author: Randolph, J. Green, C. J.

text:
    William H. Van Wagenen and Anthony Yeoman, appellants, and Mary Hopper and others, respondents.
    The ease in Chancery is reported ante, page 684.

      P. D. Vroom for the appellants.

      Wm. Pennington for the respondents.
   Randolph, J.

The defendant Coe, with his wife, gave a first mortgage to Wm. I. Ackerman, on the 2d of Feb’y, 1846, which was duly acknowledged and registered. He afterwards, on the 3d day of March, A. D., 1846, gave a second mortgage to the defendant Mary Hopper, to secure to her an annuity of $50 during her life; this was acknowledged on the same day, hut not registered. Afterwards, on the 23d day of April, A. D., 1846, Coe and wife gave a mortgage on the same premises, to the complainant Van Wagenen, to secure the sum of $822.81, and this was acknowledged and registered on the same day, Mary Hopper’s mortgage not then being registered. The dispute is as to which mortgage is entitled to priority of payment, that held by the complainant or that by Mrs. Hopper. According to the common law the latter would he entitled to priority, being first executing the common law adopted the civil law maxim, qui prior est tempore potior est jure, and held that all mortgages must be paid according to the priority of their respective dates, 2 Cowen, 204. According to the doctrine in England prior to the passage of the Statute of Ann, the mortgagee could not lose the benefit of his prior debt unless he had been guilty of actual fraud, as where a counsellor holding a mortgage, on being consulted with by another person, advised him to take a mortgage on the property without disclosing the fact that he had a mortgage, 2 Vern. 370, or where another fraudulently concealed his mortgage and advised a father to take a mortgage to secure a marriage settlement for his daughter, 3 Atk. 49. But the Statute of Anne, which required mortgages to be registered does not affect the question of notice; it leaves that as if the Statute had not been passed. 2 Eden, 228; 1 Madd. Ch. 328. By the Statute of New Jersey, Van Wagenen’s mortgage has priority to Mrs. Hopper’s, unless he had notice of its existence at or before the taking of his; and the only question for us to determine is a simple question of fact, whether complainant had such notice. This notice may be proved by the registry, or by positive or circumstantial evidence in the same manner any other fact is proved. Many persons suppose that the registry is essential to a mortgage or at least adds some sanctity or validity to it, but not so; it is not even a record, and cannot be proved as such. 7 Halst. 42; 2 Harr. 60. The only object of the registry is to give notice; and for that it is sufficient to all persons, whether they ever saw it or not; but it is only constructive notice, and in reality, though it be operative in law, is not practically as valuable as actual notice, proved by witnesses or circumstances. The registry act leaves the common law doctrine of notice where it was, and merely provides a new mode of giving notice, and in that point of view the fact of the complainant’s prior registry is of no consequence. The question is, had he notice of Mrs. Hopper’s mortgage! Owing to her want of legal information she can’t prove this by the constructive evidence of registry, but is compelled to resort to witnesses, and by this she must satisfy us of the truth of the allegation, in the same way as she would have to satisfy us of any other fact she was bound to prove, or else she must fail in her claim.

The witness offered to prove the notice is Coe, the mortgagor, who manifestly has no friendly disposition towards his mother-in-law, Mrs. Hopper, for he says her mortgage was given for her right of dower in a property which he bought at administrator’s sale, she being one of the administrators, he thought he bought it clear, and still thought so at the examination, and that she should never get anything on her mortgage if he could help it. He swears positively that he twice informed Van Wagenen of the Hopper mortgage prior to the execution of his. This, if true, is sufficient to prove the notice, and to enable Mrs. Hopper to maintain her priority. It is indeed conclusive, unless Coe is mistaken or has perjured himself, both of which the complainant has attempted to prove. Has he succeeded ? To prove the mistake, Mr. Woodruff is called to testify, who is in every respect a sufficient and credible witness. There is some discrepancy between him and Coe, growing out of the cross-examination of the latter, but in all essential particulars he strengthens Coe’s testimony. It is evident from the whole case that Coe, and more than probable that Van Wagenen, and some other of the parties, labored under the very common impression that the first mortgage registered, or recorded as it is called, would take the property. When Coe tolls Van Wagenen that Mrs. Hopper has a mortgage, he asks whether it has been recorded, and Mr. Woodruff says Coe asked him previous to the examination of witnesses, what would be the effect if Mrs. Hopper could prove that Van Wagenen had notice. So too it seems to have been the impression of all parties that Coe could not be a witness, and this may account for the inquiry to Woodruff, and for the remark that she could prove notice by her two sons, which it is evident was a mere boast. Again, a certificate was obtained from the Clerk, showing only that the Ackerman mortgage was a lien on the premises ; this was had at the execution of the complainant’s mortgage, which was at Coe’s house. Mrs. Hopper was at the same time in the kitchen, and Woodruff says there was something said at that time about giving her a mortgage. This then shows that he and his client knew of her claim, but as to giving her a mortgage, Mr. Woodruff must be mistaken, for this mortgage had been given and acknowledged weeks before. Coo refused to permit Wood-ruff to1 call his (Coe’s) wife, because the old woman (Mrs. Hopper) was there and would be mad. And after complainant’s mortgage was executed they hurried it on record, Woodruff says, iC under an apprehension that there might be somebody in the kitchen, prepared to execute a mortgage, and bring it on record before complainant. Now this could , not be the reason in the nature of things, though no doubt Woodruff thought so at the time of examination. Complainant’s mortgage was executed and acknowledged, and in three minutes could be lodged- with the Clerk. If the somebody in the kitchen had the mortgage prepared to execute, still it would take time to do this, and still longer to send for an officer and have it acknowledged and then taken to the office. Complainant could- have had no fears or cause for fears of any mortgage tó be .executed after he started from Coe’s house for the Clerk’s office; it could only have arisen from fear of a mortgage already executed. Mrs Hopper was in the kitchen. Something had been said, Woodruff says, about her getting a mortgage. A certificate had been got from the Clerk, which showed that her mortgage was not on record. A difficulty Coe says occurred at the acknowledgment of complainant’s mortgage, which he says grew out of a refusal to have Mrs. Hopper’s mortgage acknowledged in it to save him from trouble, and the Clerk’s certificate was shown to him and he executed the mortgage. This seems reasonable and consistent with the facts, and the belief of the parties. Woodruff admits the difficulty, but says-it grew out of Coe’s saying he was forced to give the mortgage, and would not acknowledge it to be voluntary. This- is not-a very natural or consistent reason and I am inclined to think Woodruff mistaken, but whether or not it is not very important. But Coe swears positively that he notified Van Wagenen of Mrs. Hopper’s mortgage. He had the opportunity to do so when the parties withdrew and talked by themselves; the evidence-is not disproved, it is positive, and Mr. Woodruff does not- positively deny notice; he says he thinks the first knowledge he had that Mrs. Hopper, claimed priority over complainant’s- mortgage on the ground of notice, was derived from her-answer, but he nowhere says that -neither he or his client had such notice, nor did he deny it when stated in his presence. Coe swears he had. All the circumstances go to show he had, and we must conclude that he actually had notice, unless we believe Coe perjured himself, for which certainly there is not sufficient evidence.

It is true an effort was made to impeach Coe as a witness, by calling a number of witnesses to testify as to bis general character for truth. These all, with one or two exceptions, do not attempt to prove his general character, but their particular belief growing out of one or two transactions in which Coe was a witness. In one of these he got a young man indicted, and on Ms single evidence convicted for throwing a stone in the night and hitting him; hut he was mistaken, for it turned out after-wards that another boy did it, and from that and another circumstance, several witnesses have attempted to prove his character bad; but they only show bad feeling and particular circumstances, and not general character or legal evidence. I think all the evidence as to Coe’s character may be traced to these transactions or grew out of them, or arose from the industry used in circnlating them, and is either not evidence at all or entitled to very little weight. Certainly it does not overthrow Coe’s evidence, supported as it is by circumstances, nor does it disprove the notice.

Decree should be affirmed.

Nevius, Ogden and Carpenter, Justices, and Sinnickson,, Wall, Portee and Schenck, Judges, concurred in this opinion.

Green, C. J.

The only issue in the cause is upon a question of priority growing out of a conflict of encumbrances between the complainant and defendant, both being mortgagees of the same premises. The defendant’s mortgage is prior in date but subsequent in registry to the complainants. The complainant’s mortgage being first registered is entitled to priority, unless the complainant had notice of the existence of the previous mortgage. The whole question turns upon proof of the notice. Is that fact Satisfactorily made cut 1

The complainant has the record evidence in his favor. By the law of the land his mortgage is entitled to priority, unless the fact of notice be clearly established.

■ The policy of permitting record testimony to be overthrown under any circumstances by mere parol proof, has been long and often questioned. All the cases agree, that in order to deprive a party of his priority upon the registry, the evidence to prove the notice should be clear - aud unequivocal. This would be required by the general rule of law, which imposes upon the party holding the affirmative the burden of proof. It is enforced by the consideration that the design of the evidence is, in effect to destroy record testimony. And the propriety of this view is still further enforced by the fact that the party holding priority by registry has done all that care and vigilance can do to secure his claim. If destroyed, it is done by evidence not growing out of any negligence of his own, not by any want of vigilance, not by any defect of his evidence, not by any testimony upon which he has placed confidence or upon whom he has relied to support his claim, but by parol evidence called by the adverse party, to prove a fact which in the very nature of things it will be difficult, if not impossible for the party to disprove. Upon the clearest rule of law, and the soundest principles of policy, the fact of notice should be established by clear and indubitable evidene. It should not rest upon a mere balancing of probabilities, a nice adjustment of the weight of testimony. It should be such that no reasonable doubt whatever could be entertained of the truth. Upon this point all the cases agree. The principle has not been drawn in question by counsel in argument.

The proof of notice in this cause rests upon the testimony of a single witness uncorroborated by circumstances. The witness is the mortgagor. He is the son-in-law of the defendant, whose priority he is called to sustain. He acted as agent for the defendant in the procurement of witnesses before the Master and in paying their fees. His character for truth and veracity is called in question, and is most seriously impeached by numerous witnesses, some of whom at least are men of high character and whose testimony is open to no exception, -

Is this evidence upon which the priority of encumbrances should be affected, or record security destroyed ? Is this the clear and indubitable testimony which sound policy, no less than the clear rule of equity demands 1 If this be indubitable testimony, what, it may be asked, is doubtful evidence 1 I cannot but apprehend that resting a question of priority upon such evidence is going very far to shake the security of all registered mortgages, and to unsettle well settled principles.

I treat the case as if there were no conflicting testimony, and as if the case rested entirely upon the evidence of the defendant’s witness. It is insisted however, that the defendant’s case derives material support from the evidence of Woodruff, the solicitor of the complainant, who was called as a witness in his behalf to contradict the statement of Coe, the defendant’s witness. The complainant’s mortgage was executed by Coe] in the presence of Woodruff, and was acknowledged before him as Master in Chancery. Coe stated in his testimony that notice of the defendant’s mortgage was given to the complainant in the presence of Woodruff at the time of the execution of the complainant’s mortgage. This fact is not in terms denied by Wood-ruff in his evidence, and this circumstance is relied upon as conclusive in the defendant’s favor. But the utmost that can be alleged is that the witness is silent upon this point. Admitting, for the sake of the argument, that the witness is entirely silent upon the point, is it a legitimate conclusion against the complainants that the fact is not denied 1

If this were the answer of the defendant under oath, the conclusion would be legitimate. His omission to deny is an admission of the fact alleged. But the testimony of a witness stands upon totally different ground. If the question had been asked the witness, and he had given an equivocal or evasive answer, there might be some force in the argument. But the omission in such case where there is no interrogatory may proceed from mere inadvertence. And no conclusion can be drawn against the party from the omission of the witness.

But is there in fact, any such omission as is alleged 1 Coe had stated in his testimony certain facts that occurred at the execution of the complainant’s mortgage. Woodruff in his testimony professes to give a detailed statement of what then transpired. He gives a circumstantial narrative of what was said and done on that occasion, materially varying from Coe’s statement. But this is not all. On his cross-examination the witness says he has no recollection of anything besides what he has stated, that took place that can have any bearing on the matters in controversy in this suit. Now if the witness did remember what had been testified to by Coe, if he had received notice and was concealing it, or equivocating, does not that answer necessarily involve him in the guilt of perjury 1 Is it not as broad and unequivocal as language can be made! He first details what did take place; he then declares that he recollects nothing else material that occurred. And yet this evidence is relied on as corroborating the defendant’s witness, because he did not in terms deny the statement of the defendant’s witness.

The utmost I think that can be said of it is, that it is negative testimony, and does not necessarily impeach the testimony of Coe. But to derive from it an argument in support of the truth of Coe’s statement, is not warranted.

The defendant’s mortgage is unquestionably just. It was prior in date to the complainant’s. It was given to secure her claim of dower upon her husband’s estate, a claim always favored in law. The complainant’s mortgage was taken to secure a prior indebtedness. He made no new advance when the mortgage was taken. He is not in a worse position by the loss of his security.

These circumstances create an impression that no injustice is done by the decree, and induce me not to regret that my brethren have felt themselves warranted in affirming the decree without the sacrifice of sound principle. I have not been able to arrive at the same conclusion, and am in favor of reversal.

McCarter and Speer, Judges, concurred in this opinion.

Decree affirmed.


source: Caselaw Access Project

author: Randolph, J. Carpenter, J.

license: Public Domain

text:
    The Associates of the Jersey Company, appellants, and. The Mayor and Common Council of Jersey City and John C. Morgan, respondents.
    The rights acquired Tby “ The Associates of the Jersey Company” hy the deed from Yan Yorst to them and the act incorporating the Company.
    The Chancellor, on answer, dissolved the injunction granted on the reading of the bill, on the ground that the remedy at law was adequate; and gave no opinion on the questions involved as to the respective powers of the complainants and the Mayor, &c., of Jersey City.
    The order dissolving the injunction was appealed from.
    I. W. Scudder, B. Williamson and P. D. Vroom for the appellants.

      W. Rutherfurd and A. Whitehead for the respondents.
   Randolph, J.

This case comes before us on an appeal from an order of the Chancellor dissolving an injunction which had been granted restraining the defendants helow from removing a Small building belonging to the complainants and in the tenure of Samuel Davidson. If we look only at the immediate injury complained of, viz: the removal of a fence, the threatening to prevent its re-erection, and also to prevent the removal of the small building or office, we must concur with the Chancellor in dissolving this injunction, for certainly there is no irremediable injury, which the courts of law cannot correct or the respondents answer for in damages. But the removal of this fence, and the acts and threats complained of, were in derogation of certain important rights claimed by the appellants, and in accordance with certain other conflicting rights claimed by respondents. These rights and claims are all set forth in the record of this case, and have been fully argued by the respective counsel. The facts on which they are based are undisputed and admitted in the pleadings, and the questions themselves being of grave importance, and arising as they do on conflicting claims of two coexisting corporations, involving the rights of ferriage, wharfage, title to land reclaimed from the Hudson river, the right of widening streets and taking of private property for public use in one.of our largest cities, it must be manifest that -unless speedily settled irremediable and permanent injury must result to the freehold and to the rights of parties litigant and to others claiming from or. through them-; and some of these, questions are of such-a character that it would be exceedingly difficult,.if not impossible, to obtain adjustment and relief in .a. court of law. In view of all these matters, without entering into an enquiry how far a court of equity may go in restraining a party from the committing of mere trespass or waste, I think the case is of such a character that this Court should go behind the simple act or injury for which the injunction was originally granted and dissolved, and look into the merits of the cause itself, as it appears in the record. I feel the more inclined to take this, perhaps unnecessary labor, because both parties are exceedingly anxious to have their conflicting views settled by adjudication, and have now pending in other courts of the State sevei’al suits and-applications involving these disputed matters, all of which are now fairly presented to this Court, and according'to the view which I shall take of the case, may be directly and legitimately decided by the highest judicatory in the State, and thus settle the conflicting claims of these parties and put an end to litigation.

The injunction cannot be dissolved on the mere ground that all the equity of the hill has been answered, for the facts stated in the bill are substantially admitted in the answer; and if the complainants have any equity whatever in their case then we cannot dissolve on the answer alone, but must enquire and ascertain whether the bill or bill and answer set forth any cause for the consideration of the Court.

The complainants’ hill alleges, that in eighteen hundred and four Cornelius Van Vorst conveyed to Anthony Dey, a tract of land known as Powles Hook, laying several hundred feet on the Hudson river, together with the right of ferriage and all the grantor’s right to the land under water opposite said tract; the grantor giving a warrantee title as to the upland, hut not as to that under water, or the right of ferry independent of or separate from the soil. That afterwards, by certain conveyances, Said premises became vested in Richard Varrick, Jacob Radcliff and Anthony Dey, who applied to the Legislature and on the 10th of November, A. D. 1804, obtained an act by which they and their associates in interest became incorporated by the name of i£ Associates of the Jersey Company,” who are the complainants and appellants in this cause. That they had by their aet of incorporation conferred on them, general corporate powers, the right to hold the real estate conveyed by Van Vorst, to lay out streets and squares thereon for a city, to govern, level and regulate the same, to order and regulate the building of docks, wharves, and piers and storehouses, make by-laws, &c. The bill further alleges that complainants in pursuance of their authority, employed a skillful surveyor by the name of Mangin, who laid out the premises into streets and squares for a city, and made an accurate map thereof, which was filed and has since become a record by authority of law. That the squares were sold off in lots and the streets dedicated to the public in accordance with said survey, and that Jersey City has been built upon said premises. That the street next towards the river, known as Hudson street, was laid out and has always been hut seventy feet wide, until extended by an ordinance of the defendants to one hundred feet, which the bill charges they had no right to do. That complainants under the rights vested in them created a bulk-head along the front of their premises on the Hudson river in order to protect and benefit their property, which left a strip of about twenty feet wide between Hudson street, as laid out at seventy feet wide, and the river, and that they constructed their wharves and storehouses thereon and therefrom, for the Cunard steamers and others, and erected the small building or office thereon which they rented to Davidson, and also built a fence along the east side of Hudson street, considering it seventy feet wide. That the defendants, claiming the right to do so under their charter, passed an ordinance widening Hudson street to one hundred feet, for the purpose, as alledged, of extending said street to the water, and of erecting a ferry from some part thereof, and of covering and assuming the strip of land between Hudson street, as originally laid out, and the river, and of destroying the defendants’ wharves, ferry and private property. The bill also states that the defendant Morgan, acting under the authority of the other defendants, pulled down the fence and threatened to remove the office in the occupation of Davidson and to prevent the rebuilding the fence.

On the filing of this bill an injunction to prevent the removal of the office only was granted. The defendants came in and answered, by which they substantially admitted the facts set forth in the bill, but deny the rights and powers of the complainants as claimed by them, and insist on the right and power of the defendants to proceed as they had done, in regard to Hudson street, and to the fence and other obstructions therein, after the street had been extended to one hundred feet wide. These rights and powers the defendants claim by virtue of several acts and supplements thereto, incorporating them as “ The Mayor and Common Council of Jersey City,” and the various ordinances passed in pursuance thereof. These and other matters incident thereto are set forth in the bill and answer, but it is unnecessaiy to repeat them here.

The first question for our consideration is, what rights did the appellants acquire under the Van Vorst deed and the act of incorporation 1 According to the common law rule assumed by counsel to be the rule of this case, the rights of riparian owners extended only to high water mark, and all below that to the middle of the river, belongs to the State and not to the Proprietors as formerly supposed. The deed then from Van Vorst only conveyed the land to high water mark, the ferry and the appurtenances thereto, and the State had a right to grant all lands below that point, either for the purpose of building wharves and piers, or for occupation generally, either under water or by filling up the river so as not to interfere with the navigation.

By the third section of appellants’ charter, they have conferred upon them the privilege of building docks and piers into the Hudson river and bays thereof opposite their premises u as far as they may deem it necessary for the improvement of said premises or the benefit of commerce, and to appropriate the same to their own use.” The rights conferred by this section are conferred on the corporation, and not on Varrick, Radcliff and Dey, the first proprietors; although the term used is “ said associates,” omitting, by accident it is presumed, the words used in some other sections, and their successors.” The powers are such as could only be intended for the incorporation and not for these associates, and could only be executed and enjoyed by the incorporation.

This section confers on the corporation the right of docking out and filling up to the middle of the river, if they do not interfere with the public right of navigation, and they deem it necessary for the improvement of said premises or the benefit of’ •commerce. Of course the docks or piers thus erected belong to the appellants, for they erect them by sanction of law, and the section authorizes them to appropriate them to their own use. ' Does this right of appropriation apply only to the timbers of the dock and the immediate landing place, or to the whole extent of the pier, from high water to its extreme termination 1 Unquestionably the latter, for the former were theirs already without this clause; and this appropriation may be for any lawful purpose, within their chartered rights, which the corporation deemed necessary for the improvement of said premises or the benefit of commerce.”

It is insisted that the term said premises,” means only the lands above high water mark conveyed by Van Vorst, and that the power in the second section to lay out streets and squares “upon all and every part of said premises” is subject to the-same restriction, and thereupon no matter how far appellants may extend their wharves, and though along their whole front, yet they have no power to lay out streets or squares-or otherwise appropriate the newly acquired upland, except for docks or piers. Now if this position were correct, it does not necessarily follow, that the respondents would become thereby the owners of the property or acquire any rights, or be entitled to raise the question of right. But the position is not correct. By the term “ premises,” or “ said premises” the Legislature intended, as they said in the first section, “ the tract and premises herein before described, with the privileges and appurtenances aforesaid,” referring to the description in the preamble to the act, which gives the metes and bounds of the land, and then adds, “ together with the right of ferry from the said tract or parcel of land aerpss the. Hudson river, and the right and title of said Cornelius Van Vorst under the water of the Hudson river and the bays thereof opposite said premises, as far as the right of said Cornelius Van Vorst extends;” and then the preamble states that the Associates had divided “the said premises into one thousand original shares.” Divided what 1 The upland only 1 Certainly not, but the ferry also, the right, void or otherwise, to the land under water. Again, if the laying out streets and squares upon “ alb and every part of said premises,” is to be restricted to the upland only, then the power to “ regulate the 9 building of all docks, piers and wharves and storehouses thereon” in the same section, must be restricted in like manner to the-upland, or, if a pier is built to the middle of the river, there- is no power given to the corporation to lay out a street from the-upland to the foot of the pier, or indeed to connect the land with the water for any useful purpose. These views were not within the contemplation of the Legislature. They took the description of the premises with the appurtenances from the Van Vorst deed, and bearing in mind that as far back as 1804 it was the general impression, that riparian proprietors were the shore owners and had the exclusive right to the land under water opposite their shore, for the purpose of docking or filling out, or acquiring the alluvial, we can have no difficulty in presuming that the Legislature intended by their charter to the associates, to confirm to them all the rights of the State, contained in the description and appurtenances of the Van Vorst deed. Such a power and grant was necessary in order to enable the Associates to execute the plan and objects which they had in view. We may then fairly conclude that all the rights of Van Vorst and of the State, to the lands described, &c., to the middle of the river, except the public right of navigation, vested in the appellants for the purpose of laying out streets and squares, the erection of docks or buildings, or for any other lawful purpose. This is the clear construction of the appellants’ charter, and if they have restricted their rights by any subsequent act of dedication or otherwise, that is a question between them and their grantors on Hudson street, and not between them and the respondents.

It appears manifest that Hudson street, by Mangin’s survey and map, was laid out seventy feet wide next to the Hudson river and so dedicated with the other streets to the public, and according to the principles before laid down, all outside of that, including the strip of twenty feet wide, the office thereon and the bulkhead belong to the appellants.

It is set up in the answer, and was urged with much force in the argument, that by'virtue of their charter the defendants had a right to widen Hudson street, that by an ordinance it was widened to one hundred feet, and that the fence and office were obstructions within the street which they had a right to remove, and did in fact remove the fence and threaten to remove the office accordingly. In the second section of appellants’ charter the Legislature provided “ that the powers granted by this section (to lay out,streets and squares and to regulate the building of docks and storehouses) shall cease whenever the Legislature shall deem it expedient to institute a more adequate and complete corporation for the purposes above expressed.” This reserves in the Legislature full power on the subject. The present charter of Jersey City was passed February 22, 1838. In the repeal of any part of the proviso contained in the second section of the act incorporating said Associates.” Take this section in -connection with the 18th section of respondents’ charter and the second section of appellants’ charter above stated, and there will be no great difficulty in coming to a fair conclusion. The right to lay out streets and squares specified in the second section, the appellants and the Legislature seem to have considered one of the vested rights of the appellants, which was not to be construed as interfered with or impaired, and then inasmuch as the 13th •section embraces pretty much, if not all the other powers granted the Associates in the 2d section, the proviso is inserted so that it should not be construed as repealing the proviso in the Associates’ 2d section; the Legislature thereby reserving to itself the ■right to repeal and transfer to the respondents or others the right to lay out streets or squares or any other right in the 2d section of appellants’ charter not before repealed or disposed of otherwise. Turning to the 13th section of respondents’ charter, it is evident that the right to lay out streets and squares, or to widen or enlarge them, is neither taken from the appellants or given to the respondents. In the former the power is vested by •their charter; to the latter the power is given of passing ordinances for “ regulating, cleaning and keeping in repair the ■streets, highways and public alleys therein” — “ for preventing the encumbering or obstructing the streets, sidewalks and¡publie alleys in said city” — •“ for ascertaining and establishing the boundaries of all streets and alleys in said city, and preventing and removing all obstructions in and upon said streets and alleys.” These are mere powers of municipal regulation and give no power to lay out or widen any street or alley, or to take .for that purpose the private property of the appellants or of any •other person.

Nor is there any provision in the respondents’ charter for carrying any such power into execution or to render it constitutional. The power to lay out and widen streets is still reserved to the appellants subject to their previous acts and grants, and must so remain until the Legislature shall see proper to make •some constitutional provision to the contrary. 29th section, it is enacted u that nothing herein contained shall be construed as in any wise to interfere with or impair the vested rights and privileges of the Associates of the Jersey company, Provided, that this section shall not be adjudged or construed a

We come then to the irresistible conclusion that the respondents had no right to widen Hudson street. 1st. Not for the convenience or benefit of their city, for the power was not given to them in their charter. 2nd. Not for the purpose of acquiring the strip of land twenty feet wide, the bulkhead, the wharves or piers, or any other property of the appellants, because these constitute a portion of their vested rights under their charter and title deeds. 3rd. Not for the purpose of extending a public street to the Hudson river, in order to enable them to establish a ferry across said river; because the right of ferry, of whatever character it be, is vested in tho appellants by the Van Vorst deed of 1804, and confirmed by the act of the Legislature of the same year, and in its nature must be exclusive to the extent of appellants’ land along and on the shore; for no man has a right to establish a ferry and make the landing on another man’s land without his consent; nor according to the decision of Judge McLean, in Brownson’s Lessee v. Watham (2 McLean Rep. 376; Ang. on Tide Waters 17) can the Legislature grant any such right, for it would be taking the land of one man and giving it to another, which cannot be done by legislation. 4th. Nor for any other purpose whatever had the respondents the right to widen said street; nor did they acquire any right by such act to pull down the appellants’ fence, remove their office or in any way hinder or obstruct them in their lawful rights. The streets only and public places, by Mangin’s map, were dedicated to the public and nothing beyond, which is unlike the cases of Cincinnati, Pittsburgh and New Orleans, where the strips next the water were dedicated to the public for a landing. See the cases in 10 Peters 662; 6 Ib. 431; Ib. 498 Ang. on Tide Waters 188 (1).

I think therefore that the order below should be reversed, and the injunction be revived and so modified as to meet the views of this Court and made perpetual, and that an order to this effect should be entered accordingly.

Carpenter, J.

I concur in the same result. It is proper to add that I do not concur in so much of the opinion delivered by Justice Randolph as assumes that the title of the riparian owner extends only to high water mark. The only express decision in this State is that in the case of Bell v. Gough, and that case is still subjudice. In Arnold v. Mundy and in Martin v. Waddell the common law rule was referred to, and in both cases it was assumed to be the law of this State, but in neither case was this point directly involved. The question whether a legal rule prevails in this State still seems to be open, and as it may soon be brought before this Court for adjudication, some of my brethren as well as myself, desire now to withhold any expression, of opinion on this point.

The order dissolving the injunction was unanimously reversed.


author: Green, C. J.

text:
    Van Walkenburgh and Osborn, appellants, and the Rahway Bank and others, respondents.
    On appeal from an order of the Chancellor dissolving an injunction, the Court of Appeals will usually make an order in the nature of a temporary injunction, retaining the parties and the subject matter in statu quo until the final hearing of the appeal, when the whole matter in controversy is the continuance of tho injunction, as on a pure injunction hill, or when it appears that such an order is necessary to prevent great and irreparable mischief to the rights of the appellant.
    The appellant was the purchaser, and in possession of certain real estate, having paid $1,500 on account of the purchase money. The property was afterwards sold upon a decree of foreclosure of a mortgage previously given by the vendor. The purchaser at the sheriff’s sale under the mortgage brought ejectment. The party in possession, on a bill for the recovery, out of the proceeds of the sheriff’s sale, after satisfying tho mortgage, of the said $1,500, obtained an injunction restraining further proceedings in the ejectment; and the injunction was, on answer, subsequently dissolved by tho Chancellor. On appeal from tho order of dissolution, the Court of Appeals denied a motion for an order to revive and continue the injunction until the hearing of the appeal.
    Appeal from an order dissolving an injunction.

      W. Pennington,

    for the appellants, moved for an order reviving and continuing the injunction until the final hearing of the appeal.

      F. B. Chetwood contra.
   Green, C. J.

The complainants below have appealed from an order of the Chancellor dissolving an injunction. They now ask an order in the nature of a temporary injunction, retaining the parties and the subject matter of the controversy in statu quo until the final hearing of the appeal.

The application is to the sound discretion of the Court. When an injunction has been dissolved by the Chancellor, this Court, upon appeal from that order, will usually revive the injunction, either,

1. Upon a pure injunction bill, when the whole matter in controversy is the continuance of the injunction, and where consequently the object of the suit would be unavoidably defeated if the party were not temporarily restrained by the order of this Court, or

2. When it clearly appears that the intervention of the power of this Court is necessary to prevent great and irreparable mischief to the rights of the appellant.

The respondent is in possession of the order of the Chancellor. The only condition of this Court suspending the operaton of that order even temporarily is, either that such suspension is essentially necessary to attain the object of the suit, or to preserve the just rights of the appellant.

In the present case the appellant is the purchaser, in possession of certain real estate, having paid $1,500 on account of the purchase money. The property was afterwards sold upon a decree of foreclosure of a mortgage given by the vendor prior to the purchase. An ejectment having been brought by the purchaser at the sheriff’s sale under the mortgage, who had also purchased the equity of redemption, this bill is filed to recover, out of the proceeds of the sale after satisfying the mortgage debt, the sum of $1,500 advanced upon the purchase. The whole controversy relates to the disposition of the surplus money after satisfying the mortgage. There is no dispute as to the legal or equitable title of the purchaser to the lands. He holds under a title made by the vendor prior to the sale. If the purchase under the decree of foreclosure had been made by a stranger, and not by the purchaser of the equity of redemption under the judgments at law, the case would not have admitted of a question. We do not perceive that the purchaser is in a worse position because he is the owner of the equity of redemption. Depriving the legal owner of the land of his possession can be in no wise necessary to a just disposition of the surplus, wherever the merits of the case may lie.

On the other hand it is obvious, that a serious and irreparable evil will be done by keeping the purchaser out of the possession of the land. The rents and profits, as long as the order is in force, are irrecoverably lost.

The motion must be denied.

The whole Court concurred.

Motion denied.


text:
    McCurdy and others v. Agnew.
   Mr. Schenck suggested the death of the respondent in appeal, and moved for an order making his administrators and heirs-at-law parties, and for an order of publication, some of the heirs residing in New York, and some being infants. He cited 5 Paige, 528; 4 Ib. 409, 418; 2 Peters, 481; 4 John Ch. 382.

The motion was allowed; and an order directed to be drawn according to the practice in Chancery.


text:
    Seth H. Woodruff, appellant, and Thomas V. Johnson et al., respondents.
    Tho cestui que trust of land, the trust being for his own benefit, cannot invest Ms individual property by building on the land, and thus create a trust in his own favor of Ms individual property, to the prejudice of Ms creditors.
    The proceedings in the Court of Chancery in this case will be found ante, page 120.

      W. Pennington for the appellant.
    L. C. Grover for the respondents.
   Tho opinion of the Court was delivered by Chief Justice Green.

Green, C. J.

The facts in this case are not disputed. The premises in controversy consist of a house and lot in the city of Newark. Obadiah Woodruff, by his will, duly executed to pass real estate, devised the lot with a dwelling upon it to trustees in trust for his son, Seth H. Woodruff, (the appellant) for his life, and after his decease in trust for his wife for her life, and then in trust for his children in fee. The appellant, after the death of the testator having come into tho occupation and enjoyment of the lot under the will being free from debt, erected upon a part of the lot, another building with his own funds. With the assent of the trustees he is in the possession and enjoyment of the-entire property, including as well the house and lot devised by his father as the house erected by himself. Being so in possession, his property in the house erected by himself with that part of the lot upon which it was erected, was levied upon and sold to the respondents, by virtue of an execution at law issued upon a judgment recovered by them against the appellant. The respondents seek by their bill, to have the rents and profits of the house and lot so conveyed to them, applied in satisfaction of their judgment.

The rule is well settled that a trust estate is not the subject of levy and sale under an execution at law. It was so decided by Chancellor Vroom in Disborough v. Outcalt; 1 Saxton, 298. In that decision this Court fully concur. It is equally clear that the trust created by the testator for the benefit of his son will not he interfered with, nor the trust funds diverted from their destination, for the payment of the debts of the cestui que trust, either by a court of law or of equity. The Chancellor, by his decree, has not contravened that principle. On the contrary, he clearly recognises the principle, and conforms his decree to its requirements, by directing that the value of the ground rent of the land upon which the house is erected, may, if .desired,, be ascertained, and that sum appropriated in pursuance of the-trust. There is no diversion of any part of the trust fund from the purpose to which it was devoted by the testator.

The only question involved in the decision and appeal is, whether the cestui qui trust of land, the trust being for his own benefit, may invest his individual property by building on that-land, and thus create a trust in his own favor of his individual property to the prejudice of honest creditors.

It was said in argument that he had a right, when out of debt,, to invest his money for the benefit of his wife and children. Admit that he may do so and that the property thus invested will enure to his wife and children; the question still remains, whether he may lawfully create a trust fund for the benefit of himself during his own life to the prejudice of his creditors. Trom the language of the first section of the supplement to the Act respecting the Court of Chancery, (Rev, Stat. 921,) it results hy fair construction if not hy necessary implication that such trust is illegal. Upon broad principles of equity it cannot be sustained. The reasoning of the Chancellor in Disborough y. Outcalt clearly indicates his opinion that equity would relieve against so palpable a fraud. He says, “ a contract was made by Outcalt and for his own benefit, but he paid no part of the purchase money. He was to reside there; he had the management of the property, still he did not pay for tho property, nor did he secure the payment. His creditors were not deprived of anything; there was no assignment or transfer of property out of his own possession into the hands of another for the purpose of defeating creditors.” And upon this ground the Chancellor held that the Court could not interfere.

The appellant in this case is in tho possession of tho land. Ho is entitled to the enjoyment of it for his life, by virtue of the devise. The decree of the Chancellor does not disturb his enjoyment of the trust estate. It leaves the said fund unimpaired. It simply secures to the creditors tho rent of the house built by the cestui qua trust with his individual funds. It appropriates to tho payment of the debts of Seth H. Woodruff so much of the fund held in trust as proceeded from the debtor himself. It does not interfere with any part of the trust which was created by or proceeded from the will of Obadiah Woodruff.

There is a clause of the decree, not adverted to on the argument, which is not in accordance with the expressed views of the Chancellor. The decree appropriates tho rents and profits of the building erected by the cestui que, trust in payment of the claim of the complainants until the claim is fully satisfied. By possibility that may extend beyond the life of Seth Woodruff and beyond the life of his wife, when the land would become absolutely the property of his children. The Court are of opinion that the decree should be so modified as to guard against that contingency. It manifestly was not contemplated by the Chancellor, and was probably an oversight in the draft of tho decree, or, like the clause in regard to the ground rent, was not deemed of sufficient .importance to be inserted.

The1 decree should he affirmed, hut 'without costs.

Justices Randolph, Carpenter and Ogden, and Judges Schenck, Risley, Porter and McCarter concurred in this opinion.

Justice Nevius and Judge Speer dissented.

Decree affirmed.


author: Randolph, J.

text:
    Robert McCurdy et al., Appellants, and Thos. J. Agnew, Respondent.
    This case, and the proceedings thereon in the Court of Chancery, are reported ante, page 9.

      Vandyke and P. D. Vroom, for the appellants.

      R. Adrain and J. W. Scott, for the respondent.
   The opinion of the Court was delivered by Justice Randolph.

Randolph, J.

The bill in this case is the ordinary one for the foreclosure of a mortgage; but the questions arising from the defence set up are somewhat complicated, and so much involved in the evidence produced, that the Chancellor had some embarrassment in coming to a conclusion. However, after opening the cause for further evidence, and a re-argument of the whole matter, the weight of evidence seemed to him to rest with the defendant, and he decreed a dismissal of the bill.

It appears from the pleadings and evidence that the defendant and John O. Taylor did business in the city of New York, under the firm of Agnew & Taylor, until January, 1844, when they became embarrassed and dissolved, having outstanding debts to the amount of about thirty thousand dollars, and a considerable amount of assets to meet the liabilities, of which the defendant took the whole amount, except fifteen or- sixteen hundred dollars taken by Taylor, and agreed to pay all the debts •of the firm and indemnify Taylor. About two or three months after the dissolution, defendant went into the firm of Abbott & Wilson, and took with him goods of the old firm of Agnew & Taylor to the amount of $8,600, and the new firm became that ■of Agnew, Abbott & Co., and in May after the dissolution, Taylor formed a copartnership with Charles Olcott under the firm of J. O. Taylor & Co. The defendant proceeded to settle up the business of the old firm, and during the months of April, May and June, 1844, the debts of Agnew & Taylor were mostly paid at the time they fell due, by one or the other of the parties, principally, it is presumed, by Taylor, as, early in April, he became dissatisfied with the manner in which defendant -fras arranging the business; and on the 13th of April, the further settlement of the late firm passed from the hands of the defendant to those of Taylor, by their mutual consent, on which day the old agreement for the settlement of the business of the firm of Agnew & Taylor was destroyed and a new agreement entered into in writing between the parties, a copy of which has been given in evidence on the part of the complainants, and proved by Taylor on his second examination by order of the Court, previous notice to produce the original having been given,fwhich renders this evidence competent; and a release having been given by complainants to Taylor prior to his first examination, he was rendered a competent witness without impairing the complainants’ claim on the bond and mortgage in question, or any other security they may hold for the debt, the discharge in this case operating on the person of the witness, and not on the debt or its security. By this agreement Taylor was to settle up the business of the late firm, Agnew to transfer to him the books, accounts and notes of the firm, and to provide the sum of four thousand dollars in addition for the purpose of the settlement. Taylor was to add to these assets the sum of fifteen hundred and seventy-five dollars, being about the amount he had taken from the firm at the dissolution. It was also agreed by the same instrument, that as Andrew Agnew had signed two notes, for about thirty-two hundred dollars, to Agnew, Abbott & Co., to , secure two notes of the same amount drawn by them for the use of Agnew & Taylor, these notes should be considered a liability of Agnew & Taylor and paid out of their assets, and Andrew Agnew saved harmless and not looked to for the payment of any part of the same. It was also understood that Taylor was not to render himself personally liable beyond the amount receivable and specified. This agreement appears to have been drawn by E. H. Kemble, (or at his office,) a witness in the cause, who states that Agnew and Taylor had called on him for the purpose of having an agreement drawn, and stated their difficulties, and that if they could raise money temporarily they could ■ in a short time procure a bond and mortgage which would enable them to go through with the business; and upon his promising to do what he could for them, early in April, Agnew brought to him two notes of Agnew, Abbott & Co. for about thirty-two hundred dollars, the proceeds of which were to be applied to the payment of the debts of Agnew & Taylor, and that these notes were so negotiated or discounted that he advanced to A. & T. on the 4th, 6th and 8th of April, $2900. One of these notes, he states, was afterwards paid by Taylor, being for $1560 ; and the other, for $1640, was paid, the one-half by Taylor, and the other half by Agnew, Abbott & Co., or each paying one-half of both notes as otherwise proved. They are no doubt the same notes given in evidence by the defendant, the larger one dated April 1st, 1844, and the other April 4th, 1844, and which Andrew Agnew and Taylor indorsed, and that of $1560 bears also the indorsement of the complainant, and these notes being paid off, of course Andrew Agnew’s liability was discharged, both as ■•the indorser of these notes, and as the drawer of the two notes ■ made and deposited with Agnew, Abbott & Co., to meet them. Kemble states further in his evidence, that in pursuance of the suggestion made to him, the bond and mortgage was in a short time procured, and are those now in controversy, bearing date April 16th, 1844, and given for $4000, to enable Taylor to raise the money and pay the debts of Agnew & Taylor, he, Taylor, . agreeing to consider them for that purpose as so much cash. ' They were drawn, as Taylor says, to Andrew Agnew at defendant’s suggestion for family reasons, and possibly also, as the defendant and his witnesses, Mr. Lecompt and R. E. Agnew state,, because Andrew Agnew had previously given his notes for $8200 to enable Agnew & Taylor to raise money to settle their affairs; this would be in accordance with the agreement of Agnew & Taylor of April 13,1844, by which the defendant was to provide $4000 to pay the debts of the firm, and Taylor to save harmless Andrew Agnew from liability by reason of these notes. But that the bond and mortgage were given merely to secure Andrew, is disproved' by its amount, being $800 above his liability, by the fact that Andrew had nearly two weeks before given his note without, so-far as the evidence goes, ever demanding security, and by the further fact that he seems never to have retained the possession or control of these instruments, as well as by the written agreement of Agnew & Taylor themselves, and the positive testimony off .Taylor and Kemble, and the history and circumstances of the transaction.' There can be no doubt from the evidence, that the-bond and mortgage were given in pursuance of the agreement,, to enable Taylor to raise money to settle up the business of the-firm; that it was for that purpose assigned to Kemble and held: by him as collateral security for advances, at one time, on these-notes of Agnew, Abbott & Co., subsequently, when these were-paid off, for other advances, until finally, all being paid off, they were transferred by Taylor’s direction to complainants, to pay them for goods furnished Taylor, as the means of enabling him> to raise money to pay the debts of Agnew & Taylor, in his mode-of settling up the business, he bringing the whole of it into account with the firm of J. O. Taylor & Co., charging Agnew &• Taylor on the books of J. O. Taylor & Co., with the amount paid out, and giving them credit for the amount received from all sources. The charges thus made being according to the books and the evidence, Dr. $20,356-65, and Cr. $9,597.19, and the whole debt of the-firm paid off.

The complainants, then,'having paid a fair and full consideration for the bond and mortgage, which were used by Taylor, and transferred at his instance to the complainants, to answer the purpose for which they were given; and all Andrew Agnew’S. liabilities being settled, tbe defendant has no right to object to the prayer of the bill. Nor can he, by the defence which he has set up, compel the complainants to go outside of his bill to meet and overcome that defence, and object to this course as a departure from the ease made by the bill, for that case is in effect admitted by the answer, which sets up new matter and raises a new issue; a very different thing from a new case and issue being made by complainants variant from that set forth in this bill. The defence set up in the answer being entirely disproved' and overcome, 1st, That the bond and mortgage were not created for or merely for Andrew’s security; 2d, That Andrew’s liability has been entirely paid off; and 3d, That the bond and mortgage were made to enable Taylor to settle up the business of the firm, placed under his control, and issued by him for that purpose, and finally in the course of settlement transferred to-complainants for a full consideration, without their knowledge of the mode or cause of their creation, there is nothing to prevent their recovery.

I think, therefore, the decree must he reversed.

The Court unanimously concurred.

Decree reversed.


text:
    Robert G. Campbell, appellant, and A. O. Zabriskie, Administrator of Robert Campbell, deceased, respondent.
    An objection for want of parties may be taken at the final hearing.
    An accounting party, in a suit in equity for the settlement of an account in which he is interested, cannot be heard as “a witness to prove the payment of his legal liabilities.
    If, on a bill for an account, the Court, upon the evidence, is satisfied that nothing is due the complainant, no order to account should be made.
    • The proceedings in this case in the Court of Chancery are reported ante, page 856.

      A. Whitehead and W. L. Dayton for the appellant.

      Zabriskie and W. Pennington for the respondent.
   The opinion of the Court was delivered by Chief Justice -Green.

Green, C. J.

By a deed of assignment bearing date on the 7th of July, 1834, George G.- Campbell conveyed to Robert ■Campbell certain real and personal estate in trust to pay the indebtedness of the grantor to the grantee, and then certain other debts of the grantor in a specified order of priority. Robert Campbell, the trustee, having sold and conveyed’the trust estate, died intestate on the 5th of July, 1846. George G. Campbell, the grantor in the trust deed, who claimed an interest in the trust fund, by virtue of a resulting trust, assigned his interest to the complainant. The complainant filed this bill for an account of the trust and for the recovery of his interest in the trust fund under the assignment. The bill is filed by the assignee of the ■cestui que trust, against the administrator of the trustee, and they are the only parties to the suit! Upon final hearing on bill Answer and proofs, the Chancellor dismissed the bill, upon the ground, as appears by the decree, that the complainant was not entitled to the relief sought and prayed for by him in his bill of complaint.

From that decree the complainant appealed. The only question before this Court is whether the complainant is entitled to that relief.

Several questions of much importance have been raised and ably discussed by Counsel, for the proper examination of which the limited time at the disposal of the Court (as the case must be settled at the present term) affords no opportunity. If the case necessarily rested upon those points, I should not feel prepared now to express an opinion. But their determination is, I believe, not necessary to the proper settlement of the rights of the parties.

In the investigation of this case it will bo assumed that George G. Campbell had an assignable interest in the trust fund, which passed by the assignment to the complainant, and which he has a right in a court of equity to enforce. I say these propositions will be assumed as true, for the purpose of investigating other points in the case.

The first purpose to which the trust fund is to be applied is to pay off and discharge certain bonds, notes and legal liabilities of George G. Campbell to Robert Campbell, the trustee. There existed, then, between George G. Campbell and Robert Campbell, not only the relation of cestui que trust and trustee, but also the relation of debtor and creditor. He owed Robert Campbell a large sum of money, and until that indebtedness was satisfied, there is no resulting trust and no trust fund to which George G. Campbell could be entitled or which he could pass by assignment. Hence it becomes a leading controlling question, lying at the very foundation of this cause, whether George G. Campbell has discharged his bonds, notes and other legal liabilities to Robert Campbell. It is not at all a question between trustee and cestui que trust. It is simply a question between George G. Campbell and Robert Campbell, or debtor and’ creditor, whether George G. had or had not paid off his bonds and obligations. That controversy is attempted to be settled in a suit to which George G. Campbell is not a party, and he is called as a witness to prove that he has paid off his own bonds and notes, and extinguished his legal liabilities. Admitting the jurisdiction of a court of equity, I take it to be perfectly clear (1) that no-decree can be made in the cause unless George G. Campbell be a party to the suit, and (2) that he is an utterly incompetent witness to prove that his legal liabilities are extinguished.

1. No decree can be made unless George G. Campbell be a party to the suit. It was said upon the argument that the assignor is not a necessary party if he be examined and testify that he is divested of all interest in the trust fund. That is undoubtedly true, but the necessity of his being a party in the case results, not from his interest as a cestui que trust in the resulting trust fund, but from the fact that he was Robert Campbell’s debtor, and that the great object of the suit was to settle a private account, independent of the trust, between himself and Robert Campbell. In that controversy he and Robert Campbell are alone the persons immediately and directly interested. By the assignment George G. Campbell was not discharged from the obligation to pay his bonds and notes. Nor did his assignee become liable to pay them. Nothing passed by the assignment to the complainant but a simple interest in the balance after the account between George and Robert Campbell is settled. If on taking the account it should appear thpt there was a balance due from Robert Campbell, his estate would be bound. But if on the other' hand it should appear that there was a balance due upon that account from George to Robert, what relief under this bill would the administrator have1? No decree could be made against the complainant to pay it. He is not bound to pay George G. Campbell’s debt. No decree can be made against George G. Campbell. He is not a party to the suit. No decree can be made in favor of the administrator if the balance should be in his favor. Now it is a universal rule in equity that upon a bill for an account, the party against whom the balance is found will be decreed to pay it. Sometimes that order is contained in the original decree for the account. Sometimes, and usually in modern practice, it is not made till the account is taken and the final decree made, but it forms an essential part of the relief upon the bill. Seaton's Decree 42, 43.

And not only can the administrator have no execution or decree in Chancery to enforce the payment of the balance found due, but if he sue at law upon his bond or note, the decree will be no evidence to establish George G. Campbell’s liability, because ho was no party to the suit in equity. And no man is bound by a decree in a cause in which he is not a party. If then a decree can be made in this cause in favor of the complainant, it will present the extraordinary anomaly of a creditor having claims to the amount of at least $5,000, which may be recovered in a court of law, being called into a court of equity and his claims extinguished by a decree in a cause to which his debtor is no party, and who is not bound by the decree, and that result produced by the evidence of the debtor himself.

An objection for want of proper parties may always be taken advantage of at the final hearing, and so, it may be observed in passing, may a want of equity in the complainant’s bill. It seemed to be assumed upon the argument, that the objection for want of title in the complainant or other want of equity in the bill must be taken by demurrer. ££ By a demurrer,” says Lord Riverdale, ££ the defendant demands the judgment of the court, whether he shall be compelled to answer the complainant’s bill or not. By an answer he controverts the case stated by the plaintiff, or, admitting the case made by the bill, submits to the judgment of the' court upon ¿í, or upon a new case made by the answer, or both.” Upon an answer then the complainant is entitled to the opinion of the Court upon the case made by the bill, as well as the case made by the answer, upon both or either. And it is not an unusual thing in practice for an answer in equity to conclude by the defendant’s insisting that there is no equity in the complainant’s bill and putting himself upon the judgment of the Court respecting it. The practice rests upon sound policy. A demurrer admits the truth of the charges in the bill. A bill addresses itself to the conscience of the defendant, and when a bill contains charges of fraud or of other immorality implicating the character of the defendant, an upright man would forego his legal rights rather than avail himself of a legal objection which, if successful, would deprive him of all opportunity of relieving his character by a denial of the charges.

If, then, the decree of the Chancellor rested upon this ground alone, I should have great difficulty in reversing his decree. The utmost that this Court could do would be to reverse the decree and send the cause back to the Court of Chancery to have the bill amended and the proper parties brought before the Court. But the decree of the Chancellor does not appear to have rested upon this ground. If this had been his only difficulty we may presume that he would have permitted the bill to be amended and the proper parties brought before the Court. His decree was based upon the ground that the complainant was not entitled to relief. From that decree the appeal is taken, and as the case has been fully heard and discussed upon the merits, it is desirable for both parties that it should, if possible, be finally decided.

What has been said in regard to the relation of the parties, the object of enquiry in this cause, is still relevant as bearing upon the competency of George G. Campbell as a witness. It may be added upon this point, that Geoz’ge G. Campbell is directly interested in the event of this suit. Not in the suz’plus it is true. That he has assigned, but as a debtor he is interested in having his legal liabilities to Robert Campbell cancelled. If the decree be for the complainant it would be conclusive against Robert Campbell’s Administrator, and would be so in an action at law brought by him to recover against George G. Campbell upon his obligations to Robert Campbell. The utmost that can be asked in favor of George G. Campbell’s testimony is that it should be received so far and no further and be entitled to as much weight, and no more, as the evidence of an accounting party, who is himself a party to a suit in equity, for the settlement of an account in which he is interested.

Now such a party can never be heard to prove the payment of his legal liabilities. The object of the examination of the party is to discover facts peculiarly within his own knowledge. He is made a witness at the instance of the adverse party, and he is never permitted, even upon a cross-examination, to go out of the facts to which he has been examined by the adversary, and. make evidence for himself. This is the settled rule in this State, and wa* so held by the Chancellor in Jackson v. Jackson’s Executors. 1 Green Ch. 96. Then the evidence of George G, Campbell that he had paid off his bonds and indebtedness to Robert Campbell is utterly incompetent, and must be laid entirely out of view. His evidence upon other points may be available, at least to his adversary.

Is the complainant, then, upon the evidence, entitled to the relief sought 1 The complainant asks, first, an account, and secondly, that the balance due him should be decreed to be paid. The object of the suit is to recover the balance due. The object of the account is to ascertain the amount of the balance.. But if the Court be satisfied that there is nothing due, no account will be decreed. The Chancellor must first be satisfied that the complainant is entitled to have an account taken. If he be satisfied upon that point the practice is to refer it to a Master to state the details of the account, and ascertain the balance. But the Chancellor may, if he see fit, take the account himself. In this case, however, I understand the Chancellor to say that the complainant is upon the evidence not entitled to an account. He not only may, but ought to refuse an account, if he be satisfied upon the evidence that nothing is due the complainant, or that for any cause an account ought not to be decreed. If there had been offered in evidence a paper writing of George G. Campbell acknowledging that nothing was due from his uncle Robert, surely no account is necessary. Now the Chancellor does not, as has been insisted, arrive at his conclusion by examining the account, and then refusing an account. He arrives at his conclusion by evidence independent of the account. In that conclusion I think he is fully sustained by the evidence. I think the evidence shows satisfactorily that nothing whatever was due from Robert Campbell to George G. Campbell by virtue of the trust. It is not my purpose to examine the evidence in detail. It has-been elaborately discussed by counsel, and is fresh in the recollection of the members of the Court.

Being satisfied from the evidence that nothing was due to George G. Campbell from Robert Campbell at the time of his ■'death, and that the complainant is not entitled to an account, I am of opinion that the decroe of the Chancellor was right and ought to be affirmed, but without costs.

Justices Carpenter, Randolph and Ogden, and Judges ;Schenck, Risley, Pqrter, Wills and Cornelison concurred.

Justice Nevius and Judge Valentine dissented.

Decree affirmed.


text:
    The Executors of Abraham Van Houten, Sen., deceased, and Trustees of Abraham Van Houten, Jun., deceased, appellants, and A. S. Pennington, executor of Abraham Van Houten, Jun., deceased, and Rachel Van Houten, respondents.
    The ease in Chancery is reported ante, page 272.

      A. O. Zabriskie and Wm. Pennington for the appellants.

      A. S. Pennington and P. D. Vroom for the respondents.
   Green, C. J.

The only question in this cause arises upon the construction of the will of Abraham Van Houten. The testator first gives to his wife the use of his farm and dwelling house, with his farming utensils, stock, household servants and household and kitchen furniture, until his son Abraham should arrive at the age of twenty-ono years. After a variety of bequests, he then gives and devises as follows : I give, devise and bequeath unto my son Abraham Van Houten, all the rest and residue of my estate both real and personal, whatsoever and wheresoever lying and being, of whatsoever description the same may be, excepting what is heroin otherwise disposed of, to him, his heirs andassigns forever: My will is, and I do order that my executors hereinafter named shall rent out all my property lying in the town of Paterson and Hackensack, and all houses and lots owned by me, at their discretion, for the benefit of my son Abraham Van Houten, and the proceeds arising therefrom, after deducting all necessary expenses and charges, together with my personal estate, consisting of money, bonds, notes and mortgages, bequeathed to my said son Abraham Van Houten, to be put out to interest for the benefit of my son, by my executors, until he shall arrive to the age of twenty-one years; and I do further order that my executors give unto my said son Abraham Van Houten out of my estate a good college education and a decent support until he arrive at the age of twenty-one years; but if my said son, Abraham Van Houten, should die, having no children, then my will is, and 1 do hereby dispose of my property in the following manner, viz.” The testator then, after giving legacies to the children and grandchildren of three of his sisters, devises the residue of his estate, one-third to his wife, and*the remaining two-thirds to the relations of his first wife.

The testator died soon after the execution of the will, having an only child, the devisee named in the will, then an infant of very tender years. The devisee Abraham Van Houten, lived till he attained the age of twenty-one years, and died without having children. The question is whether under the provisions of the will, the limitation over of the estate given to the testator’s son Abraham, was upon the death of the devisee without children, or upon the death of the devisee under twenty-one without children. In other words whether the estate vested absolutely in the devisee on his attaining the age of twenty-one years, or whether it remained a contingent estate during his life, liable to be defeated by his death at any time without children.

The doubt, if any there be, as to the true meaning of the will does not arise from the terms used, but from the connection in which they stand. The clause of the will expressing the contingency upon which the limitation over is made is in these words: But if my said son, Abraham Van Houten, should die having no children, then my will is and I do hereby dispose of my property in following manner, viz.:” There is no reference in this clause standing alone to the devisee’s dying under twenty-one. The contingency expressed is simply the death of the devisee without children. It is insisted however that the clause under twenty-one years of age,’ is fairly implied from the context, or if not from mere grammatical construction, yet that that was the true meaning of the testator, as collected from the whole scope of the will.

The true meaning of the passage, so far as rests upon its grammatical construction, depends entirely upon the idea with which it is set in opposition by the use of the conjunction with which the sentence commences. If the limitation over was immediately connected with the original devise, the meaning of the will would he entirely clear. The whole passage would then read thus: <e I give, devise and bequeath unto my son Abraham Van Houten, -all the rest and residue of my estate both real and personal, whatsoever and wheresoever * * * to him his heirs and assigns forever, but if my said son should die having no children then my will is, and I do hereby dispose of my property.” In the sentence as it thus stands, the only contingency upon which the devise over is expressly limited or which can fairly be implied or supposed to exist in the mind of the testator, is the death of the devisee without children. But the clause containing the -devise over does not stand in the will in that connection. Nor does the devise thus stated express the whole idea of the testator.

By the will the testator devises the residue of his estate real ¡and personal to his son absolutely in fee simple, by the broadest •and most comprehensive terms. He then provides that the whole estate, real and personal, shall remain in the hands of his executors and be managed for the benefit of the devisee until he is twenty-one. That out of it he shall receive an education and a decent support until he is twenty-one, and then occurs the clause in question, hut if he die without children then the estate ¡shall go over. The devise over stands not in opposition to the ' original devise, hut to the event of the devisee’s coming into possession. And upon the principles of grammatical construction, the use of the conjunction between the two members of the sentence (whose office is to express merely the relation and dependence of thought) connects the devise over not solely or mainly with the original devise, hut primarily with the time of its enjoyment. Now it is perfectly clear that in order to express fully the testator’s meaning, it Is necessary to insert before the clause containing the devise over, a provision directing that the devisee should come into the possession of his estate on his attaining the age of twenty-one years. ■ The whole clause would then stand ■'thus : I give the: residue of my estate to my son Abraham, his heirs and assigns forever. I'direct my executors to rent the real estate, and to keep the proceeds thereof together with my personal estate invested for the benefit of my son until he arrive at twenty-one years of age. And my will is that upon his attaining the age of twenty-one years íny son come into the possession of all his estate real and personal, but if he die without children, then to go over. It is true that there is in the will no express direction that his son shall come into possession of his estate at twenty-one, but it is there by necessary implication. The estate had been devised to him absolutely. It had been devised'to the mother and placed in the hands of the executors, until the devisee should attain the age of twenty-one years.' The clause is' necessary to complete the sense, and to express fully the connection and relation; of thought subsisting in the mind of the testator between the original devise and the contingency upon which the devise over is limited. Standing in this connection, if the clause containing the devise over had been simply, ci But if my son die, then over,” there could be no doubt that the devise oyer was upon the condition of his son’s dying u under twenty-one and without issue.” This view of the testator’s meaning derived from the frame of the will and its proper grammatical construction, is strengthened by a view’of the entire instrument, the general nature of its provisions, and the situation and circumstances of the testator.

The devisee was the testator’s only child, and at the date of the will an infant of very tender years. He was the peculiar object of the testator’s car» and bounty. After making suitable provision for his wife, and making bequests to the relatives of his former wife and to his slaves, the testator gives the whole residue of his estate real and personal, to his only child in fee simple, by terms the most clear, broad and comprehensive. The general intent, the controlling idea of the will, is to vest the estate of the testator absolutely in his only child.

This is the disposition of the estate, indicated as clearly by the language of the will as by the voice of nature. There is nothing in the provisions of the will, aside from the particular clause in question, indicating an intent on the part of the testator to limit or in any wise to qualify the estate given to his son after he should attain the age of twenty-one years.

And yet, by the construction sought to be given to this will by the appellants, the whole interest of the devisee in the estate of his father would be the mere use of it for his own life, without the power of aliening the land, or disposing of the principal of the personal estate. That the testator should provide for the, contingency of his son’s death under twenty-one and without issue, was a natural and provident provision to guard against an, ordinary contingency. That he should have desired to tie up his entire estate in the hands of his only child, after he attained to manhood, in favor of remote kindred having no special claim upon his estate or his sympathy, seems neither natural nor probable.

The fact that one-third of the property was given, in the limitation over, to the testator’s widow, the mother of his infant, son, strengthens the belief that the contingency contemplated was the death of the child under twenty-one years of age, and not a mere remote contingency which in the ordinary course of nature was not likely to occur in the lifetime of the mother.

The power of the Court to effectuate the manifest intent of the testator by inserting omitted words, by altering the collocation of the sentences, or even reading the will directly contrary to its primary signification, is well established. By so doing the Court do not propose to alter the will, to substitute their will for the will of the testator, but merely to prevent the intention of the testator from being defeated by a mistaken use of language. It is a question simply whether the Courts will execute the clear intent of the testator not fully or clearly expressed in the will, or whether by a strict technical adherence to the form -of words and their literal meaning, they will suffer the intention of the testator to be defeated. Upon this point the law is well settled, both in regard to real and personal estate.

, It was said upon the argument, probably with much truth, that upon the construction now given to the will, this estate will take a direction which the testator never could have contemplated, and which he would not have approved. The answer to this objection will be best given in the language of Chief Justice Kirkpatrick in Nevison v. Taylor, 3 Hals. 46, in reply to a similar suggestion. - “ This is no argument against the construction. A will is not to be construed according to future contingencies, but according to the true meaning appearing on the face of it, at the death of the testator. Contingencies not-contemplated cannot be provided against. Man sees but a little way into futurity] a single event unforeseen deranges all his plans; and teaches us that man with all his wisdom, toils for heirs he knows not whom.” The same construction must now be given to this will as if the devisee himself or his alienee were before the Court claiming under its provisions.

The decree of the Chancellor must be affirmed. But as the question is raised in a case of doubt upon the construction of a-will, by those claiming under it, the affirmance will be without-costs against the appellants. As the bill was filed for the purpose of settling the construction of the will, it is proper, in accordance with the practice in equity, that the costs should be-paid out of the estate.

Nevius, Randolph and Carpenter, Justices, and Porter. and Risley, Judges, concurred in this opinion.

Schenck, Judge, dissented.

Decree affirmed.