use the word “substituted,” and it is not likely to lead to confusion with the more technical use of the words if the different question to be decided in each case is kept in mind. In the present case the question is, what share do they take ?

No doubt the general rule is that where there is a gift to the children of several persons, they take per capita (2 Jarm. (Randolph & Talcott’s ed.) 756), and the rule prevails even where there is a devise or bequest to one person and the children of another. The latter branch of the rule dates from Blackler v. Webb, 2 P. W. 383, and notwithstanding the criticism of Chief-Justice Kirkpatrick in Roome v. Counter, 6 N. J. Law (1 Halst.) 111, is recognized in this state. Smith v. Curtis, 29 N. J. Law (5 Dutch.) 345; Fisher v. Skillman’s Executor, 18 N. J. Eq. (3 C. E. Gr.) 229; Macknet’s Executor v. Macknet, 24 N. J. Eq. (9 C. E. Gr.) 277, 294; Thornton v. Roberts, 30 N. J. Eq. (3 Stew.) 473, 477; Burnet v. Burnet, 30 N. J. Eq. (3 Stew.) 595, 599, but the courts have not failed to express dissatisfaction with it, and it js said that this mode of construction will yield to a very faint glimpse of a different intention in the context. 2 Jarm. 757.

Chancellor Zabriskie, in Fisher v. Skillman, supra, disregarded it because the will showed the testator’s design to make his children equal, and so where there is a gift to the children of several, by way of substitution, the children will generally take per stirpes. 2 Jarm., supra; Price v. Lockley, 6 Beav. 180; Congreve v. Palmer, 16 Beav. 435; 23 L. J. Ch. 54; Shailer v. Groves, 6 Hare 162.

An examination of the will in the present case leads us to think the rule was correctly applied by the vice-chancellor. The general scheme of the will required the payment of one-third of the income of the residue to Catherine, one-third to George and one-third to Adrian (subject to an annuity to his another), until the death of George, and a distribution of the estate at George’s death. The testatrix provided, however, that if Adrian died before George without issue, one-half of the income should go to Elizabeth Hall and one-half should be divided equally between Caty and George. This provision as to the distribution of the iaiconae in case of Adrian’s death before George is very much like the provision for distribution of principal at Adrian’s death after George which is now before us. Both provisions give half to Elizabeth Hall, and both distribute the other half between Caty aaid George or their representatives. Siaiee the principal was not to be distributed until George’s death, his child or children were put in his stead in the later clause, and as this directed the attention of the testatrix to the possibility of her children dabng befoa-e her grandson, she naturally made the same provision for the substitution of Caty’s children as for George’s child or children. The will evinced a design to treat the two families alike. The case in this respect resembles Brett v. Horton, 4. Beav. 239, cited in 2 Jarm., supra; reported also in 10 L. J. Ch. (N. S.) 371; Overton v. Banister, 4. Beav. 205.

The testatrix was not careless in- her use of language. In the clause immediately preceding the oaie in question she devised a third part of her Main street property in a certain contingency to “Catherine and Adrian and their children in fee.” And Chancellor McGill properly held that the children shared equally with Catherine and Adrian. But when the testatrix came to the disposition of Adrian’s share, in the event of his death without issue, she was careful to use different language. Instead of saying that the share should be equally divided between Caty and her children and the child or children of George she inserted the words “if she be dead,” thus evincing á clear intent that the children should not share with their mother, but should take her place in the contingency mentioned.

The use of the word “between” instead of “among” tends in the •same direction. No doubt “between” may sometimes mean “among,” but where other circumstances favor a division into two parts only, there is every reason for adhering to the primary meaning.

The decree should be affirmed, with costs.

For affirmance — The Chiee-Justice, Garrison, Hendrickson, Pitney, Swayze, Eeed, Trenci-iard, Bogert, Vredenburgh, Vroom, Green, Gray, Dill — 13.

For reversal — None.


author: Swatize, J.

text:
    Hannah Lowry, appellant, v. Peter Tivy et al., respondents.
    [Argued June 28th, 1907.
    Decided March 2d, 1908.]
    The facts in this case fail to establish a resulting trust.
    On appeal from a decree advised by Vice-Chancellor Stevenson.

      Mr. Leon Abbett, for the appellant.

      Messrs. Weller & Lichtenstein, for the respondents.
   The opinion of the court was delivered by

Swatize, J.

This is a creditor’s bill in aid of an execution at law. The debt due the complainant was incurred, part on October 9th, 1893, and part on January 17th, 1894, by the firm of Tivy & Schmidt, which was composed of Peter Tivy and Aug. J. Schmidt. The business proved unsuccessful. Schmidt died in the fall of 1894, and on December 19th of that year Peter Tivy conveyed the real estate now in question to his sister Elizabeth Tivy. In his answer to the original bill he says that his brother Aloys Tivy was the equitable owner of Hie property and that the conveyance was made at the request of Aloys in payment of a debt due from Aloys to. Elizabeth, and that a full consideration passed from Elizabeth to Aloys. Elizabeth in her answer says that Aloys owed her for board and said he wanted her to have what he had. Upon these averments the vice-chancellor directed that an amended bill be filed and that Aloys be brought in as a party defendant. This was done, and Aloys answered, setting up that the conveyance was in consideration of natural love and affection and a small amount of money then owing by him to Elizabeth for board.

At an examination in supplemental proceedings, Peter testified that he conveyed the property to his sister because he wanted to get rid of it. Aloys testified that he gave his sister such a big present because it was all in the family. At the hearing before the vice-chancellor he said he conveyed to his sister because he did not pay his board regularly.

Elizabeth testified that Aloys owed her one thousand dollars for board, but she kept no account, and we think the evidence makes it clear that the family lived together, each contributing to. the support of the household. Aloys was the most thrifty, and in. view 'di the uncertainty in the testimony we are not satisfied that he was indebted to his sister for board. Probably it is true, as she says, that when he had money he would give her some, and when he had none he would give her nothing. Such testimony fails to indicate that the relation between Aloys and Elizabeth was that of debtor and creditor.

It is, of course, not of importance what the consideration for the conveyance was as between Aloys and Elizabeth, except for the light this testimony throws upon the real question in the case, which is whether Peter held the title in trust for Aloys.

To establish a resulting trust arising from the payment of the purchase-money where the title is taken in the name of another, the proof must be very clear and the fact distinctly established by satisfactory evidence. Cutler v. Tuttle, 19 N. J. Eq. (4. C. E. Gr.) 549, 560.

In the present case the testimony is far from satisfactory.

The uncertainty of Aloys’ statement is well illustrated by the following testimony on his cross-examination:

“Q. Do you remember when these lots were conveyed to your sister by Peter Tivy in December, 1894?
“A. Yes.
“Q. Well, have you had any interest in these lots since then?
“A. Yes; I had some interest; that when she was in possession of that property then I have something after having paid for board.
“Q. I mean do you own any part of these lots?
“A. No; she owns the lots.
“Q. Do you own any part of'it?
“A. No.
“Q. Who does own the lots?
“A. Well, he owns the lots.
“Q. Who?
“A. Peter Tivy.
“Q. Owns what lot?
“A. These lots.
“Q. Lots 27 and 28?
“A. Yes.
“Q. That is your brother, isn’t it?
“A. Yes.
“Q. And he has owned them right along, hasn’t he, these lots?
“A. Owned these lots?
“Q. Who owns lots 27 and 28 in block 48 that we have been talking about?
“A. I own them because I paid for them.
“Q. You still claim to own them, do you?
“A. Yes.
“Q. How about your sister, does she own them?
“A. Yes.
"Q. You can’t both own them?
“A. No.
“Q. Who does own them?
“A. How is that now?
“Q. Do you own them or does she own them, or does you brother Peter own them?
“A. She owns them now.”

The uncertainty is increased by Aloys’ account of the payment made by him to Pape, the original vendor who conveyed to Peter September 30th, 1890. He says he paid Pape with certificates issued by the town of Union and the city of Hoboken, to the firm of Beyer & Tivy, of which he was a member. Many of these certificates were produced; only three of them had Pape’s name upon them. Aloys says he paid no money and received no money from Pape, and that -they did not count interest on the certificates. The town of Union certificates were all dated prior to 1889, except the three endorsed by Pape. One of these was assigned to him June 4th, 1889, another June 13th, 1889, and another is dated on June 13th, 1889, but the assignment is not dated. These three certificates aggregate $1,141.58. The consideration of the deed from Pape is $1,900, and the correctness of this amount is not questioned.’ Aloys’ attention was called to the fact that the certificates were transferred more than a year before the deed and to the discrepancy between the amount of the certificate and the consideration of the deed, but he failed to explain the apparent inconsistency. He at first said he paid some other certificates of the city of Hoboken, and immediately added, “I don’t know, I have no idea, I don’t know; I must have paid it, I cannot recollect.” The difficulty is not diminished by the fact that Beyer had on the face of things a half interest in the certificates.

We think, upon the whole case, that Aloys has failed to establish the resulting trust, and to overcome the presumption which arises from the fact that the title was in Peter from September 30th, 1890, to December 19th, 1894. The complainant’s debt was incurred during this time. As to her the conveyance to Elizabeth was fraudulent. The decree should be reversed and the record remitted to the court of chancery in order that a decree may be made in conformity with this opinion.

For affirmance — None.

For reversal — The Chancellor, Chiee-Justice, Garrison, Swayze, Eeed, Trenchard, Bogert, Vredenburgi-i, Vroom, Green, Dill — 11.


author: Swayze, J.

text:
    Thomas W. Oram et al., executors, respondents, v. Josephine Peirce et al., appellants.
    [Argued July 8th, 1907.
    Decided November 18th, 1907.]
    A testator provided in his will as follows: “I do hereby give and bequeath to my son Robert F. Oram, Jr., the equal one-half part of all my right, estate and interest in the partnership business of R. F. Oram & Co., composed of myself and my son Robert, * * * and that the said business be continued with the other equal one-half part thereof owned by my estate, under the sole management and control of my son Robert, for the mutual benefit of my son Robert and of my estate as equal partners in business, and subject to losses and profits for and during the term of twenty years from and after my decease, and the net profits of said business shall be equally divided between said Robert and my estate; the share or part so belonging to my estate to be taken by my executors hereinafter named as part of its general assets; the said part of said stock, personal property and business so bequeathed to my son Robert to be his absolutely, for himself, his heirs and assigns forever.” — Held, that the one-half of the profits of the mercantile business that belong to the estate are to be treated as income and distributed among the beneficiaries at proper intervals, and not to be accumulated in the hand's of the executors for the specified period of twenty years.
    On appeal from a decree advised by Vice-Chancellor Stevens.
    The case involves the construction of the will of Robert E. Oram. The paragraphs involved are the second, third, fourth and fifth. They read as follows:

      “Second. I do hereby give and bequeath to my son Robert F. Oram, •Jr., the equal one-half part of all my right, estate and interest in the partnership business of R. F, Oram & Co., composed of myself and my son Robert, at Port Oram, in said county, being all the partnership personal property pertaining to said business, with all book accounts, capital, money, bonds, notes, stock in trade, store goods and merchandise, horses, wagons, harness, coal business, tin and stove business, drug business, lumber business and all equipments and appliances belonging to each branch, as used and employed by said firm, and that the said business be continued with the other equal one-half part thereof owned by my estate, under the sole management and control of my son Robert, for the mutual benefit of my son Robert and of my estate, as equal partners in business, and subject to losses and profits for and during the term of twenty years from and after my decease, and the net profits of said business shall be equally divided between said Robert and my estate; the share or part so belonging to my estate to be taken by my executors hereinafter named as part of its general assets; the said part of said stock, personal property and business so bequeathed to my son Robert to be his absolutely for himself, his heirs and assigns forever.

      “Third,. It is my will, and I do hereby authorize and empower my executors, at any time, to sell and dispose of the share and interest of my estate in said remaining part or half of said partnership business, stock in trade and goods and chattels belonging to the same, to my son Robert, on such equitable terms as may be agreed on, and the proceeds of such sale to be retained in my estate for its use and benefit, as is above provided for said remainder of my said personal property and estate.

      “Fourth. I give and devise all my real estate, wheresoever situate and in whoesoever hands found, and all the remainder of my personal property and estate not herein by this my will otherwise disposed of, to my executors hereinafter named and to the survivors or survivor of them, in trust for the purposes specified in my will, that is to say: it is my will that all my real estate of which I shall die seized shall be kept together by my said executors in trust, and neither sold nor divided for the period of twenty years after my decease, but the same shall be held in trust by my said' executors for the use and benefit of my estate, and the net rents, issues and profits thereof, after keeping the same in repair, paying insurance, taxes and other incidental expenses, shall be divided equally between my four children, namely, Thomas, Robert, Mrs. Josephine Peirce and Mrs. Lottie L. Phillips; provided, however, that any part or parcel of my real estate may be sold or disposed of by my said executors, or the survivor of them, at any time during said period of twenty years, when, in the judgment of said executors, or the survivors or survivor of them, the same can be sold or disposed of to the advantage of my estate and for its benefit, but in such case the proceeds of all such sale or sales shall be reinvested by my said executors in some safe and responsible manner, and the income thereof divided in the same manner as the rents, issues and profits of the land were held and divided. .

      “Fifth. It is my will and I do hereby order and direct my said executors, or the survivor or survivors of them, at the expiration of twenty years as aforesaid, to make partition by sale or otherwise as to them may seem best, of all my real estate then remaining, among my said four ■children, share and share alike, but the shares or parts ’for my said •daughters Josephine and Lottie are to remain in the hands of said executors, and for them to receive the interest or income only of their respective •shares for and during the term of their natural life, respectively, arid at the death of either, leaving child or children or grandchildren, then the ■share of such deceased daughter to go to such last-named heirs, and in the event of the death of either of my said daughters without- leaving any such named heir or heirs, then such share shall go to my surviving •children or their heirs, either surviving daughter, however, receiving only the income of such part for life as above set forth, and then to her heirs •as above named. And further, it is my will in reference to said remainder •of my personal property and estate mentioned and referred to in the fourth item of this my will, that the same be kept together in the hands •of my said executors, or the surviv.ors ■ or survivor of them, during said period of twenty years in trust, for the use and benefit of my estate, and the interest and income to be divided in the same manner as is above provided in the matter of the rents, issues and profits of my real estate ■■and under like contingencies in all' respects as to my said daughters' ■shares.”
    The question that arises is whether the profits of the Port 'Oram store are to be divided as income among the testator’s four ■children or to be accumulated in the hands of his executors for iwenty years.

      Mr-. Benjamin W. Ellicott, for Thomas W. Oram, the respondent.

      Mr. James •H. Neighbour, for the remaining respondents.

      Mr. Albridge G. Smith, for the appellants.
   The opinion of the court was delivered by

Swayze, J.

The bequest of the store business in paragraph second is in this language: “The, share or part so belonging to my estate to be taken by my.executors hereinafter named as part of its gen•eral assets.” The learned vice-chancellor thought the words "share” or “part” included a bequest of a share of future profits as well as a share of the existing stock in trade. If the word "share” stood alone it might naturally be held to refer to the met profits mentioned in the preceding sentence, but it is coupled with the words “or part so belonging to my estate,” and the testator used “share” and “part” as synonymous. The preceding language of the paragraph must be that which is referred to by the use of the words “so belonging.” But for these words the whole personal estate would be assets in the hands of the executors, and the testator intended to limit what was to be taken by his executors to what remained of the stock in trade after the bequest to Robert. The word “part” is used everywhere else in the paragraph as referring to one-half of the existing stock in trade, one equal part being bequeathed to Robert. And in the sentence immediately succeeding the. one I have quoted the testator uses the same words in speaking of Robert’s share. The contrast in his mind seems to have been between the part of his executors which was to form a portion of the general assets of the estate and the part of Robert which was to be his absolutely.

This construction is sustained by the fact that he describes the equal one-lialf part of the existing stock of trade in the early portion of the paragraph as owned by his estate and in the sentence above quoted similarly describes it as the part so belonging to his estate. Strictly speaking, the whole of the mercantile business was owned by the estate until the bequest to Robert was assented to by the executors, but it is obvious that when the testator spoke in the latter part of the paragraph of the part so belonging to his estate, he referred to the preceding part of the paragraph where he had spoken of one-half as owned by his estate.

The provision that the executors should táke as part of the general assets seems to be quite unnecessary, but a meaning will be attributed to it if we bear in mind that the testator was contrasting the way in which the executors were to take, which was to be as part of the general assets, and the way in which his son Robert was to take, which was to be absolutely. He probably meant to indicate that although this property was to be embarked in business, it was still to be held in the same way as the other assets of his estate by the executors in trust for twenty years and not to belong to, them absolutely.

The bequest .to the executors is a present bequest taking effect immediately and can hardly be held to include, as a present bequest, future profits which might never be realized. The present bequest was of the one-half of the existing stock in trade and the executors would receive the income thereof as they would receive the income of any other investment.

That the testator did not intend that the income for twenty years should be included in this present bequest to the executors is further shown by the direction that the business be continued under the control of Eobert for the mutual benefit of Eobert and the estate as’ equal partners in business and subject to losses and profits. One of the ordinary incidents of an equal partnership is the division of profits at short intervals, and the provision that the share of the mercantile business was subject to losses and profits was used to indicate what portion of the testator’s estate was to be embarked in trade and to be charged in equity with debts before having recourse to the personal liability of the executors. Ferry v. Laible, 27 N. J. Eq. (12. C. E. Gr.) 146.

Eobert and the executors were to stand on the same footing, and unless we are to conclude that Eobert’s share of the profits was to be held and accumulated we ought not so to hold as to the estate’s share. The very fact that the investment was to be subject to profits as well as losses indicates that if there were profits the estate’s share was to take the ordinary course of profits and be treated as income and not as a new principal, thereby increasing the amount at risk in the business.

They ought to be so treated in the absence of express direction to leave the profits in the business or to accumulate them in the hands of the executors. The words “net profits” may, of course, mean the net profits after twenty years of business, but that would be a very extraordinary construction in view of the absence of any provision for Eobert’s compensation for the management of the business except from his share of the profits; it cannot be that the testator expected him to manage it for twenty years and wait for his compensation, which might be needed for his living expenses, and have it dependent upon the contingency of net profits twenty years hence.

We do not attribute great importance to mere collocation of language, but the words “subject to losses and profits” are connected with the bequest of one equal half part to Robert and with the reference to one equal half part owned by the estate and precede the reference tó net profits. The testator had in mind what he already owned as subject to losses and profits and not what might thereafter be earned.

In view of the personal responsibility of the executors in the conduct of a business (3 Wms. Ex. (6th Am. ed., 1889, 1890) marg. pp. 1791, 1792), it would be to the’adv’antage of the executors to hold the profits of one year to answer the possible losses of another, but they were- put by the testator in a position where they might’protect themselves against'personal loss by a sale of the business under the third paragraph of the -will, and in view of the testator’s apparent expectation that the business would continue to be profitable, we can hardly think that he intended that the executors should accumulate by way of indemnity against possible losses so large a fund as was likely to arise in the course of twenty years. The third paragraph of the will provides that the proceeds of the sale of the business be retained in the estate for its use and benefit. The words “use and benefit” are the same as are used in the fourth paragraph, and in that paragraph they are used in connection with a provision for the equal division of the rents, issues and profits of the real estate among his four children. Such an equal division' the testator naturally considered was for the use and benefit of his estate, and when he directed by the third paragraph that the proceeds of the sale of the store should be retained in the estate for its use and benefit, he must have meant the same disposition as he expressly provided in the fourth paragraph, that the income should be divided among his four children. And if the children were to receive the income of the proceeds of the sale, it is quite unlikely that tlie testator meant that the receipt of that income by his children should depend upon whether the share of his estate remained invested in the business under the management of Robert or whether it was retained by the executors as proceeds of a sale to Robert.

By the fourth paragraph of the will the testator devises his real estate and all the remainder of his personal property and estate “not herein by this my will otherwise disposed of” to his executors in trust and then disposes of his real estate only by providing that it shall be held in trust by the executors for twenty years and that the net rents, issues and profits' shall be divided equally among his four children. The remainder of his personal property not otherwise disposed of, includes all of his personal property except the one-half part of the Port Oram store bequeathed to Eobert and the Hibernia store bequeathed to Thomas, for aside from these two bequests the will contains no final disposition of personal property. The necessary result is that the one-half of the Port Oram store retained by the estate goes to the executors in trust under the fourth paragraph.

That paragraph contains no disposition of the income of the personal property. Eor that we must look to the fifth paragraph, which provides in turn for “the remainder of my personal property and estate mentioned and referred to in the fourth item,” that it be kept together for twenty years for the use and benefit of the estate (again using the language of the third and fourth paragraphs), and the interest and income to be divided in the same manner as above provided in the matter of the rents, issues and profits of his real estate, that is, equally among the four children. It is said that the failure of the testator to use the word “profits” in connection with personal estate, when he uses it in connection with real estate, indicated that he did not mean to include the profits of the store business. But the words “rents, issues and profits” are so commonly connected together with reference to the income of real estate that no great force attaches to this argument; what are called “rents, issues and profits” in real estate are the same as what are naturally called “interest and income” when we speak of personal property. The word “profits” might naturally be used when referring to the proceeds of the mercantile business as a mercantile enterprise as between the executors and Eobert, while the-word “income” would be a more natural description of these profits after they had reached the executor’s hands, and as between the executors and the legatees. The use of the word “income” in addition to the word “interest” indicates that the testator was thinking of productive personal property other than the ordinary interest-producing investment. There seems to have been no such property except that embarked in the business.

We reach the same result if we look at the will in its broader aspect. The effort of the testator was to divide the whole of his large estate, with the exception of the Port Oram store and the Hibernia store, equally among his children. We can easily surmise that his sons had been associated with him in the successful conduct of the stores and that he desired them to have the advantage of the good-will which they, perhaps, had helped to build up. Aside from that, his natural desire would be that his daughters should have an equal share; this desire would not be furthered by tying up so large a proportion of the estate in a trust for accumulation for twenty years, when some of his children would probably never live to enjoy his gift, and one of his daughters could hardly expect children to receive the benefit of the accumulation after her death. The care he évinced in the eighth paragraph of the will for his daughters is inconsistent with the construction which would give- them, during the greater part of the whole of their remaining lives, a scanty income in order that the children of one and the nephews'and nieces of the other might inherit a larger fortune.

We think the profits of the store should be treated as income of the estate and distributed, at suitable intervals, among the four children. The accounts filed by the executors in the orphans court, in which they charge themselves with net income of the Port Oram business, show that there can be little difficulty in fixing the proper intervals at which the net profits shall be ascertained. The decree mustvbe reversed and the record remitted for further proceedings in conformity with this opinion.

For affirmance — The Chiee-Justioe, Reed, Vroom — 3.

For reversal — Garrison, Hendrickson, Pitney, Swayze, Trenchard, Bogert, Vredenburgi-i, Green, Gray, Dill — 10.


text:
    Joseph Schmitt, respondent, v. Henry Traphagen et al., appellants.
    [Argued July 5th, 1907.
    Decided March 13th, 1908.]
    1. Where the description of lands by metes and bounds as given in a deed actually closes, and the only apparent error is in one of the distances which is controlled by a division line as a monument, the location of which is not disputed, the question is one of construction of the deed and for the court; it is not a question of locating the description upon the ground, which would be for the jury.
    2. A grantee is not estopped to deny his grantor’s title, except under special circumstances not present in this case.
    3. Where a grantee by deed acquires title to a portion of the land described and takes possession of that portion only, he does not thereby acquire constructive possession of the remaining land as against the real owner.
    4. Where two titles to land overlap, and each claimant has possession of a portion of his. tract outside the overlap, the constructive possession of the overlap follows the. real title.
    On appeal from an order advised by Vice-Chancellor Garrison, whose opinion is reported in 72 N. J. Eq. (2 Buck.) 665.

      Messrs. .Collins &■ Corbin, for the appellants.

      Mr. Maximilian T. Rosenberg, for the respondent (Mr. Edward Russ, on the brief).
   The opinion of the court was delivered by

Swayze, J.

This is a ease of a feigned issue out of chancery on a bill to quiet title. The complainant was plaintiff, and a verdict was directed in his favor. An application for a new trial was denied by the chancellor and this appeal taken.

In 1795, John Stevens conveyed part of a tract of land owned by him to Merseles Merseles, nnder whom the defendants claim. In 1839, Stevens’ successors in title conveyed the remainder of the tract to the Hoboken Land and Improvement Company,, under whom the plaintiff claims. The first question is whether the land conveyed in 1795 included the tract of the defendants. The trial judge instructed the jury that under the deeds the plaintiff’s title was complete. The appellants contend that he erred in this instruction, since there was, at least, a jury question as to the location of the land conveyed. We agree with the trial judge that the question is one of construction of the deed and not of location upon the ground. The description contained in the deed presents, in itself, no difficulty except that the last course but one runs eight chains to a corner on the line between the said Sale Marsalis (i. e., Merseles Merseles) and John Stevens. The distance, in fact, is only six chains, but since the line between Merseles and Stevens is a monument, it controls the distance (Passage v. McVeigh, 23 N. J. Law (3 Zab.) 729), and since the location of that division line was not disputed, it was unnecessary to have its actual location determined by a jury.

The defendants argue that the monument is not this division line but a corner on the line, and that the expression must mean an already established corner and not the new corner formed by the conveyance itself. But this also involves a question of construction and not of actual location on the ground. We think the construction adopted by the judge was correct. It is quite as much in harmony with the natural meaning of thé words as the construction contended for by the defendants, and unlike the latter, does not require the assumption that a course was omitted from the description. Such an assumption ought not to be made in a case where the description, as given, closes, and errs only in making one distance too great, especially since this error may be explained by the precipitous nature of the ground.

The next question is whether Schmitt is estopped by the fact that in 1869, and long before he purchased, the Hoboken Land and Improvement Company bought of the defendants or their predecessors in title, another tract, a portion of the land conveyecl by the deed of 1795, and included in their purchase land which did not belong to. the grantors if the plaintiffs construction of the deed is correct. The deed of 1869 was a mere bargain and sale deed with a covenant against the grantor’s acts. The grantee, except under special circumstances, not present in this case, is not estopped to deny the grantor’s title to the land conveyed. Rawle Cov. Tit. § 268; Robertson v. Pickrell, 109 U. S. 608; Greene v. Couse, 127 N. Y. 386; 28 N. E. Rep. 15. A fortiori he is not estopped to deny the title to other land even though the chain of title may be identical.

Nor did the deed of 1869 amount to a practical location of the boundary by the acquiescence of the Hoboken Land and Improvement Company. It may have amounted to a recognition of a claim of the boundary by the defendants and a willingness on the part of the land and improvement company to buy the title whatever it- was, .so far as concerned the land in question, but it lacks the elements of a practical location. • ■

The last question in the case is whether there was evidence of adverse possession sufficient to require that the case be submitted to the jury. We fail to find in the case evidence of adverse possession of the locus in quo for the requisite length of time. The defendants’ case, in this respect, rests upon acts of possession on land included in a deed made in 1823, which conveyed not only the land in dispute but also land to which the title of defendants’ predecessors in title is unquestioned, and the proposition is that quarrying on any part of the tract was evidence of a possession co-extensive with the boundaries of the deed of 1823. The subject of possession under color of title was thoroughly discussed by this court in Foulks v. Bond, 41 N. J. Law (12 Vr.) 527, and it was held (at p. 550) that acts of ownership, in places upon the tract, were considered as competent evidence of possession of the whole, where there was a unity of character in the location. The unity of character there referred to was of physical character but the same reasoning would be applicable to the character of the title of the disseizor; a tract to which he had a legal' title would, in contemplation of law, be distinct from a tract to which he had no title, and possession of one would not necessarily be possession of the other, even though they were contiguous and embraced in the same conveyance. The reason is obvious. • His possession,' in order to ripen into a right must be adverse and hostile, visible or notorious. An actual possession of land which he owns would give no notice to the real owner of the other tract of a claim' upon the latter, and would not even suggest an examination of the records to ascertain what land was included within the bounds of his deed, and that deed might not even be recorded. The cases therefore hold with good reason that the occupation of that part of the land to which the grantor' had title will not give the grantee constructive possession of the other part to which he had no title so as to disseize the real owner. 1 Cyc. 1130; Turner v. Stephenson, 78 Mich. 409; White v. Burnley, 20 How. 235. The present case seems to be one where the land described in the deed of 1823 overlaps another tract, part of which was in the possession of the Hoboken Land and Improvement Company.' In such cases the constructive possession under color of title yields to constructive possession under the real title. Clark v. Courtney, 5 Pet. 319; Hunnicutt v. Peyton, 102 U. S. 333.

The order should be affirmed, with costs.

For affirmance — The Chancellor, Chief-Justice, Garrison, Swayze, Reed, TKenchard, Bogert, Vredenburgi-i, Vroom, Green, Gray, Dill — 12.

For reversal — None.


text:
    Henry S. Wallace, petitioner and appellant, v. Marie Louise Wallace, defendant and respondent.
    [Argued June 21st, 1907.
    Decided June 24th, 1907.]
    1. In a suit by a husband for divorce on the ground of adultery, evidence held insufficient to show that petitioner did not have access to defendant during the period when a child born of defendant must have been •conceived.
    2. The presumption is that a child born in wedlock is the child of the marriage, though the presumption may be overcome by proof of non-access.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Bergen, who filed the following opinion:
    “This petitioner seeks a divorce from his. wife upon the ground ■of adultery. The charge is based upon the fact that she was delivered of a child, which must have been conceived, according to the evidence in this cause, at a time when the husband did not have access to his wife, and as a consequence the child is not his child, but the child of a paramour of the defendant, not disclosed.
    “The presumption is, and as I understand the law to be, that a child born in wedlock is the child of the married people. Of course, this, presumption may be overcome, as it is sought to •overcome it in this case by proof of non-access at a time when it makes it impossible to believe that the husband was the father of the child. That non-access is sought to.be sustained in this case, first, by the testimony of the husband. He is clear in his statement that he did not have pccess to his wife from a period commencing Christmas eve, until May, 1905. He also seeks to-corroborate that statement by the testimony of two witnesses, a Mr. Stone and a Mr. Price, who are both strangers to these parties, and apparently disinterested witnesses, and so far as I.can judge from the manner in which they gave their testimony, I think they are intending to tell the truth.

      “The whole question, therefore, if we are to rely upon these two witnesses, depends upon the question whether or not they may not be mistaken; whether these two men, being called upon to testify to a fixed condition of affairs existing from December, 1904, until May, 1905, their attention not being called to the circumstances until recently, may not be mistaken.
    “The wife, on the other hand, says that the husband did have access to her. Her testimony is clear and unambiguous, and is as positive as the husband’s, and she details with much particularity the circumstances and times under which the connection was had. between herself and husband which resulted in the conception of this child.
    “It becomes necessary, therefore, to gather in the outlying circumstances. In the first place, there is the testimony of the mother and the father of this defendant that the petitioner did visit their daughter, and did stay with her in her room on occasions during the months of January and February, 1905. If this is true, as they corroborate the defendant, the fact of the non-access would be disproved. I am disposed, in view of the serious consequences which might result from a decree in favor of the petitioner, here to hold that the husband did have access to her within the time mentioned. I think we cannot be too cautious in mailing a decree which would result in separating this woman from her husband, thus convicting her of being an adulteress, and making a child born in wedlock illegitimate. It is a serious thing to do, and the court, before doing it, ought to be very well satisfied that there is no possible escape from the conclusion that the charge made by the petitioner is true. Nor do I feel that I can be wrong about this, in view of the, conduct of the petitioner. When he was told of his wife’s condition, and it is proved that she wrote to him shortly after she discovered her condition, which was in March, 1905, he does not cease to visit her, but continues his visits to her, and goes with her to the physician in April to ascertain whether her supposed condition is the correct one, or whether she had some other internal infirmity which might have produced the symptoms which, had induced her to believe that she was pregnant. .
    “He admits that he went to see her.: He does not deny it, no.r does he deny visiting her, and the proof is full and complete.' The colored man, the servant of Mrs. Wallace, says that the husband came there in the daytime and. stayed-with his wife. Thus the access is proven. He testifies that the husband entered the house with his own night key, and that he went up to his wife’s room. Whether it is nighttime or daytime makes no difference. The access, I think, is fully proven. •
    “I appreciate what counsel has said. I know very well the feeling that the 'petitioner must have, and 'I am also willing to state that, if I am wrong in my conclusions, it is a sad condition for the. petitioner.' Brit 1 am here to administer .equity between these parties, and being of the opinion that the petitioner has not sustained'the burden of proof in such a way as to justify a decree in accordance with the prayer of the petition, I will have to advise that this petition be dismissed.”

      'Mr. S. Cameron Hinkle, for the appellant.

      Mr. Clarence L. Cole, for the defendant.
   The opinion of the court was delivered by

Swayze, J.

We think the decree should be affirmed, for the reasons given by the learned vice-chancellor, but in affirming the decree it is not necessary to hold that the testimony of the husband was admissible to prove non-access to his wife. No objection was made to the reception of his testimony, but we desire to leave undecided the questions whether our Evidence'act makes the testimony competent as against an objection, and whether ■ public policy permits the objection to the testimony, if valid, to be waived by the adverse party.

For affirmance — Ti-te Chiee-Justice, Garrison, Fort, Hendrickson, Swayze, Reed, Trenchard, Bogert,- Vredenburgh, Green, Gray, Dill — 12. • -

For reversal- — None.


author: Vroom, J.

text:
    Joseph S. Low, trustee, &c., appellant, v. Robert C. Taylor et al., respondents.
    [Submitted July 5th, 1907.
    Decided November 18th, 1907.]
    Where a bill óf sale was given unaccompanied by the delivery of possession of the property to the vendee, and it was shown to have been made merely as security for .money loaned and goods purchased, and was not executed and recorded as required by the Chattel Mortgage act, it will be set aside and declared void as against creditors represented by a trustee in bankruptcy of the party executing the same’.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Bergen.

      Mr. Lewis Starr, for the appellant.

      Mr. Francis D. Weaver and Mr. Howard L. Miller, for the respondents.
   The opinion of the court was delivered by

Vroom, J.

The bill in this case was filed by Joseph B. Low, trustee in bankruptcy of and for Joseph S. Whitsell, for the purpose of setting aside an alleged bill of sale, executed by the said bankrupt to one of the defendants, Robert C. Taylor, in order that the said trustee might sell, the goods and chattels mentioned therein free and clear of any lien or supposed claim or lien of the said Taylor by virtue of said bill of, sale. .

It was established and admitted that the defendant, Whitsell, was the tenant of a farm in the county of Camden, under a lease between himself and Sarah E. Hacker and Susannah H. English, which was dated December 2d, 1902, and that on October 23d, 1905, and two weeks before the petition in bankruptcy was filed, a distress warrant for $250, one year’s rent, was served, and the goods and chattels of said Whitsell on. said farm levied upon thereunder. It was further admitted that judgment was entered for the balance of the rent due from Whitsell in the circuit court of Camden county on November 11th, 1905, and an execution and levy made upon the goods and chattels.

It was contended by the plaintiff that the bill of sale made by Whitsell to Taylor was not an absolute transfer .of the ownership of the personal property covered thereby, but was intended by the parties to operate as security only and was in effect a chattel mortgage. There was no affidavit of consideration attached thereto, neither was it recorded as required by the act respecting chattel mortgages, which provides that

“every mortgage or conveyance intended to operate as .a mortgage .of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery and followed by actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor and against subsequent purchasers and mortgagees in good faith, unless,” &c.

Then follows the provision with relation to the affidavit and recording. P. L. 1902 p. 1¡.37. And that but for'the filing of the petition in bankruptcy by Whitsell, the owners of the farm, being his creditors, had a status to attack the validity of the bill of sale under the Chattel Mortgage act. And further, that when a creditor is prevented from enforcing his rights as against a lien created or attempted to be created by his debtor, who after-wards became a bankrupt under the provisions of section 68 of the United States Bankruptcy act of 1898, the trustee of such bankrupt shall be subrogated to and may enforce the rights of such creditors for the benefit of the estate.

It was upon the above theory that the bill of complaint was filed; both defendants, in answering, denied that the bill of sale was given as collateral security for the payment of the indebtedness of Whitsell to Taylor, and averred that there was an immediate delivery to Taylor of the goods and chattels at the time of the execution of the bill of sale.

The testimony diselos'ed that on or about December 1st, 1903, Whitsell was indebted to Mr. Taylor in about the sum of $1,900, and that he wanted to borrow some money to pay his rent; that he made application to Taylor for that purpose, who agreed that he would pay him the difference between what he owed him and $2,000 if Whitsell would give‘him a- bill of sale upon his stock, &c., then in the latter’s possession. The bill of sale was executed, reciting, the consideration, $2,000, dated December 1st, 1903, and recorded in December, 1905. Whitsell continued in the possession and control of the personal property set out in the bill of sale, and which consisted of about twenty cows, one bull, six horses, eleven hogs, wagons, carts and farming implements, and the crops then growing or to grow on the premises, and this possession continued on his part from that time until November, 1905, when the trustee in bankruptcy was elected. Whitsell carried on farming and a dairy business; he used the money received from both, as he stated, for the expenses of keeping the horses and cattle and for his own living expenses, if necessary, and paid none of the money received from the sale of the produce of milk to Tajdor. lie made some exchanges of cows, but said he consulted Taylor upon doing so.

It is difficult to understand how anyone could have had more complete control over property and the proceeds thereof than Whitsell had after executing the alleged bill of sale in December, 1903.

The learned vice-chancellor, at the hearing of this cause, determined that from the testimony of both Whitsell and Taylor there was an absolute sale of the goods mentioned in the bill of sale, and that so far as the positive testimony in the case goes, there was ah absolute sale. In reaching this conclusion it seems to me that he entirely overlooked the true force and effect to be given to the testimony of both Whitsell and Taylor. The former had been examined before the referee in bankruptcy after the adjudication of bankruptcy, and the testimony of Whitsell is very important in view of the fact that he testified in the court of chancery that he had sold the stock to Taylor and that the bill of sale was not given to secure Taylor for the moneys he owed him at the time. Before the referee in bankruptcy he testified that the bill of sale was given to secure Taylor for his money and that he intended to repay him the money. Again, in said examination, on being asked how much he owed Taylor at the time of the filing of the petition in bankruptcy, he- said about $2,100, the original debt of $2,000 and the feed bill since incurred of $100. Again, he said that he owed Mr. Taylor the sum of $2,000 and interest from the time the bill of sale was made in 1903, and he further admitted having testified that he had expected to repay the $2,000 the next year after he borrowed it, and the only reason he had not done so was that he had not made it on the place.

The testimony of Mr. Taylor, to my mind, -points clearly to the fact that there was no intention of doing more than to secure the debt due to him from Whitsell. The following extract is pertinent and conclusive upon the question:

“Q. What did he (Whitsell) say to you?
“A. Why, he came and wanted some money to pay his rent; he was back in the payment of his rent and I refused to give it to him without security.
“Q. Then he agreed to give you a bill of sale to secure you for the money he got and also for the money he owed you for the goods, is that right?
“A. Xes, sir; that is right.
“Q. And that is the arrangement between you?
“A. Xes, sir.”

It is true Whitsell attempted to explain away the effect of his testimony in the bankruptcy proceedings by stating that he did not understand the questions there put to him, or that he “was out of shape in his mind” and did not understand until the effect of his answers was subsequently explained to him by his counsel, but it is significant, as urged by counsel for the appellant, that these claims were not made by him until after this suit was instituted attacking the validity of the bill of sale.

I am unable to assent to the view taken in the court below that the preponderance of the evidence does not reveal a condition justifying the holding that at the time the bill of sale was made that there was any intention that it should operate as a chattel mortgage or pledge; on the contrary, the facts, circumstances and the very conclusive evidence in the-cause lead to the conclusion that it was the understanding between Whitsell and Taylor that no transfer of the absolute ownership of this property was intended, and that this bill of sale was executed to Taylor to secure him, as Taylor himself admitted, for the money he had loaned and for goods and material he had sold to Whitsell. The decree below should be reversed.

For affirmance — None.

For reversal — Ti-ie Chiee-J'ustice, Garrison, Hendrickson, Pitney, Swayze, Reed, Trenchard, Bogert, Vredenburgi-i, Vroom, Green, Gray, Dill — 13.


author: Per Curiam.

text:
    Annie H. B. Howe, complainant-appellant, v. City of Orange, defendant-respondent.
    [Decided June 17th, 1907.]
    ■ P. 'L. 1876 p. 371 § 10; Gen. Stat. p. 649, provides that in case of nonpayment of water rents the water shall be shut,off from the building, place or premises, and shall not again be supplied to said building, &c., unless such arrears, with interest thereon, shall be fully paid, and act of 1885, section 1 (P. L. 1885 p. 66; Gen. Stat. p. 655), declares that any city wherein water works are owned by the city shall have full power, in case of neglect or refusal of any person to promptly pay for the use or rents of water furnished, to shut off the supply, and that the city shall not be compelled again to supply the building until the -arrears, with interest and penalty, shall be fully paid. — Held, that where a city had a claim for water rents in arrear against complainant’s grantor of the property in question at the time she purchased, she was not entitled to compel the city- to furnish her with water until such arrearages were paid. , ,
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, who filed .the following opinion:

      “This is a bill filed by Annie H. B. Howe, charging that she is the owner of a house in the city of Orange; that the city of Orange owns and maintains a system of public water-supply for the benefit of the inhabitants; that on Saturday, May 6th, 1905, the complainant was notified by the clerk of the water department of the city of Orange that water would not be supplied to the premises until a bill of $201.39 for water previously supplied thereto had been paid; that subsequently the water was turned on, but she was again notified that the supply would be discontinued and the water shut off unless the said arrears were paid. She charges that irreparable damage will come to her if the water is shut off from her premises. To this bill a demurrer is interposed by the defendant.
    “The sole question, as I view it, is whether the city, under the legislation in existence in this state, has the authority to shut off the water Horn these premises, and whether a court of equity should restrain it from so doing. Under section 10 of the act of 1876 (P. L. 1S76 p. $71; Gen. Stat. p. SW) it is provided that
    “ ‘in case prompt payment of any water rent or rents shall not be made when the same become due, the water shall be shut off from such building, place or premises, and shall not be again supplied to said building, place or premises until such arrears with interest thereo-n shall be fully paid. * * *’ ”
    “By section 1 of the act of 1885 (P. L. 1885 p. 66; Gen. Stat. p. >655) it is provided that
    “ ‘in any city of this state wherein water works are owned by the city and controlled by the city .authorities, the municipal department of the city government having charge of such water works * . * * shall have full power and authority, in case of the neglect or refusal of any person or corporation to promptly pay for the use -or rents of water heretofore or hereafter furnished by such city or any municipal department thereof, in or upon any building, place or premises, to shut -off the supply of water from such building, place or premises * * * and in case the supply of water shall be shut off from any building-, place or premises for non-payment of water- rent or water rents, the -said city or such municipal department aforesaid,, shall not be compelled again to supply said building, place or premises * * * until' said arrears; with interest and penalties, if required, shall- be fully paid and satisfied.. **..*”’

      “Counsel for the complainant does' not in'any way attack the constitutionality of the legislative provisions relating to' this subject. The.act of 1876, above referred to (Gen. Slat. p. 619 § 10), makes the water rents a lien upon the premises until the same shall-be paid and satisfied. The bill in this case does ■not'in any way dispute the claim,' which it sets out, of the city for-the arrears of rent. The gravamen of the bill is that because the water, for which these water rents are in arrears, was furnished to the building while it belonged to a previous owner, the ci-ty has not the right to shut off the water from the premises because of the non-payment of the arrears. I am unable to perceive any reason why this should be held to be the law. If the legislation be constitutional, and it is not suggested that it is not so, it undoubtedly vests in the municipal authorities the right to shut off the • water from premises when the water rents for water furnished to such premises are in arrears. Under the pleadings in this suit there are arrears against these premises for water previously furnished. There would seem to be no reason why the city should not be permitted to pursue the statutory procedure with respect thereto1. It cannot be said that irreparable injury will ensue to the complainant if the city is permitted to shut off the water, because, by paying the water- rents'in arrears, the water will be furnished. If this complainant wants the water, and is compelled to pay the back rents to obtain it, and should not in law have been compelled so to do, the cases hold that she may recover back from the city the amounts of money thus wrongfully extorted from her. West-lake v. St. Louis, 77 Mo. 17; 16 Am. Rep. 1; St. Louis Brewing Association v. St. Louis, 11\0 Mo. 119; 3‘7 S. W. Rep. 626; 11 S. W. Rep. 911; P'anton v. Duluth Gas and Water Co., 60 Mirm. 176; 62 N. W. Rep. 627; 36 Am. St. Rep. :636; Pennsylvania Iron Co. v. Lancaster, 17 Lan. L. Rev. 1<61; affirmed, 16 Pa. Super. Ct. 666. ■

    “The only case cited by counsel for the complainant is Hudson Savings Institution v. Carr-Curran Paper Mills Co., 68 N. J. Eq. (13 Dick.) \59; 13 Atl. Rep. 118 (Vice-Chancellor Pitney, 1899) . In that case the vice-chancellor held that the lien of the city, under the act of 1876, for water rents, was' not prior to the lien of a mortgage previously given. I do not find in- that ease any decision militating against the right of the city to shut off the water from .the premises -where arrears for water previously furnished are existing. In other jurisdictions similar legislation to that in this state upon this subject has received consideration, and the courts have held that the city or the water company has the power to shut off the water, and will not be restrained with respect thereto.
    “It is held that the premises to which the water is furnished are liable, that indulgence with respect to the time of shutting the water off will not be held to operate against the right to do so, and that the fact that the' title has changed hands since the furnishing of the water is immaterial. Girard Life Ins. Co. v. Philadelphia, 88 Pa. 898; Appeal of Brumm (Pa.), 12 Atl. Rep. 855; Atlanta v. Burton, 90 Ga.'fSd; 16 S. E. Rep. 214-

    “I will advise a decree sustaining the demurrer in this cause, with costs.”

      Mr. William R. Howe, for the appellant.

      Mr. William A. Lord, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion delivered by Vice-Chancellor Garrison in the court below.

For affirmance — The Chief-Justice, Garrison, Port, Hendrickson, Pitney, Swayze, Reed, Trenchard, Bogert, Vre-DENBURGH, VROOM, GREEN, GRAY, DlLL — 14.

For reversal — None.


text:
    Morris Canal and Banking Company et al., appellants, v. Diamond Mills Paper Company, respondents.
    [Argued June 24th, 1907.
    Decided November 18th, 1907.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Pitney, whose opinion is reported in 71 N. J. Bq. (1 Buch.) 'JfSl.

      Mr. Gilbert Collms and Mr. William H. Corbin, for the appellants.

      Mr. Frederick T. Johnson, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Pitney.

For affirmance — Ti-ie Ohiep-Justioe, Garrison, Hendrickson, Pitney, Swayze, Reed, Trenchard, Bogert, Vroom, Green, Gray, Dill — 13.

For reversal — None.


text:
    Hermann & Grace (a corporation), respondent, v. The Board of Chosen Freeholders of the County of Essex et al., appellants.
    [Argued June 25th, 1907.
    Decided November 18th, 1907.]
    On appeal of the Metropolitan Bank. On appeal from an order of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 71 N. J. Eq. (1 Buck.) 541.

      Mr. Willard. P. Voorkees, for the appellants.

      Mr. Jokn R. Hardin, for the respondent.
   Per Curiam.

The order appealed from is affirmed, for the reasons stated in the opinion filed in the'court below by Vice-Chancellor Emery.

For affirmance — The Chiee-Justice, Garrison, Hendrickson, Pitney, Eeed, Trenchard, Bogbrt, Vredenburgi-i, Vroom, Green, Dill — 11.

For reversal — None.


text:
    Hermann & Grace (a corporation), complainant, v. The Board of Chosen Freeholders of the County of Essex et al., defendants.
    [Argued June 25th, 1907.
    Decided November 18th, 1907.]
    On appeal of V. J. Hedden So Sons Co. On appeal from an order of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 71 N. J. Eq. (1 Buck.) 5^1.

      Mr. Frederick F. Guild, for the appellant.

      Mr. John B. Hardin, for the respondents.
   Per Curiam.

The order appealed from is affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Emery.

For affirmance — The Chiep-Justice, Garrison, Hendrickson, Pitney, Reed, Trenohard, Bogert, Vredenburgi-i, Vroom, Green, Dill — 11.

For reversal — None.


text:
    Hermann & Grace (a corporation), complainant, v. John F. Sayward et al., defendants.
    [Argued June 25th, 1907.
    Decided November 18th, 1907.]
    On appeal nf John F. Sayward and others. On appeal from an order of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 71 N. J. Eq. (7 Buck.) 541.

      Mr. Gkauncey G. Parker, for the appellants.

      Mr. Jokn R. Hardin, for the respondents.
   Per Curiam.

The order appealed from is affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Emery.

Por affirmance — The Chief-Justice, Garrison, Hendrickson, Pitney, Eeed, Trenchard, Bogert, Vredenburgh, Vroom, Green, Dill — 11.

Por reversal — None.


text:
    Jennie G. Provost, appellant, v. Winfield Provost, respondent.
    [Argued July 5th, 1907.
    Decided November 18th, 1907.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 'll N. J. Eq. (1 Buch.) W'l/..

      Mr. James G. Blauvelt, for the appellant.

      Mr. William H. Speer, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Garrison.

For affirmance — Ti-ie Ci-iiee-Justice, Garrison, Hendrickson, Pitney, Swayze, Reed, Trenohard, Bogert, Vredenburgh, Vroom, Green, Gray — 12.

For reversal — None.