author: Eeed, Y. C.

text:
    Julia A. Cahill et al. v. William J. Cahill et al.
    [Filed July 15th, 1901.]
    A will provided that the testator’s estate should be divided among her seven children equally, with the exception of one, whose share should be reduced to a certain amount, and the amount of the reduction divided equally among the other children. It was provided that the children could agree on a division of the property, but if they were unable to agree, the executors should sell the realty in one year from the testator’s death, and divide the proceeds and the personalty as directed.—Held, that two of testator’s children could not compel a partition of the realty, prior to the time when the power to sell would become operative, against the dissent of the remaining five children.
    On demurrer.

      Mr. James Bnchcinan, for the complainants.

      Mr. James J. Cahill and Mr. Robert S. Woodruff, for the defendants.
   Eeed, Y. C.

The primary purpose of this bill is to compel a division of the real property left by Julia Cahill, who died June 17th, 1900. The section under which the question arises is the fifth item of the will. It reads thus:

“The balance and residue of my estate, both real and personal, I give, bequeath and devise equally, share and share alike to my seven children, them, their heirs and assigns, forever, viz., .Tames, William, Thomas B., Mary E., Prank E., Margaret and Julia, with this exception, however, my son James, having already received from the estate and from me large sums of money, I desire that his distributive share shall be reduced or .diminished by the sum of two thousand dollars, which sum of two thousand dollars thus taken from James’ share shall be equally distributed between the six other children or their heirs. Should my children be unable to thus divide my real and personal estate so as to accomplish my purpose within one year after my decease, then I order, authorize and direct my executors, hereinafter named, to make sale of my real estate and to divide the proceeds of the same and my personal equally between my children, in the manner above directed, deducting from the share of Jamos, as I have above set forth, the sum of two thousand dollars for the advances he has already had.” ' .

The demurrer is directed against the right of the complainants, two of the children of testatrix, to compel a partition of the property against the dissent of the remaining five children.

The purpose of the testatrix, manifested in clause five, is entirely clear. Its primary design is to fix the proportion in which her estate, real and personal, is to he divided among her children. Under this section they are to take equally, with the exception of James who is to receive $2,000 less than the other six children. After fixing the portions, not real estate alone, but of all her estate, she proceeds to indicate the method by which they are to get their portions. They can, if they choose, agree upon a division of the property. They were not bound to take real estate, for some may take personalty alone or part land and part personalty. Any voluntary arrangement entered into by them, when consummated, would confer upon them the property, subject to the payment of any debts of the deceased. All the executor would then have had to do would be to pay debts and then pay the balance according to the terms of the voluntary agreement entered into by the children. In default of any agreement, the testatrix provides for a peremptory conversion of the real estate into money, for the purpose of paying the portions at the end of the year, unless there has been an intermediate voluntary division. There is to be an absolute equitable conversion of the realty, for the executor is not merely authorized to sell, but he is ordered to sell.

It is true that the power to sell is in abeyance until the expiration of a year; but at the termination of that period, without a previous voluntary agreement for distribution, the power becomes presently operative.

Nor would, in my judgment, the power be extinguished by a judicial partition against the dissent of some of the tenants in common. Such a proceeding would not accomplish the division ■of the estate of the testatrix in the manner indicated in her will.

The question then supervenes, should this court permit such a partition during the period which intervenes between the death ■of the testatrix and the date when the power becomes presently operative.

Actions for partition have been permitted although there was conferred upon trustees a bare power of sale to be exercised, or' not, as the donee of the power might see fit. But even in the case of a discretionary power of sale, a court of equity will exercise its discretion in permitting a partition of the real estate by those in whom the legal title resides. Thus Mr. Justice Fry, in Boyd v. Allen, 24 Ch. Div. 622 (1883), remarked: The authorities are reasonably plain, but independently of authority, it appears to me that the right of partition which is an incident to the property should not be taken away by a discretionary power of sale given to trustees. It is suggested that I should not override a power given to trustees; but as they don’t think it proper to exercise their power before the plaintiff could exercise his right to ask for partition, it does not appear to me that the persons to whom the property is given should be deprived of their right in this court.” To guard against the inference that the right to partition, even in the instance of a discretionary power, was absolute, the judge proceeded to observe: “If the action were brought vexatiously or when the trustees were about to exercise their power, I might view the ease differently.” When, however, the direction for a sale is not discretionary, but imperative, there is a conversion of realty into personalty, and partition will not be permitted.

The rule in the State of New York is summed up in the case of Fritz v. Fritz, 17 N. Y. Supp. 800, in the following language: “It is the well-established rule that where a testator directs his executors to sell his real estate and distribute the proceeds among persons named in his will, such real estate is deemed to be converted into personalty and partition cannot be had,” citing, among other cases, Underwood v. Curtis, 177 N. Y. 523. The court then distinguishes the case of Duffy v. Duffy, 50 Hun 266, because in that case the will contained the bare power of sale and no devise of the real estate, so that the title descended to the heirs, and therefore, unless the power of sale was exercised, its existence was no bar to partition by the heirs.

The power here being imperative, when it comes into existence, it will thereafter preclude a partition.

If the power of sale still exists, it would seem a waste of time and money to carry through a proceeding to partition which, by the exercise of the power, would become nugatory.

Nor can I perceive the pertinency of the argument rested upon the doctrine of extinguishment of powers. There is no doubt that the beneficiaries under the will could extinguish the power by agreeing to accept the real estate. But this they have not done. But, as I understand the contention upon this phase of the case, it is that the right to partition being one attached to a tenancy in common, it is a right which can be invoked, notwithstanding the intention of the testatrix; and that when invoked and executed, it will accomplish an extinguishment of the power. This argument, however, rests upon an assumption of the truth of the premises which are in dispute. It assumes the right of any devisee to have a partition against the will of every other devisee, notwithstanding the power; and this right is the point now mooted. In my judgment there is no absolute right to partition, but at best a right which rests in the discretion of the court, and a right the exercise of which should be regarded as inequitable in this instance.

Such a method of disposition of the property, as already remarked, is manifestly opposed to the intention of the testatrix. Indeed, a partition would not accomplish her purpose, for, as I have already remarked, it is not merely to divide the realty, but to divide all the estate—a blended realty and personalty. Not only this, but the division is to be made by so apportioning all the property that the share of James shall be $2,000 less than the share of the other six beneficiaries.

I think, therefore, that the objection to the partition proceedings is well taken.

While I have expressed my opinion upon this phase of the case, nevertheless I am of the opinion that there should be a judgment for the complainants upon the ground that the demurrer is too broad. It is to the bill generally; 'and, upon inspection, the bill is not only for the purpose of partition, but for a discovery and distribution of the rents and profits of some of the beneficiaries in possession of the property. To the extent which this relief is prayed the bill is good, and as the demurrer was directed against this, as well as the other portion of the bill, it must be disallowed.


source: Caselaw Access Project

license: Public Domain

text:
    William Smithkin v. Dora Smithkin.
    [Filed July 17th, 1901.]
    1. Upon the facts stated—Held, the wife’s absence from petitioner is not of itself a desertion entitling him to divorce.
    2. Where a divorce is sought for desertion arising from compelled absence of the petitioner for extreme cruelty of respondent, the facts should be so charged in the petition.
    On petition for divorce.

      Mr. Samuel Of. Naar and Mr. Edwin Robert Walker, for the petitioner.

      Mr. Peter Baches, for the respondent.
   Eeed, Y. C.

The petitioner asks for a divorce because of his wife’s alleged desertion. The evidence shows that she left him, not only with his concurrence, but at his insistence. They had a quarrel, when friends were visiting them, and she had struck him, which so incensed him that he insisted upon her return to her father in Boston, on which trip he accompanied her and his child. This-was in January, 1898, and since then they have lived separately. During this period he says that he has asked her to return to-him, and she has refused. She, on the contrary, says that she has been willing to return, and he has declined to receive her.

I do not think that it is proved that she has remained away from him against his express desire for her return. The letters-in evidence show no such condition of affairs. There is nothing: in his letter to her, dated October 15th, 1898, respecting his-desire for her return. In his letter to her brother, dated June 21st, 1898, he said he had no more love or pity for her. He also said that it was impossible for a man to live with a woman like his wife, and that he had made up his mind to 'sue for a divorce when the proper time came.

She wrote to him in Ma3r, 1898, as follows: “I don’t care to compel you to be my husband against your own will, as it would not do me much good if I did.” She then sa3is that she will agree to a divorce for mone3r.

AVhile affairs were in this condition, she did not wish to return. What she would have done had he unequivocally invited her to return is not clear. It is not proven that she would not have done so, and I am inclined to think that she would.

If he wished her to return, why did he not write to her, plainly stating his wish ?

The difficulty I find with the testimoi^, detailing conversations had with her by the petitioner and by his friends, is that •the reproduction of the exact words of a conversation is next to impossible. I have no doubt that she said in those conversations that she did not wish, and did not intend, to come to Trenton. This was quite natural, considering the circumstances surrounding her departure from Trenton, and the posture of affairs since then. His attitude toward her had been that she was a woman with whom he could not live. That attitude has never been changed, so far as appears. All the testimony produced at the trial was in support of that position. It is,- therefore, in the highest degree improbable that he unreservedly asked her to return to him, or that his friends who visited her conveyed to her from him an express desire that she should return. The purpose of such visits and conversations was, I think, to get from her some expression of an intention not to return or live in Trenton. This, I think, they obtained; but, as I have already remarked, it, in the absence of an express invitation showing that the attitude of her husband towards her had been changed, was quite natural.

I am therefore of the opinion that her absence from him was not, by reason of such absence alone, a desertion.

There is another view of the case, which, if within the charge of the petition, would have given me some perplexity.

The evidence, as it stands, shows that, upon the night before the respondent left her husband’s home for Boston, she struck him and spat in his face. He says that she was accustomed, when angry, not only to strike him, bnt to spit in his face, and this is corroborated, in some degree, by other witnesses. She admits striking him on this occasion, but denies the other nasty charge. Now, there is no doubt at all that a man who would habitually strike and spit in the face of his wife would be guilty of such cruelty as would justify her in separating herself from him, and would, after the expiration of two years, in the absence of express contrition on his part, lay a foundation for a divorce on the ground of desertion. Scarcely a greater indignity could be offered than by the last-named act. So revolting is it that courts have regarded it alone, or with very slight additional acts, sufficient to constitute cruelty. 1 Bish. Mar. & D. § 748.

It is hardly conceivable that a woman would indulge in such conduct under any provocations, and if she should do so, without great provocation, no man should be compelled to live with her.

Blows by a woman with the hand would not, as a rule, injure a man or be regarded as extreme cruelty, but if such blows were accompanied with the other disgusting act, it would, in my judgment, amount to extreme cruelty. And this cruelty, although the wife were compelled by the husband to leave his house on this account, would, perhaps, constitute desertion by her.

This phase of the case, however, I cannot consider. I am of the opinion that when a divorce is asked for on the ground of desertion arising from the compelled absence of the petitioner by reason of the extreme cruelty of the respondent, the facts should be so charged in the bill or petition. The issue to be tried in such a case would be the fact and the degree of the respondent’s cruelty, and the respondent is entitled to be informed of the issue to be tried and to answer the acts charged. The case of an ordinary desertion and one such as we are considering radically differ. The proof offered in support of each differ. The proof offered in support of the former would often refute the existence of the latter. This case is an instance, for the petitioner swore that he had asked his wife to return to him, and such a request was in direct opposition to the theory that he, by reason of her extreme cruelty, could not live with her.

I am therefore constrained to the conclusion that a decree for divorce must be refused and the bill dismissed.


author: Reed, V. C.

text:
    Frederick Hemsley v. Marlborough Hotel Company.
    [Filed August 14th, 1901.]
    1. Where a deed contains a restriction made for the benefit of the vendor’s remaining land, the right to enforce the same passes to a subsequent grantee of the vendor.
    2. Where a deed containing a covenant against certain buildings is made subsequent to a deed to other property, owned by the same vendor, the grantees in the latter deed do not take the land with the benefit of such covenant.

    On bill for an injunction.
    The complainant and the defendant owned lots in Atlantic City, the title to which came to them from common grantors. The complainant seeks to enjoin the defendant from an alleged violation of a covenant contained in deeds in the chain of title to the defendant, which covenant is in the following words: “Also that no building whatever shall ever be erected upon the above-described lot or piece of ground except as and for use as a dwelling-house.” There follows a specification of special structures, the erection of which are forbidden.
    This covenant, so far as it relates to matters involved in the joresent case, will be stjded the dwelling covenant. The complainant charges, and it is not denied, that the defendant is about to erect upon its plot a large boarding-house or hotel.
    The manner in which the complainant and defendant are related can be best stated by a reference to the accompanying diagram.

      The original lot, bounded by Pacific, Indiana, Ohio avenues and the ocean, was in 1879 owned by Hamilton Disston and George E. Lee. On May 28th, 1879, Lee and Disston made a deed of dedication of a street sixty feet in width, Market Park Place, and of the park marked Brighton Park. Attached to the dedication deed was the diagram above displayed, and reference was made to the plan of lots upon it, with a statement that the plan was to be recorded. The property now owned by the complainant is lot No. 1, Disston cottage, and No. 2 and No. 3 on said diagram. The lots owned by the defendant are numbers 14 to 20, inclusive, on the diagram.
    As already remarked, the titles to the tracts of both parties came from Disston and Lee. The title to lots No. 2 and No. 3, now belonging to complainant, is traced thus: Disston sold, on May 28th, 1879, to George E. Lee his undivided interest in lots Nos. 2 and 3 as well as in Nos. 4, 5 and 6. On September 11th, 1879, Lee conveyed the same lots to Mary Disston. The first of these deeds did not, but the latter deed did, contain a covenant against buildings other than dwellings, similar in language to the covenant already set out. It also contained a covenant against the sale of liquor.
    On May 18th, 1880, Mary Disston conveyed lots Nos. 2 and 3 to Albert Ii. Disston, and he, on March 4th, 1881, conveyed them to one Corinth, who again, on October 20th, 1881, conveyed to Mary Disston. The title to the Disston cottage, lot No. 1, also now owned by complainant, came through a deed from Lee and Disston to Mary Disston, made May 28th, 1879. This deed contains no dwelling restrictions but a covenant against liquor selling only.
    By these deeds it is perceived the title to lots 1, 2 and 3 came to Mary Disston. On October 1st, 1895, the trustees under her will, in conjunction with her husband, made a deed of these lots to the complainant, Frederick Hemsley.
    The defendant traces its title for lots Nos. 15 and 16 through a deed from Lee and Disston to Amelia Sparks, dated September 10th, 1879. For lots Nos. 17, 18, 19 and 20 the title is traced through a deed from Lee and Disston to Mary Disston, made May 10th, 1880, and for lot No. 14 through a deed made by Lee and Disston on February 10th, 1880, to Iiimnan Lander Hall. Each of these deeds contained a dwelling-house restriction, in the form already set out.

      Mr. Samuel H. Grey, for the complainant.

      Messrs. Clarence L. Cole, David J. Pancoast and Richard V. Undabury, for the defendant.
   Reed, V. C.

The defendant, in the first place, denies that the structure about to be erected is in violation of the covenant. Ordinarily the structure in question, intended to be in all respects, excepting the sale of liquor, a hotel, could not be properly styled a dwelling. When, however, the purpose of the restriction, as manifested by the designated structures which are specially forbidden, is sought, it becomes a close question whether, within the meaning of the parties to the contract, a building in which people dwell, although for brief and uncertain periods, comes within the forbidden class of structures.

But conceding that the structure contemplated is not a dwelling, what is the complainant’s right to enforce the covenant?

It is entirely settled that where an owner sells a portion of his land, he can impose a restriction, not obnoxious to public-policy, upon the use of his remaining land (Brewer v. Marshall, 4 C. E. Gr. 537), or upon the portion sold (Coudert v. Sayre, 1 Dick. Ch. Rep. 386), which covenant the owner or his grantee can enforce.

When such a covenant is included in the deed to a grantee and such covenant is made for the benefit of the remaining land of the vendor, the right to enforce the covenant passes to a subsequent grantee of the vendor. The questions primarily propounded are, does the complainant stand in the attitude of a subsequent purchaser from the vendor, with whom defendant’s predecessor in title made his or her covenant; and secondly, was such covenant made for the benefit of the land subsequently sold to the complainant’s predecessor in title?

The first deed in complainant’s chain of title was from Disston to Lee, putting a title in severalty in Lee to lots Nos. 2 and 3. The title to lot No. 1 passed from Lee and Disston on May 28th, 1879. The first deed in defendant’s chain of title was to Amelia Sparks, dated September 10th, 1879. The Sparks deed, therefore, containing the covenant against buildings other than dwellings, was made subsequent to the first deeds in complainant’s chain of title. And even if the deed from Lee to Mary Disston on September 11th, 1879, should be regarded as a deed from a vendor in common with the Sparks deed, yet the latter was acknowledged by one of the grantors on the 11th of September, and so neither can be regarded as possessing priority of time in the date of their execution. It cannot be said, therefore, that when the predecessors in title of Mr. I-Iemsley bought, they took the land with the benefit of the restrictive covenant contained in the Sparks deed attached to it.

So far, then, as the complainant’s right to enforce, the covenant contained in the Sparks deed, or in any other of the defendant’s deeds, such right must rest upon a general scheme or understanding that all the lots plotted should be sold for residential purposes, and that each deed therefor should contain a restriction against other use. In respect to the restriction against buildings other than dwellings, there is no .trace of a general understanding or scheme in respect to such covenants. The plot itself attached to the dedication deed indicates nothing but a division of the land into lots, upon which land is a dedicated street and park. Nor does the dedication deed itself contain any allusion to such a restriction. It does contain an agreement that the grantees of such lots shall covenant not to sell spirituous liquors. Nor does the method adopted in selling the lots show uniformity in the matter of restrictions. In most of the deeds, I think, there were restrictions against factories and objectionable buildings of like character. The dwelling restriction was only incorporated in a few of the deeds.

The Adams lot had been sold before the execution of the dedication deed, with only a factory restriction; mnd lots Nos. 7, 8, 9,10 were afterwards sold with factory restrictions only.

Long before the present defendant bought the site upon which it proposed'to erect a boarding-house or hotel the neighborboocl was studded with boarding-houses. Lots 7, 8 and 9 were the sites of buildings used by the Mercer Memorial Home as a boarding-house. Lot No. 10 was covered by the Revere Hotel and lot No. 11 by the Runnymede Hotel. These lots were conveyed, as already remarked, without dwelling-house restrictions. But, in addition, lots Nos. 13 and 13, conveyed to Hall with such restrictions, were each sites of buildings used as boarding-houses. Upon lot No. 13 was the Glasslyn and upon No. 13 the Chatham. .These were, if the present structure will be, breaches of the covenant, which have remained unchallenged by the complainant or any other grantee. In regard to the use of the property now belonging to the defendant, it appears that Lewis T. Bryant, who sold to John J. White, who sold to the defendant, bought the property from the Female Academy of the Sacred Heart. The building upon the land was used in part as a boarding-school while owned by the academy. Mr. Bryant bought on May 31st, 1900, and took possession on the 1st of June. He changed the interior of the house and used it during the season as a hotel or boarding-house, under the name, exhibited upon two signs, of the Waverly Villa. No objection to its use as such was interposed by anyone. Indeed, the building upon lot No. 1, known as the Disston Cottage, was, and is, used by the complainant as an annex to his hotel, and in it guests are lodged in the same manner as in the main building.'

It thus appears that there was nothing in the transaction to exhibit an understanding that the dwelling-house restriction was to be common to all grantees, and was to be inserted in all deeds for the benefit of the lands conveyed to the different'purchasers, or that each purchaser was to be burdened with his own and benefited by the other covenants. These features were declared by Vice-Chancellor Green, in the case of De Gray v. Monmouth Beach Club House, 5 Dick. Ch. Rep. 329, 340, to be essential to a scheme which would confer upon one grantee the right to enforce a covenant made by another grantee with the common vendor. v

The dwelling-house covenant is not to be found in all the. deeds executed by Lee and Disston, nor in all the deeds executed by Mary Disston, who is also a common grantor of land owned by the complainant and some of the land owned Toy the defendant, upon which a part .of its structure is to be built.

Mary Disston’s title to lots Nos. 1, 2 and 3 was, as already stated, conveyed by her testamentary trustees to the complainant in 1895. On October 15th, 1883, she being the then owner of lots Nos. 17 to 24, inclusive, upon which the building of the Female Academy of the Sacred Heart was afterwards placed, sold those lots to the academy. Her deed contained a covenant against the erection of buildings except for dwelling-houses, similar to the covenant already displayed. If this covenant was executed by Mary Disston for the benefit of lots Nos. 1, 2 and 3, then the complainant, standing in the attitude of a subsequent purchaser of those lots, has the right to enforce the covenant, unless precluded by some equitable consideration. The burden is upon the complainant to prove that the covenant was made for the benefit of these lots, and not merely for the benefit of Mary Disston. Substantially, in the language of Lord-Justice Bramhall, employed in the case of Master v. Hansard, 4 Ch. Div. 724, quoted by Vice-Chancellor Hall, in Renals v. Cowlinshaw, 9 Ch. Div. 125, the covenant must have been put in for the benefit of the purchasers of the remaining part of the land of Mary Disston, and not to enable her to make the most of her remaining property.

The purpose of a grantor, with whom a restrictive covenant is made, can, of course, be evidenced by the language of the covenant itself, or by other language in the deed which contains the covenant. It was so stated in the deed under consideration in the case of Rogers v. Hosegood, 2 Ch. Div. 388 (1900). Upon this ground the English appellate division, in that case, enforced a covenant entered into by a preceding grantee at the suit of a subsequent purchaser of the remaining land of a common grantor.

So, in the case of Coudert v. Sayre, 1 Dick. Ch. Rep. 386, a grantee, in addition to the restrictive covenant, further covenanted that the restrictive covenant should be enforceable, not only by the grantor, his legal representatives and assigns, but also by the’ owners of any of certain other designated properties of the grantor. This restrictive covenant was held to be valid, and a subsequent grantee of a portion of the specified land was held to be entitled to the benefit of it.

Upon inspection of the deed made by Mary Disston to the Academy of the Sacred Heart, nothing appears to indicate that the dwelling-house restriction was for the benefit of anyone other than the grantor.1 Nor is there any provision for the insertion of similar covenants in other deeds to be made by the grantors. When we look for any other feature of the transaction which would disclose an intention that the covenant should attach to and be for the benefit of the other land'of the grantor, there is entire absence of any evidence.

The absence of a general scheme in the sales made by Mary Disston is even more pronounced than in the sales made by Lee and Disston. In fact, when she made the deed to the academy, she had already sold portions of lots 4, 5 and 6 without any dwelling restrictions.

The complainant’s case rests upon the one fact that at the time Mary Disston conveyed to the academy she was the owner of land separate from the land so conveyed. In the absence of any words in the deed to that effect, or any reference to a plan showing a general scheme for improvement, and that the grantee took the land with notice, express or implied, that the restriction was intended for the benefit of the remaining land, no right to sue passed to the subsequent grantee. Skinner v. Shepard, 130 Mass. 180.

But even if such a scheme had appeared either in the sales by Lee and Disston or by Mary Disston, the question would remain whether the complainant is not precluded from now enforcing against the defendant the restriction against the erection of buildings to be used as boarding-houses.

As was pointed out by Vice-Chancellor Emery in Trout v. Lucas, 9 Dick. Ch. Rep. 361, in the absence of any privity between the complainant and defendant, the right of the former rests upon a basis which is purely equitable. In two classes of cases courts of equity refuse the remedy by injunction—first, when the person imposing the restriction has allowed or acquiesced in material violations to the covenant, thus waiving the covenant pro tanto; and second, where the party injured has not made prompt application for relief and has permitted money to be expended. In the case of Trout v. Lucas, the complainant was a subsequent purchaser trying to enforce a restrictive covenant contained in a prior deed made by a common vendor.

As I have already stated, the restrictive covenant against houses other than dwellings, if violated by using a building as a boarding-house, had been violated by other grantees of Lee and Disston. Hpon lot No. 10 was the Glasslyn, a boardinghouse with a capacity for about two hundred guests, and upon lot No. 13 the Chatham, a boarding-house with a capacity for about one hundred and fifty guests; the former had been used as a boarding-house for about ten years and the latter for at least that period. There were other boarding-houses upon other lots which were conveyed free from the dwelling-house restriction, and the neighborhood is one largely devoted to boardinghouses and hotels.

Now it is true that not every permitted infraction of the terms of a restrictive covenant will preclude the enforcement of it or other covenants. In Knight v. Simmonds, 2 Ch. Div. 294. (1896),there were restrictions against allowing any trade or business on the lots sold. The defendant proceeded to erect a large laundry upon the lot purchased by him, with the intention of carrying on the business of a laundryman. In a suit to enjoin him, the defence set up that laundries had been carried on for years without objection, and that some other trade also had been carried on for a length of time. Mr. Justice Romer found that such breaches of the scheme and covenants were trivial and privately carried on,, and that there had been no acquiescence on the part of the residents in the breach of the scheme, and denied an injunction. On appeal the decree was affirmed, Lord-Justice Lindsley saying that the case fell within German v. Chapman, 7 Ch. Div. 271, and not within Duke of Bedford v. Trustees of British Museum, 2 Myl. & K. 552 and Peek v. Matthews, L. R. 3 Eq. Cas. 515.

In German v. Chapman, supra, it was covenanted that no building should be used or occupied otherwise than as and for a private residence only, and not for any purposes of trade. Defendant proposed to erect a large building capable of holding one hundred girls, the daughters of missionaries, who were to be boarded, lodged and educated there and supported by voluntary contributions. This' was held to be in breach of the covenant. The defendant proved that the vendors had recently given permission to another purchaser to open a boarding-school for boys on the estate near the boundary of the property, which school was capable of accommodating about eighteen boys. This was held to be no waiver of the right to enforce the covenant by the complainant.

In the present case, however, there is something more than an acquiescence in a trivial violation of the covenant in respect to-dwellings. The two boarding-houses, the G-lasslyn and the Chat-ham, were, it is true, not so large as the house which the defendant proposes to build, but they were of a size.to challenge-attention as distinctive boarding-houses. They were, it seems, built and enlarged for that purpose. Their character was indicated by sigps. They were located adjoining the defendant’s lot. In addition to the presence of these houses under the conditions already displayed, with the acquiescence of everyone, including-the complainant himself since 1895, there is the evidence of the user by the complainant of Disston cottage and of the attitude-of the complainant towards the property upon which the new building is to be placed, and towards its owner.

It appears that Louis T. Bryant who sold to John J. White, who sold to the defendant, the Marlborough Hotel Company, bought the property from the Female Academy of the Sacred Heart. The building upon the land had been used in part as-a boarding-school while owned by the academy. Mr. Bryant got his title on May 31st, 1900'. Mr. Bryant says that after he had made his agreement for the purchase of the property and had paid $500 as a consideration, he met the complainant on a train; the complainant, he says, alluded to his purchase of the property,, and Bryant asked him if he did not consider it a good hotel site, to which question Mr. Hemsley, the complainant, replied, “Yes” and called Bryant’s attention to a restriction against building more than two hundred feet beyond the southerly line-of the Sparks lot, or within fifteen feet of the westerly side-of Park Place. This restriction was contained in the deed from Mary Disston to the Academy of the Sacred Heart, and was made for the benefit of the vendor and her heirs.

Mr. Bryant says that he' next saw Mr. Hemsley in the fall after he had paid $2,000 of the consideration, and he asked Mr. Hemsley if he would consent to a porch outside of the two-hundred-foot limit, and Mr. Hemsley refused to do so.

As already observed, Mr. Bryant took possession of the purchased property on June 1st, 1900, and ran the Waverly Villa during the season. Mr. Byrant says that, in the last part of the summer of 1900, Mr. Hemsley told him that he thought the property was a good site for a hotel; that if he had a hotel with enough baths in it he should do well. He further said that if Bryant would bring the plans over he would look over them. Afterwards,. Mr. Bryant received a proposition from Mr. White to form a hotel company. Mr. Bryant says that he consulted Mr. Hemsley about the proposition, who told him that it was a serious matter, about which Mr. Bryant should consult a lawyer, but that he did not see how he could lose anything by the proposition. Bryant afterwards accepted the proposition, and the Marlborough Hotel Company was formed, of which corporation Mr. Bryant holds a large block of stock.

Just before he closed with this oilier, he says he spoke to Mr. Hemsley about the dwelling restriction, and Hemsley said that there were a good many hótels on that side of the street, to which Bryant replied that it was difficult to get money on a mortgage with a restriction upon the property, and asked Mr. Hemsley if he would have the restriction removed, and Mr. Hemsley referred him to his lawyer..

After Mr. Bryant had conveyed his title to White, Mr. Hemsley ■sent for Bryant, and asked if they were going to build a hotel, and was informed that they were. Mr. Hemsley then said 'that there might be some trouble over the dwelling-house restriction.

Mr. White got his title from Bryant on March 14th, 1901, and the next day conveyed to the corporation. He began work ■on March 25th upon the property. He had called upon Mr. I-Iemsley in August, 1900, about the restrictions, and told Mr. Hemsley that he would like him to agree to a line a little nearer the ocean than the two-hundred-foot limit, and Mr. Hemsley referred him to his lawyer, Mr. Thomas, of Philadelphia. He called upon Mr. Thomas, who said that Mr. Hemsley was unwilling to allow the building to go nearer the ocean than the two-hundred-foot line. As to the other restriction Mr. Hemsley was disposed to view more favorably, but wished to have a modification of the liquor restriction, so that he could use Disston Cottage as a part of his own hotel. White prepared an agreement releasing the liquor restriction, and wrote to Thomas on September 5th, stating the necessity of expedition in the matter. To this letter he received a reply from Thomas, notifying him that Hemsley would resist the erection of the hotel. White saw Thomas at once, without coming to any understanding, and again saw Thomas in November, and in the conversation between them Thomas said, “Why have you not gone ahead with your hotel? Mr. Hemsley expected your hotel to be well under way by this time.” When asked why then he had written the letter, he replied, “You wrote a letter which seemed to require an answer, and you got it; but Mr. Hemsley has no intention to interfere with you.” Thomas then said he was g<5ing to Europe, and affairs so remained until his return.

Mr. White again called upon Mr. Thomas, in response to a letter received by him on March 4th, 1901. At this interview he offered Thomas $7,500 for the privilege of extending the proposed building five feet beyond the two-hundred-foot line. He was afterwards told by Mr. Thomas that Mr. Hemsley declined the proposition. Mr. White then told Mr. Thomas that he would respect the line, to which remark Thomas made the reply that he was wise in so doing, and discussed the size of the house to be built, and told Mr. White he hoped he would be as successful with it as Mr. Hemsley had been with his. Thereafter the work proceeded on the new building—the old building having been removed—and on May 17th a letter was received, asking the intention of the defendant as to the kind of building to be erected and the purpose for which it was to be used, and protesting against the violation of any covenant by the defendant. A reply was sent to Mr. Hemsley on May 31st, setting forth the size, location and purpose of the new building. To this letter no reply was received.

At the time the notice was received work which had cost $4,257 had been done upon the ground and the foundation of the structure had been built. No intimation was received that the statement of the kind of building, its place and purpose, was not satisfactory to Mr. Iiemsley. On June 28th he began this suit. At that time contracts had been entered into for the construction of the edifice, and the work of construction proceeded with by the contractor.

From facts that are undisputed it appears that Mr. Iiemsley was informed by Bryant that he had bought the property for the purpose of building a hotel or boarding-house about the time of the purchase, and that the building was to be erected upon the site where Bryant carried on business in the Waverly Villa. The conversations with Mr. Iiemsley detailed by Mr. Bryant are practically undenied. Mr. Iiemsley does say that he did not give Mr. Thomas specific instructions to tell White that he (Ilemsley) had no intention to interfere with the erection of the building; but he does not deny that he referred Mr. Bryant to Mr. Thomas as a lawyer who would express Mr. Hemsley’s views respecting the restrictions.

Now, I would not attribute much force to casual conversations between Mr. Iiemsley and Mr. Bryant which did not contain an express waiver of some particular restrictions, followed by a change of position induced by such waiver. But, taking the whole course of conduct of Mr. Iiemsley and Mr. Thomas, I am constrained to the conclusion that the former is disentitled to ask aid of this court in arresting the defendant’s work.

The point of objection in the earlier talks was against an extension of the proposed building beyond the two-hundred-foot line, and this was the main point of discussion in all the subsequent conversations. It is true that there was a refusal to discharge the dwelling-house restriction; but, from the whole tone of the conversation, it is apparent that this refusal was intended for the purpose of getting a discharge of the liquor limitation, rather than for the purpose of defeating the erection of a hotel. The agreement drawn for the purpose of discharging the land from the restriction against the sale of liquor would, I have no doubt, have been executed had not Mr. Thomas gone abroad in the fall. Why it was not done in the spring does not appear; but it does appear that the conversation between Mr. Thomas and Mr. White, after the return of the former, was calculated to lead the latter to think that so long as he kept within the prescribed line there would be no-trouble. I do not think.it would now be equitable, after the loss of time and expenditure of money, induced, in á great degree, by at least a vacillating and uncertain attitude in respect to this restriction, to enforce it by injunction.

The bill is dismissed.


author: Retsd, V. C.

text:
    Lavinia Wescoat v. John R. Wilson et al.
    [Filed August 26th, 1901.]
    Upon the facts shown in this case—Held, that the complainant is equitably estopped from insisting that she has any interest in the land of which she asks a partition.
    On bill for partition.
    In 1874 there was a tract of land in Atlantic City, Atlantic county, in this state, consisting of ninety-five acres, the title to which had been in Ryan Adams and Joseph D. Showell as tenants in common. By force of certain conveyances, upon the death of Ryan Adams the title to a one-half interest in this tract came to his wife, Judith, for life, with remainder to his son Josiah Adams, his daughter Lavinia Showell (nee Adams), his grandson John, child of his deceased son John, and his grandson Daniel, son of his deceased son Daniel Ryan Adams. Thus in 1874 Joseph D. Showeil held a one-half interest in the tract and Ryan Adams’ son Josiah a one-eighth interest, his daughter Lavinia, who was the wife of Joseph D. Showeil, a one-eighth interest; his grandson John a one-eighth interest, and his grandson Daniel a one-eighth interest.
    At the term of the Atlantic county orphans court, held September, 1874, Josiah Adams presented a petition for a partition of the said tract among himself and Lavinia Showeil, John and Daniel Adams. Commissioners were appointed who made a report setting off four parcels of the said tract to each of the said four persons. Joseph D. Showeil was not made a party to this proceeding. There was no part of the tract set off to him in the report and a large portion was left unmentioned lying to the east of .a line, which line I have no doubt was intended to divide the whole tract into two parts of equal value. This line ran north and south. The part of the entire tract lying west of this line was set off into four lots marked upon the map of the commissioners as lots A, B, C and D. Lot A was set off to Lavinia, the wife of Joseph D. Showeil; it lay along the whole length of the division line already mentioned between it and another line drawn parallel with it. The other three lots set off were all to the west, between successive lines drawn across the tract from north to south parallel with the main division line.
    The complainant now seeks to have a partition of that portion of the land .unmentioned in the former partition' proceedings. The complainant is a grantee of Lavinia under a deed made by Lavinia, dated May 7th, 1894, after the death of her husband in September, 1893. Lavinia died July 13th, after making this deed of May 7th, 1894. Lavinia originally had, as I have already observed;, a one-eighth interest in the entire tract. If her interest in the easterly half of the tract was unaffected by the partition of 1874, she would still have had a one-eighth, and her grantees of course have her one-eighth interest in the locus in quo. They claim, however, that they are entitled to a one-half interest, the remaining three-eighths interest having become vested in Lavinia by certain quit-claim deeds executed in 1887.

      The history of the quit-claim deeds is as follows: In 1887 Frank R. Walton bargained with Joseph D. Showell for the purchase of a lot of Joseph D. Showell’s which was located on that portion of the original tract unmentioned in the report of the commissioners. Walton’s attorney, while searching the title, discovered the fact that Showell had not been made a party to the partition proceedings of .1874, and that this part had not been .set off to him in the report. Before passing the title he insisted that the interest of the other tenants in common should be quit-claimed. This was done by quit-claim deeds from these tenants, to whom lots A, B and C had been set off, they together owning .a three-eighths interest. The deed was made to Joseph D. Showell and his wife, Lavinia. Joseph D. Showell and Lavinia Showell then owned the entire title, she having already a one-eighth and he a half interest. The quit-claim deeds conveyed the remaining three-eighths interest, and they together were entitled to the entire interest in the tract sold to Walton.
    At the time these quit-claim deeds were given to Joseph D. and Lavinia, cross deeds were made to the quit-claimers by Joseph D. Showell and his wife of all interest which they might have in lots B, C and D. The quit-claim deeds were dated November 2d, 1887.
    The interest of Joseph D. Showell was passed under his will to his sons John and Jeremiah. John sold his interest to John E. Wilson, defendant, and Jeremiah sold his interest to Sweeney and Doughty, defendants.
    The complainant and those in interest with her claim as owners •of Lavinia’s interest in the land lying east of the division line ■already mentioned.
    Under these conditions the defendants, in their answer, deny that the complainant has any title to the locus in quo (1) because of a possession in her and her predecessors in title for twenty years; (2) because the complainant is equitably estopped from claiming any interest in this tract, by reason of her acquiescence in the resrxlt of the partition of. 1874, and (3) that the effect of the quit-claim deeds heretofore mentioned stripped the present complainant of all title in the locus in quo.

      Mr. William M. Olevenger and Mr. Marie B. Sooy, for the complainant.

      Messrs. Godfrey <& Godfrey and Mr. David J. Pancoast, for the defendants Somers L. Doughty and Edward M. Sweeney.

      Messrs. Thompson & Cole, for the defendants John R. Wilson, Isabella L. Thompson, Joseph Thompson, John Showell and Jeremiah Showell.
   Retsd, V. C.

The single equitable defence set up is that the complainant is equitably estopped from insisting that she has any interest in the land which she asks to have partitioned. The other defencesinterposed are purely legal.

The equitable defence is that by reason of the conduct of those who owned the land, a part of which is sought to be partitioned, the complainant is precluded from asserting that Joshua B. Showell, at the time of his death, did not own the locus in quo by a title in severalty.

The existence of the partition proceedings taken in 1874 and 1875 are relied upon to give color to this conduct. It is undoubtedly true that those proceedings in themselves did not affect the interest of Joshua D. Showell. He was not named in the application for -the partition nor in the report of the commissioners nor in the order of the court. Nor is it clear that the publication of the statutory notice came to his knowledge so as to apprise him of the land which the applicants desire to have partitioned. The error of those who initiated the partition proceedings consisted in a failure to set out that the Ryan heirs each owned a one-eighth interest in the entire tract. In the application the land to be partitioned was mentioned as Ryan’s—he in fact having owned only a one-half interest—and it was stated that each of the Ryan heirs had a one-fourth interest, as in fact they had in the Ryan one-half interest. It did not appear on the face of the partition proceedings what the real interest of the Ryan heirs was in the property. The commissioners, however, proceeded to set off to each of the Ryan heirs a portion in severalty. They first divided the entire tract into two portions for the purpose of giving Joshua D. Showell one-half of it in severalty, and the other half was regarded as belonging entirely to the Eyan heirs. They then proceeded to divide the last portion into four tracts, one of each was assigned to each of the Eyan heirs. Inasmuch as Joshua D. Showell was not bound by the result of the judicial proceeding, so, for want of mutuality, the Eyan heirs were not estopped from asserting their former interest in the land.

Although, as already remarked, this proceeding was ineffectual to affect Joshua D. ShowelFs interest in the land, nevertheless it, by subsequent recognition by all the parties, became the equivalent of a parol partition. From 1875 to 1887 there seems to have been no question raised as to the character of the title held by each of the Eyan heirs and by Joshua D. Showell by force of this proceeding. It was assumed that each held in severalty. There was no actual occupancy by the respective parties of the respective portion by metes and bounds, for the land was of a character not calling for personal occupancy. The assertion of an ownership in severalty, however, was manifested by conveyances made by Joshua D. Showell in conjunction with his wife, Lavinia, one of the Eyan heirs, and by two of the other Eyan heirs. Joshua D. Showell and Lavinia, on January 28th, 1878, conveyed a part of the tract set off to Joshua D. Showell to Benizet Irons and others, trustees of a church. This deed purported to convey and warrant a complete title to the portion so sold. Joshua Adams, one of the Eyan heirs, to whom lot D had been set off, sold this lot to Lewis Eeed by a deed dated January 13th, 1875. This deed refers to the partition proceedings and purports to convey and warrant a complete title. John E. Adams, another of the Eyan heirs, on August 19th, 1881, conveyed a lot, being a portion of the land set off to him, to John Ferrat. He also conveyed on April 3d, 1882, another lot from the same portion to James C. Bowen, and on October 30tfy 1882, still another lot from the same portion to Harriet L. Noble. He conveyed the remaining portion of this part to Thomas K. Eeed and Mittee Gardner on April 21st, 1883. All these deeds refer to the partition proceedings, and purport to convey a complete interest in the land sold.

Daniel Adams, the remaining Ryan heir, to whom lot C had been apportioned, died in about ten months after the partition proceedings terminated, leaving as his heirs Lavinia, wife of Joshua D. Showell, and Joshua A. and John Adams.

It was insisted at the hearing that these acts of the Ryan heirs were irrelevant. The Ryan heirs were, however, the predecessors in title of the complainant, in respect of a three-eighths interest in the land in question, alleged to arise from the quitclaim deed made in 1887. Their acts are also relevant as done through the influences of Showell’s acts and so creating an estoppel, to be presently discussed. As I have remarked, from 1875 to 1887, it was assumed by all the parties that the effect of the partition proceedings was to confer upon the Ryan heirs a title to the portion set off to them in severalty, and to leave-Joshua D. Showell, in the one-half left to him, also a title in severalty. In 1887 the quit-claim deeds were executed.

Joshua D. Showell and wife had entered into an agreement to sell a portion of the land left to Joshua D. Showell to Frank R. Walton. Judge Thompson, the attorney of Mr. Walton, on examining the partition proceedings discovered that Joshua D. Showell was not a party. To set at rest any doubt in respect to Showell’s title, he insisted upon quit-claim deeds from all others who might have an interest in the property, in case the partition proceedings were inoperative. So, as already observed, a quit-claim deed was signed by Sarah B. Adams, widow and devisee of Joshua Adams, and by John R. Adams, quit-claiming their interest in lot A and their interest in Joshua D. Showell’s half. This left the title of lot A and in Joshua D. Showell’s portion in Joshua D. and Lavinia. At the same time Joshua D. and Lavinia made deeds quit-claiming their interest in lots B, C, and D to Sarah Adams and John R. Adams in one deed. At the same time they also quit-claimed their interest in lots B and D to Thomas K. Reed, he then being their owner. These quit-claim deeds were signed manifestly, not because the parties to them had supposed, or even then thought, that they had any interest to release. Joshua D. Showell and Lavinia, when asked to make the quit-claim deeds, insisted, says Judge Thompson, that the Ryan heirs had no interest in the land which they had agreed to sell to Walton. All the parties .signed the quit-claim deeds as an act of civility which would set at rest any doubt as to Joshua D. ShowelFs title and enable him to sell his land, while not affecting any interest which they had suspected themselves to possess. Indeed the execution of these deeds was in itself confirmatory of the partition which had been made and assented to.

After the execution of these quit-claim deeds the only question left was in respect to the quality of the ownership to lot A, which had been set off to Lavinia, and the one-half left to Joshua D. Showell. The insistence by both husband and wife, when the quit-claim deeds were made, that no one other than themselves had an interest in the portion proposed to be sold, involved the proposition that Lavinia held lot A and Joshua D. his portion in severalty. If the interest of the other Ryan heirs in this land had been discharged, it must have been by operation of the partition proceeding, and the assertion of the husband and wife must have been based upon their so understanding the effect of that proceeding. If, however, that proceeding was operative to shift the undivided interest which the other Ryan heirs had held in the Showell portion to a several title to each portion set off, it followed that it also shifted Lavinia’s interest to a several title in lot A. Every act of the husbánd and wife which recognized the ownership in severalty of any of the Ryan heirs, asserted the same ownership of Lavinia to lot A and so left Joshua L>. the owner in severalty of the remainder. ' ■

But, treating these recognitions of the binding quality of the partition proceeding as equivalent to a parol partition, nevertheless they would not change the undivided interest in the entire tract into interests in severalty in the apportioned tract. A parol partition encounters the provisions of the statute of frauds. It was so held in the case of Den, ex dem. Woodhull & Longstreet, 3 Harr. 405, followed by Lloyd v. Conover, 1 Dutch. 47, and Den, ex dem. Richman, v. Baldwin, 1 Zab. 395.

Nor will mere possession by each co-tenant of the part set off to him, short of twenty years, establish a parol partition. It was, however, admitted in Den, ex dem. Richmond, v. Baldwin, supra, that cotenants may lie estopped by their acts from asserting that there was no partition, although there is no technical estoppel by record or any written conveyance.

The question of estoppel in pais, in connection with a parol partition, received an exhaustive discussion in the federal circuit court of appeals, in the case of Berry v. Seawall, 65 Fed. Rep. 742. In that case one of the co-tenants conveyed the portion set off to her in severalty by a deed with general warranty title. Another branch of the co-tenants sold nearly all of their portion with covenant of general warranty. Judge Taft, speaking of the co-tenant who set up the invalidity of this partition (admittedly improvable by the statute of frauds), said that she had shown by her conduct that she did not intend to claim any interest in the share of land assigned in the partition to her co-tenants; and she made this representation irrevocable by taking to her exclusive benefit the grant assigned to her and selling it in its entirety to another. Eelying on her consent to the partition and her active participation in appropriating its fruit, her co-tenants made themselves liable under covenants of general warranty to their grantees, and for thirteen years there was nothing said or done to disturb the confidence her co-tenants had justly reposed in the permanency of the partition.

The court held that the question of estoppel should have been left to the jury upon these facts. In that case it is true that possession was taken by the co-tenants of the assigned parts. In this case there is no proof of such possession, but the assertion of a right in severalty, and to the right of an exclusive possession against all co-tenants, could not have been stronger than by the deeds executed by them. Said Mr. Justice Depue, in Foulks v. Bond, 12 Vr. 527, 540: “The conveyance by one tenant of the estate in entirety is decisive of his purpose to appropriate the entire estate to his own use, especially if his deed contained covenants of warranty and seizin.” These deeds, however, were not merely the assertion of exclusive possession, not mere recognition of the potency of the partition proceeding, but their execution created an estoppel in pais. The -estoppel arises upon the principle stated by Judge Taft, that the assertion of ownership in severalty induced the other co-tenants to bind themselves by a general warranty of a title in severalty in themselves.

After the execution of the quit-claim deed by which all the interest in lot A and in Joshua D. Sliowell’s portion was lodged in Joshua D. and Lavinia, the former asserted a title in severalty to his portion. On February 18th, 1892, he made, in his name, a lease to the Atlantic City Railroad Company, granting them a right of way over his land. On December 3d, 1892, he made a lease to Winfield Lauermaster. In this lease an option was given to the lessee to purchase the land leased. Lavinia joined in executing neither of these papers.

The evidence is undenied that during the later years of Joshua’s life his business affairs, on account of his invalidism, were administered by Lavinia. Without doubt these papers were executed not only with her knowledge and consent, but through her active negotiation.

Now it is to be observed that the only reason why Lavinia was not estopped by the partition proceeding to which she was a party, is because Joshua was not estopped, and so the estoppels were not mutual. It may be that he, by his recognition of the validity of this proceeding, supplied that mutuality.

But regardless of this view, she, by encouraging and countenancing his contract to make a sale of a portion of the property estopped herself from setting up that he had not the title which he thus bound himself to convey. Reciprocally her husband had no interest in lot A which she held in severalty. Her heirs so treated this lot, and after her death had it partitioned as property held by Lavinia in severalty by force of the partition proceeding of 1874 and 1875. Nor do I think the estoppel fails because of the coverture of Lavinia. The general rule undoubtedly is that a married woman can estop herself in pais in respect of a matter about which she can contract. Husbands -and wives, coparceners at common law, who agreed to a partition which was fair, were bound by the apportionment, and so w;ere their heirs. This was held to be so because a married woman was compellable at common law to make partition. Freem. Co-ten. & P. § 412. Upon this ground, in Berry v. Seawall, supra, it was held that a married woman could preclude berself from questioning a parol partition by conduct amounting to an estoppel in pais.

I am constrained to the conclusion, therefore, that the bill should be dismissed for the reasons stated.


author: Reed, Y. C.

text:
    Henry R. Reed v. John J. Rochford et al.
    [Filed October 4th, 1901.]
    A mortgage given for a precedent debt on property on which alterations are being made, without notice thereof, is a mortgage in good faith, within the Mechanics’ Lien act, so as to entitle it to priority over the mechanic’s lien subsequently filed.
    The complainant filed a bill in this cause to foreclose a mortgage of $2,000. The question now litigated involves the relative priorities of this mortgage and a mechanic’s lien; filed by Prank J. Souder against the mortgaged premises. The mortgage was executed on February 15th, 1900, and recorded March 14th, 1900. It was made by John J. Rochford to Allan D. Endicott. It was assigned by Endicott to Henry R. Reed, the complainant, on June 11th, 1900, for the sum of $2,000, which was then paid.
    On February 10th, 1900, John J. Rochford contracted with Frank J. Souder for certain alterations in the building upon the mortgaged premises to be made by the latter. On September 14th, 1900, Souder filed a mechanic’s lien for the said work, upon which lien judgment against the owner and builder was entered in the Atlantic circuit court on December 19th, 1900, for the sum of $10,413.12. The mortgagee was a party to the actiou and filed a plea, the issue raised by which is still undetermined. . .

      The mortgage was given to Judge Endicott in payment- of $100 for previous professional services; the mortgagee also received $400 as a loan previous to the execution of the mortgage; $1,000 were paid the day after the assignment was made to Mr. Reed, and the balance about thirty days thereafter. The work on the alterations beginning on March 8th, 1900, continued until June 30th following.

      Mr. George A. Botirgeois, for the complainant.

      Mr. William I. Garrison, for the defendant.
   Reed, Y. C.

• It appears that $500 were due to Judge Endicott, to secure which this mortgage was in part made. About June 12th, 1900, another $1,000 was advanced on the mortgage, and about July 12th, 1900, $500 more. The last $1,900 was advanced after the alterations were begun, but before the mechanic’s lien was filed. It appears that the mortgage was given in part for future advances. Eochford swears that the instrument was given to Judge Endicott for moneys that he had advanced and what he would advance. The mortgage was, therefore, so far as the testimony discloses, given to secure $2,000, a part of which, by a cotemporaneous parol agreement, was to be advanced after its execution and delivery.

Such a mortgage is a potential lien for the full amount of the advances contemplated. It is not necessary that it shall appear upon the face of the mortgage that it is to secure future advances, so long as the advances are not in excess of the amount to be secured as stated in the instrument itself. 1 Jones Mort. §§ 374, 376; Griffin v. New Jersey Oil Co., 3 Stock, 49, 52; Bell v. Fleming’s Executors, 1 Beas. 13. Is this mortgage, in its entirety, a lien prior to the mechanic’s lien ? As already observed, thd lien claimed by the mechanic is for alterations. The tenth section of the revised Mechanics’ Lien act of 1898 (p. 588) provides that liens for repairs and alterations shall not be valid against a bona fide purchaser or mortgagee before such lien is filed in the office of the clerk of the proper county.

The fact that, at the date when the advancements were made, the alterations were in progress, does not destroy the bona fides of the mortgage. There is no evidence whatever that the mortgagee had actual knowledge of the fact. In the case of an erection or an addition, notice is imputed to any subsequent encumbrancer as soon as anything is done which would apprise an observer that a building is commenced. Knowledge is imputed to everyone who might see, if he looked, that which would notify him of the commencement of the erection or addition.

But, in cases of reparation or alteration, it requires actual notice of the beginning of such work before a subseqeunt mortgagee or purchaser is subordinated to a lien for such work. Filing of the contracts for such work is not notice. In the absence of súch actual notice, all moneys advanced before the actual filing of the mechanic’s lien are secured by this mortgage.

Nor does the fact that the $100 for professional services and the $400, the amount of the previous loan, were a pre-existing debt at the time of the execution of the mortgage, render the mortgage, pro tanto, invalid as against the lien of the mechanic.

After some contrariety of decision as to whether a security given for a precedent debt is bona fide, it was definitely settled, in the case of Knowles Loom Works v. Vacher, 28 Vr. 490, after-wards affirmed by the court of errors, that a mortgage for a precedent debt without notice was bona fide, and that only where the statute requires that it should be not only bona fide, but for value, would the fact that it was given for an antecedent consideration affect it.

I will advise a decree in which the mortgage is given precedence over the mechanic’s lien.