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    James B. Mott v. The Newark German Hospital &c. et al.
    1. In a foreclosure suit begun more than a year after the death of a decedent mortgagor, a proof of claim exhibited against the estate of the decedent cannot be set up as- a lien on the mortgaged premises.
    2. Where an executrix is also a devisee, and a judgment is recovered against her as executrix, eo nomine, upon a claim against the decedent’s estate, the judgment is no lien either upon the estate of the decedent or upon the estate which came to the defendant not as executrix but as devisee of the lands of the testator.
    3. An assignment of a bond and mortgage for a presently paid consideration, executed under seal, duly acknowledged and delivered for the purpose of pledging the bond and mortgage as security for the payment of a debt, is an effectual pledge, although manual delivery of the bond and mortgage may not have been made. ' "
    4. An estoppel will be worked not because the loss to the party injured was a succeeding event to the act or omission of the party to be estopped, in dealing with the subject-matter of the transaction, but because the act or omission of the party to be estopped was a moving cause which led the party injured to do the act or into the position resulting in the loss.
    5. Under the statute (Rev. p. 708 & 82), the recording of an assignment of a mortgage is notice, from the time the assignment is left for record, to all persons concerned, that the mortgage is assigned. A subsequent assignee of the mortgage is a “person concerned,” within the meaning of this statute, and must be held to have had constructive notice of the previous assignment from the date when it was deposited for record.
    On bill, answers and proofs.
    This is a foreclosure suit, making the Newark German Hospital the-holder of the title, and several subsequent mortgagees and a judgment creditor parties defendant, and praying foreclosure of sale of the mortgaged premises in the usual way.
    The matters in dispute arise out of the claim of the two parties, the complainant, Mott, and the defendant Somerville, to the ownership of a bond and mortgage upon a house and lot in Newark, and a claim of the priority of a judgment over the second and third mortgages.
    John Hartman and Helena, his wife, made the mortgage in •question to Phoebe I. King and others, executors &c., to secure the payment of $700. It was recorded December 31st, 1885. On October 23d, 1886, the mortgagees assigned the mortgage to Isaac W. King. This assignment was recorded November 22d, 1886. King applied to one Sayre, who was a friend of the •complainant, Mott (with whom King was unacquainted), for a loan of $1,000 on two mortgages (one of them the Hartman mortgage) which he said were “gilt-edged securities.” Sayre took him to' Mott, who made the loan, actually paying to King .$980, receiving King’s note at four months, retaining $20 discount of the note, and also receiving in accordance with the contract of loan an assignment of the bond and mortgage in •question..
    Mott asked King for the mortgage, but he said the assignment was sufficient security, and, without i’efusing to deliver it, •evaded doing so. This transaction took place April 29th, 1890. The note was not paid, but was often renewed, the last renewal •coming due January 9th, 1892, after which time King paid no .attention to it. Immediately after King took this position of indifference, Mott, and his friend Sayre for him, demanded from King the possession of the mortgage. These demands began when the renewed note was not paid, about January 9th, 1892, .and seem to have been frequently repeated — Sayre swears “ perhaps fifty times.”
    King never denied Mott’s right to it, but postponed and .avoided compliance by various excuses. After King’s failure to pay the last renewed note, Mott, on February 5th, 1892, recorded ,liis assignment of the mortgage.
    Mott also went to see Mrs. Hartman, one of the mortgagees, showed her his assignment, forbade her to pay principal or interest to anyone else, was by her referred to her' business man, Mill, and also showed him the assignment and explained the situation to him. As King paid nothing on the loan, Mott recovered judgment against him, for $1,234.83, in Essex circuit court, and issued.execution, which was returned-bona. It seems to be undisputed that King is insolvent and financially irresponsible.
    In the spriug of 1893, on March 25th, about three years after the assignment of the mortgage by King to Mott, and one year after Mott had recorded his assignment, King, obtained the defendant Somerville to loan him $325 upon the security of an assignment of the Hartman mortgage* the one now in question, and another mortgage.
    The loan was afterwards paid off, was renewed by Somerville, and finally, at King’s request, in the fall of 1893, Somerville purchased the Hartman mortgage from King outright for $425. Previous to the taking of the assignment on March 25th, 1893, Somerville had his lawyer examine the record for assignments of the mortgage, and received an assurance from him to the-effect that there was none on record. He had another search made before he made the absolute purchase of the mortgage,'with like result. Before the time of this earlier search, the assignment from King to Mott was, in fact, on record* for the registrar’s certificate endorsed on it shows it to have been recorded on the 5th day of February, 1892, and it was admitted at the hearing that, in making the searches, Somerville’s representative-did not see this record of Mott’s assignment. At the time of the first negotiations between Somerville and King for the-loan, Somerville was taken by .King to Mill, the business man for Mrs. Hartman. Somerville swears he told Mill that he was about to take an assignment of the mortgage, and Mill said that would be all right • that- he would pay the interest as it matured. Somerville does not testify that he told Mill he was about to take an assignment of the mortgage from King. • Mott appears to have been a stranger to both Mill and Somerville, and as Mill was not told by' Somerville from whom he expected, to take an assignment, Mill had no reason to believe that there might be two claimants to be owners of the mortgage, as his conversation with Mott was held probably a year before his talk with Somerville. The latter is not shown to have seen Mrs. Hartman, the mortgagor, at any time. Somerville, after the assignment to him, did collect the interest from Mill, who paid it as executor of John Hartman, the deceased mortgagor. The first time that Somerville heard that Mott had or claimed any interest in the mortgage was less than a year prior to April 1st, 1896, when the parties desired to pay off the mortgage, and Somerville went to get the money and was notified that the mortgage belonged to Mott. The latter appears to have heard of Somerville’s claim on the same occasion. Under these circumstances the defendant Somerville claims that he is the owner of the Hartman mortgage.
    A collateral question is raised by the answer of the defendant Gottfried Krueger. The latter sold merchandise to John Hartman in his lifetime, and, this debt remaining unpaid, Krueger proved it as a claim against his estate in the hands of his executrix, Helena Hartman. On March 4th, 1890, he recovered a judgment against the executrix, in Essex circuit court, on this claim.
    .The defendant Krueger claims that the lands of John Hartman are subject to the lien of this debt and judgment, and were devised to Helena Hartman (John Hartman’s devisee of the mortgaged premises) with notice thereof, and that the lien of his debt precedes the lien of two mortgages made by Helena Hartman in her personal capacity (after title had vested in her as devisee of John Hartman), and now held by the defendant Marcus L. W. Kitchen and by Joseph M. Ward, administrator <&c., respectively.

      Mr. David Kay, Jr., and Mr. Henry H. Dawson, for the complainant.

      ■ Mr. Edwin A. Dayner, for the executors of the. defendant Marcus L. W. Kitchen. ;

      Mr.'Philemon Woodruff, for the defendant Alonzo Somerville.

      Mr. Michael T. Barrett, for the defendant Gottfried Krueger,
   Grey, V. C.

The defendant Gottfried Krueger has filed a proof of claim against the estate of John Hartman, deceased. Hartman was •in his lifetime the owner of the mortgaged premises, which, on his death, passed'by his devise to his surviving wife, Helena Hartman, and, on her death, passed by her devise to the defendant, the German Hospital. Mr. Krueger had also recovered a judgment on this claim against Helena Hartman, as executrix of John Hartman’s will. It is this claim and this judgment which Mi’. Krueger claims are liens against the mortgaged premises precedent to the two mortgages made by Mrs. Helena .Hartman in her lifetime.

• The act of December 2d, 1743 (All. L. p. 129), was, during the time that it was operative, construed to make the lands of a decedent liable to be sold under a judgment recovered against an executor or administrator without making the heir a party to the suit. Den, ex dem. Ely, v. Jones, Coxe *131. This enabled the executor, who was the only defendant, to let a fraudulent judgment be recovered which the heir’s land might be taken to pay. But section 18 of the act of February 18th, 1799 (Pat. L. p. 373), relieved from this embarrassment, and in terms declared that no lands of the testator or intestate should be in anywise affected by a judgment against an executor or administrator. The same statute provided for the application of the lands of a decedent to the payment of his debts by making it the duty of the executor or administrator to exhibit to the orphans court the condition of the estate, and directing that court thereupon to make an order to show cause &c. why the land should not be sold to pay debts. This statute is the basis of our present act providing for the sale of decedent’s lands for the payment of debts. That it was effectual to hinder a judgment against an executor from becoming a lien on the lands of the testator, is plainly shown by the adverse criticism of this provision by Mr, Griffith; in 1822. See 4 Griff. L. R. p. 1288, note. The force of this statute to prevent such a lien is fully recognized by the supreme court in New Jersey Insurance Co. v. Meeker, 8 Vr. 302. The judgment against the executor is therefore no lien on the lands which had been devised to the devisees.

Is the judgment sued out against the executrix, who is also a devisee, a lien on her estate as devisee ?

The capacity in which the defendant party is sued fixes the estate which is bound by the judgment, and the coincidence that the defendant who is sued as executrix, also happens to be devisee, does not extend the lien to charge lands so received from the testator. The claimant against the testator had. two modes, by either of which he could compel the lands of the testator to be taken for the satisfaction of his debt — first, by an. order of the supreme court, obtained by the testatrix within one year from the death of the testator, under the statute {Gen. Stat. p. 8370 § 70 et seq.); or second, by an action brought against the heir or devisee as such, under the statute (Gen. Stat. p. 1679), to fix their liability regarding the lands which had descended or been devised to him. Stone v. Todd, 20 Vr. 276; Dodson v. Taylor, 24 Vr. 200. It is for the creditor to choose which of these remedies he will use. Stone v. Todd, 20 Vr. 278. If the suit is against the devisee, it must appear to have been begun, maintained, recovered and entered against the defendant in that capacity, in order to comply with the statutory requirements. The devisee may be compelled to pay in the first instance, though there may be personal estate, which, in due course of administration, should be primarily liable. In such ease his remedy would seem to be to stand in the place of the creditor who forces him to pay, and reimburse himself out of the personal estate. Dodson v. Taylor, supra. To enable him to do this, there must have been a recovery against him as devisee, by which he must have been compelled to pay as devisee, because of the devise to him and not as executor out of the whole estate. The defences which the defendant Mrs. Hartman would make in the capacity of a devisee receiving lands from a testator, are wholly variant from those which she would make when sued as executrix. As to these defences, the defendant has not been brought into court to answer, nor has any judgment been pronounced which precludes her from asserting her rights as devisee.

There is no ground to justify the argument that the judgment is a lien on the lands of the devisee.

The counsel for the defendant Gottfried Krueger also insisted that, by reason of the proof of his debt against the testator to his executrix, Helena Hartman, the lands of the decedent became subjected to the lien of his claim, and that the same Helena Hartman, who took the testator’s lands as devisee, received her title with notice of this lien &c. If the claimant against a testator desires to make his money out of the real estate of the decedent, he must follow one of the modes prescribed by the statutes provided for that purpose. By the common law, the land of a deceased debtor was not liable for his debts. New Jersey Insurance Co. v. Meeker, 8 Vr. 295. The act of 1799, above referred to, charged the lands of the decedent with this liability, to be enforced in the mode indicated, through the action of the orphans court; but as it gave no protection to the creditor in case the heir or devisee had aliened the land before the executor took the action needed, the supplement of December 12th, 1825 (Harr. Com. p. 130), was passed, which declared that the lands of anyone dying seized should remain liable for his debts for one year after his decease, and might be sold &c. by order of the orphans court &c., any alienation or encumbrance made by the heir or devisee notwithstanding. See Gen. Stat. p. 3370 § 70. The testator, John Hartman, died July 22d, 1888. The defendant Krueger entered his judgment on March 4th, 1890. The mortgages made by the devisee, the priority of which is challenged by the judgment defendant, were both made within one year after the death of the- testator, and had- the judgment defendant been diligent in enforcing his remedies within the year, neither of these mortgages would have been deemed to be precedent liens to the title of a purchaser under an order for sale made by the orphans court. But the defendant Krueger suffered the year of limitation to expire without doing anything to compel the application of the lands to pay the testator’s debts, and thus lost the security of the statutory provision. When the creditor of the testator desires the benefit of this statutory charge, he can only take it subject to the limitations and by pursuing the methods of procedure required by the statute. If the executor does not act, the creditor has his remedy to compel action by obtaining judgment against the executor and forcing him to proceed to sell the lands as provided in section 79 of the Orphans •Court act. Gen. Stat. p. 8373.

Neither the judgment of the defendant Krueger nor his proven ■debt against the estate of the testator, John Hartman, is any lien on the mortgaged premises.

The main contention in the case is between the complainant, Mott, and the defendant Somerville, as to the ownership of the mortgage sought to be foreclosed.

That the previous holder, Isaac W. King, was the owner of the bond and mortgage in question, is admitted by all parties; that he assigned it to the complainant on the 29th of April, 1890, as collateral security for the payment of King’s note then discounted by Mott, who, in accordance with the contract of the loan, then actually paid to King $980, is either admitted or conclusively proved. It is also shown that King did not then deliver the bond and mortgage to Mott who asked for them, and that King evaded compliance, and to many repeated demands for actual delivery of the bond and mortgage made by Mott and his agent, Sayre, King replied that his wife objected, and a trustee who had charge of them refused to give them up &c.

In February, 1892, Mott recorded his assignment and about this time notified Mrs. Hartman, one of the mortgagors and the owner of the mortgaged premises, and álso her business man, Mr. Mill, of his assignment, and forbade the payment of either interest or principal to. anyone else.

It is the efficiency of this transfer of the mortgage from King to Mott, when asserted against the subsequent assignment of the same security by King, to Somerville, which is in question in this branch of this case.

Somerville attacks Mott’s title to the bond and mortgage upon several different grounds. He denies that Mott’s title'was perfected because no manual delivery of the bond and mortgage was made by King to Mott, though he admits a written assignment was made of them by King to Mott, for which Mott at the time paid King the full amount of the loan. If this criticism has any force, it must exist because of the circumstances attending the transaction between King and Mott, which took place several years before Somerville had any dealings with King. • This objection raises the question whether a full and formal assignment in writing of the bond and mortgage executed under the seal of the holder, for a valuable consideration then paid and delivered to the assignee,, is effectual to pass to the .assignee title to the bond and mortgage, by way of pledge, .without actual delivery of the latte;. Palmer v. Merrill, 6 Cush. 282, is cited by the defendant Somerville to sustain his claim that-an assignment in writing of a bond and mortgage is not effectual as a pledge without actual manual delivery of the bond and mortgage themselves.

There are in the discussion of that case dicta touching the general requirements of assignments of choses in action which seem to support the defendant’s contention. In that case a debtor, whose life was insured, marked on the policy an assignment and request to the insurers to pay part of the policy to the plaintiff to whom he was indebted, but he did not deliver either the assignment or the policy to the plaintiff. Shortly after the insured died. The administrator of the insured collected .the policy, and the plaintiff sued him for the portion claimed to be assigned. There was no delivery by the insured debtor to his. creditor, the plaintiff, of any evidence whatever of the transfer. Neither the assignment nor the policy ever left the possession of the insured. Chief-Justice Shaw held that the plaintiff acquired! no such interest in the policy as would support an action, declaring it to be impracticable to make a charge on a chose in action by an assignment which the assignor retained in his own possession. In the present case there was an actual delivery of a perfected assignment, and a payment therefor then made, of a full and valuable consideration, and with an undisputed intention at that time by that act to pledge the bond and mortgage, assigned. Other cases are cited to support the proposition that an actual delivery of the-bond, mortgage or other evidence of the chose in action assigned, is a proper and effectual mode of pledging it. This is not disputed. But no case has been cited where.it is held that an assignment expressed in terms applicable for the transfer of .a bond and mortgage intended to be.assigned, executed with all the formalities incident to such transfers, ackowledged so that it is capable of being recorded as the statute in such cases requires, paid for by a presently passing, valuable consideration, and the assignment delivered to the intended pledgee, is ineffectual to complete the pledge, solely.because the bond and mortgage are not actually delivered. Delivery is an essential feature in the making of .a pledge, in order that all persons who deal with the property pledged may be notified of the rights, of the pledgee by his possession. But possession cannot always be shown by an actual physical holding of the pledge.., Many articles may be -pledged which are no't susceptible of such visible holding, and the parties may pledge such’ property by acts indicating delivery which are .apt and proper to the nature of the thing .intended to be pledged, or in compliance- with .accepted usage, or with the requirements of law.

The rule has long been established and is now of universal acceptance, that the possession of the thing pledged may be according to the nature of the subject. Wilson v. Little, 2 N. Y. 443. If the subject of the pledge be of an incorporeal character, as a debt secured by a mortgage, possession may be given either by actual delivery of the indicia, of the debt &c., or by written transfer to the hands or power of the pledgee so as to be made available to him for the satisfaction of the debt. Goods at sea may be pledged by an assignment of the bill of lading, and debts and choses in action may be pledged by a written assignment. Wilson v. Little, 2 N. Y. 447; Story Bailm. §§ 290, 297; Pars. Cont. 595.

In the case in hand, the thing intended to be pledged was the debt which Hartman, the mortgagor, owed. The mortgage itself was not the pledge, but only accompanying security of the bond which was the evidence of the debt. The making and delivery of the assignment of the mortgage was an appropriate method of indicating the full accomplishment of the pledge of the debt, even without the actual manual delivery of the mortgage. Such a method would have transferred the entire ownership, and has been recognized by statute as effectual for that purpose (Gen. Stat. p. £108 § 31), and is apt and proper to express the result of the action of the parties. This section is obviously intended to make the written assignment of a mortgage and the record of the assignment conclusive evidence of a transfer of the holder’s interest, and I can see no reason why this effect should be denied to a transfer which is absolute on its face, though it may be, in fact, as between the parties, a transfer of a qualified interest by way of pledge. The assignment of the mortgage under the circumstances narrated was, in my view, as between King and Mott, an effectual pledge'of the mortgage to Mott.

The defendant Somerville also claims that the complainant is estopped to deny his title to the mortgage, under the operation of the rule that if one of two innocent parties must suffer by a fraud, that one must bear the loss who enabled the fraud doer to consummate the fraud. There is no pretence that Mott either colluded with King in aid of his subsequent fraudulent assignment to Somerville or knew of such purpose, or had any information which might have warned him of such design. He had been persistent in his efforts to get possession of the mortgage from King for a long while before Somerville took his assignment. The only basis for criticism of Mott’s position is that he did not succeed in these efforts to obtain from King the actual possession of the mortgage, and Somerville insists that this fact alone enabled King to defraud him.

• This question has been considered in the courts of England, where there was no registry, when there was a first mortgage but no delivery of the title deeds, and the mortgagor having possession of the title deeds again mortgaged the estate and delivered the title -deeds to the second- mortgagee. In Tourle v. Rand, 2 Bro. C. C. *650, Lord Thurlow held that mere non-holding of the title deeds by the first mortgagee was not enough, that fraud or gross negligence on his part must be shown to postpone him. In Evans v. Bicknell, 6 Ves. 183, Lord Eldon denied that it was a rule in equity, that if a mortgagee lends money upon a mortgage without taking the title deeds, he enables the mortgagor to commit a fraud, and in Barnett v. Weston, 12 Ves. *130, before Sir William Grant, the point was made that the first mortgagee had permitted the mortgagor to keep the title deeds, which he. produced to the second, as evidence that there were no encumbrances, and thus obtained a loan. In that case, it appeared there was an actual lending of the deeds by the first mortgagor, who exhibited them as proof that there were no encumbrances affecting the premises. Sir William observed that the first mortgage was not to. be postponed unless a case of fraud cbuld be made out, and the point was abandoned. That the mere circumstance of leaving the title deeds with the mortgagor is not of itself sufficient to postpone the first mortgage has been accepted in this country. Chancellor Kent held, in Berry v. Mutual Insurance Co., 2 Johns. Ch. 609, there must be fraud or gross negligence, which amount to it, on the part of the first mortgagee, to defeat the prior mortgage. These rulings were declared upon general equitable principles in cases where registry acts did not operate to give notice of the rights of the mortgagee, and where the holding of the title deeds was one of the indicia of the existence of the mortgage, and might be the sole evidence of it.

In New Jersey, the latest deliverance on the subject is that of the court of errors and appeals in Lawson v. Nicholson, 7 Dick. Ch. Rep. 823 (reversing Lawson v. Carson, 5 Dick. Ch. Rep. 370), where the holder of a mortgage had deposited a bundle of papers, among which was a bond and mortgage, for safekeeping, with a scrivener who had not only negotiated the loan and drawn the bond and mortgage, but who had been authorized to collect, and had collected, the interest from the owners of the mortgaged premises. The scrivener took the bond and mortgage out of the bundle, accepted payment of the principal from a subsequent owner of the land, and absconded. It is to be observed that the scrivener had, by the act of the owner of the mortgage given, not only the actual possession of the security, but also a colorable right to exercise some authority regarding the collection of a portion of the mortgage debt. It was not shown-in the case that the owner of the land, who paid the money, had any notice of the limited extent of the authority of the scrivener) nor was any bad faith successfully charged upon him.

The court of chancery considered that the placing of the bond and mortgage by the owner of them with the scrivener, with authority to collect the interest, rendered the fraud' of the scrivener possible, and for this reason decided that the loss must fall on the holder of the mortgage. But the court of errors and appeals held that the facts did not justify the decision, and it declared, in substance, that the rule of estoppel in such cases is, Did the party sought to be estopped act in such a way as to lead the other party reasonably to the conclusion of fact upon which he acted to his damage? The fault of the party against whom an estoppel is sought to be worked must not only have existed, but it must have been the occasion of the injury to the party who sets it up.

In the case in hand, the fault of Mott, which is alleged to have caused the injury to Somerville, was his omission to secure possession of the mortgage from King, and it is claimed that Somerville was by reason of his reliance upon the possession of the mortgage by King led to advance his money. But by his own testimony and the admissions of his counsel on the taking of the evidence, it appears that Somerville did not act upon the ■possession of the mortgage by King as evidence of his ownership. On the contrary, Somerville himself testified that on March 25th, 1893, before he first took the mortgage as collateral security for a loan, he caused a search to be made to- ascertain whether King had assigned the mortgage to some one else, and afterwards caused another search to be made before he absolutely purchased it. The representative of Somerville, in making these searches, made a mistake and overlooked the assignment to Mott, though it was then properly recorded, and when he had reported the record all right,” Somerville) relying on this statement and not on King’s possession of the mortgage (which he apparently did not accept as evidence of ownership),* parted with his money.

The cause of Somerville’s loss was therefore not Mott’s, omission but the blunder of Somerville’s own lawyer, who failed to discover and report the record of the previous assignment when he made his search. The mere coincidence that Mott had not obtained possession of the mortgage from King and that King succeeded in cheating Somerville into accepting a second assignment, will not sustain an estoppel. The act or omission of Mott must have created an apparent condition of facts which Somerville accepted as true and relied upon, and because of this acceptance and reliance he must have parted with his money. From the circumstances shown, Somerville was not relying on the condition created by Mott’s omission (if the latter was indeed responsibly at fault at all), but upon his own lawyer’s mistaken search of the records. An estoppel is worked not because the loss to the party injured was a succeeding event to the act or omission of the party to be estopped, in dealing with the subject-matter of the transaction, but because the act or omission of the party to be estopped was the moving cause which led the party injured to do the act resulting in the loss. There must have been a relation of cause and effect, by which the injury and consequent loss.to the injured party were the result of the previous misconduct of the party to be estopped. The party setting up an estoppel must show that he relied on, and was misled by, the conduct imputed to the party to be estopped. Magie v. Reynolds, 6 Dick. Ch. Rep. 118.

It was claimed that at the time he approached Somerville, King was the apparent owner of the bond and mortgage, but I have been unable to discover in the testimony taken that this fact came to Somerville’s notice, or that he acted on any such apparent ownership in King. King was not one of the mortgagees. No assignment to him was proven to have been exhibited to Somerville. The latter testifies that King came to him with two bonds and mortgages,” but he nowhere states •that he ever saw any assignment of them to King whereby he-appeared to be the owner. No such assignment to King appears to have been noted as marked as an exhibit in this cause. The only evidence in the case that King was the owner of the Hartman mortgage is contained in the admissions of the record of the assignment to him from the mortgagees, set out in the bill and answer. But if this record is appealed to as a notice that King held the title to this mortgage as a justification for Somerville’s purchase of it, that same record, at the very time of Somerville’s purchase, gave him notice that King was not the owner of the mortgage, because he had already, a year before, assigned it to Mott and the latter assignment was then recorded.

Whatever of fault was imputable to the complainant because of his omission to secure possession of the mortgage, was, however, certainly cured by his recording of his assignment. The estoppel is claimed because it is alleged Mott permitted King to appear to be the owner of the mortgage, whereby Somerville was misled. The recording by Mott of his assignment, long before Somerville acted, is hereinafter shown to have been full notice -to Somerville that Mott was the holder of the mortgage.

The defendant Somerville also insists that he took the mortgage from King for value paid ; that he had no notice of Mott’s assignment, which he claims is a mere latent equity in no way binding upon him. There is no dispute that Somerville did act in good faith in the purchase of this mortgage from King; that he had no actual notice of Mott’s previous assignment, and that he paid value for the mortgage when he took it. To maintain his claim that he had no notice of the assignment to Mott, he declares that the statute (Rev. p. 708 § 88; Gen. Stat. p. 8108 § 88), which provides for the recording of assignments of mortgages, prescribes only that the record “ shall be notice to all persons concerned,” and he insists that persons concerned ” means only those concerned at the time of the placing of an assignment on record, and, applying this construction to this case, he concludes that as Somerville had no interest in the mortgage at the-time Mott recorded his assignment, the record of it was no notice to Somerville when he accepted his assignment a year afterwards.

That bonds and mortgages and their transfers are not governed by the same rules as commercial paper has been, declared by our courts. Conover v. Van Mater, 3 C. E. Gr. 484. It is also established that au assignee of a mortgage acquires no rights superior to those of his assignor, and holds the mortgage subject to defences that exist against it in the hands of the mortgagee. Atwater v. Underhill, 7 C. E. Gr. 605, 606, and cases cited. But this rule has been declared to be limited to the saving of those defences which the mortgagor or those who have succeeded to his rights may have against the mortgagee, and not to extend to the protection of undisclosed equities created in favor of strangers by the mortgagee or holder. Redfern v. Ferrier, 1 Dow. 50; Murray v. Lylburn, 2 Johns. Ch. 443; Losey v. Simpson, 3 Stock. 255; Woodruff v. Morristown Institution &c., 7 Stew. Eq. 178. The reason given is that the mortgagor or owner of the mortgaged premises is known, and of equities between the mortgagor or owner of the property, and the mortgagee or holder of the mortgage, such as partial payment of the mortgage &c., an intending assignee of the mortgage may obtain knowledge by applying to the mortgagor or owner of the mortgaged premises. This is common usage; and acknowledgments that the principal and interest are unpaid and that there are no defences, are frequently taken from the mortgagor or owner, under the name of declarations of no set-off,” preliminary to accepting the assignment of a mortgage, in order to bind the mortgagor or owner against such possible defences. But no amount of diligent inquiry would enable an intending assignee of the mortgage to ascertain what agreements touching the mortgage debt or security the holder of the mortgage may have made with other persons than those in privity with him; and if equities so arising might be asserted against an assignee who had no notice of them, no assignment,” says Lord Eldon, in Redfern v. Ferrier, ubi supra, “ could ever be taken with safety.” It is, therefore, held to be necessary that actual or constructive notice must be shown to have been given to such an assignee to make his holding of the mortgage subject to such latent equity. In the present case Somerville claims that the previous assignment to Mott, while it may have been effectual as between King and Mott, was, as to him, an equity of this class 5 that he had no actual notice of it, and that the statute above quoted is not applicable to give him constructive notice, and that his rights in the mortgage, under his subsequent assignment, are unaffected by it.

The recording of assignments of mortgages was provided for in this state by the act of 1853. P. L. of 1853 p. 241. This •act authorized the recording of assignments of mortgages, and declared that “ such recording shall be notice from the time such ■assignment is left for that purpose to all persons concerned that said mortgage is so assigned.” In 1863 (P. L. of 1863p. 867), an additional act was passed, declaring that mortgages and all, writings containing any agreement for the payment of money should be assignable; that the assignee might sue thereon in his own name; that set-offs against the assignee should be allowed, ■and that “leaving the assignment in proper office to be recorded shall be notice of the assignment of the mortgage.” These statutes were consolidated in the Revision of 1877 p. 708 §§ 38, S3,34- In the Revision, the provision as to notice by the record •of the assignment is that

.“such recording shall he notice from the time such assignment is left for that purpose to all persons concerned, that the said mortgage is so assigned; and the assignment of any mortgage by an assignment or assignments not recorded shall be bound by the proceedings and sale in any foreclosure suit against any previous holder.”

The language of this- act expressly provides that the record .of the assignment shall be notice “ to all persons concerned.” -The statute prescribes the effect which the record shall have in the future; it is thereafter a warning without limit of time. The warning is to all persons concerned, and the words of the act do not limit the class to persons concerned at the time of the recording, else the act would have been expressed as notice to all persons then concerned. Under the law existing when these statutes were passed, providing for the recording of assignments of mortgages, there was no method whereby the assignee could give notice of his newly-acquired rights to those who were or might be interested in the property, save by successive actual notices to each person who had or might receive an interest. On the other hand, possible purchasers of the property, or of the mortgages against it, holders of previous mortgages who desired • to foreclose, holders of subsequent mortgages who wished to redeem, owners who wished to pay interest, in short, all who either were or might be concerned in the liens against the mortgaged • premises, were embarrassed for want of some means whereby they might certainly know who were the holders of the mortgages against it. The statute making the record of an assignment notice to all concerned, accomplished this end in the simplest -and most easily-understood method. It provided a public place where all might go to obtain this information. It was intended to relieve against the difficulty of giving actual notice of the •change of ownership of the mortgages, not to any special class •of persons, but to all who might be interested in the mortgaged premises at the date of the record or at any time afterwards. That this was the proper understanding of the purpose of the statute is shown by its universal acceptance in common usage. All orders for searches include a direction to look for the record of assignments of mortgages; all foreclosures are based upon such searches; intending purchasers of the mortgaged premises, or of the mortgages, depend upon them. The defendant Somerville himself, in this very matter, when about to take an assignment from King, twice obtained such searches to be made. As Mott’s assignment had at that time been recorded for over a year, a proper search would have brought actual notice to Somerville that Mott was assignee of the mortgage.

The construction of the statute, by the weight of the cases which discuss the question, is in accordance with the popular acceptance of the meaning of the act. I am referred to Kamena v. Huelbig, 8 C. E. Gr. 80, as sustaining the defendants’ view that the notice by the statutory record, all persons concerned, of the assignment of a mortgage did not include a second assignee •of a mortgage. That case held that no notice was required to the second assignee, and that he took the bond and mortgage subject to all equities. The learned chancellor, in his opinion, did say that assignments of mortgages are not required to be recorded except as to the mortgagor, to protect him in payments,” but that case turned upon its own peculiar equities and did not discuss the effect of a record as notice when actually made. The assignee undoubtedly has his opinion whether to • record or not. He may be satisfied that notice of his assignment is not needed, or that all who may be concerned are notified, and he may, if he likes, omit to record and take this risk. But the question now under consideration is, Who are notified by the record, if made ? In Rose v. Kimball, 1 C. E. Gr. 185, there was a dispute between two parties who each claimed to be assignee of a mortgage. The complainant’s assignment was first made and recorded,-the defendant’s was taken after this record. Chancellor Green held that, admitting that the defendant paid value for it, “ he took it with constructive notice of the assignment to the complainant.” Stein v. Sullivan, 4 Stew. Eq. 411, was a contest between two successive assignees of the same mortgage. Chancellor Runyon held that the recording of the assignment to the complainant’s assignor, prior to the making of the assignment to the defendant, was constructive notice to the latter, under the operation of Rev. p. 708 § 32, the recording statute now under consideration. Notice “to all persons concerned” was held notice to a second assignee of the mortgage. In this case it was also declared that the possession of the mortgage was not sufficient to give to one who buys it from the ■person in possession of it (who was the apparent owner) a valid title as against the real owner whose title to it is a record. The law imposed on the intending purchaser the duty of examining the records to ascertain who owned the mortgage, and the real owner was protected in his ownership by the record of his assignment. This case is, on this point, precisely applicable to the case now before this court.

It must be held that the defendant Somerville was notified of the previous assignment to the complainant, Mott, on the 5th day of February, 1892, when the latter’s assignment was recorded.

The mortgagor and Mrs. Hartman, the devisee of the mortgagor, and the German Hospital, the devisee of Mrs. Hartman, likewise had constructive-notice from the date of that record as their, several interests successively came to them. The payments of either principal or interest, made before that date to King,were well made and are saved by the statute (Rev. p. 708 § 34; Gen. Stat. p. 2109), as Mott’s notice to Mrs. Hartman of his holding of the mortgage was about coincident in point of time with his recording of his assignment. Mott’s holding is as collateral security for the payment of King’s debt to him. The mortgage stands for such of its principal sum as remained due on February 5th, 1892, with interest from that date, to secure the debt of King to Mott. If there be any surplus of value in the mortgage, over Mott’s debt which it was assigned to secure, the surplus belongs to Somerville by virtue of his subsequent assignment of the mortgage from King.

I will advise a decree in accordance with the views above expressed.


source: Caselaw Access Project

author: Grey, C. (oral opinion).

license: Public Domain

text:
    Jane Fortescue v. William Bowler et al.
    1. A tenant, having no contract with or consent from the landlord, constructed a back building and permanently attached the same to the rear, end of a house on the demised premises, in such manner that its removal will leave the original structure without any enclosure at the rear end. The original building and the added structure have, since the latter was built, been used together for a hardware store, neither being usable for that purpose without the other. At the time the back building was constructed, the tenant had no formed intention either to make a permanent addition to the premises or to remove the structure. — Held, the back building has become part of the freehold.
    2. The court of óhancery has jurisdictiion to stay waste by enjoining the removal of such a structure by the tenant.
    On bill &c.

      Mr. Allen B. Endicott and Mr. David J. Pancoast, for the complainant.

      Mr. Clarence L. Cole, for the defendants.
   Grey, C. (oral opinion).

The ease is within such narrow limits that I think it may be readily passed upon now, quite as fully and safely as if further consideration be given to it.

The complainant files her bill and seeks to restrain the defendant from the removal of a back building which at present is detached, by severing from the front building, but still remains on her premises. The building came on the premises under these circumstances: The complainant was the owner of a lot in Atlantic City, on which there stood a frame structure, and her brother, the defendant, with her assent, entered into possession of the premises and the use of the same for a hardware store. The structure then on the premises consisted of a frame building thirty-two feet front, and running back on that width for some distance on the lot. The rear end of this structure had, as I gather from the testimony, an extension shed or lean-to, which covered part but not the entire height of the' rear end. That was the condition when the defendant entered into possession. After he had been there two years, without consulting the complainant or receiving any consent or direction from her, he took down the whole rear end of the original structure and removed it, putting up the shed or lean-to part, on some other property of the complainant, and it has thereafter remained in her possession and use. At the same time the defendant added to the original building the structure which is now in dispute. The addition was built on piles, which is the common mode of building in Atlantic City, where the water is so near the surface that unless an elevation is made around the cellar wall it is almost impossible to have a cellar; certainly below the depth of three feet it practically makes a cellar useless. Eor that reason, and because of the custom which seems to have obtained there, buildings were mostly built on wood piles driven into the ground. The building was constructed on the premises for this particular place, and was not moved there, having been built somewhere else. It came on the premises as lumber, boards and tin for the roof, and when it had been put there, with the addition of the labor of those who were there for the purpose of making the structure, it became the building now in dispute. It was annexed to and made part of the original building by nails driven into the frame, as I gather from the testimony, along the whole height of the structures so far as they touched each other. The nails have been detached, and the nail-marks may still be seen. W hen it was built it covered the whole rear end of the complainant’s building which had been taken away, which was one-story high, and had also a second story. Without this covering by the new building, the old building, after its rear end had been taken away, would have been absolutely useless and exposed to the weather. The new building consisted of a frame structure, built on piles as stated, with the sill probably six by eight inches in size. It was about thirty feet deep, having been built at two different times, fifteen feet each, with the first story about twelve feet high and the second story about eight and one-half feet high, and with a tin roof. When the building was put there it was, as to its first story, so much a part of the first building that it seemed to be impossible for a person to distinguish them from the inside unless by the fact that there was a rise in the floor of about two feet to get into the back building. This was the structure, so far as the physical construction of it goes, which the defendant put there. It never had any existence as a structure until it was, by the very act of its creation, permanently attached to and made a part of the freehold. The defendant put this extension there without the invitation of anybody and without the permission of anybody, and it seems to me the building, when put there, became a permanent addition to the real estate and not a trade fixture in any sense. It was not when taken on the premises a complete thing, nor when taken away from the premises would it leave the original structure in the condition in which it was when the latter one was put there. If it is taken away it leaves the whole end of the complainant’s building open, and I do not think that the fact that the defendant is willing to repair the damage in any way goes to detract from the force of the argument that the character of the structure as originally made shows what was the nature of the annexation, whether it was a permanent erection and made part of the real estate or a trade fixture. He may be entirely willing to repair the damage caused by the removal, but that is not .the question. The point under consideration is not the securing to the complainant what the defendant offers to give — a restoration of the premises to their original condition — but whether or not this court ought to restrain the defendant from taking away what, under the circumstances of this case, was a permanent erection and became a part of the complainant’s property.

Another element in the case indicates that this addition has become part of the realty, and that is the use for which the new building was erected, and its relation in this respect to the old one. The use for which the addition was made was a use which was wholly valueless without the continued use of the original structure. The whole building was used as a hardware store. The new erection was, in fact, an extension of the old one, and valuable only when used in connection with and as part of the original structure, making of both a complete hardware store. It was not such an addition as a bellows, or an anvil in a blacksmith shop, for use in carrying on a trade, it was made a part of the original structure itself, and it could not be used without it, nor could the original structure bé, after the change, used without the addition. This merger of the use of the two structures into one, whereby both were coincidently and dependently used for the same purpose, is an additional reason which leads me to conclude that the extension was made not as a trade fixture, but as an enlargement of the building then on the premises, thus becoming a part of the realty.

■ The question of intention is considered by the courts in many cases where the relation of the parties and the character of the structure leave the question open whether it is- a chattel, or a trade fixture, or has become a part of the realty. If the evidence is considered from this point of view there seems to be no proof before the court of the existence of any intention on thé part of the defendant, when he built this addition, not to make it a part of the real estate. He testifies that it was put there without any intention existing in his mind at the time he built it. The court must therefore determine the actual intention which accompanied the construction of the addition, by the evidence of what was then done. The proof shows the construction by a tenant of an addition to an existing building, fastening it to the old building by permanent and non-adjustable attachments, and in such a manner that neither can be separated from the other without opening both to the weather; the new structure being used for the same purpose as the old, and the use of both for those purposes being necessary to the complete enjoyment of either, the removal of either being practically a destruction of the property for that use, the construction having been made without leave obtained from the owner, and without contract therefor, and with no definite intention to remove the new erection.

In my view, the addition was intended, at the time, to be a part of the realty, and, in fact, then became such. I am the more confirmed in this opinion because of the relationship between the parties — brother and sister — and the fact that the tenant paid no rent either during the two years before he made the addition or the many years since. His regard for his sister, his occupancy for two years rent free at the time he built the addition, and his expectation (since fulfilled) of continued gratuitous enjoyment of the premises, may well have led him to build the back building as an improvement to his sister’s premises.

Some doubt is suggested as to the jurisdiction of the court to grant an injunction to restrain the removal of the back building, and Hamilton v. Stewart, 59 Ill. 330, is cited to sustain the claim on the ground that the proposed removal is a mere trespass. In that case the party restrained was a stranger to the premises and out of possession. He claimed to be the owner of certain articles which the plaintiff alleged he intended to take away by force, or by a replevin suit. The court said that an injunction should not go to prevent a mere trespass, or to stay a suit at law to try the title to fixtures. Iu the ease now on hearing, the defendant admits he is the tenant at will of the complainant and that she is his landlord, and that he is in possession through her gift. He also testifies that he intends to remove off the demised premises a building which this court is of opinion constitutes part of the realty, and that he has in execution of that purpose severed this building preparatory to its removal from the premises.

Here the rights of the parties have been definitely ascertained, and it is shown that the proposed waste will be absolutely destructive of the premises for the uses for which they are most valuable. I speak now of their condition when the back building is removed and without giving any weight to the defendant’s statement that he intends to repair the damage he means to do by restoring the building to the condition it was in when he came into possession, which cannot be considered. Lord Hardwicke, in Farrant v. Lovell, 3 Atk. 723, held that waste in an under-lessee being shown, the ground landlord had the same equity as in other cases of injunction to stay waste. In Ware v. Ware, 2 Halst. Ch. 117, a tenant by the courtesy was restrained from cutting timber at the instance of the owner of the fee. Chancellor Kent, in Douglass v. Wiggins, 1 Johns. Ch. 435, allowed an injunction to restrain a tenant of a dwelling-house from converting it into a store. These allowances of the writ, I think, quite justify what is asked in this case. The tenant is put into possession by the landlord and thereby obtains control of the demised premises. His possession is that of his landlord. It is inequitable that he should be permitted so to use his possession as to destroy the landlord’s reversion, leaving him to an action of law for his remedy. On the question, then, of jurisdiction, the question presented is simply this: Has the court of chancery power to enjoin a tenant in possession from removing a portion of the real estate off the demised premises and thereby destroying them for their accustomed use ?

I do not think there ought to be any question that this court has in such cases full jurisdiction, and that the court ought, under such conditions, to issue a writ and restrain the removal.

There is also in the bill a suggestion as to a restoration of this hardware building as it was before the defendant severed it. As to that, I think a sufficient remedy can be obtained by the recovery of damages. I am not willing to advise the issue of a mandatory injunction for restoration. If relief for damage done is sought, the complainant has a complete remedy in the courts of law.

I will advise the issue of a perpetual injunction to restrain the defendant from removing the back building of the hardware store from the complainant’s premises.


author: Grey, V. C.

text:
    J. Percy Brinton  v. Enoch B. Scull and R. Bartine Johnson.
    On bill, answer and proofs.
    The bill in this case is filed to compel the specific performance of an agreement claimed to have been made by the defendant Scull, through his agents, Porter & Crowley, with the complainant, on the 27th of September, 1895, for the sale of a tract of land situate on the east side of Chelsea avenue, and designated as No. 11 in block 12 of the Chelsea Beach Company, as shown on that company’s land on file in the Atlantic county clerk’s office. The complainant alleges that Scull had employed Messrs. Porter & Crowley to act as his agents for the sale of this lot; that he fixed the price at $2,000, prescribed the terms of payment and directed them to make the sale; that on the 27th day of September, 1895, the complainant agreed with Scull, through Porter & Crowley, acting as his agents, for the purchase of this lot, by a contract in the form of a receipt, which is marked “ Exhibit C1,” and is in words and figures as follows:

      “Atlantic City, N. J., Sept. 27th. ’95.
    , ‘ ‘ Received of J. Percey Brinton the sum of twenty-five dollars ($25.00) on act. of the purchase price of two thousand Dollars ($2,000.00) on Lot no Eleven (11) in section No twelve (12) as per plan of Chelsea in Atlantic City said Lot situate on the East side Chelsea Ave. Beginning at a point two hundred and seventy-five feet south of Pacific ave. the side of the aforesaid Lot being (50 x 125) the property of E. B. Scull which Lot is this day sold by us as Agents for the said E. B. Scull to the said J. Percey Brinton for the said Price of (2,000) two thousand Dollars to be paid all Cash if desired or one-half to remain on purchase money mortgage settlement to take place within (20) days and apportionment to day of settlement.
    “Porter & Crowley, adts.

      “ Witness
    “H. S. Scull.”
    Endorsed on the contract is the following certificate
    “Reed. Oct. 1st., A. d. 1895 and recorded in the Clerk’s Office of Atlantic County at Mays Landing in agreement book No. 3 of the said county on page 211.
    “Lewis Evans, Clerk”

    On the same day that he got this agreement the complainant paid Porter & Crowley $25 in cash on account of the purchase-money of the lot, and on the next day Porter & Crowley notified Scull of the contract thus made. Shortly after the contract was made the complainant tendered performance of it to Scull by offering to pay to him the balance of the purchase-money, which he refused to accept, stating as his reason that he had advanced the price of the lot prior to the time of the sale by Porter & Crowley to the complainant, but had neglected, to notify them of his intention to raise the price.
    Scull refused to convey to the complainant, but on the 4th of December, 1895, he did convey the lot in question to the defendant E. Bartine Johnson by deed dated November 16th, 1895. At the time when this deed was made, Johnson had full knowledge of the outstanding unperformed prior contract to convey to the complainant, and with this knowledge Johnson accepted the-deed from Scull to himself. The complainant claims that this conveyance was a subterfuge by which Scull hoped to get the title into the hands of a stranger and thus defeat the complainant’s contract, and he alleges that Johnson is not a bona fide purchaser &c.
    The defendants, Scull and Johnson, both file answers. Scull admits that he owned the land, but denies that he ever in any way appointed Porter & Crowley his agents for the sale of it. He denies giving them any authority to make the contract with the complainant, declares that he had no notice of it until a day or two after it had been executed, and that on receiving notice of it he repudiated it, and also the claim of Porter & Crowley of any right to make it as his agents.' He admits that Porter & Crowley made known to him the making of the agreement after it had been made, and that the complainant tendered himself ready to pay the balance of the purchase-money, and that he refused to take it; and that he stated that he had advanced the price as above narrated. He avers that the conveyance to Johnson was no subterfuge, but a sale in good faith ; that he had put the sale of the lot in the hands-of I. G. Adams and also of A. H. Phillips & Company, at the price of $2,000, and he states that all he said to Porter & Crowley, touching the matter, was in reply to an inquiry of Crowley, to whom he answered that he was the owner of the lot and the price was $2,000. He says he heard nothing further from Crowley until after the agreement with the complainant was .made. In the meanwhile he says he had notified Adams & Company and Phillips & Company that he had advanced the price of the lot to $2,500, and immediately upon receiving word that Porter & Crowley had sold the lot for $2,000, he informed them that the price was $2,500; that a few days afterwards the complainant requested him to convey the lot for the $2,000, which he refused to do, and that the sale to the defendant Johnson was made by Adams & Company, who had received $100 on account and given a receipt therefor before the complainant knew that Johnson desired to purchase it.
    The defendant Johnson answers by the same solicitor as the defendant Scull, and claims that he is a bona fide purchaser for value; that he had paid $100 on account, and received an agreement of sale from Adams & Company, as agents for Scull, two- or, three days before he had any word from Porter & Crowley that they liad sold it to the complainant, and that this information was the first knowledge that he had of any transaction between Scull, Porter & Crowley and the complainant.

      Mr. J. LI. Brinton (of the Philadelphia bar), and Mr. Bindley M. Garrison, for the complainant.

      Mr. Clarence B. Cole and Mr. Joseph Thompson, for the defendants.

       This opinion is referred to at page 489 ante. — Rep.

   Grey, V. C.

In so far as the bill charges the conveyance to Johnson to have been a subterfuge and a fraud, there has been no proof submitted upon the part of the complainant which tends to establish this charge.

There seems to be no dispute that the complainant entered into the bargain for the purchase of’ the lot with Porter & Crowley,, believing them to be the agents of the defendant Scull, in good faith, and that he received the above memorandum of the sale and made a payment on account of the purchase-money and tendered to the defendant Scull the residue of it.

The form of the agreement is in substance the same as a contract made by an agent for sale of lands, of which specific performance was decreed upon in Reynolds v. O'Neil, 11 C. E. Gr. 224. See, also, Lewis v. Reichey, 12 C. E. Gr. 240.

The defendant Johnson appears to have made his bargain with Adams & Company for the purchase of the lot, as agents of Scull, in ignorance, at the time he made the bargain, of the previous contract made by Porter & Crowley, as agents of Scull, with the complainant. This contract of the defendant Johnson was marked “Exhibit Dl,” and is in the words and figures as follows:

“November 16th, 1895.
“ Beceived of E. Bartine Johnson the sum of One Hundred Dollars to secure mid on account of purchase of lot No. 11 block 12 on map of the Chelsea Beach Company, situate on the easterly side of Chelsea Avenue and beginning two hundred and seventy five feet southerly of Pacific Avenue, and extending •southerly fifty feet, and of that width extending eastwardly at right angles with Chelsea avenue and parallel with Pacific avenue one hundred and twenty-five feet. Price of said lot Two thousand five hundred Dollars; Four hundred Dollars to be paid within thirty days from the date of this agreement and the balance Two thousand Dollars to be secured by a purchase money mortgage payable at any time within three years. Papers to be dated Novem,ber 16th, 1895. Taxes to be pro-rated.
“E. B. Scuix.”

On this contract Johnson had actually paid $100 on account "before he heard of the complainant’s contract; but before he paid any further purchase-money or took his deed, he was fully notified of the previous contract to convey the lot to the complainant and of the complainant’s assertion of his claim to the lot under that contract, and Johnson thereafter proceeded with the performance of his contract with actual notice of the complainant’s prior equity.

The incidental facts which lead to the foregoing conclusions are not disputed and appear in the proofs offered .by both parties.

The essential difference between the parties lies in the broad denial of the defendant Scull, the owner of the lot, that he ever in any way authorized Porter & Crowley to act as his agents for the sale of the lot in question. This denial is explicit and unqualified as set out in the answer, and the defendant Scull declares that he repudiated the contract made by Porter & Crowley with the complainant as soon as he heard of'it.

An examination of the testimony shows that the only witnesses who testified to this point are the real estate agents, Porter & Crowley, and the defendant Scull. Mr. Scull’s letters, however, to Messrs. Porter & Crowley, and to the complainant, immediately after the happening of these transactions, throw great light upon this disputed question. Crowley testifies that about April 11th, 1895, he called upon Mr. Scull about the sale of some lots of land owned by him, including the lot in question as one, and that Scull, at his invitation, named the price at which he would sell these lots, and agreed that Porter •& Crowley might sell any of his lots at the price prescribed by him, and that he would allow them the usual commission of two per cent, on the price at which the sale should be made. Mr. Scull admits that Crowley asked him if he owned this lot, and the price he asked for it, and that he told him $2,000 was the price, but says he has no recollection of giving prices on the other properties. Mr. Scull, though examined relative to the conversation, does not deny Crowley’s statement that he, Scull, assented to the sale of the lot by Crowley, at the price he had named, and when asked what else Crowley said, Scull replied, “ I don’t recollect of anything particular.”

Mr. Scull, it is to be observed, does not contradict the statement of Crowley that he arranged that Porter &' Crowley might sell his lot and that he would pay them a commission for effecting the sale. Indeed, Mr. Scull, in substance, admits this, for, when asked relative to the only conversation which he says he had with Crowley before the sale, whether he authorized him to make a sale of the lot, he replied, “ Not particularly, but if Mr. Crowley had made a sale of the property before the advance in price, why I should have accepted the sale, if the other conditions of the sale were agreeable.” The arrangement of Mr. Scull with Porter & Crowley that they might sell his lot, was not questioned by him at any time while the transactions were being carried on, upon the ground that they had no power to sell. Scull himself testified that he would have accepted any sale made by them if they had secured for him the higher price he demanded.

In August, 1895, Crowley said that he asked Scull if there was any change in the price, and that Scull told him there was not. Mr. Scull admits this to be in substance a true statement of the conversation,and says that the next thing “he [Crowley] came to me and said he had sold it.”

Another interview between Scull and both Porter & Crowley was had about September 25th, 1895, when Crowley said Scull told him there was no change in the Chelsea avenue lot; that he would take $2,000, and if it would help the sale, would let $1,500 remain on mortgage if necessary, whatever would suit the purchaser, and speaking to Crowley said, “You had not ought to have any trouble to sell that lot at that price, as it is cheap.” Porter, who was present, confirms this statement, further adding that Scull said to them, “ Why haven’t you sold that piece of ground of mine on Chelsea avenue there.” Porter answered, “We have a purchaser in view for it,” and Scull replied, “ He hoped he would sell it — he was anxious to sell it.” When the substance of this testimony was restated to Mr. Scull, and he was asked if it was true, he merely replied, “ It is not.” So it is difficult to understand whether Mr. Scull denies the meeting with the parties, or the part of the conversation restated to him, hut taking this denial to have been made in its broadest sense, it puts Mr. Scull in direct contradiction of both Porter & Crowley, so that the credibility of one party or the other must be passed upon as hereinafter considered. Previous to the time when this conversation took place, the complainant had opened negotiations with Porter & Crowley for the purchase of the lot. On September 27th, 1895, two days after this interview, the complainant agreed to the purchase, paid $25 on account of the purchase-money, and took from Porter & Crowley the receipt, “Exhibit C1,” which is the above memorandum in writing of the sale. The next morning, September 28th, Mr. Crowley informed Mr. Scull that he had sold the lot for $2,000 to Mr. Brinton, the complainant. Scull told him he had forgotten to notify him that he had changed the price of the lot to $2,500, but that as Brinton had paid $25 on account, he might have it for $2,250. Crowley then asked Scull to meet Brinton to explain this change increasing the price, which Scull declined to do, but said he was willing to write a note, explaining that Crowley had the lot for sale, but that Scull had changed the price. Scull declares that the object of this note was to assure Brinton that it was he, Scull, and not Crowley, who had changed the price.

In this conversation between Crowley and Scull, when the salé was reported, it is plainly manifest that Crowley was asserting to Scull himself not only that Scull had previously given to Porter & Crowley authority, as his agents, to sell the lot at a named price, but that they had actually exercised this authority by making a contract of sale at that price and taking from the purchaser a part of the purchase-money. How, if these real estate agents had in fact assumed an agency for Scull that had no existence by his authority, the entire natural thing for Scull to have done, when this was first brought to his knowledge, .would have been, to have denied their right to act for him. Mr. Scull evidently perceived the force of this situation, for in his answer he makes a direct allegation that “upon receiving notice that such an agreement had been made he immediately and unqualifiedly repudiated, the same and the authority of Porter & Crowley to execute the same as his agents.” But when Mr* Scull was giving his evidence he did not testify that at the time he received notice of the making of the agreement by Porter & Crowley he denied their power as his agents to make the sale. His own testimony shows that when Crowley notified him of the agreement with the complainant he recognized their right as his agents to make the sale, if only they'had obtained the increase in the price which he wanted, but of which he had neglected to notify them., While Crowley was in the office the letter of September 28th, 1895, addressed to Porter & Crowley, was written. This letter is dated September 28th, 1895, and has been marked “ Exhibit C 2.” It is addressed to Porter & Crowley, and. in this Mr. Scull explains that he had raised the priee to $2,500, and'he states in terms that he “had notified the other agents, but neglected to notify you.” Here is Mr. Scull’s own definition of the relation which Porter & Crowley bore to him' touching this lot. He speaks of them as agents whom'he had neglected to notify of the increase in the price, and this letter was written by his own clerk in his own office, Was handed to'him by the clerk, was by him handed to Crowley at the time when he was first notified of the agreement' made with the complainant, and also at a period in the transaction when his self-interest- had not yet been aroused to deny his authorization of Messrs. Porter & Crowley. What was said and done at this time by Mr. Scull is much more truly indicative of his relation to Messrs. Porter & Crowley than are his declarations .and denials post litem motam.. Mr. Scull, while giving his testimony, denied that “Exhibit C2” is the letter which he gave Crowley on bein.g notified of the agreement with the complainant, and declared that the real letter then'given was written by Crowley and' signed by him (Scull). Miss Scull, who was her father’s clerk at the time, was, as her father and Crowley both testify, present in the office when Crowley came there. Miss Scull was a witness as to this very letter, but she did not testify, in support of her father’s evidence, that Crowley wrote á letter which her father signed. When shown this letter, Exhibit C2,” Miss Scull denied that she wrote it, but she also denied that she wrote another letter, Exhibit C 5,” which her father swears she did write, and upon a comparison of the two letters each with the other, and both 'with 'the book entries which are admitted to be in Miss Scull’s handwriting, I am compelled to believe that the letter, Exhibit C 2,” was, in fact, written ■by Miss Scull, as her father’s clerk, and given to Crowley by Mr. Scull, under the circumstances detailed in Mr, Crowley’s testimony. "■

■ Mr. Scull’s manner in giving his testimony, and his denials of .self-evident facts, have led me to hesitate to accept his statements where they are in direct contradiction of the testimony of ■other witnesses and of documentary proofs.

None of the language used while the parties were acting indicates that Porter & Crowley were deemed by Scull to be possible purchasers themselves, or that Scull authorized them, as brokers, to find a possible purchaser and bring him to Mr. Scull for acceptance.. Not only were Porter & Crowley given by Mi-. Scull the price, the terms of payment and- other incidents necessary to enable them to sell the lot for him, but beside this Mr. Scull asked them why they had hot sold the lot for him, and he was told they were about to sell it, and afterwards that they had sold it. ' He designated them as his agents ” in the letter, taking upon himself the responsibility for the increased price, ánd on the stand, while under oath, admitted that hé would have recognized their sale if the higher price had been obtained by them. As above shown, his objection was never that they were •not his agents, but that they, as his agents, had not obtained--for him the higher price he wanted for the lot. His denial of their authority to act as his agents is an afterthought, adopted to protect his more profitable bargain made with Johnson after notice ■of the agreement with the complainant.

" Considering all the proofs offered, I think the complainant has shown that the defendant Scull had employed Porter & Crowley as his agents to make sale of the lot.

Accepting the relation of Scull and Porter & Crowley to have been that of principal and agent, as above shown, Mr. Scull had empowered them to sell this lot at a named price and upon specified terms. Before they had any different instructions they had, as Scull’s agents, made a contract in writing, binding upon him, in accordance with the direction given them. It is no-answer to excuse performance to say he had, unknown to his-agents and to the complainant, who contracted with them, raised the price of the lot but had forgotten to give the agents notice of the fact.

So far as the defendant Scull is concerned, I think the complainant is entitled to a decree for specific performance upon complying with the terms of the contract of September 27thr 1895. The equitable effect of the agreement with the complainant was to make the complainant the equitable owner of the lands; Mr. Scull became the trustee holding the legal title for the complainant’s benefit. Hoagland v. Latourette, 1 Gr Ch. 254; Haughwout v. Murphy, 7 C. E. Gr. 546.

The title to the lot is presently in the defendant Johnson. There is no proof to show knowledge or even warning brought to Johnson of the complainant’s contract of purchase, previous to the making by Johnson of his preliminary agreement of November 16th, 1885, with Scull, and his payment of $100 on account.

The complainant’s memorandum of sale was indeed recorded in the Atlantic county clerk’s office, on October 1st, 1895, about, a month and a half before Johnson obtained his memorandum of the sale on November 16th from the defendants’ other agents,. I. G. Adams & Company* but as.the complainant’s memorandum was neither acknowledged nor proved, there-was no authority to record it, and the record of it, when made, wa.s wholly ineffectual as constructive notice to the defendant Johnson of the sale to the complainant. The record was not offered by the complainant to prove constructive notice, but as a link in the chain of proof which brought to Johnson’s actual knowledge.o£ the complainant’s prior purchase, before Johnson had taken his deed or made any payment beyond the $100 paid on November 16th, Johnson testifies that notice of the complainant’s purchase was brought to him by a boy about two days after he had received his own agreement and paid $100 down. ■■ This must have been about November 18th. Because of this information, Johnson went to Mr. Eogers, of I. G. Adams & Company, and had a search made, which disclosed the complainant’s agreement, so that, although the record and search were inefficient as constructive notice, the copy of the complainant’s agreement was shown to Mr. Johnson, thus giving him actual notice of the complainant’s prior equity, before he had paid any more than the $100, or had taken his deed.

The rule is well established that a purchaser with notice of a prior equity, superior to the rights of his grantor, takes the place of the grantor, and is bound to do that which he was bound in equity to do. Such a purchaser can be compelled specifically to perform the agreement by conveying the land in the same manner and to the same extent as the grantor would have been compelled to do had he retained the legal title. Young v. Young, 18 Stew. Eq. 40, 41; Haughwout v. Murphy, 7 C. E. Gr. 547.

And to be a bona fide purchaser without notice, the defendant must not only have agreed to purchase without notice of the complainant’s previous agreement, but he must also have actually paid the purchase-money and taken his deed without such notice. Dean v. Anderson, 7 Stew. Eq. 503.

If he has paid part only before notice, he will be protected only to the extent of his actual payment. Haughwout v. Murphy, 7 C. E. Gr. 548.

As against the defendant E. Bartine Johnson, the complainant is entitled to specific performance of the contract of September 27th, 1895, when he shall have paid to the defendant Johnson the $100 which had been by him expended before he had notice of this prior contract outstanding in favor of the complainant. This $100 the complainant is entitled to deduct from the balance of the purchase-money to be by him paid or tendered to the defendant Scull under this agreement for sale, dated September 27th, 1895, as the residue of the purchase-money for the lot.

I will advise a decree against the defendants for the specific performance of the complainant’s agreement upon the terms above stated.


author: The Vice-Ordinary.

text:
    In the matter of the appointment of administrator cum testamento annexo de bonis non of the estate of Henry H. Booraem, deceased.
    1. Upon the death or renunciation of an executor, the right of a residuary legatee to administer is superior to the right of the next of kin.
    2. Upon the death of the residuary legatee, his right to administer passes to his personal representatives.
    Appeal from a decree of the Middlesex county orphans court appointing Daniel G. Stubblebine and Emma Stubblebine administrators de' bonis non cum testamento annexo of the estate of Henry H. Booraem, deceased.

      Messrs. Voorhees & Booraem, proctors for the appellants.

      Mr. Abraham V. Sehenclc, proctor for the respondent.
   The Vice-Ordinary.

Henry H. Booraem appointed his wife, Maria, and Philip Kulthau executors of his will. The testator left all his real and personal. estate to his wife, Maria, during widowhood; devised a farm to his son, Garrett; left a small legacy to a cemetery association, and then gave to his grandson, Henry L. Stubblebine, upon the death or marriage of his widow, all the rest of his real and personal estate. He declared that should his wife die or, marry before this grandchild should attain the. age of thirty years, then all his estate- so devised to the grandson should be held in trust by his executor Philip .Kulthau for said grandson, with a discretion In said executor to convey the same to his said grandson before he should attain the age of said thirty years. The executrix and executor are dead. Maria, the widow, did not remarry. Henry L. Stubblebine, the said grandson, died on September 24th, -1890, in -the twenty-sixth year of his age, after the decease of the testator, before the decease of the said Maria Booraem, and after the decease of the executor Philip Kulthau, who died May 25th, 1890.

Letters of administration upon the estate of the grandson were granted to Daniel G. Stubblebine, his father. Certain personal estate, amounting to $4,500 of the estate of Henry H. Booraem, deceased, is still unadministered, and Daniel G. Stubblebine, the administrator of the grandson, applied to the orphans court for letters of administration de bonis non cum testamento annexo of •Henry H. Booraem.

A counter-claim to such administration was preferred by John V. L. Booraem, a grandson and next of kin of the testator, to whose appointment by the surrogate a caveat was interposed by Daniel G. Stubblebine, by reason of which dispute the matter went to the orphans court.

In support of the decree below the following propositions are asserted :

First. That the residuary personal estate of.Henry H. Booraem, under- his will, became a vested interest, upon the death of the testator, in Henry L. Stubblebine in fee. ,

Second. That the gift to the trustee did not affect the vesting of the interest, for the gift, being for the sole use and benefit of the cestui que trust, is to be regarded as a gift to the cestui que trust.

Third. That the residuary legatée, if he had lived, would have been entitled to the administration of his father’s estate, in preference to legatees,, next of kin or creditors. . .

Fourth. That upon his death his legal representative is entitled to the appointment to süch office.

The accuracy of the first' of these propositions is too plain for discussion. The gift to: the grandson was a vested legacy in remainder. The person..who was to take, and the event upon which he was to take, were certain.' The time of payment alone was postponed. The legatee’s interest is vested. Gifford v. Thorn, 1 Stock. 702 ; Van Dyke v. Vanderpool, 1 McCart. 198; Neilson v. Bishop, 18 Stew. Eq. 473.

So, the truth of the second proposition is equally manifest. The legacy, when the time of payment arrived, viz., on the death or re-marriage of the widow, was to go either to the trustee or the legatee, just as it happened.that either of the events.mentioned occurred before or after the.legatee should attain the age of thirty years. The-contingency, in view of which the. intervention of a trustee was provided for, did not in the least change the, quality of the interest in the legateé. The property was to be held for the exclusive benefit of the residuary legatee, and his interest in it was as much a vested right as if he was to have had the entire legal control of the property. Gifford v. Thorn, supra ; Neilson v. Bishop, supra.

In réspéct to the third proposition, it is clear that had the residuary legatee lived, he would have been entitled, to the appointment as administrator of the estate of his testator upon the death of the executor. In re will of Kirkpatrick, 7 C. E. Gr. 463.

The point upon which the right of the appointees of the orphans court is mainly challenged is that the claim of the' residuary legatee to such appointment, had he lived, did not pass-to his representative. The argument in support of this point is-that the appointment goes to the residuary legatee, because he is the testator’s choice, and is the next person in his election after the executor, but that the. representative of the legatee is not the testator^? choice.

But when it is said, as it has been, that the residuary legatee .is the testator’s choice, it is meant only that the residuary legatee has the most interest in an economical and efficient administration of the estate. Such choice by the testator does not arise from any expressed preference, but it is implied from the fact that' the legatee is entitled to what is left of the estate after the payment of debts and legacies, and so has a superior right to-handle the estate so as to preserve as much as possible for himself. It is upon this ground that the presumed preference of the testator is said to exist. Donahay v. Hall, 18 Stew. Eq. 720.

The rule of practice in the ecclesiastical court, in cases where the grant of administration was not within the statute, was to consider which of the claimant? had the greatest interest in the effects of the deceased and decree the administration accordingly, if there were no peculiar circumstances. Wetdrill v. Wright, 2 Phillim. 243, 248. Hence, in all cases where no executor is appointed, or the appointed executor fails to represent the testator, the residuary legatee, if there be one, is preferred to the next of kin and entitled to administer own testamento annexo. “ The reason,” said the court in Thomas v. Butler, 1 Vent. 219, “ that the statute (21 Hen. VIII.) required that administration should be granted to the next of kin was upon the presumption that the intestate intended to prefer him. But now the presumption is here taken away, the residuum being disposed of to another; and to what purpose should the next of kin have it, where no benefit could accrue to him by it, and it is reasonable that he should have the management of the estate who is to have what remains of it after the debts and legacies are paid.”

Now, in the same way that the preference of the testator, in favor of the residuary legatee, is inferred from the superior interest of the latter in the administration of the estate, so, for the same reason, his preference for the administrator of the deceased residuary legatee over his next of kin* is inferred. The interest of the residuary legatee passes to his personal representative, and with the interest passes the right to administer.

In Wetdrill v. Wright, supra, the testator left a widow and a daughter. He bequeathed his property to his wife, and after her death to his daughter. The wife was executrix and proved the will. The daughter died after the testator, but before the widow. After the death of the widow and daughter, the daughter’s husband was appointed administrator de bonis non cum testamento annexo of the testator. The court said : “ The general principle, both by statute and practice, is to give the management of the property to the person who has the beneficial interest; being a vested interest in the daughter, and she having married, and her husband having survived her, he has the same right that she would have had.”

In Jones v. Beytagh et al., 3 Phillim. 635, letters of administration, which had been granted to the’ executor of a creditor, were rescinded at the suit of an executor of a residuary legatee. In Re Thirlwall, 6 Notes of Cas. in the Eccl. Cts. 44, the letters went to the personal representative of the residuary legatee.

The insistence, therefore, that the right of administration did not pass to the representative of the residuary legatee is not tenable.

Hor is there any substance in the notion advanced that the father and widow of Henry L. Stubblebine took no interest in the residue of the estate of Henry M. Booraem, and, therefore, had no right to administer. Henry L. Stubblebine died without issue, leaving a father and widow. Each took one-half of his estate. But whether the father was so entitled or not, in no degree affects his right to this administration. It is by force of his representative character, and not by reason of the fact that he is to receive ultimately any part of the estate, that he acquires the interest which equips him with the right to administer upon the still unadministered goods of the original testator. In respect to the appointment of the father, that appointment was entirely regular. The appointment of the widow as joint administrator does not affect John V. L. Booraem. He does not complain of the joinder of the widow with the father in the administration. His complaint is that he himself should have been appointed, together with his brother Joseph, and that, therefore, neithér Daniel G. nor the widow should have received the appointment.

I advise a decree affirming the decree of the orphans court.


text:
    In the matter of the administration of the estate of Susan Hill.

      1. An orphans court cannot revoke its decree appointing an administrator while an appeal from such decree is pending. . .
    2. .In appointing an administrator from several applicants of the same degree of kinship, all else being equal, an older will generally be preferred to á younger and a male to a female.
    Appeals from two decrees of the orphans court of Mercer county.
    Susan Hill died September 6th, 1896, intestate. She left six children, Charles C., Henry, Elwood, Hamilton, Edward F. and Zillah, now married to Daniel J. Bowers. On September 22d Charles C. applied to the surrogate of Mercer county for letters of administration. His application had the written endorsement of all the children except Zillah, she having on September 21st filed a .caveat against the granting of letters to Charles C. The matter was set down for heaving before the orphans court on October 21st, 1896, and after several continuances came on for hearing on November 6th.
    On that day Hamilton and Elwood Hill were permitted to withdraw their consents to the appointment of Charles C. Letters were granted to James J. Cahill and John Rellstab, the 'former being the proctor of Charles C. Hill, and the latter the proctor of the children opposing the granting of letters to Charles C. Hill. '
    . On November 19th:Charles C., through another proctor, filed in the orphans court a notice of appeal, following it with a petition of appeal in this court. This is the first appeal.
    On December 3d Messrs. Cahill and Rellstab filed a petition in the orphans court, setting out that when the order appointing them was made they thought that all the next of kin of Susan Hill, including Charles C., were consenting to such appointment; that Charles C..had taken an appeal from the order appointing them, and that they therefore asked to be discharged from their office. On December 14th they were so discharged.
    In the meantime, Elwood and Hamilton had presented a petition to the orphans court that Zillah Bowers should be appointed in the place of the administrators who had applied to be discharged. On January 8th, 1897, the court appointed Zillah Bowers and Henry Hill, with the condition that in case either of the parties so appointed should fail to give a bond within ten days, that the one so appointed and should give the bond should proceed with the administration of the estate. From this decree an appeal, was taken by Charles C. This is the second appeal.
    Letters were issued by the. surrogate to Zillah and her husband, William, although the latter had not been appointed asoné of the administrators but only required to enter into bond with his wife in case she qualified.

      Mr. Samuel G. Naar and Mr. John T, Bird, for the appellants.

      Messrs. Buchanan & Rellstab, for the respondents.
   The Vice-Ordinary.

I will first speak of the appeal first taken.

It is of course true that the orphans court could not pass by the next of kin -and appoint strangers to the blood of the-intestate without the consent of all the next- of kin, or witHout-proof that the non-consenting parties were unfitted for the office. This is conceded by all parties. The court below obviously acted upon the supposition that all the next of kin had consented. No testimony was taken in respect to the fitness of Charles C. Hill for the office. The proctors on both sides undoubtedly supposed that the next of kin, who had all been cited and were present in court, assented to the action of the court. The laudable intention of the court was to commit the administration of the -estate to representatives of each of the two opposing classes of relatives, and to commit it to persons who, while representing the two classes, could act together in harmony.. Had Charles C. Hill then expressed his dissent to the appointment, the .court would not have made the questioned decree.

• The query now is whether he can be regarded as consenting to the decree because he was present; if so, he is not in a position in this court to ask for its reversal.

I am of the opinion that under the circumstances such consent should not be imputed to him. He was represented by his lawyer, whom-he supposed was insisting upon the right of his client to be the appointee. It does not appear .that Charles C. was specially consulted about the compromise appointment, It is not clear, even if he understood the order of the court, that he knew that it was made solely upon the ground of' his supposed -consent. It woiild not, therefore, have' occurred to him to express his dissent at the time, for he could not have supposed that such dissent would, in the least, have effected a change in the mind of the court. Taking into account that he is a layman, unused to judicial proceedings, and with a lawyer to act for him, •it would be urífair, I think, to impute to him a consent tó'the decree, from the fact that he was present in court at the time the decree was made. No consent therefore appearing, the decree cannot stand.

I now come to the transactions involved in the second appeal. The notice of appeal from the preceding decree was filed November 19th, and 'the petition of appeal was filed , in this court on December 1st. On December 14th the administrators appointed •under that decree were discharged, and on June 8th Zillah Rowers was appointed. , ..

In making the order for discharge and the new order for the appointment of Zillah, I think the-court was acting without jurisdiction. The constitution confers upon any person aggrieved by a decree of the orphans court the right to appeal to the prerogative court. The nature and effect of an appeal is tó be sought for in the civil law whence it came. Appeals, properly so-called, , are a continuation'of the same case, being only a transfer from one court to another for final trial and judgment. It was a mode of procedure unknown to the common.law, and only known in England in the court of chancery and other courts whose mode of proceedings were borrowed from the Roman civil law. Pow. App. Pro. 104» From this source .came the practice in the ecclesiastical court, which, except as modified by legislation, is the practice of the probate courts in this state. The effect of an appeal is -to transfer the cause of action into the appellate tribunal. In respect to the matter appealed from, the transference leaves nothing in the trial court for subsequent action. Says Judge Elliott: “ The overwhelming weight of authority is t'hát an appeal', when properly perfected, remits a case wholly and absolutely from the trial court and places it in the higher tribunal. 'It is difficult to conceive how if could be otherwise, since it is not possible that two courts can have authority over a single case at the same time. * * * The right to order process to enforce the judgment remains'in- the trial court-, where there is no supersedeas or order staying proceedings ; but all jurisdiction of questions involved in litigation, and embraced 'by the.judgment, terminates with the removal of the cause to the appellate tribunal. The loss of jurisdiction is so complete as to. require a party to seek relief from any errorj except an error in making the record, or in omitting something from the record, to apply to the higher courts. After the cause leaves the lower, court, it cannot act upon ány question involved in the appeal.” Ell. App. Pro. § 541.

When either party had perfected an appeal from the'decision •of the probate court, it'is erroneous for the probate court to grant an order affecting the rights of the parties as to the subject-matter of the appeal, for the reason that the proceedings before the probate court are stayed. Hicks v. Hicks, 12 Barb. 322.

The appellant, who' has duly complied with the statutory regulations, deprives the' probate court of any power over the subject-matter during the pendency of the appeal. Green v. Clarke, 24 Vt. 136.

The question remains whether this court will send the record back to the orphans court or will make the appointment Of an administrator. It can do either. Dick. Pro. Ct. Prac. 201, 202.

The usual practice is to complete the judicial act in this court, as the proceeding is a trial de novo.

Inasmuch as, under an order of this court, testimony has been taken to be used here, it is proper that the appointment should be made here as it was in the case of Read v. Drake, 1 Gr. Ch. 78.

To whom should the appointment be awarded ?

Inasmuch as none of the next of kin save Charles C. and Zillah seem to desire the appointment, the choice lies between the two named.

Unless it appears that Charles C. is unfit, I think the appointment should go to him.

While there is no iron-bound rule which absolutely requires, the court to appoint one of several next of kin, yet age and sex, all else being equal, has usually controlled the judicial discretion in making the appointment. It is said that, other things being equal, the elder should be preferred to the younger, and a son to a daughter. 2 Redf. Wills 73.

These are both in favor of Charles C. Zillah is also married. She cannot act without her husband. Vice-Chancellor Van Eleet, in Cramer v. Sharp, 4 Dick. Ch. Bep. 558, 562, while refusing to express an opinion as' to whether a married woman is competent to take a grant of administration, held that if a grant is made to her, it must be in conjunction with her husband.

When the questions arise as to the advisability of the appointment of the widow or a child, the widow will be usually preferred; but if the widow has married again, while it is no invincible objection to her being administratrix, yet that circumstance may induce the court to prefer a child. 2 Redf. Wills 72; Webb v. Needham 1 Add. Ecc. 494, 498. Unless Charles C. is proved to be an unfit person to fill the office he should be appointed. In my judgment, the circumstances which aroused the suspicion of those opposing his appointment have been satisfactorily explained in the testimony taken in this court.

If this testimony had been before the orphans court, and that court had not been misled by the supposed consent to the first appointment,'! think it would not have hesitated to appoint Charles C.

I shall advise a decree reversing the two decrees brought up by the two appeals, and a new decree appointing Charles C. Hill. He must give a bond in the sum of $20,000.