text:
    Blanche Williams v. Walter L. Williams.
    [Decided December 21st, 1910.]
    1. The bona fide residence of petitioner with' intent of remaining within the state, which P. L. 1901 pp. 1/16, 1/11 §§ 6, 1, requires to confer jurisdiction in divorce, cannot be shown by petitioner’s evidence alone; it being necessary that she be corroborated by other satisfactory evidence.
    2. In order to give jurisdiction to grant a divorce to one coming to the state from another state, there must be an actual residence for two years with intention of remaining, so as to acquire á domicile in the state; the “domicile” of a person being the place in which he has voluntarily fixed his habitation, with a present intention of making it his home, until he is induced to adopt another permanent residence by some uncertain or unexpected event.
    3. In an action for divorce by one coming to this state from another state, evidence held not to sufficiently corroborate petitioner’s evidence as to the good faith of her residence in this state or her intention to permanently remain.

      4. Declarations made by petitioner in a divorce action after the commencement of the action and shortly before the evidence was taken cannot be considered as evidence of the good faith and the permanency of her residence in the state.
    On petition for divorce and exceptions to master’s report.

      Mr. James E. Pyle, for the petitioner.
   Pitney, Chancellor.

This is an undefended suit for absolute divorce on the ground of desertion. The special master to whom it was referred reported that the jurisdictional fact of the petitioner’s residence in this state during the period of the desertion was not sufficiently proven.

It appears that the parties were married in the city of New York in October, 1904, and resided there until August, 1905, when the defendant went to Panama as a civil engineer. For about a year he wrote to the petitioner frequently, and after-wards occasionally until the month of February or March, 1907. He returned to New York in May, 1907. Petitioner at this time was living with her parents on Forty-seventh street in New York City. Defendant called upon her, but did not remain, declaring that he did not want to live with her any more. This declaration was repeated in the presence of petitioner’s brother, who endeavored to ascertain from defendant the cause of the difficulty between the parties, and to whom defendant answered that “there was nothing to do about it;” that he did not “want to live with her.” He said they were always quarreling and could not get along together. Defendant returned immediately to Panama.

Although the petition avers that the desertion occurred on December 7th, 1907, the special master Ends (properly, I think) from the evidence of the petitioner, corroborated by that of her brother, that the desertion in fact commenced in the previous May and has been continuous since that time.

Petitioner continued to reside in the city of New York until October, 1907, when she came to Jersey City and secured a boarding place with a Mrs. Hammond, who, so far as appears, was previously an entire stranger to the petitioner and her family.

While living with Mrs. Hammond, and in the latter part of December, 1907, petitioner received a letter from her husband, written in Panama, and dated December 7th, in which he reiterated his purpose to have nothing more to do with her.

Petitioner’s parents, and all other members of her family, continued to reside in New York until after the commencement of this suit, the petition in which was filed on January 4th, 1910. Petitioner was employed as a stenographer in New York City, and remained in this employment until August, 1909, when she gave up her position on account of ill health, continuing, however, to board in Jersey City.

Her. own statement is, when asked what was her object in coming to J ersey City to live:

"I had to work for a living, and I thought it was cheaper to board over here and live over here; I also felt discouraged on account of people asking me where my husband was; I have not got a friend in New York now; I gave them all up on account of the disgrace of my husband leaving me; I did not want to meet them.”

When asked about her arrangements for the future, she replied: “I intend to live in Jersey City.” She denied that at the time she came to J ersey City to live she knew anything about the law respecting a divorce on the ground of desertion.

Assuming, but not deciding, that this evidence, if properly corroborated, would show such a residence of the petitioner in this state as would warrant the court in granting a divorce on the ground of desertion, I agree with the special master that there is not sufficient corroboration.

In McShane v. McShane, 45 N. J. Eq. (18 Stew.) 341, which arose under the Divorce act of 1874 (Rev. 1877 p. 314), the advisory master held that “The jurisdictional fact of residence must be duly proved like any other fact in the case. The petitioner’s evidence cannot be" relied upon exclusively as to the fact of residence. A divorce is never decreed upon the unsupported testimony of the complainant.” The decree was unanimously affirmed by the court of errors and appeals for the reasons given by the advisory master.

In Tracy v. Tracy, 60 N. J. Eq. (15 Dick.) 25, Vice-Chancellor Pitney held in effect that the mere sworn statement of the petitioner as to the animus manendi was not sufficient to establish it in the absence of corroborating circumstances. Upon appeal the decree was reversed, as appears from the opinion of Judge Voorhees (62 N. J. Eq. (17 Dick.) 807, 809), upon the ground that petitioner’s testimony was clear, consistent and not intrinsically improbable; that it was not contradicted, and was not in any way impeached; and that her testimony was “sufficient after the other testimony produced, under the statute, to establish her residence here and entitle her to‘the divorce prayed for.”

As I read this opinion, it did not dispense with corroboration, but found corroboration in the other evidence referred to.. That this interpretation is correct appears, I think, conclusively from the subsequent decision of the same court in Wallace v. Wallace, 65 N. J. Eq. (20 Dick.) 359. In that case, as appears from the report, the special master expressed himself as follows: “Since mere residence, without animus manendi, will not support a divorce suit, the existence of the animus manendi must be proved as fully as other material facts are required to be proved. The sworn statement of the complainant is not enough. It must be corroborated by facts preceding and attending the change of residence.” And in support of this proposition he cited the Tracy Case. The court of review, in an opinion by Judge Vroom, expressly approved this declaration by the special master, the language employed being as follows (65 N. J. Eq. (20 Dick.) 363: “In the case of Tracy v. Tracy, in this court (62 N. J. Eq. (17 Dick.) 810), the definition of residence is adopted as the place where a person’s habitation is fixed, without any intention of removing therefrom, and it was well said by the special master, in his finding in this case, that mere residence, without an 'animus manendi, will not support a divorce suit, and that the animus manendi must be proved as fully as other material facts are required to be proved.”

And Judge Vroom’s opinion Concludes with the statement that the proofs showed that the complainant’s residence was acquired with the animus manendi, and that she was corroborated by satisfactory evidence as to her intention to remain permanently in New Jersey.

The importance of the rule requiring such corroboration is manifest when we consider how easily, otherwise, the courts of this state would be imposed upon in “emigrant” divorce cases. Instructive cases are Firth v. Firth, 50 N. J. Eq. (5 Dick.) 137; Sweeney v. Sweeney, 63 N. J. Eq. (18 Dick.) 357; Grover v. Grover, 63 N. J. Eq. (18 Dick.) 771, 775, 796; Hunter v. Hunter, 64 N. J. Eq. (19 Dick.) 277, 283; Mason v. Mason, 69 N. J. Eq. (3 Robb.) 292.

Where it appears that there was a matrimonial domicile in a foreign state, and the claim is that the party invoking our jurisdiction has become a resident of this state, it has been uniformly ‘held that the mere fact of residence here is not sufficient. Our courts, in divorce cases, have adopted the test enunciated by Mr. Justice Depue (afterwards chief-justice), speaking for the court of errors and appeals in Harral v. Harral, 39 N. J. Eq. (12 Stew.) 285, viz.: “There must be a voluntary change of residence; the residence at the place chosen for the domicile must be actual; to the faettem of residence there must be added an animus manendi; and that place is the domicile of a person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a present intention of making it his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home.”

Such was the test applied in cases arising under the Divorce act of 1874 (Rev. 1877 p. 314; amended P. L. 1889 p. 48), which in terms required only that “the complainant or defendant shall be a resident of this state at the time of filing the bill of complaint, and the complainant or defendant shall have been a resident of this state for the term of three (afterwards two) year's, during which such desertion shall have continued.” Besides the cases already cited, I may refer to Magowan v. Magowan, 57 N. J. Eq. (12 Dick.) 322, 324.

Manifestly the same test would apply to the Divorce act of 1902 (P. L. 1902 p. 502), which, in defining the jurisdiction, employed this language: “In cases of desertion, provided the parties complainant and defendant, or either of them, shall have been resident in this state during two years of the time for which the desertion relied on for cause of divorce shall have continued, and such residence shall have continued until the filing of the bill or petition.”

And certainly no lighter test can be applied to an action prosecuted (as the present action is) under the act of 1907 (P. L. 1907 p. 474), in the sixth and seventh sections of which the jurisdiction of the court is made to depend upon the bona fide residence of the parties or one of them.

In the present case only two witnesses are called in corroboration of the petitioner. One of these is Mrs. Hammond, the boarding-house keeper, who says she has known petitioner since October, 1907; that petitioner came to live with her then and has lived with her ever since. The witness continues:

“All that time she has worked in New York until August, 1909. She gave up her position in New York then on account of her health. She had two hemorrhages while she lived with me. She was sick most all of the time. She told mo nothing about why she had come to New Jersey to live, but she said she was going to keep on working and going to buy a home. I do not remember that she ever said where she was going to buy the home, but I took it for granted that she was going to buy in Jersey City. I understood her to mean that she was going to buy a house with her money and her husband’s put together. When she said this' I was up in her room, and she told me that she was working so that she and her husband could buy a home together. I then told her how my husband and I had worked and saved and bought our home. Occasionally she was away from my house. She was accustomed to spend her Sundays in my house, except when she went out for a walk.”

The witness does not specify when it was that the petitioner made the declaration of a purpose to- buy a home with her own and her husband’s money put together; but as petitioner, according to the clear and uncontradicted evidence, had been deserted by her husband before she went to Jersey City to^live, the declaration impresses me as an effort on the petitioner’s part to disguise her real purposes from the witness.

There is nothing else in this witness’ evidence upon the question of the animus manendi except one or two declarations by petitioner, of little moment in themselves, and which, I think, are wholly deprived of importance by reason of the fact that they „were made after the commencement of this action, and indeed shortly before the taking of the testimony.

The brother’s evidence has no direct reference to the character of the petitioner’s residence in this state, nor to her intention about remaining here. He never visited her in Jersey City, and learned of her residence there from the mother on an occasion when the petitioner was not present. He states that the mother died January 20th, 1910 (this was after the filing of the petition herein), and says that the father shortly afterwards gave up his home, disposed of his furniture and removed to Peeksldll, New York. He states that he (the witness) lives with his wife and child in New York and is unable to offer his sister a home.

It does not seem to me that this evidence can be considered as substantially corroborating the testimony of the petitioner respecting the Iona fides of her residence in this state or her intention to permanently remain here. So far as appears, she has formed no lasting ties or associations of any kind in Jersey City or elsewhere in this state. So far as the evidence discloses she has not made the acquaintance of a single individual other than her landlady. All the evidence (aside from petitioner’s mere declaration of her own ptirpose) is entirely consistent with the theory that she came to Jersey City to board for the purpose of laying the foundation for the present action, and for no other purpose; that her residence here has been unhappy and her life and surroundings distasteful to her, and that as soon as the compelling reason for remaining here, arising from the operation of the Divorce act, is at an end, she will speedily depart.

For these reasons I agree with the special master that there is not sufficient corroboration respecting the animus manendi.

The exceptions to the master’s report will therefore be overruled and the petition dismissed.

I express no opinion upon the question whether the petitioner’s "cause of action arose” before she became a resident of this state, within the meaning of section 6 of the Divorce act of 1907 (P. L. 1907 p. 477), so as to bring her case within clause (b) of that section, and so as to deprive this court of jurisdiction, in the absence of evidence to show that the cause of action alleged was recognized in the jurisdiction in which she resided, at the time it arose as a ground for the same relief asked for in this action.


source: Caselaw Access Project

author: Emery, V. C.

license: Public Domain

text:
    Public Service Railway Company v. The Board of Chosen Freeholders of the County of Hudson.
    [Decided November 10th, 1910.]
    1. The action of the parties interested is resorted to in aid of the construction of an act only in cases where the construction is doubtful, and the primary question in reference to rights and obligations under statutes relates to the meaning and effect of the statute itself, construed by the rules settled as applying to it.
    2. The ultimate control of public rights on the highways of the state is in the state legislature.
    3. Traction act of March 14th, 1893 (P. L. 1893 p. 30% % 1), empowering street railway corporations to construct their lines over highways, &c., authorizes the construction of such lines over bridges, public bridges and their approaches being “highways,” and the rebuilding as necessary any part of the roads over such highways and bridges, and hence the act necessarily limited’ the sole control over bridges previously existing in the board of chosen freeholders under 1 Gen. Btat. p. 805 § 1 and p. 1,10 §
    4. The duty of constructing and maintaining roadbeds and tracks was imposed 'on a traction company accepting a franchise under the act, without express words in the statute imposing the duty, and it having power to construct its road over bridges was bound to contribute to the expense of rebuilding a public bridge necessitated by the operation of heavier cars propelled by electricity.
    Heard on bill, answer and cross-bill, replication and proofs.
    Tfie substantial question argued and submitted in this case is the liability of the complainant, a traction company, to contribute toward the expense of the erection of a new bridge constructed by the freeholders of Hudson county over the Morris canal, and it arises upon the following facts appearing by the pleadings and undisputed proofs.
    The Jersey City and Bergen Railroad Company, a street railroad company incorporated by special act of the legislature in 1859, constructed, and, before 188G, operated by horses, .a street railroad in Jersey City and Bayonne on a street called Avenue A, connecting the two cities. This street crossed the Morris canal, which is on the boundary line of the cities, and the street was continued across by a bridge. The south abutment of the bridge is in the city of Bayonne and the rest of the bridge and the canal proper in Jersey City. The bridge was constructed by the board of freeholders of Hudson county and was under its control. On September 29th, 1886, and apparently while the bridge was being constructed, the company applied for permission "to lay a double-track horse railroad over the bridge being constructed across the Morris canal” at Avenue C, connecting their tracks in Jersey City with the tracks now laid by them through Avenue C to Bergen Point. The board on this application granted the company "permission to lay its tracks on the Avenue C bridge over the Morris canal, providing said company keep the flooring of that part of the bridge used by its tracks .in good repair.” The tracks were laid ón the bridge and the railroad operated over the bridge under this permission up to 1893. On September 26th, 1893, and while the company was still operating its street railroad by horses, the company leased its property and franchises to the Consolidated Traction Company, a company incorporated under the Traction act of March 14th, 1893 (P. L. 1898 ch. 172 p. 802, &c.), and which shortly after took possession of the leased railroad and operated it. Subsequently the railroad was leased by the Consolidated Traction Company to the North Jersey Street Railroad Company, which then took possession of the railroad and operated it until its consolidation in August, 1907, with two other street railway companies, forming the Public Service Railway Company, the complainant company, which then took possession of the railroad and has since operated it. The leases and consolidation were' made under powers conferred by the Traction act of 1893, and although the answer of defendant raises an objection that the act under which the original charter of the Jersey City and Bergen company was, or was claimed to be, extended, was unconstitutional and void, this point was not pressed or relied on at the hearing, and, in view of defendant’s cross-bill praying decree for contribution, the point may be considered as abandoned. It was not disputed at the hearing that the complainant had succeeded to rights of the original street railroad company in reference to the operation of the road over the bridge.
    When the permission was given by the freeholders in 1886 to the street railroad company to lay its double-track horse railroad on the bridge then being constructed, subject only to keeping the flooring of the part used by the tracks in good repair, the road was operated by horses, and this method was continued until 1893. These horse cars weighed about five tons when loaded, a weight less than that of many loaded vehicles using the bridge in ordinary travel. In 1893 the motive power was changed to electricity, operating by overhead trolley, under the authority of the Traction act of 1893, and the first cars used under the trolley system weighed from seven to ten tons loaded. From that time there has been a steady and continual increase in the weight of the cars used, until at the time of the commencement of the present dispute the cars loaded weighed about twenty-eight tons. The original bridge over the canal, erected in 1886 by the freeholders, was continued in use, but in 1907 the freeholders, deeming the bridge unsafe and insufficient to sustain the traffic by the street cars and vehicles, closed the bridge, except to pedestrians, and took up the matter of constructing a new bridge. Subsequently, and on the application of complainant, the bridge was strengthened by temporary supports sufficient to remove danger in its use by cars and vehicles. The supports rest on lands of the canal company, which in 1908 notified the board that the location of the supports upon its lands was unauthorized and a trespass, and directed their removal. Without these supports on the lands of the company the bridge was not safe for use by vehicles and street cars. Pending the use of these supports, contracts for a new bridge were perfected by the board, and the bridge contracted for is designed with special reference to sustaining the increased strain occasioned by its use for street railroad travel under the present conditions. By reason of this special provision for the railroad travel the whole expense of the structure, about $14,000, is from $4,000 to $5,000 more than would otherwise have been required. In preparing the contracts the engineers of the county, for the purpose of ascertaining the strength of the bridge required for the street railroad purposes, conferred with engineers employed by the complainant as to the weight of cars to be provided for, and provisions necessary to meet these requirements were inserted in the contracts. Negotiations took place between the company and the board for the purpose of reaching an agreement as to a contribution by the company toward the expenses of the new bridge, but apparently no agreement could be made and the negotiations ceased. The contracts being perfected, the freeholders, on May 21st, 1908, passed a resolution rescinding the permission given to the Jersey City and Bergen company in 1886, and notified the complainant that it denied its right to use the bridge, except upon terms satisfactory to the board, which claimed the ownership and control of the bridge. These terms were declared to be the payment of ah annual rental amounting to one-third of sinking fund, maintenance and interest charges of the new bridge about to be constructed. The complainant was further notified that unless it acceded to these terms by a formal agreement by a future date fixed by the notice, its tracks and rails would be removed from the bridge. But it was also informed that timely notice was given in order that complainant might apply for an injunction or other relief, legal or equitable, to which it might consider itself entitled, in order that the controversy between the company and the board as to the former’s right to use the new bridge without contributing toward its construction or maintenance might be determined. The complainant thereupon filed its bill to enjoin the removal of its tracks or interference with the operation of its cars, and to require the board to repair and maintain the existing bridge, or to construct a new bridge in lieu thereof, so that the same might be sufficient to accommodate all of the lawful and customary traffic on the avenue and across the bridge, including complainant’s cars, and to enjoin the board from constructing or awarding a contract to construct any new bridge insufficient for such use. On filing the bill a temporary restraining order was issued, preventing the removal of the tracks from the existing bridge or interfering with the operation of the cars thereon, but, at the hearing upon the rule, it apqoeared that after filing of the bill the board had awarded a contract for the new bridge to replace the old one, and that the complainant itself had entered into an agreement with the contractor providing for the removal of the tracks in such a manner as not unnecessarily to interfere with the operation of the road. An injunction was then directed to be issued, preventing the removal of the tracks or interference with the operation of the railroad, with the proviso that the injunction should not prevent the removal of the bridge and the construction of a new bridge under the Mu rphy contract, which, however, must be constructed in the manner agreed on between Murphy and complainant. By this order for the injunction complainant was directed to give bond to comply with any order or decree that might be made in the cause touching the amount to be paid by complainant to defendant for the use of the bridge pending the hearing.
    Complainant’s bill, while insisting that the defendant is bound in the construction of the new bridge to build one sufficient to accommodate its present and futriré use of the bridge, makes no offer of contribution toward its construction or maintenance, and, at the hearing, legal or equitable liability to contribute to any extent was expressly denied.
    The defendant, on the other hand, both in its answer and at the hearing, while asserting that the construction of the bridge is under the sole control of the board, claims that its whole duty as to construction of a proper bridge would be performed by the erection of a bridge sufficient to accommodate the general public using it in the ordinary way and carrying ordinary loads, and that if the bridge, for the sole purpose of accommodating the traffic over it by complainant’s cars, must be built strong and at an increased expense, the complainant is, in equity at least, required to contribute toward the increased expense incurred for its sole benefit. This liability of the company is asserted to have been established by a custom of street railroad companies under which, they have, under like circumstances, made contributions to the cost of construction and rental for use of bridges on highways, and many contracts have been produced in evidence agreeing to make such contribution, some of them made by the complainant or companies subsidiary to it or under its control. On the supposition that complainant has the right, unlimited in any way by defendant’s control, to operate its railroad over 'the bridge, a liability to contribute toward the increased expense is also asserted as being based on' the doctrine of conflicting easements of complainant and defendant in the use and control of the bridge and highway, and by a cross-bill, filed in support of its answer, the defendant asks the court to fix the proportion of costs complainant should pay and the annual rental.
    The replication denies the existence of any custom or obligation for such contribution, and reasserts its claim that it is the sole duty of defendant to construct and maintain its bridges in such manner as to accommodate all lawful traffic thereon, and to strengthen and rebuild when necessary all bridges that may become insufficient for that purpose at any time.

      Mr. Frank Bergen, for the complainant.

      Mr. John Griffin, for the defendant.
   Emery, V. C.

(after statement of facts and issues),

The claim of complainant that it is the duty of the freeholders to strengthen and rebuild, at the sole expense of fhe county, all' county bridges that become insufficient at any time to accommodate all lawful traffic over the bridge, must be based on the assumption that the freeholders have the sole power and control over the construction and rebuilding of the bridge in question for the purpose of accommodating all lawful traffic whatever, including that of the complainant. And I think it will be found that everyone of the decisions relied on by complainant’s counsel as affirming a duty to accommodate all lawful traffic, have been cases where the party raising the question of liability^ was not under any obligation whatever in reference to the construction of the bridge and had no power or rights in reference thereto. The liability and duty of the bridge authorities in such cases is measured by their general duty and obligations toward ail persons entitled to the use of the highway, and does not take into account at all the question whether any lawful use of the bridge over- the highway, specially conferred by the legislature on the party using it, imposed upon it either expressly or by implication any duty or obligation, either separately or in connection with the bridge authorities, in reference to the construction of the bridge.

None of these cases involve the question which, as it seems to me, is vital in this case, which is whether the Traction act of 1893, under which the complainant claims the franchise for the operation of its road by a change of motive power without the consent of the freeholders, has either expressly or by implication imposed on it some duty or obligation, either separately or in connection with the freeholders, in reference to constructing and maintaining its roadway on and over the bridge in connection with the other lawful public travel?

The contracts made between street railway companies and the bridge authorities which have been put in evidence do not establish any legal or equitable obligation of complainant in this case, either by way of custom or otherwise, and the only legal efficacy any of them can have in the case is that those contracts made by complainant or its subsidiary companies in reference to bridges crossed by their railways, under the authority of the Traction act of 1893 alone, may possibly have some bearing as showing complainant’s construction of this statute as imposing some obligation in reference to its use of the- bridge under that act. Chief-Justice ITornblower (In re Trenton Water Power Co. (1846), 20 N. J. Law (Spenc.) 659), gave some weight to action of a company claiming privileges' across a highway in a case involving its implied obligation under a statute. But the action of the parties interested is resorted to in aid of the construction of an act only in cases where the construction is doubtful, and the"primary question in reference to rights and obligations under statutes relates to the meaning and effect of the statute itself, construed by the rules settled as applying to it. The. effect of the statute, therefore, must be first determined.

By the first section of the Traction act the legislature (among other things) authorized companies organized under it to acquire and operate any street railways then existing on any of the highways of the state, and as to such existing railways the only legislative condition expressly imposed was that the consent of the company or persons operating the railway should be required. The ultimate control of the public rights on the highways of the state being in the legislature of the state, it has been decided that, so far as the public rights in municipal or local highways were affected, this grant under this Traction act of 1893 of the right to use and operate existing railways had the effect of conferring a legal authority for the operation of such roads, whether or not the railways then existing were operated in the highways by lawful authority under previous existing laws or local ordinances. Jersey City v. North Jersey Street Railway Co., 73 N. J. Law (44 Vr.) 175; affirmed on writ of error, Ibid. (1907), 74 N. J. Law (45 Vr.) 774. By the same section power was given to the traction company entering upon and operating any existing street railway to change its motive power from horses to other means of traction, especially electricity, and this change was said by Mr. Justice Swayze, in the opinion in the court of errors and appeals, to have been the well-known and apparent object of the act. 74 N. J. Law (45 Vr.) 779. Under previous acts this authority to change the motive power had been generally, if not always, subject to the consent of the municipal or other authorities controlling the highways, and, in giving such consents, reasonable conditions as to the maintenance and repair of the street upon which the railway was laid might be lawfully imposed, which, if accepted, were held to constitute binding contracts.

With the vastly increased use of street railways for public travel, this change of motive power has necessarily led to complete and radical changes in the physical construction of the road —its roadbed, rails and supports in the streets and highways and over bridges, as well as in the weight of its cars. As to the future extension of existing street railways and the future construetion of new lines to be operated with electricity or other power, provision was made (section 1) for the protection of the public against increased burden of maintaining the streets by requiring the consent of the municipal body having control of highways, but as to the existing railways through the state — a very extensive system of roads — the change of motive power and subsequent operation was not in express terms made subject to any conditions which would expressly relieve or protect any public or local authorities having control of the highways, or the bridges which made part of them, from the increased burden in their construction, maintenance and repair, which resulted solely from the necessity of providing for the increasing requirements of the new system of traction. By the subsequent act of April 21st, 1896 (P. L. 1896 pp. 329, 322), the consent of the freeholders was required to any change of motive power afterwards made in street railways over county bridges, but as the change now in question was made in 1893, this later act does not apply to the case, and the rights and duties of the complainant depend upon the effect of the act of 1893. Previous to the Traction act of 1893 the sole control of bridges upon highways was in the board of chosen freeholders of the county, and it was the duty of this board to maintain and keep the county bridges in repair. “Bridges,” Gen. Stat. 305 1, &c.; “Chosen Freeholders,” Ibid,. 410 1; Whitall v. Freeholders (Supreme Court, 1878), 40 N. J. Laiv (11 Vr.) 302. The board also had the right in proper cases to refuse to permit a street railway company to occupy a bridge with its tracks. Elmer v. Freeholders (Supreme Court, 1894), 57 N. J. Law (28 Vr.) 366. The company in this ease was not organized under the act of 1893.

The first question in the case is whether, as between the board and the traction company, the Traction act has not expressly granted to companies organized under it the franchise to construct, maintain and operate by electric power existing railways over bridges in the highways, and to that extent limited the previous sole control of the’board over county bridges. If so, then the question arises, What are the respective rights and obligations of the board of freeholders and of the traction company as between themselves in reference to the construction, maintenance and operation of the bridges over which these existing roads operate and the bridges which necessarily .replace them ?

Whether the freeholders, as between themselves and the public not using the bridges under special franchises, are responsible for the repair and maintenance of the bridges, including their use for the railways, may be a different question. In the absence of express provision by statute, the freeholders, as between themselves and the public, may not be absolved from the duty of building a bridge sufficient to accommodate all lawful travel, including that arising from the increased burden of complainant’s travel.

It has been held that where a turnpike company was authorized to repair and rebuild a county bridge and to take tolls, this might have the effect of making the turnpike company primarily liable for payment of the expense of repairs, as between it and the county, but did not relieve the county from liability to indictment for failure to keep the bridge in repair, in the absence of express provisions relieving it from the common law duty, or imposing this duty on some other person. Rex v. Oxfordshire (1825), 4 Barn. & C. *194.

The power conferred upon the traction companies as to existing railways by the section in question, both as to highways and bridges, was obviously intended to be as broad and extensive as words could make it, but the language is involved, and the whole of the section containing the grant of power should be recited:

“1. Be it enacted by the Senate and General Assembly of the State of New Jersey: That it shall and may be lawful for three or more persons, one of whom shall be a resident of the State of New Jersey, to associate themselves into a corporation for the construction and operation of motors, cables and other machinery for supplying motive power to street railways or other railroads operated as street railways, and the necessary apparatus for applying the same, and such corporation when formed in accordance with the provisions of this act, shall have power to enter upon any street, road, lane, alley or other highway, upon which any street railway or other railroad operated as a street railway is now or may hereafter bo constructed (with the consent of the owner or owners, lessee or lessees of such railway or of the person or persons operating the same), and make, construct, apply, maintain and operate such railway, motors, cables, electrical or other devices and appliances, with power to erect, construct, apply, maintain, and use such tunnels, subways, for cables, poles, wires, conduits, or other devices for transmitting and using electrical or other forces, as will provide for the traction of ears on street railways or other railroads operated as street railways, and to construct lines of street or passenger railway, and all necessary turnouts, sidings, and bridges on, along, through, or over any street, road, lane, alley, stream or highway; either by extension of existing railways, or by the building of new lines thereon, either wholly within or partly within or wholly between or partly within and between, cities, towns, boroughs, villages, townships and counties, and the same when constructed, to equip, maintain, use and operate for the carriage of persons and property for compensation to be made such corporation, and to contract with any other person or persons, natural or artificial, for such construction, equipment, maintenance, use or operation * * *."

Public bridges and their approaches are highways (Mahnken v. Freeholders (Court of Errors and Appeals, 1898), 62 N. J. Law (33 Vr.) 404, 408; Spencer v. Freeholders (Court of Errors and Appeals, 1901), 66 N. J. Law (37 Vr.) 301, 304), and this section gives, in my judgment, power to construct and maintain the railway and to operate it with electric power over any part of the highways (including bridges as part of them) on which any street railway then existed, and in this operation from time to time to rebuild as may be necessary any part of the road over these highways and bridges. And the franchise to equip, maintain and operate the road for the carriage of persons and property “for compensation to be made to the corporation” having been given, the duty of constructing and maintaining the roadbed and tracks taken possession of by the traction company, under the act, was imposed on the company by the acceptance of the franchise and without the necessity of any express words in the statute imposing the duty. Fielders v. North Jersey Railroad Co. (Court of Errors and Appeals, 1902), 68 N. J. Law (39 Vr.) 343, 344, was a case involving the duties of a street railway company to a traveler on the highway, and Mr. Justice Pitney says: “It is familiar law that a railway company having the right to lay tracks in a public street is bound by the general principles of the common law and without either a specific statute or ordinance or a contractual obligation to lay its tracks in a proper manner and to keep them in a proper state of repair.” Citing 2 Thomp. Negl. (2d ed.) § 1353. This obligation would clearly extend to the construction of the roadbed on which the sleepers, ties and tracks were supported, and I think there can be no question that under the Traction act of 1893, the companies have the right from time to time to make and change the construction of their roadbed and tracks to meet the increasing necessities and burdens of the traffic and to discharge these duties of safely constructing, maintaining and operating their roads, imposed on them by the acceptance of the franchise under the statute. Under the ordinary conditions of construction on streets and highways where there are no bridges, culverts or other breaks or crossings of the street, the construction and maintenance of. the roadbeds and tracks of the street railway proceed without any necessity for changing the road not occupied by the tracks, and are therefore under the sole discretion and control of the company, saving only police regulations incident to the prevention of unnecessary interference with the use of the street for travel during construction. If the authority to so construct its roadbed and tracks over bridges for the use of electric power, as well as over any other part of the street or highway, is given by this act, then I think that having made the change in the exercise of the authority, the duty to construct, maintain and operate its railway, with its supports, roadbed and tracks over bridges, goes with the power, as certainly as it goes with the power to construct and operate the railway in the other parts of the highway. And if this be the proper construction of the powers and duties of traction companies under the act, then as to the existing street railway lines the Traction act has, to the extent of these powers given to the companies to change the motive power and operate the road with it, necessarily limited the previously existing control over county bridges which existed in the freeholders, and has made such control either for repair or rebuilding one which must be exercised in connection with the rights and duties of the traction companies under the act. In other words, the control of the freeholders over such county bridges where the railway lines already existed is, by this act, necessarily limited by the franchise of the traction company to construct, maintain and operate its railway over such bridge with electric or other power; and the franchise being given with the right to take compensation for the use of its railway over the highways (including its bridges), the duty of the freeholders to maintain the bridge in repair for the public does not, as between them and the company, include the performance of the duty imposed on the company of itself constructing and keeping in repair its railway, with its roadbed and tracks, for the operation of the road by electric power, over the bridges of the county crossed by them. In rebuilding the bridge with the stronger supports and structure made necessary solely for carrying complainant’s roadway to operate its heavier cars, the freeholders are pro Lanto constructing the complainant’s own roadway — a duty imposed on them on accepting the franchise under the statute. If the rights of the complainant on the bridges in highways had been limited by the act to the rights of the street railway company whose road was taken over, it would have extended in this case only to the use for “a double-track horse railroad,” as originally given, and the terms or conditions upon which this consent was given, would have constituted, as between complainant and the freeholders, a final agreement as to the complainant’s liability. But the legislative grant, subsequent to the contract, of the right to change the motive power to electricity, and construct, maintain and operate the road over the bridge by this changed power, conferred upon the complainant an additional franchise or easement on the bridge not covered by the original consent, and which necessarily conflicts with the control which the freeholders were entitled to exercise under the laws and the agreement. The power of the freeholders in cases controlled solely by the act of 1893 is no longer exclusive, and as the traction company by this act has only a franchise or easement on the bridge for a special purpose, it follows that where the board and the traction company cannot agree in the exercise of their rights as to the repair or construction of such bridge, this court, under its admitted jurisdiction over conflicting easements or rights in highways, may settle the controversy.

The precise phase which a controversy as to the control of the board and the franchise of the company to operate a road with electricity or other power may take, depends upon the circumstances of each case. In tlie present case there is no substantial dispute as to the necessity and propriety of erecting a new bridge for the use of the general public without regard to the increased burden imposed by complainant’s use since the change of motive power, nor is there any question that the greatly increased weight and the impact of the traction company’s heavier cars, following the change to electric power, necessitate building a stronger and more durable bridge than would otherwise be necessary, and that this increased expense, due to the necessity of ^providing for the increase in weight and capacity of the cars, since the change of motive power, can be approximately determined.

The situation is plainty such that the course taken by the parties was the proper one, viz., the construction of a single bridge for the accommodation of all the public travel, including complainant’s, rather than separate bridges or sections of a bridge for the complainant’s and other travel, and the construction of the bridge under the control and authority of the board, subject to provisions for protecting complainant’s travel pending construction. The only controversy to be settled therefore in this case is the right of the board to contribution and the amount.

I conclude for the reasons above given that the board of freeholders have the right to claim contribution from the complainant toward the expense, and at the time of settling decree will hear counsel further, if they desire, as to the amount.


text:
    Freda Wagner et al. v. Gordon B. Phillips et al.
    [Decided January 12th, 1911.]
    1. A transfer of the equity of redemption by a mortgagor to a mortgagee may be valid, but when properly questioned it will be carefully scrutinized to prevent fraud and oppression.
    2. So far as a transfer of the equity of redemption of mortgaged property involved, a transfer of the mortgagor’s property as security, or in payment for services rendered by the mortgagor’s attorney, the burden was on the attorney to establish the fairness, adequacy, and equity of the negotiation, and the security or conveyance would only be allowed to stand as security for the amount shown to be fairly due.

      3. Complainant and her husband, on being arrested for keeping a disorderly house, conveyed real estate belonging to complainant, worth $11,500, subject to a first mortgage of $6,200, to their attorney, and at the same time with her husband signed a note to the attorney for $1,000, having previously paid him $400 on account of services. The husband thereafter signed another note to the attorney, in which complainant did not join, for $600, and later signed a third note for $600; the attorney executing an agreement to serve them faithfully and to reconvey the property when the notes and bail bonds had been discharged, with the right in the attorney to pledge the property to secure a discount of the notes and to procure bail. Complainant had knowledge of the first $600 note executed by the husband alone as shown in the attorney’s written agreement, and the attorney, after procuring H., one of his clients, to endorse the notes for his accommodation, induced a trust company to discount the same and conveyed the real estate to the trust company’s treasurer to secure the discount. Thereafter, in order to prevent a sale of the property on foreclosure of the first mortgage lien, H., in consideration of a payment of $500 to complainant and his assumption of all the notes and liens against the property, procured from her a conveyance of the equity of redemption.' — Held, that, though H. had notice of the agreement between complainant and the attorney, that was not sufficient to charge him with notice that there had been any oppression or unfair dealing in including all the notes as a part of the consideration for his purchase, and there being no evidence that either when he endorsed the husband’s notes, or purchased the equity, he was chargeable with notice that any of the notes were without consideration in the attorney’s hands, complainant was not entitled to a reconveyance of the property as against I-L, except on repaying him all sums which he paid and all obligations assumed by him as a part of the consideration, though originally she was not personally bound for a part thereof, under the rule that, though a married woman be not bound to pay thp debt of her husband by a conveyance of her property, she may convey it for that purpose, and if she does so the conveyance is valid both in law and in equity.
    4. As between complainant and the attorney, the property was not chargeable with anything more than the $1,600 first due on the attorney’s contract for services in which he contracted to receive $2,000 in full for all services rendered or to be rendered in the matter, and hence, as to the amount of the additional notes given to the attorney by the husband and included in the amount for which the property was conveyed to H., complainant was entitled to reimbursement from the attorney either as a contribution toward the payment she was required to make as a condition of relief against H., or as a payment to be made to her in case she failed or refused to perform the conditions.
    Heard on bill, answers, replication and proofs.

      Mr. Charles M. Mason, for the complainants.

      Mr. Roland D. Crocker and Mr. Thomas L. Raymond, for the defendant Phillips.

      Mr. Frank M. McDermit, pro se.

      Messrs. Howe & Davis, for the defendant Trust Company.

      Mr. John Monteith and Mr. Harry Campton, for the defendant Helbig.
   Emery, V. C.

Upon the pleadings and proofs in this case two questions are involved — first, whether a conveyance of the equity of redemption made by Mrs. Wagner, one of the complainants, and her husband to the defendant Ilelbig, who was, actually or substantially, a mortgagee of the premises at the time of the conveyance, shall be allowed to stand, and second, if not, upon what terms it should be set aside.

The grantee in this case was the second and last endorser on notes of the mortgagors, or one of them, which had been given to defendant McDermit, their attorney, the payee and first endorser, for compensation for services rendered and to be rendered in relation to a criminal prosecution. ' At the time of receiving the first two notes, the attorney received from his clients, the mortgagors, a conveyance in fee of the real estate standing in the name of Mrs. Wagner, which was recorded. One note for $1,000 was signed by both Mr. and Mrs. Wagner, the second for $600 by Mr. Wagner only. By a separate instrument, which was not acknowledged and could not be recorded, the attornejr declared the absolute deed to have been given as security for the notes, with the right of the attorney to pledge the property as collateral for the payment of the notes. The attorney conveyed the lands in fee to an officer of a trust company, which discounted the two notes after the attorney had procured a second endorser, who was the defendant Ilelbig. Subsequently, two other notes, one for $600 and one for $300, signed by the husband only, were made to Mc-Dermit as payee and endorsed by him and discounted by the trust company. The $600 note was endorsed hy Helbig, but not the $300 note. The conveyance now attacked was made by the mortgagors to Helbig, the second endorser, on the commencement of foreclosure proceedings by the holder of a mortgage prior to the conveyance by Wagner to their attorney. As part of the consideration to, be paid by the second endorser on taking the deed, he agreed to take up the notes given to the attorney, which he had also endorsed for the attorney, and also the $300 note not endorsed by him. This agreement was carried out, and Helbig’s individual note was discounted by the trust company, in payment of all the notes, thereby relieving the attorney as first endorser from all liability on the notes, and the notes so taken up were delivered by Helbig to McDermit, who still holds them. At the time of the conveyance by the mortgagors to the second endorser, the relation of clients and attorney still existed between the mortgagors and the first endorser, and the attorney advised the transfer to his subsequent endorser and surety.

The case in this aspect therefore involves the additional question as to how far the validity of the sale by the mortgagors to the mortgagee is affected by the fact that the transfer was in part a payment by the client of compensation to his attorney. A transfer of the equity of redemption by the mortgagor to the mortgagee may be valid, but when properly questioned is carefully scrutinized by the court, for the purpose of preventing oppression or fraud, and so far as the transaction is substantially one between attorney and client, involving the transfer of the client’s property as security or in payment for the services of the attorney, it comes under the application of the further rule, that the burden, of establishing the fairness, adequacy and equity of the negotiation rests upon the attorney, and the security or conveyance taken will only be allowed to stand as security for the amount shown to be fairly due. 1 Story Eq. § 311; Brown v. Bulkley (Chancellor Green, 1862), 14 N. J. Eq. (1 McCart.) 451, 458; Condit v. Blackwell (Court of Errors and Appeals, 1871), 22 N. J. Eq. (7 C. E. Gr.) 481, 486; Porter v. Bergen (Court of Errors and Appeals, 1896), 54 N. J. Eq. (9 Dick.) 405, 406; 3 Am. & Eng. Encycl. L. (2d ed.) 337.

The facts in detail are substantially as 'follows:

[After statement and discussion of evidence in detail, which is omitted by direction' of' the vice-chancellor, the opinion proceeds.]

.The real questions in the case relate to the complainants being entitled to relief against- all or any of the other défendants, Helbig; Phillips and McDermit, and the conditions of such relief. These several defendants occupy different positions in relation to the equity asserted by Mrs. Wagner, as the owner óf a property originally conveyed by absolute deeds but as security only. Helbig, by reason of his endorsement of the Wagner notes and the agreements to secure them made with the previous endorser Mc-Dermit, the benefit of which enured to him, stood at the time of the purchase substantially in the relation of a mortgagee dealing with a mortgagor for the purchase or release of the equity of redemption. Part of the consideration of the sale by the Wagners was that Helbig should pay all of the Wagner notes and the Mooney claim and the building and loan dues and costs of suit, these assumptions together amounting to over three thousand three hundred dollars, and Helbig has, in fact, assumed these payments in such a way that the Wagners were personally entirely relieved therefrom. So far as Helbig is concerned, this' amount must, in considering the fairness of the bargain, be included as part of the consideration which he was to pay for the equity. Complainants claim that none of the notes (except the $1,000 first signed) were valid obligations of Mrs. Wagner, and that as Helbig at the time of the sale was chargeable with knowledge or notice of their invalidity, he cannot, except perhaps to the extent of the $1,000 note, be considered as a bona fide purchaser by their payment, and therefore in considering the fairness of the purchase óf the equity of redemption, he is not entitled to include any indebtedness beyond the $1,000 as having been paid by him. Del-big’s notice that the notes,' other than the $1,000, were not liabilities of Mrs. Wagner, is claimed to be established by McDer-mit’s evidence that he showed to Helbig the 'two agreements relating to the 'object of the deeds, and that Helbig knew-all about them. Helbig’s own statement is that he knew nothing about the agreements, and that he endorsed the" notes relying on McDermit and as an accommodation to him. Admitting Helbig’s notice of the agreements, this of itself would not be sufficient to charge him with oppression or unfair dealing in including all of the notes as part of the consideration of his purchase, and there is no evidence that either when he endorsed the husband’s notes or purchased the equity, he was chargeable with notice that any of the notes were without consideration in McDermit’s hands. Neither of the Wagners objected to the validity of any of the notes at the time of Helbig’s purchase and assumption of their payment, and although Mrs. Wagner might not have been bound to pay any debt of her husband by a conveyance of her property, she certainly had the right, if she chose, to so convey it, and a conveyance in legal form of her lands for such purpose is valid both at law and in equity. Warwick v. Lawrence (Court of Errors and Appeals, 1887), 43 N. J. Eq. (16 Stew.) 179, 184. The question, therefore, so far as Helbig is concerned, is whether, so far as these notes were part of the consideration, he is entitled to protection, after having paid them. In my judgment, he is so entitled, and no facts are proved in the ease which show that in so including them Helbig was chargeable with any such fraud or oppression as would entitle the Wagners to set aside his deed and at the same time be relieved from payment of the notes assumed by Helbig. If this view be correct, then the equitable liability of Helbig, on the whole ease, must rest on the relation of seller and purchaser, being at the same time mortgagor and mortgagee, and that even after taking into account the amount of the mortgagee’s claim (being the notes endorsed or assumed), the sale cannot be supported. At the time of the purchase the amount due for interest to the building -and loan association, including ihe dues, $565.30, and costs, $80, was $622.30. The amount of Wagner notes assumed was about two thousand eight hundred dollars, and with the $500 paid in cash to the Wagners, the whole amount (including the principal of the mortgáges, $6,200) was about nine thousand five hundred' and twenty-six dollars and thirty cents. The only evidence as to values given in this suit is that of the president of the building and loan association, who says that a conservative estimate of the value of the property in the fall of 1907 was $11,500. This would be about two thousand dollars more than Iielbig gave, and was about the amount fixed for the sale by Phillips, by the agreement of the Wagners in August, 1908. Helbig himself, however, swears that he offered the property for sale at $4,800, subject to the association mortgage, being about one thousand dollars over the amount he paid, but was not able to sell it. By reason of the peculiar situation of the parties in this case, in which McDermit was practically counsel for all the parties interested, while at the same time he was personally interested in protecting Helbig against the latter’s endorsement on notes which had already been discounted to pay fees due or claimed to be due to himself, and on which he had received the proceeds, the burden is upon the grantee to establish clearly that the sale upon, the part of the Wagners was for a fair and adequate consideration. This has not been done, and upon all the evidence in the tase, I conclude that the deed to Helbig must be set aside, but upon the conditions of repaying to him the sums paid or obligations assumed as part of the consideration.

As against the defendant McDermit the right of the complainants to equitable relief against the inclusion of all the notes as part of the consideration of the sale, stands on a different basis. He was, at the time of obtaining the notes, and at the time of the conveyance by the Wagners, acting as their attorney, and under an agreement signed by himself as to the amount of his compensation for services rendered and to be rendered. The compensation under the agreement extended only to the $1,000 note signed by both the Wagners and the $600 note signed by the husband only, and these amounts, in connection with the $400 previously paid in cash, $3,000 in all, were under the agreement to “be in full for all services rendered or to be hereafter rendered on account of charges now pending against the. said Wagners in any of the courts of this state, where it may require the undersigned to be present.” The complainants’ counsel claim that the evidence of the Wagners shows that the conveyance was made only for the purpose of securing McDermit as bail, but on this point I think the evidence of the attorney that it was to secure his fees as well is more reliable. Mrs. Wagner, moreover, says that' the written agreement of November 7th, signed by McDermit and given to her husband, was received by her, and inasmuch as MeDermit did then undertake the services agreed upon, this agreement is the best evidence as to the object of the conveyance and the amount to be paid for all future services in connection with the pending charges. The first question on this branch of the case is whether either of the notes given by the husband to the attorney, subsequent to the agreement, are chargeable against Mrs. Wagner or her husband. The third note for $600 was given by Wagner January 2d, 1908, and at the time of receiving it, the attorney signed an agreement “that if Herman Wagner is convicted, I shall return one note of $600 of the three notes by him given to me.” This agreement shows on its face that all of the three notes, including the last $600 note, were given to Mc-Dermit for services of some kind in connection with the charges against Herman Wagner. Considering all the circumstances existing at the time the contract was entered into, the agreed compensation was ample, and even liberal, and no facts have been shown entitling the attorney to any increase in the amount chargeable on the wife’s lands. In the subsequent transactions between the attorney and his clients, this $600 therefore must be considered as a sum which cannot be allowed to the attorney. Nor do I think the $300 note subsequently given by Wagner can be allowed. McDermit says it was for money loaned to Wagner, while Wagner swears that he never received any money from him, but that he paid him money for the building and loan. That Mrs. Wagner had the money or derived any benefit from it, is not at all shown, and on the question as to McDermit charging the property of Mrs. Wagner conveyed to him as security, with debts of the husband other than those referred to in the agreement, evidence affecting Mrs. Wagner must be produced. These debts were practically additional debts claimed to be due to the attorney, as to which the attorney was interested adversely to Mrs. Wagner, in securing payment of them from her property; and inasmuch as he still continued to act and advise as her attorney in the matter of the sale to Helbig, the situation was one requiring the fullest disclosure and the utmost good faith, not only in reference to the existence of the claims, but their validity, and in reference to the attorney’s right to charge her lands with these additional debts in his own favor, so that, if necessary, she might procure other advice before satisfying the claims by a conveyance of her lands. If the statements of the Wagners are to be relied on, not only was no such opportunity given or suggested, but pressure for immediate sale was exercised as the only means of realizing anything.

My conclusion on the whole evidence relating to the transfer is, that the attorney has failed to establish that as against Mrs. Wagner these two notes of her husband amounting to $900, of which the attorney got the proceeds, were fairly included as part of the consideration she was to receive on the conveyance of her equity, and to that extent he is bound to reimburse her. As against the defendant McDermit, a decree will be advised for such reimbursement, either as a contribution toward the payment she is required to make as a condition of relief against Helbig, or as a payment to be made to her should she refuse or fail to perform these conditions.

The defendant Phillips, at the time of the quit-claim deed from the Wagners to Helbig, held the legal title to the property, and so long as he still continued to be bail for the Wagners, his retention of the title for his protection was proper. But the indictments against the Wagners were dismissed in May, 1909, and as he is not personally liable on the notes discounted by the trust company, and this company disclaims any interest in the lands, his only possible claim to hold the title, so far as appears by the evidence, is the liability upon the bond given for the Mooney claim, if the $75 due at the hearing is still unpaid. As this debt was for repairs on Mrs. Wagner’s property, she should be charged with its payment as a condition of setting aside the deed to Phillips. As against the defendant Phillips, decree will be advised that upon such payment and upon the conveyance by Helbig, he also convey to Mrs. Wagner the lands in question. The mortgage to Clinton will be declared void and of no effect. The form of decree to be settled on notice.


author: Stevens, V. C.

text:
    Anna M. Carling v. W. Monroe Carling.
    [Argued December 13th, 1910.]
    In a suit for divorce a plea iu bar was filed by the defendant setting up a previous decree adjudging a decree a vinculo between the parties by a court of another state in a suit brought therein by the defendant, claiming residence in that state, against the complainant. Upon the complainant in the present suit contending that such decree was obtained by the defendant’s fraudulent representation that he was a dona fide resident of that state, evidence examined and held, that the plea was not sustained.
    On bill for divorce.

      Mr. W. Holt Apgar, for the complainant.

      Mr. Linton Satterthwait, for the defendant.
   Stevens, V. C.

This is a suit for divorce on the ground of desertion. To the bill the defendant has interposed a plea in which it is averred that on December 19th, 1904, he had been for more than six months a bona fide resident of South Dakota; that on that day, he filed in the office of the circuit court of the second judicial district, county of Lincoln, State of South Dakota, his complaint for divorce from complainant on the ground of extreme cruelty; that by the law of that state, divorce may be granted on that ground, but not unless the plaintiff has been a 'bona fide resident for at least six months next preceding the commencement of the action; that no answer, demurrer or appearance had been put in by defendant; and that after a hearing, the court, on January 30th, 1905, adjudged a divorce a vinculo between the parties.

The sole issue is whether this adjudication constitutes a bar to the present proceeding. The.contention is that the decree was obtained by the fraudulent representation that the defendant was a bona fide resident of Dakota.

The parties were married July 11th, 1895. The defendant is a physician, thirty-eight years old. Prior to June, 1904, he and his wife had been living with defendant’s mother, at 230 South Clinton avenue, Trenton, New Jersey. They had quarreled a good deal and defendant had, according to the weight of the evidence, offered complainant $2,000 if she would leave his mother’s house and let him bring a suit for desertion. This she refused to do. About June 10th, 1904, or a few days prior thereto, he left Trenton and went to Sioux Palls, South Dakota. He first lodged with a Mrs. Clark and then with a Mrs. Phillips. Mrs. Phillips says he came to her house on July 23d, 1904, and that he roomed there until the following March; that he did not stay away any length of'time, except on one occasion, for a week or two, when he went to Philadelphia. In March, 1905, probably, he went to Denver, in the State of Colorado, and in May or June of that year was awarded a certificate authorizing him to practice medicine there. He took an appointment in the University of Denver as an assistant eye surgeon, and resided and voted in Denver until December 24th, 1909, when he returned to Trenton, where he is now residing.

The bill in this case was filed on July 25th, 1906. A plea was filed on October 26th, 1906, and an amended plea on October 5th, 1907. The defendant married again on November 13th, 1907. He appears to have done so with full knowledge that the suit was pending.

The question is whether he was a bona fide resident of Dakota for the six months prior to December 19th, 1904, the day when he began suit. The divorce was granted on January 30th, 1905.

He appears to have left New Jersey with the intention of staying in the west for an indefinite time. He wanted to get away from his wife and to be divorced from her. He doubtless thought that he could not get a divorce here and that he could get one in Dakota. The mere fact that he went there with that, as the predominant purpose, would not have prevented him from getting a valid divorce there, provided he went animus manendi. Such was the decision in Tracy v. Tracy, 62 N. J. Eq. (17 Dick.) 807. But as was said in that ease if a person go “with the avowed object of living [there] to secure a standing on which to found a judicial proceeding, a violent presumption would arise that the animus of remaining was not definite, but was largely determinate upon the termination of such procedure, and that an actual and bona fide residence had not been obtained.” In Magowan v. Magowan, 57 N. J. Eq. (12 Dick.) 324, it was said by Chief-Justice Gummere: “He [Magowan] says that his purpose in going to Oklahoma was to become a resident, but it is very clear that if such Avas his purpose, he failed to accomplish it. To effect a change of domicile, not only must the residence at the place chosen for the new domicile be actual, but to the factum of residence there must be added the animus manendi.”

I think these quotations are applicable to the present situation. The doctor resided in Dakota for the statutory period, but not, as the evidence shows, animo manendi. He had no relatives, friends or business acquaintances in Dakota. He had made no business or professional arrangement before going. He says that on his arrival in Sioux City he made application to the president of the state board, who allowed him to practice until he could pass that board, which he never took the trouble to do. He took a temporary position at Castlewood, a prairie village of three or four hundred inhabitants, to supply’temporarily the place of one of the two doctors who practiced there, but it is evident, from the testimony of his landlady, Mrs. Phillips, that this practice was not very engrossing. His other occupations consisted in playing golf and in doing some optical work in Sioux Falls. The fair inference from his own testimony is that he had no: fixed intention of remaining. In his examination in’chief he says:

“My intention was to go there and get one hundred and sixty acres of land in the Rosebud Indian Reservation at $1.25 per acre, which was opened by the U. S. Government at that time, for which I did make an application, and I had a little interest elsewhere in South Dakota— and' — do you want to know anything more?
“Q. Yes, what was. your intention in going out there?
“A. Well, that was my intention to go into this land business, and bay mining interest.”

He does not here state anything about practicing medicine, although he does mention it in his rebutting evidence.

The mining interest was little more than a myth. Such as it was it consisted of “prospecting” in the Black Hills which, he says, could be reached in a shorter time from New York than from Sioux City, and of $200 in stock. He had visited these hills the year before. It does not appear that he revisited them or that the stock ever acquired any value.

As to the land in the Bosebud reservation, it appears that immediately after reaching Dakota he went to some town whose name he cannot recollect and signed his name to some paper which would entitle him to a drawing, and if he were the lucky man, to a valuable tract. He paid out no money for the privilege. He was not present at the drawing, and did not, in fact, draw anything. He, at once, lost all interest in the subject. Taking his own statement of the objects which were potential in inducing him to select Dakota as a place of permanent residence, it is apparent that they did not materialize. He might have decided. to remain there for some other reason, but he did not. He appears to have very soon formed the purpose of going to Denver. Norman H. Squires, a perfectly disinterested witness with whom he played golf in July and August, 1904, says that in one of those months Dr. Carling told him that he thought he would like to go to Denver to practice. After failing to draw anything, what more likely than that seeing no immediate opening in Sioux City or elsewhere in South Dakota, he should make up his mind to go to .Denver to practice his profession. The mention of such a determination to the acquaintances that he formed there may possibly explain why he brought his suit in Lincoln county, rather than in Minnehaha county, where his attorney had his office and he himself was living. The case, he says, was actually tried, not in open court, but before a judge at his residence in the town of Mitchell. Whether the trial took place in Lincoln county or in some other county does not clearly appear. It does appear that the action was not tried in the place of his residence and of the reason for this mode of procedure, the defendant can give no explanation. Now, the papers were served upon Mrs. Carling, in New Jersey, in time to defend. He could not therefore have intended to perpetuate the fraud practiced in the Doughty Case. Doughty v. Doughty, 28 N. J. Eq. (1 Stew.) 581. It is possible that Dr. Carling may not have cared to testify in open court, in Sioux City, to a fixed purpose to remain in Dakota if he had talked of his intention of going to Denver; but this is mere conjecture.

The doctor, to explain his conduct in leaving Dakota so soon after obtaining his divorce, says that his brother had lung trouble; that in January, 1905, he went to Philadelphia after him and that he took him to South Dakota. He adds:

“I intended to stay there until 1 could take my examination [whether in Dakota or Colorado he does not say], but I decided to go to Colorado, which I thought would benefit my brother more than myself.”

The landlady, Mrs. Phillips, says that his brother stayed for a short time at her home, but that she never heard of the lung trouble. The brother himself is not called as a witness, and what became of him after he went to Denver or what defendant was able to do for him does not appear. Whether the Philadelphia trip was taken before or after the divorce was obtained the defendant does not state with certainty. His vague statements in reference to his brother’s health do not help him much. They do little more than indicate the ease with which he could change his purpose.

While it thus appears that the defendant gave up his residence in New Jersey, it does not appear that he took up a new residence in Dakota for any other purpose than to get a divorce. The animus manendi in Dakota is not proved. That defendant left New Jersey for the purpose of getting a divorce in South Dakota is perfectly plain. He had no other substantial reason for going. He had a practice in New Jersey and he had none in Dakota. He had, as I have said, no business or professional engagement to draw him there. He had no friends or acquaintances there. On his own statement it may be inferred that his intention to remain was conditioned on his drawing a government allotment in the Eosebud reservation. This he failed to do, and having failed, he directed his attention to Denver. He spoke of going to that- city within two months after he arrived in Dakota. His conduct during the fall of 1904 and the winter of 1905, so far from indicating an intention to remain in Dakota, rather indicates the contrary. lie made no effort to secure a permanent position of any sort or to settle down to the practice of his profession. He was able within a month or two after reaching Denver to secure a license to practice in Colorado, and, provided as he was, with a New Jersey certificate, it is not likely that he would have found more difficulty 'in securing one that would have enabled him to practice in Dakota. His very vague statement, “I decided to go to Colorado [when he decided, he does not say], which I thought would benefit my brother more than myself,” only emphasizes the absence of definite purpose to make Dakota his home. And so the violent presumption arising from his primary purpose in going to Dakota and from his actually leaving Dakota shortly after he obtained the decree, is strengthened rather than overcome by his conduct and declarations during his compulsory six months’ residence there. The ease does not differ in principle from Streitwolf v. Streitwolf, 58 N. J. Eq. (13 Dick.) 563; 181 U. S. 179. I think the plea is not sustained.


author: Stevenson, V. C.

text:
    David Charles Titsworth, by next friend, v. Ida S. Titsworth.
    [Decided November 1st, 1910.]
    1, Under Divorce act (P. L. 1907 p. 475 § 1 ¶ 5) permitting a decree of nullity of marriage at the suit of the husband under the age of eighteen at the time of the marriage, unless the marriage is confirmed by him after reaching such age, a decree of nullity operates practically to render void at the time of its rendition what up to that time was a valid but voidable marriage and amounts to a decree of absolute divorce, and the children of the marriage are legitimate.

      2. Where a husband sues to annul a marriage under Divorce act (P. L. 1907 p. 47S § 1 ¶ 5) permitting a decree of nullity of marriage at the suit of the husband under the age of eighteen at the time of the marriage, a decree of nullity will not be based on the testimony of interested witnesses without the production of any record establishing petitioner’s age, in the absence of evidence showing that no such record exists.
    On petition for decree of nullity of marriage.

      Mr. Charles E. S. Simpson, for the petitioner.
   Stevenson, V. C.

In this ex parte case the master has reported in favor of a decree of nullity under the statute, on the ground that the petitioner was under eighteen years of age when the marriage ceremony was performed. I cannot concur with the learned master in view of the character and extent of the proofs presented to establish the fact that the petitioner was “under the age of eighteen” when the marriage was solemnized and consummated.

The case is brought under the new law which constitutes paragraph 5 of section 1 of the Divorce act of 1907, permitting a decree of nullity

“at the suit of the husband when he was under the age of eighteen at the time of the marriage, unless such marriage be confirmed by him after arriving at such age.”

The age of the petitioner at the time of the ceremony is alleged to have been fifteen years and five months; the age of the defendant at the time of the marriage is not shown definitely, but it appears that she was a minor, and the petitioner testifies that he thinks she was about eighteen years of age. It is worthy óf note that the clergjonan who performed the marriage ceremony accepted the statement of the petitioner that he was twenty-one years of age, although no parents or guardians were present. The clergyman testified to this effect before the master, recognizing the petitioner who was present. Whether or not the defendant knew that the young man, who was undertaking to marry her, and did, in fact, take her as his wife, was incapable of contracting more than a voidable marriage which he could lator on disaffirm if he saw fit to do so, does not appear. So far as the proofs show in this case the young wife may have fully believed that her husband was over eighteen years of age and capable of entering into an absolute and binding marriage with her. The petitioner may have falsely stated to the defendant that he was eighteen years of age, and by this falsehood may have induced her to surrender herself to him. The defendant, who makes no defence, may now be willing to have her marriage annulled.

This new statute of 1907 has certainly made a very radical change in the marriage laws of New Jersey. It is somewhat startling to contemplate from an ethical and sociological point of view the situation created by the statute in this case, and other similar situations which are liable at any time hereafter to arise. This young man, perhaps as mature’physically as most adults, without the knowledge of his parents, went with the young woman to whom he was paying attentions to a clergyman’s house and undertook by a solemn ceremony of which her brother and sister were witnesses to establish the status of marriage with her. He then lived with Ids wife at her mother’s house for about a month. Apparently getting -tired of his partner,, he then withdrew from her and shortly after returned to the house of his parents where he has resided ever since. This marriage took place on January 35th, 1910, and whether there may be any issue of the marriage or not does not appear in the proofs. Under our statute, if there be issue, the saíne will be legitimate, and I think the view is a correct one, that in a' case like this a decree of nullity operates practically to render void at the time of its rendition what up to that timé was a valid but voidable marriage and thus amounts to a decree of divorce a vinculo. Young men under eighteen years of age are thus permitted to contract a “trial marriage,” and if the wife be above sixteen years of age, it will be optional with the husband alone to affirm or disaffirm the marriage when he shall reach the age of eighteen years or at any time before.

But while I concur in the views of this sort of legislation indicated by Mr. Bishop (1 Bish. Mar. & D. §§ 504, 566), even when innocent children may not be bastardized, the duty of the court, of course, is perfectly plain, viz., to enforce this statute in every case fairly brought within it without venturing to "impugn the wisdom or the policy of the law.” Chief-Justice Green, 25 N. J.. Law (1 Dutch.) 481.

I think, however, that where a petitioner in a case like this invokes this statutory remedy which disrupts the marriage relation under the common law and the law of nature, while it leaves his perhaps innocent victim bearing a heavy burden, which may greatly mar her entire life, public policy demands that the ease must be clearly proved, and the best evidence of the pre-eminently essential fact must be presented.

In this case the age of the petitioner is proved only by his own testimony so far as he can testify on such a subject, and by the direct and positive oaths of his parents. No physician or midwife, or impartial witness'of any kind,, is produced to testify in regard to the date of the petitioner’s birth, although that event occurred in Jersey City, a physician, whose attendance was procured by the petitioner’s father, was present, and the petitioner and his parents have lived in Jersey City or West Hoboken ever since. But the objection which, to my mind, is fatal to the sufficiency of the proofs in this case, arises from the fact that no public record of the petitioner’s birth has been proved, and the absence of such evidence has not been accounted for. It seems to me that in all cases under this statute where the petitioner and his parents and intimate,friends are liable to be actuated by a strong desire to free the petitioner from an embarrassing matrimonial alliance, the public record establishing the age of the petitioner, if there be one, should be produced. The effects of a decree of nullity in a ease like this upon the defendant and upon societju upon the institution of marriage as heretofore recognized by our laws and customs, are too important and far reaching to permit such a decree to be based upon the testimony of interested witnesses when record evidence which, in most cases would be absolutely conclusive, can be obtained. These parents produce no record or documentary evidence, or even a memorandum to aid them in fixing this important date. If the petitioner is mature for his age, the parents might be tempted to merely set back the petitioner’s birthday three years. A conviction of perjury might be very difficult, while the temptation to make a mistake of two or three years in regard to this date might be very great. I am not, however, intimating that the testimony of the parents of the petitioner is to be rejected or to be adjudged inaccurate. The point is that no question as to the accuracy of the memory of parents or their veracity in fixing a date purely from recollection should be raised in a ease where disinterested witnesses can probably testify as to the date and the official record of the date can be produced from the proper public office in Jersey City, which record presumably was made within a few days or weeks after the date in question.

It is not so much the date of the birth as stated in the record as the date when the record was made that constitutes the all important item of evidence in a case like this. Of course if it were proved that there is no official public record of the petitioner’s birth, that the parents have no family Bible or other contemporaneous memorandum to assist their recollection, that the attending physician could not be produced with or without his private record, and that no reputable neighbors or other persons could be found who would corroborate the parents, a decree of nullity might probably be based on the proofs as they now exist. The fatal defect in the proofs consists in the fact that evidence which presumably exists and is the best and safest evidence is not produced and its absence is not accounted for.

In view of the fact that this case presents at least a novel application of rules of evidence and principles of public policy, and no doubt a difference of opinion may exist in regard to the sufficiency of the proofs which the master has accepted, the petitioner majq if he sees fit to do so, take an order referring the case back to the master for additional proofs. Otherwise, a decree will be advised dismissing the petition.