text:
    State Mutual Building and Loan Association of New Jersey v. Millville Improvement Company.
    [Decided July 7th, 1908.]
    1. A mortgage originally given to secure a simple money bond may. by agreement of the mortgagor, be made security for the payment of a loan from, and for interest, dues, premiums and fines due to, a loan association.
    2. When money is paid to a mortgagee, in consideration of the release from the lien of the mortgage of a part of the mortgaged premises to a purchaser of the fee of the released portion, in the absence of agreement by the parties to the contrary, the law applies the payment in reduction of the mortgage debt pro tanto.

    3. Where premises are purchased subject to encumbrances, among which is a sum due for taxes, the purchaser cannot set up an outstanding tax title acquired before the purchase of the mortgagor’s title, whether the tax title be a lien only or a fee-simple; and especially so when the purchaser had previously acquired the tax title with a view to becoming the purchaser of the mortgagor’s title.
    On bill to foreclose. On exceptions to master’s report.

      Mr. S. Stanger Iszard and Messrs. French & Richards, for the complainant.

      Mr. Norman Grey, for the defendant.
   Walker, V. C.

The mortgage being foreclosed in this case was made on August 31st, 1895, by the South Jersey Land and Transportation Company to Richard Ii. Rushton, conditioned for the payment of $26,000 January 1st, 1900, with interest at six per cent, per annum. There are no .special covenants or agreements in the mortgage. It simply pledges certain lands and premises in the counties of Atlantic and Cumberland in this state for the payment of the mortgage debt.

On August 19th, 1896, the mortgage was assigned by Mr. Rushton to the complainant, the State Mutual Building and Loan Association of New Jersey. The assignment is without any covenant against the assignor. Contemporaneously with the making of the assignment a declaration of no set-off was given by the mortgagor, the South Jersey Land and Transportation Company (who had become a stockholder in the complainant association), to the assignee, the State Mutual Building and Loan Association of New Jersey, who is now foreclosing that mortgage. This document recites that the South Jersey Land and Transportation Company (the stockholder) has applied to the State Mutual Building and Loan Association of New Jersey, the complainant, for the loan and advance of $20,000, based on two hundred shares of stock in the association according to its constitution, by-laws and regulations, and proposes to secure the same by the assignment of the bond made by the South Jersey Land and Transportation Company to Mr. Rushton, conditioned to pay $36,000 January 1st, 1900, with interest, and the indenture of mortgage made and given to secure the same, which security the association is willing to take provided the South Jersey Land and Transportation Coinpany will agree that the full sum of $30,000 is due and owing on the bond and mortgage, and that those securities shall fall due and become payable forthwith in case of any default in the payment of dues, interest, premium or fines, by the company to the association. The document then proceeds, in consideration of the premises, &e., to covenant that $30,000 of principal is due and owing on the bond and mortgage, and that the company has. no plea, set-oif or defence against the same in law or equity, and that in case of any default in the payment of any monthly installment of dues, interest, premium or fines on the loan, or any portion thereof, in accordance with said constitution, by-laws and regulations, then and in such case the bond and mortgage shall at the option of the association, its successors and assigns, forthwith become due and collectible, and said association, its successors and assigns, may forthwith proceed to collect and recover the principal and' interest thereof, and use the proceeds to pay and discharge the loan and advance and the dues, interest, premium and fines accrued thereon, in the same manner as if the bond and mortgage had been made and given in the first instance to secure the same.

The defendant, the Millville Improvement Company, filed an answer which did not set up any defence or present any question except such as might be properly referred to a master, and the cause was, on December 31st, 1906, referred to Judge Starr, a master in chancery, to ascertain and report the amount due to the complainant on the mortgage and on the bond, and also whether the complainant is entitled to charge against or collect from the land described in the complainant’s mortgage, dues, interest, premiums or fines, laid or imposed by 'the complainant, and for what amount a decree should be made in favor of the complainant on the mortgage, and what lands the mortgage is a lien upon, and what lien, if any, the defendant, Millville Improvement Company, has in any part of the lands by virtue of the purchase by it of a tax title from the township of Landis, and if a lien, the amount due thereon, and to whom, and the priority of the same with respect to the complainant’s mortgage.

The master took considerable testimony and filed an elaborate report on May 31st, 1907. To this report four exceptions were filed, and the matter has been heard upon these exceptions. They will be considered together, and together they raise three questions — first, was the complainant entitled to charge against the South Jersey Land and Transportation Company dues, interest, premiums and fines; second, should the complainant have credited on the mortgage the amount paid to it for releases of parts of the mortgaged premises, instead of crediting those payments on account of the loan and advance, and third, is the defendant the owner of tire land located in the township of Landis in fee-simple absolute, free from the lien of the complainant’s mortgage, by reason of its acquisition of title under a sale for taxes of part of the mortgaged premises made by that township.

As to the first question, my judgment is that the complainant was entitled to charge against the South Jersey Land and Transportation Company dues, premiums and fines, as ascertained and set forth by the master in his report, and the amount of which as found by the master is the amount due and owing from the defendant to the complainant on the loan and advance referred to, and I hold that the complainant can recover against the defendant on the foreclosure of this mortgage the amount for which the mortgage stands as security, which is the principal of the loan, with interest, dues, premiums and fines.

In my opinion, the mortgage given by the South Jersey Land and Transportation Company to Mr. Eushton and by him assigned to the complainant, was, in the hands of the complainant, in virtue of the declaration of no set-off, which, as before stated, is also a contract between the parties, the same as though the mortgage were originally made between the same parties as security for-the loan made by the complainant to the defendant. As is well known, there are regular forms of bonds and mortgages given to building and loan associations to secure the pay-meat for shares of capital stock and for interest, dues, premiums and fines. Although the mortgage in question was not one of them, as originally drawn, nevertheless, in effect, it became such, in equity, by virtue of the declaration of no set-off.

In Jones Mort. (6th ed.) § 357, it is laid down:

“As against the mortgagor, his agreement that the mortgage shall stand as security to the mortgagee for further advances, although it be oral only, is valid, and, after the advances have been made upon the faith of it, a court of equity will not allow the mortgagor to redeem without performing it.”

This question has been settled by the court of errors and appeals of this state in Atwater v. Underhill, 22 N. J. Eq. (7 C. E. Gr.) 599. Mr. Justice Depue, in the opinion in the case (at p. 603), said:

“A mortgage which has been satisfied may be given a new vitality by a redelivery by the mortgagor to the mortgagee or a third person, upon a new consideration, or for a purpose different from that for which it was made. Robinson v. Urquhart, 12 N. J. Eq. (1 Beas.) 515; Hoy v. Bramhall, 19 N. J. Eq. (4 C. E. Gr.) 563. But to give such effect to the mortgage the repledging must be made by the authority of the person whose estate is sought to be held for the performance of the new obligation. Mrs. Atwater was the owner of tire mortgaged premises, and the mortgage when once extinct could only be revived by an authority which emanated from her.”

The same doctrine is exploited in Whitney v. Franklin, 28 N. J. Eq. (1 Stew.) 126, 130; Campbell v. Perth Amboy Shipbuilding Co., 70 N. J. Eq. (4 Robb.) 40, 59.

Thus it appears that not only may a subsisting mortgage be made security for a further or other debt than that for which it was originally given, but that after it has become extinct it can be revived and repledged.

It will be remembered that the South Jersey Land and Transportation Company was the mortgagor, and that it itself made the agreement directly with the complainant whereby its mortgage after assignment by Mr. Rushton, the mortgagee, was pledged as security for the loan and advance made to it by the complainant. In this posture of the affair it was as though the mortgage had never been given to secure Mr. Rushton, but to secure the performance by tire mortgagor of his contract of membership with his fellow stockholders in the complainant association. Clarksville B. and L. Association v. Stephens, 26 N. J. Eq. (11 C. E. Gr.) 351, 355; State W. B. and L. Association v. Hornbaker, 41 N. J. Law (12 Vr.) 519, 522; Bowen v. Lincoln B. and L. Association, 51 N. J. Eq. (6 Dick.) 272. In the last case (Bowen v. Lincoln B. and L. Association) the bond provided only for the payment of dues and interest, but not for fines, and the court of errox*s and appeals (at p. 280) intimated that if the constitution and by-laws had declared that fines should be collected out of the proceeds of the sale of property pledged to secure a loan made to' a member, that might justify the decree under review, which, visited the payment of fines upon the defendant, and which was reversed because the court found nothing in the contract under which the payment of fines could be enforced in that suit.

In New Jersey B. L. and I. Co. v. Bachelor, 54 N. J. Eq. (9 Dick.) 607, the amount held to be due upon the mortgage was that actually paid upon it, together with premium and monthly payments required to be made by the terms of the bond and mortgage.

Secondly. The master finds upon the evidence that there was no application made by the defendant of the various sums received for releases of parts of the mortgaged premises to the payment of the mortgage debt. In this I think he has erred, but the error is harmless, as will be seen.

On August 20th, 1896, the president of the complainant association wrote a letter to the president of the South Jersey Land and Transportation Company in which he said:

“Regarding the matter of your loan from this association of $20,000, we understand you desire releases from time to time on a portion of the mortgaged premises, paying us a satisfactory sum therefor which shall be agreed upon from time to time, reducing the loan to that extent. We have no objection to doing this at all,” &c.

And counsel for the defendant, Millville Improvement Company, contends that this amounts to a valid direction to have the money applied on the mortgage, but cites no authority to sustain his position. He evidently treats the mortgage debt as a thing apart from the loan and advance which the mortgage was assigned to secure. My view is'contrary to the contention of counsel on this head. As I read the communication it is a direction to apply the moneys on the loan and advance, which is, as between the parties to this suit, the mortgage debt, as has already been seen, and for the payment of which the mortgage was assigned.

I take it that where money is paid to a mortgagee in consideration of his release of a part of the mortgaged premises from the lien of his mortgage to a purchaser of the fee in the released portion, the law applies the payment in reduction of the mortgage debt pro tanto, and that application of the payment to some other debt between the.parties can only be made by their mutual agreement.

In Jones Mort. (6th ed.) § 907, it is laid down:

“If a mortgagee release a portion of the mortgaged premises to one who has purchased the equity of redemption of that portion, the money paid him for such release is deemed a payment upon the mortgage debt and he cannot apply it in discharge of other debts due him from the mortgagor.”

In Hicks v. Bingham, 11 Mass. 300, it was held: “Where a mortgagee of two parcels of land released one of them to an assignee of the mortgagor, she was held to apply the money paid in consideration of such a release in discharge of so much of the sum due on the mortgage, although the mortgagor was still indebted to her on other accounts.” And Justice Putnam (on p. 302) remarked:

“And we are all of opinion that the respondent is bound to apply the consideration'which she received for a release of a part of the mortgaged premises towards payment of the mortgage. It was received by her in consequence of the mortgage, and the price of the land mortgaged, as well as the rent of it, received by the mortgagee, ought to be applied towards the extinguishment of the debt secured by the mortgage.”

But, after all, in this case, in my opinion, an appropriation by the complainant of moneys received for releases of portions of the mortgaged premises, to the payment of the loan and advance, is an application of payment upon the mortgage, because that mortgage, although originally not so written, nevertheless, by virtue of the declaration of no set-off and agreement between the parties, at the time the releases were given and payments made, stood as security for the loan and advance made by the complainant to the South Jersey Land and Transportation Company, the defendant’s predecessor in title, as effectually as though it were originally written to secure that very debt.

Although counsel for defendant contends that the money received for the releases should have been applied to the mortgage debt instead of the loan and advance, his position in this regard is founded in a misconception, for, by virtue of the agreement mentioned, the loan and advance became the mortgage debt.

As to the question of tax title. In the year 1902 the South Jersey Land and Transportation Company was decreed to be insolvent in a suit in this court wherein Edward R. Wood was complainant and that concern was defendant. In that proceeding-application was made to sell the mortgaged premises free from the lien of the mortgage which is now being foreclosed, which application was refused and an order was made for the sale of the premises subject to the mortgage. The sale took place in August, 1904, and the property was purchased by the defendant, the Millville Improvement Company, whose deed for the land was executed and delivered in September, 1904.

In April, 1904, that part of the mortgaged premises which is situate in the township of Landis was sold for unpaid taxes and the township became the purchaser. In May, 1904, the township sold the property to the defendant, Millville Improvement Company, who thereafter acquired the title of the South Jersey Land and Transportation Company in the mortgaged premises as above stated.

The title acquired by Landis township and by it transmitted to the Millville Improvement Company is said to be a title in fee-simple absolute, free and discharged from any estate in or lien upon the same in favor of the complainant as mortgagee, unless in equity and upon principle it should be held, as the master reported, that as against the complainant the defendant has only a lien for the money expended in acquiring the tax title or deed, and that the complainant is therefore entitled to redeem.

Counsel for the complainant asserts that the South Jersey Land and Transportation Company was really Mr. Wood and that the Millville Improvement Company is the same, that is, as he was the president and the dominant factor of both corporations, they are bound b3r his acts in reference to the subject under consideration as much as though he himself were the defendant in relation to those acts.

The case of Burgin v. Rutherford, 56 N. J. Eq. (11 Dick.) 666, is cited by complainant’s counsel as authority for the proposition that the Millville Improvement Company, as the holder of the tax title in this case, has only a lien upon the property for the amount paid for it, and that the complainant has the right to redeem the land from the tax sale. That case (Burgin v. Rutherford) was affirmed in the court of errors and appeals for the reasons given in the court of chancery (Burgin v. Rutherford, 56 N. J. Eq. (11 Dick.) 852), but is not an authority in this case to the full extent claimed by counsel. In that case (Burgin v. Rutherford) the defendant, Kaighn, a third party, had not acquired a fee-simple absolute title by virtue of a tax deed, but held only a certificate of sale, and by virtue thereof had only a lien upon the mortgaged premises (Burgin v. Rutherford, 56 N. J. Eq. (11 Dick.) 669), which, of course, could be redeemed.

Whether the Millville Improvement Company purchased the equity of redemption in such a way as to be liable to pay the taxes, or whether the sale to it was one in fee-simple by which the interest of the mortgagee was divested, it is not necessary to decide.

Although the tax title was acquired by the Millville Improvement Company before it took title to the mortgaged premises by sale from the receiver of the South Jersey Land and Transportation Company, nevertheless, it took its title from him subject to encumbrances, including the tax lien in whatever form it existed, as will presently be shown. The acquisition of the tax title was only a step in the purchase ultimately of the entire premises of the South Jersey Land and Transportation Company by the Millville Improvement Company, as contemplated by it. This, I think, abundantly appears from the evidence.

Those two companies were distinct and separate entities it is true, but, nevertheless, Mr. Wood was their agent with plenary powers, and his knowledge was their knowledge, and his acts bound them, at least so far as corporations may be bound in law by the acts of .their agents.

Mr. Wood made an affidavit in the insolvency proceedings against the South Jersey Land and Transportation Company on August 3d, 1904, in which he stated that there was due to the State Mutual Building and Loan Association of New Jersey (the complainant in this cause), on the mortgage being foreclosed (and a certain other mortgage), the sum of $36,281.11, besides unpaid taxes in the township of Buena Yista, in the county of Atlantic. This sum admittedly included the amount of the Landis township taxes, and for which that township sold a portion of the mortgaged premises to the Millville Improvement-Company. About the time of the sale by the receiver to the Mill-ville Improvement Company, negotiations were entered into between the complainant and defendant and the American Land Improvement and Silk Culture Association concerning the lands in question, which recited the debt due from the South Jersey Land and Transportation Company to the complainant to be the sum of $36,281.11, and this agreement was actually executed by the Millville Improvement Company, though for want of execution by the American Land Improvement and Silk Culture Association it did not become operative.

Mr. Wood, in his testimony before the master on April 17th, 1907, after stating that the purchase by the Millville Improvement Company of the tax title from Landis township was for its own account and with the expectation of making a profit out of the transaction, was confronted with his affidavit made in the insolvency proceedings, and then admitted that the amount due as stated in that affidavit and in the agreement executed by the Millville Improvement Company included the Landis township taxes for which the property was sold. If anything were wanting to show the knowledge of the Millville Improvement Company of the situation with reference to the Landis township tax title and the power of Mr. Wood to act for and bind the company, it is, in my judgment, supplied by Mr. Wood’s affidavit and the tripartite agreement executed by it, to say nothing of the evidence before the master, including the testimony of Mr. Wood.

A corporation is bound by the acts of its president within the apparent scope of his authority which it authorizes, acquiesces in or accepts the benefit of. Bennet v. Millville Improvement Co., 67 N. J. Law (38 Vr.) 320.

It is perfectly apparent that Mr. Wood was authorized to act for the Millville Improvement Company with reference to the acquisition of title from the receiver of the South Jersey Land and Transportation Company subject to the lien for taxes of Landis township, and that it acquiesced in all that he did in its behalf, and it would have accepted the benefits of his negotiations in the form in which they were cast in the tripartite agreement, had that agreement become efficacious by execution on the part of all the parties to it.

In the insolvency proceedings of Wood against the South Jersey Land and Transportation Company, to the petition filed by the receiver for leave to sell the lands free from encumbrances, Mr. Wood appended an affidavit in which, among other things, he said that Landis township was offering for sale all of the lands of the South Jersey Land and Transportation Company situate within its boundaries, claiming title thereto by virtue of proceedings under the Martin act, meaning the tax title in question. Leave to sell free of encumbrances being denied, another petition was preferred by the receiver praying the court to order a sale subject to encumbrances. Such an order was made and the Millville Improvement Company offered the receiver $250 for the property “subject to encumbrances,” and the receiver reported that the offer was equivalent to a bid of about $40,000. This sum included the Landis township taxes. IJpon becoming the purchaser of the lands upon these conditions the defendant, the Millville Improvement Company, became obligated to extinguish its tax title as against the complainant’s mortgage. It thereupon owed a duty to do so, for, as remarked by Vice-Chancellor Van Fleet, in Foley v. Kirk, 33 N. J. Eq. (6 Stew.) 170:

“It is a universal principle that a purchase at a tax sale by one whose duty it was to pay the taxes shall operate only as an ex-tinguishment of the tax. One man can acquire no rights against another by a neglect of a duty which he owes to the other.”

It is unnecessary to hold that when the Millville Improvement Company acquired the tax title through the operations of Mr. Wood, the purchase was really made for the benefit of the mortgagor, the South Jersey Land and Transportation Company, in which case it would enure to the benefit of the mortgagee complainant. If by its contract of purchase the Millville Improvement Company agreed, as part of the consideration, to take title subject to encumbrances, among which were the Landis township taxes, then it just as effectually became its duty to refrain from setting up an adverse tax title against the complainant’s encumbrance as though it were obligated to pay the taxes in the first instance.

The master correctly found that the claim of the defendant under its tax title could not be sustained, but that it was entitled to be subrogated to the rights of the township by way of tax lien, and to be reimbursed out of the sale of the mortgaged premises the sum paid for taxes, by way of lien paramount and prior to that of the complainant’s mortgage. This is, in effect, providing for redemption.

The exceptions will be overruled, and the master’s report will be in all things ratified and confirmed, with costs.


source: Caselaw Access Project

author: Walker, V. C.

license: Public Domain

text:
    William Moore et al. v. Robert Moore et al.
    [Decided July 22d, 1908.]
    1. Where a bill is filed by a complainant as an adult, and it is discovered that he was an infant at the time of filing the bill and so continues, complainant will be allowed to amend by inserting a next friend, notwithstanding a motion by defendant to dismiss.
    2. Where defect of parties is not apparent on the face of the bill, the defect may be brought before the court by plea.
    3. A plea for want of proper parties is a plea in bar and goes to the whole bill, and want of capacity to sue may be taken advantage of by a plea to the person, for in such a case the party is not a proper one.
    4. The usual practice in case of a bill filed on behalf of an infant without a next friend is for defendant to move to have it dismissed, with costs to be paid by the solicitor.
    5. A suit begun by an infant without a next friend may continue on his arriving at full age in his own name as complainant, and a plea averring that complainant was an infant and exhibited the bill without a next friend is inefficacious when it is filed after complainant reached full age.
    G. A plea which alleges that at the time complainant exhibited his bill he was an infant under the age of twenty-one years, to wit, twenty years, is insufficient, for such plea should aver that complainant before and at that time of filing the bill was and now is an infant under the age of twenty-one years, that is to say, of the age of- or thereabouts.
    7. The practice on the filing of a plea is for complainant to set it down for hearing if he conceives it to be bad and traverse it if he conceives it to be good in point of law, but denies the truth of its averments.
    8. The court of chancery has power to strike out a frivolous demurrer or a frivolous plea.
    9. Where a defendant knew the age of an infant complainant at the time the suit was instituted, and knew that complainant had been of full age for a period of eight days at the time he filed his plea alleging infancy, the plea was frivolous, and would be stricken out on motion.
    On motion to dismiss plea as slaam and frivolous.

      Mr. William J. St. Lcwr&nce, for the motion.

      Messrs. Ward £ McGinnis, contra.

   Walker, V. C.

On May 8th, 1908, the bill of complaint was filed in this cause. The complainants named in the bill are William Moore and Susan Moore, his wife, Mary Hagens and Mathew Hagens, her husband, Margaret Philis and James Philis, her husband, and Anna A. Jamieson. The suit is one for partition. On June 24-th, 1908, the defendants filed a plea to the bill, which sets up that at the time the complainants exhibited the bill against the defendants the complainant Margaret Philis was an infant under the age of twenty-one years, to wit, twenty years, and exhibited the bill without having a guardian or next friend appointed to prosecute the suit for her, nor has any guardian or next friend been appointed for her since the commencement of the suit. The plea concludes with an averment that the matters pleaded are true, &c., in bar of the complainants’ bill, and prays the judgment of this court whether the defendants should be compelled to make any other or further answer to the bill, and to be hence dismissed, with their costs.

The complainants gave notice to the defendants that they would move for an order that the plea be dismissed as frivolous, because it was only filed as a mere flimsy pretense for the purpose of delay and to harass the complainants in obtaining their just and legal rights in the partition of the lands described in the bill. Annexed to the notice and served therewith is an affidavit of the complainant Anna A. Jamieson, who deposes that she is the mother of the complainant Margaret Philis, who- was born on June 16th, 1887, and that at the time of the commencement of the suit the complainant Margaret Philis was twenty years and eleven months old, and since that commencement of the suit has arrived at full age, to wit, on June 16th, 1908, which was eight days before the filing of the plea.

Where a bill is filed by a complainant as an adult and it is afterwards discovered that he was an infant at the time of filing the bill and still continues so, in the face of a motion by the defendant to dismiss the bill, the complainant will be allowed to amend by inserting a next friend. Flight v. Bolland, 4 Russ. 298.

Where defect of parties is not apparent upon the face of the bill, the defect may be brought before the court by plea, and a plea for want of proper parties is a plea in bar and goes to the whole bill. Dan. Ch. Pl. & Pr. (6th Am. ed.) *290; Mackey v. Mackey, 63 Atl. Rep. 984. It cannot be doubted that want of capacity to sue can be taken advantage of by a plea to the person. Dan. Ch. Pl. & Pr. (6th Am. ed.) *630. In such a case the party doubtless is not a “proper” one, for want of capacity.

The usual'practice in the case of a bill filed on behalf of an infant without a next friend is for the defendant to move to have it dismissed, with costs to be paid by the solicitor. Dan. Ch. Pl. & Pr. (6th Am. ed.) *68.

Now, as seen, the want of capacity in the complainant Margaret Philis .to sue is- not fatal, but, if continuing, it would be relievable by .the appointment of a prochein ami. As this infant is now of age she has capacity and the suit may properly continue in her name as a complainant. The plea is inefficacious. There is nothing in writing to amend by and there is no occasion for any amendment of the record.- Moreover, tire plea is bad in form. It merely alleges that at the time of exhibiting the bill, the complainant Margaret Philis was an infant under the age of twent3r-one years, to- wit, twenty years. A proper form of such plea is to be found in Dan. Ch. Pl. & Pr. (6th Am. ed.) *2097, which avers that the plaintiff before and a.t the time of filing the bill was, and now is, an infant under the age of twenty-one years; that is to say, of the age of {Manic) or thereabouts, &c. Doubtless the defendant interposing the plea knew the age of the infant complainant, being near relatives, and maybe the omission to state that she was an infant at the time of the filing of the plea was purely made.

The practice on the filing of a plea is for the plaintiff to set it down for hearing if he conceives it to be bad, and to traverse it if he conceives it to be good in- point of law, but denies the truth of its averments. Neither one of these courses was pursued, but, on the contrary, this motion was made to dismiss.

This court has power to- strike out a frivolous demurrer on motion. Stanbery v. Baker, 55 N. J. Eq. (10 Dick.) 270. This power, as I understand it, extends also to the striking out of a frivolous plea, for, said Vice-Chancellor Emery, in that case (at p. 271) : “This right of the court of chancery to overrule and suppress- pleadings as sham and frivolous would seem to be necessary for the due administration of justice, and to be the same in its character as the right constantly exercised in our superior courts.of common law.”

Upon the hearing of the motion- under consideration there were no disputed facts. Counsel for the defendants appeared and contended for the sufficiency of the plea, but filed no counter affidavits. As I have already remarked, the defendants must have known of the age of the infant complainant at the time the suit was instituted, and, therefore, must have known when they filed their ¡jiea that the complainant had then been of full age for a period of eight days. Inquiry to- ascertain the age of the complainant Margaret Philis, if necessary, for the purpose of filing the plea would have, and- probably did, disclose the exact fact, but, more probably, no> inquiry was made, as the defendants undoubtedly knew the age of this joung woman, who was a near relative of all of them.

In my judgment the plea is sham and frivolous, and it will be stricken out.


text:
    In the matter of Charles H. Sulk, alleged to be a lunatic.
    [Decided August 4th, 1908.]
    1. If, under proceedings on a commission in the nature of a writ de lunático inquirendo, the subject of the inquisition is found to be of sound mind, the person petitioning for and prosecuting the commission of lunacy is entitled to costs, including- counsel fee. and expenses reasonably and properly incurred; provided the prosecutor of the inquisition has acted from justifiable motives and in good faith, and there is a fund under the control of the court out of which payment can be ordered to be made.

      2. When, upon the application for a commission in the nature of a writ de lunático inquirendo a case is made which moves the court to appoint a receiver pendente lite, and afterwards upon the inquest the subject of the inquisition is found to be of sound mind, the court will, in discharging the receiver, allow him compensation for his services, and will allow the petitioner the taxed costs of the proceedings, including a reasonable counsel fee, and expenses reasonably and properly incurred.
    On application for payment of costs, &c.

      Mr. Glarence Kelsey, for the petitioner.

      Mr. Marshall Tan Winicie, for the respondent.
   Walker, V. C.

On April 21st, 1908, Josephine Sulk filed a verified petition in the above-stated matter praying that a commission in the nature of a writ de lunático inquirendo might issue out of this court to inquire into the alleged lunacy of her husband, Charles H. Sulk, and, on allegations in the petition, abundantly verified by affidavits, to the effect that Sulk was improvidently giving away and wasting his money and property, John S. McMaster, Esq., was appointed' receiver pendente lite, and a commission was issued to Frank P. McDermott, Esq., master in clianeerjq Dr. John C. Parson and Mr. John E. Muller, in the usual form, to inquire into the alleged lunacy of Sulk. Mr. McMaster qualified as receiver and took possession of the real and personal property of 'Mr. Sulk.

The inquisition was held on June 11th and 12th, 1908, Sulk, who had escaped from the Morris Plains Hospital for the Insane, being absent. The jury empaneled in. the matter found that Sulk was capable of governing himself and his affairs, and the commission has been duty returned.

The present application is for an order upon the receiver to pay the bills of the petitioner’s solicitor and counsel in the lunacy proceedings and also the physicians’ bills and other expenses therein.

The inquisition was conducted' on June 11th, 1908, from ten o’clock in the morning until five o’clock in the afternoon, and 031 the next day from ten o’clock in the morning until after two o’clock on the following morning. The respondent, Sulk, is the owner of real and personal property aggregating many thousands of dollars, and his estate is abundantly able to respond for the costs and expenses of these proceedings.

Two questions arise — first, has the court the power to order the payment asked for, and second, are the amounts asked for reasonable ?

The solicitor and counsel of the petitioner asks for a fee of $500, and attaches a bill of items of his services to the petition. It appears that he did a great deal of exacting work in the matter and that very much time was consumed in his labors. Dr. Baldwin has presented a bill for $10, Dr. J. Henry Clark for $50 (including services in court), and Dr. H. J. Bogardus $25 (including services in court). I deem all of the bills to be reasonable, and the question therefore recurs, has the court the power to order their payment out of the estate of the respondent in view of the fact that 3ro office has been found?

It is entirely settled that where the alleged lunatic is found to be of sound mind, or the coimnission is superseded before a guardian is appointed, the petitioner cannot be allowed costs and expenses, 310 matter how meritorious the proceeding, where there is no fund out of which payment can be made. In re Farrell, 51 N. J. Eq. (6 Dick.) 353.

It appears therefore that the allowances asked for cannot be made unless there be a fund out of which they can be paid.

Chancellor McGill in In re Farrell commences his opinion by the statement that Chancellor Green, In the matter of Curtis White, 17 N. J. Eq. (2 C. E. Gr.) 274, being satisfied that the proceedings had been instituted in good faith for the benefit of 'the lunatic, denied the motion for costs, remarldng that in such case the petitioner, in justice, should be allowed costs, whether the lunacy established or not, adding, however, that if the party be found of sound mind or the commission be siiperseded before a guardian appointed, the prosecutor cannot be allowed costs, however meritorious his conduct, there being no fund out of which their payment can be directed.

The law in our state upon this subject is the same as that which obtained in England prior to the statute of Victoria. We have no statute upon the subject of the present inquiry, and the rule laid down in the English authorities is apposite here. In Ex parte Ferne, 5 Ves. 832, the subject of the inquisition was found to be of unsound mind, and, upon a traverse of the inquisition, was found to be sane, and the commission was thereupon superseded. The petitioners asked for costs, claiming to have established lunacy at the time of the inquisition. Lord-Chancellor Loughbrough denied the application because there was no fund out of which payment could be ordered, and he remarked: “If I could act cum imperio it is a very proper case, and the parties have entitled themselves to all the costs I can give them, but I have no jurisdiction.” In Sherwood v. Sanderson, 19 Ves. 280, on application for costs after office found, but, before the determination of the traverse, Lord Eldon remarked, that no grant of the custody of the person or estate could be made, and the person issuing the commission, if there be no funds in his hands, cannot make an order as to costs.

In the matter of Curtis White, ubi supra, there was an application by the subject to the inquisition, who was found to be of sound mind, for costs to be visited upon the party who took out the commission, who was his son, and who prosecuted it from proper motives and in good faith. Chancellor Green denied the motion, and observed (at p. 277) : “A person petitioning for, and prosecuting a commission of lunacy, is entitled to be repaid the costs he shall have properly so incurred. But if the party be found of sound mind, or the commission be superseded before a guardian is appointed, the prosecutor cannot be allowed his costs, however meritorious his conduct may have been, there being no fund out of which the chancellor can direct them to be paid;” and further, “the proceeding being instituted for the benefit of the alleged lunatic or his estate, the petitioner is, in justice, entitled to be repaid his costs reasonably incurred, whether the lunacy be established or not. It is true that where the party is found of sound mind, the prosecutor cannot be allowed his costs, because there is no fund out of which they can be paid.”

Thus it appears that both in this state and in England we have direct and positive statements by the courts to the effect that the petitioner in a lunac3r proceeding, if acting from justifiable motives and in good faith, is entitled to an award of costs and expenses out of the estate of the subject of the inquisition, even if he be found of sound mind, provided there be a fund within the jurisdiction of the court out of which the award can be made. I cannot otherwise read these expressions: “If I could act cum imperio it is a very proper case, and the parties have entitled themselves to all the costs I could give them,” per Lord-Chancellor Loughbrough in Ex parte Ferne. “It is impossible to make any order about tire costs, as there is no fund upon which they can attach,” per Lord-Chancellor Eldon in Sanderson v. Sanderson. “Hie petitioner is, in justice, entitled to be repaid his costs reasonably incurred, whether the lunacy be established or not,” per Chancellor Green, In the matter of Curtis White. “There being no office found, and neither guardian nor fund in prospect, there should be no allowance of expenses in the lunacy proceedings,” per Chancellor McGill, In re Farrell.

If the proceedings in this matter had resulted in office found, then, under our statute and practice, it would be for the guardian, when appointed by the orphans court, to pay the costs and expenses of the litigation. In re Farrell, 51 N. J. Eq. (6 Dick.) 360.

Now, there is a fund under the control of this court in this matter, namely, the property in the hands of the receiver appointed upon the presentation of the petition for the commission. Ought the fund to be turned back to Mr. Sulk without being tolled for the legitimate costs and expenses of the lunacy proceedings, or should those disbursements be ordered out of the fund before it is restored to its owner ? The court undoubtedly, acted within its power in appointing the temporary receiver. In re Runey Dey, 9 N. J. Eq. (1 Stock.) 181; In re Devausney, 52 N. J. Eq. (7 Dick.) 502, 507. There was an abundance of proof by way of affidavits annexed to the petition to justify the appointment. In fact, counsel for the respondent arguing here against the allowance of expenses did not question the propriety of the appointment, and consented that the receiver be paid for his services in the matter. I take it that the court has the power to compensate the receiver irrespective of the consent, for the right to appoint a temporary receiver presupposes that the appointment may be vacated upon full hearing. If such be the consequence, that is, if the receivership goes down upon the hearing, it does not follow that the petitioner procuring the appointment shall be mulcted in costs. If then the court has the right to allow the receiver’s compensation, it has, I take it, equal right to allow the costs and other expenses of the proceedings in which the receiver was appointed; and certainly so in this class of cases, under the authorities to which reference has been made.

In Sewell v. Cape May and Somers Point Railroad Co., 9 Atl. Rep. 785, a receiver was appointed by this court for the defendant as an insolvent corporation on the return of an order to show cause. The defendant afterwards answered and moved to dissolve the injunction and to dismiss the bill. The court again declared the company insolvent within the meaning of our act, but since the company by its answer declared its ability to pay all its obligations, and manage its affairs successfully, it was ordered that if it produced in court moneys sufficient to pay and discharge its liabilities, including all reasonable costs and expenses of the receiver and his just commissions and the costs of suit, the receiver would be discharged. This was in a case in which it was shown that there was real foundation for the appointment of a receiver, but, to my mind, it is an authority showing that whenever the court takes property into its custody through a receiver it'will protect him and order the payment of the costs of the proceedings. The power to appoint a receiver is at least as high, or a higher power, than the power to toll the fund in the receiver’s hands for compensation and the costs of the litigation in which he was appointed. The one power, it seems to me, follows the other.

In Baker v. Baker, 36 N. Y. App. Div. 485, it was held that by the dismissal of the complaint the court does not lose jurisdiction over funds in the hands of a receiver theretofore appointed in the action. In Whiteside v. Prendergast, 2 Barb. Ch. 471, it was held that the discontinuance of a suit does discharge a receiver appointed therein, but will entitle him to apply for his discharge and to have his accounts passed, so that he may pay over the balanee, if any, in his hands, and exonerate himself and his sureties from further liability.

The petitioner will be allowed her taxed costs and the counsel fee and expenses contained in the schedule annexed to her petition therefor. The fee of the receiver will be fixed on application and upon notice.


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    Harrison G. Wright v. John R. Gaskill et al.
    [Decided August 6th, 1908.]
    1. The words “their issue” in a devise mean the same as “the heirs of their bodies.”
    2. Where there is a life estate jointly to two or more incapable of having a common heir, and the remainder is to the heirs of their bodies, each ancestor will take a several inheritance in fee-tail in such part as would be the share of the heirs of his body according to the number of joint tenants to whom the freehold is given.
    3. Subject to a life annuity to his wife and the use and occupation of his house by her, testator gave his farm to a nephew and niece, or the survivor of them for and during the term of their natural life or lives, and, after their death, to their lawful issue, in fee-simple absolute. — Beld to intend a division per stirpes among their surviving children.
    On bill for partition. On objections to master’s report.

      Mr. Jonalhan H. Kelsey, for the complainant.

      Mr. Aaron V. Dawes, for the defendants.
   Walker, V. C.

Upon the filing of the master’s report in this cause, objections to the same were made in open court on behalf of the defendants John B. Gaskill and Anna S. Hawkins, under rule 166 of this court, which provides for that course instead of the filing of exceptions.

The question presented for solution concerns the construction of the will of John Gaskill under whom the parties, complainant and defendants, claim, by way of devise. It is the fourth item of the will of the deceased of which a construction is sought. The pertinent parts of it read as follows:

“I give and bequeath unto my nephew John Gaskill and my niece Elizabeth P. Gaskill, children of my brother William Gaskill all the farm and plantation whereon I now reside together with all the stock farming-implements, Household goods and kitchen furniture at the time of my decease to them or the survivor of them for and during the term of their natural life or lives of them for the said John and Elizabeth P. Gaskill, and after their death to their lawful issue, in fee simple absolute by their paying out of the rents, issues and profits of said farm and plantation aforesaid the sum of four hundred dollars yearly and every year unto my beloved wife Sarah Gaskill during the full term of her natural life in semi annual payments that is to say two hundred dollars every six months. And X do hereby order and direct that the farm and plantation aforesaid shall be held chargeable and subject to the payment of the aforesaid bequest made and given to my said wife, and that my said wife shall have the use and occupation of the said House upon the farm and plantation and all my household goods and kitchen furniture for her own use so long as she may remain upon said farm.”

John Gaskill, the testator, died in January, 1856. John Gaskill, one of the life tenants, died in November, 1901, and Elizabeth P. Wright (née Gaskill), the other one, died in June, 1907. The testator’s widow resided on the premises and received the annuity bequeathed to her until her death in June, 1883. John Gaskill, one of the life tenants, died intestate, leaving his widow, Sara L. Gaskill, and two children, namely, Annie S. Hawkins (née Gaskill) and John E. Gaskill, him surviving. Elizabeth P. Wright, the other life tenant, died intestate, leaving her husband, Walter L. Wright, and five children, namely, Harrison G. Wright, Mary E. Hendrickson (née Wright), Walter L. Wright, Jr., Bessie G. Wright and Henry H. Wright, and two children of a deceased daughter, Prances B. Potter (née Wright), namely, Elizabeth G. Potter and Ida Potter, her surviving.

The bill alleges the interest of the owners of the fee to be stir-petal, but the master reported that their interests were per capita, except, of course, that the two children of Frances B. Potter divided their mother’s share between them.

To ascertain the shares and interests of the parties in the premises it is to be borne in mind that John Gaskill, one of the life tenants had two children, and Elizabeth P. Wright, the other one, had six children, and the question arises, is there to be a per capita division so that each child of the two life tenants (and the descendants of the deceased one) shall take an eighth, or is there to be a stir petal division so that the two- children of John Gaskill shall take one-half of the whole, or one-fourth each, and the children of Elizabeth P. Wright shall take one-half of the whole or one-twelfth each, the one-twelfth that would have gone to Mrs. Potter going to her two children in shares of one-twenty-fourth each.

We are dealing with a devise of land, and the words in tire will give an estate to the testator’s nephew, and niece for their lives and the life of the survivor, and after the death of the survivor, “to their lawful issue, in fee-simple absolute.” Certain conditions, which were performed during the lives of both of the life tenants, were charged upon the lands.

This devise is of a life estate in the first devisees with a remainder to their lineal descendants in indefinite succession and creates an estate tail at common law, and is regulated by the eleventh section of the statute of descent, which gives an estate for life to the first taker, and a remainder in fee to his children in equal shares. Zabriskie v. Wood, 23 N. J. Eq. (8 C. E. Gr.) 541, 551.

Where there is a life estate jointly to two or more persons, who are incapable of having a common heir (which is this case), and the remainder is to “the heirs of their bodies” (and the words “their issue” in .a. devise mean the same thing), the ancestors will each take a several inheritance in fee-tail in such part as would be the share of such ancestor’s heirs of his body (or issue) according to the number of joint tenants to whom the freehold is given. 25 Am. & Eng. Encycl. L. (2d ed.) 648. Now, there are two life tenants of the estate in question, each having an undivided half interest in the whole; therefore, the issue of each, upon the death of their ancestor, succeeds to the estate of their ancestor; that is, each set of heirs succeeds, in this case, to an undivided half of the whole, and their seizin, therefore, is per stirpes and not per capita.

The master having reported that the parties are entitled to shares per capita in the lands devised, his recommendation in that respect will be disregarded, and the decree for sale (to be made in pursuance of his report that the lands are so situate that a partition cannot be made between the parties interested therein without great prejudice), will ascertain, adjudge and 'declare that the parties are seized of and entitled to the lands and premises described in the bill, in shares and interests per stirpes; that is, that the complainant, Harrison G. Wright, and the defendants Mary E. Hendrickson, Walter L. Wright, Jr., Bessie G. Wright and Harry H. Wright are each seized of an undivided one-twelfth part of the premises; the defendants John E. Gaskill and Anna S. Hawkins each of an undivided one-fourth; the defendants Elizabeth G. Potter and Ida Potter, each of an undivided one-twenty-fourth. The estates in dower and curtesy of the other defendants inhere, of course, in the shares of which the above-named defendants are seized, the same as set forth in the master’s report.


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    John E. Robeson et ux. v. Stephen H. Duncan.
    [Decided August 6th, 1908.]
    1. A grantor conveyed land to a grantee “and to the heirs of her body,” •on conditions by which the grantor reserved, during the joint lives of himself and wife, the right to possess and enjoy the premises, and, if the grantee should die without leaving any heir of her body, the premises should revert to the grantor, &c. — Held, that the estate conveyed to the grantee was an estate of freehold, but not in possession.
    2. A grantor conveyed land to a grantee “and to the heirs of her body” on conditions by which the grantor reserved, during the joint lives of himself and wife, the possession and enjoyment of the premises, and, if the grantee should die without leaving any heir of her body, the premises should revert to. the grantor, &c. The grantee, for a valuable consideration, quitclaimed to the grantor. — Held, that, if the conveyance to the grantee created an estate tail, she took but a life interest, so that her conveyance to her grantor created in him an estate only during her life, for under 1 Gen. Stat. 1895 p. 1195 § 11, the freehold conveyed toiler would not ripen into a fee-simple until the limitation over took effect.
    3. Act March 24th, 1899 (P. L. 1899 p. 531), as amended by act April 9th, 1902 (P. L. 1902 p. 688), providing that a conveyance to a given person without more, shall, unless exception be made therein, convey a fee-simple, if the grantor have a fee-simple, does not apply to a conveyance by a grantor to a grantee and the heirs of her body on conditions by which the grantor reserves during the joint lives of himself and wife the possession and enjoyment of the premises, and, if the grantee shall die without leaving any heir of her body, the premises shall revert to the grantor, &c.
    4. A conveyance to a grantee “and to the heirs of her body” on condition that, if she shall die without leaving any heir of her body, the premises shall revert to the grantor, if the grantee’s death shall take place during the lifetime of the grantor or his wife, but, if the grantee shall survive both tire grantor and his wife and die without leaving any heir of her body, the premises shall revert to the estate of the grantor, creates an estate for life in the grantee with limitations over by way of contingent remainder, and the rule in Shelley’s Case does not apply; and therefore a conveyance by the grantee to the grantor conveyed only an estate for the life of the grantee.
    5. The doctrine that an attempt by a grantor to make disposition of his estate after his death, without complying with the requirements of the statute of wills, is void, has no application to a case where the grantor has, by his conveyance, divested himself of his property in his lifetime, but applies to the disposition in his lifetime of property which will be in the donor at the time of his death, the tradition to take place at or after death.
    On bill for specific performance. Heard on demurrer to bill.

      Mr. Fergus A. Dennis and Mr. John T. Bird, for the complainants.

      Mr. John A. Hartpence, for the defendant.
   Walker, V. C.

The bill is filed for the specific performance of a contract to convey lands in the borough of Princeton, and alleges that the complainants, John E. Eobeson and Hattie M. Eobeson, his wife, being seized or well entitled to the premises in question in fee-simple, on June 6th, 1907, entered into an agreement in‘writing with the defendant, Stephen H. Duncan, for the sale of the premises to him for $2,500, the sum of $300 being paid on the execution of the agreement, and the balance to be paid and secured at a time stipulated; that Duncan after paying the $300 notified the complainants that he refused to perform or carry out the agreement on his part, assigning as a reason that the complainants could not make a good and marketable title to the premises, he having, upon examination, discovered that they had sold and conveyed the premises to “Jennie Hardison and to the heirs of her body,” upon conditions contained in their deed of conveyance to her, as follows:

“First — The said John E. Robeson, party of the first part reserves during the joint lives of himself and wife the right to have, hold, possess and enjoy, severally and jointly, to themselves and to them all the rents, issues and profits accruing out of the premises herein above conveyed.
Second — That if said Jennie Hardison shall die without leaving any heir of her body then the premises herein above conveyed shall revert back to the said John E. Robeson, if said Jennie Hardison’s death shall take place during the life time of said John E. Robeson or his wife. But if said Jennie Hardison shall survive both the said John E. Robeson and his wife and then die without leaving any heir of her body then the premises herein above conveyed shall revert back to the estate of the said John E. Robeson, the donor.”

That afterwards, and on April 26th, 1907, Jennie Hardison, by deed of quitclaim, sold and conveyed the premises to the complainant John E. Eobeson. Both deeds were acknowledged, delivered and recorded.

The complainants’ contention is, that by their deed to Jennie Hardison a perfect title in fee was conveyed, but that in case the conditions in that deed have any binding force or effect they are in favor of the complainants, or one of them, and no one else, and that a conveyance by them, according to their agreement with the defendant, will effectually estop them or their heirs from claiming any title in tlie premises and will secure to Duncan a good and sufficient title to the same.

The prayer is that Duncan may be compelled to specifically perform the agreement on his part and pay to the complainant John E. Robeson the remainder of the purchase-money of $1,000 in cash, and execute a mortgage for $1,200 on the same premises to secure the balance, according to the agreement, the complainants offering to perform on their part.

The defendant demurs to the bill for want of equity, and the question that arises is, has Mr. Robeson an estate of inheritance in fee-simple absolute in the premises, or is there an estate tail, or some other estate, in Jennie Hardison, which was not divested by her quitclaim deed to Mr. Robeson for want of power in her to make a conveyance of any greater interest in the premises than an estate for her life, in which case the title is defective and the complainants cannot be relieved.

The estate conveyed to Jennie Hardison by Mr. Robeson was an estate of freehold, but not in possession, for by the first condition in the deed he reserved to himself, during the joint lives of himself and wife, the possession and enjoyment of the premises and the usufruct thereof. This condition need not be further noticed, as it is in the second condition that the limitation of the estate is to be found.

If the conveyance to Jennie Hardison created an estate tail, she took but a life interest, and her conveyance to Mr. Robeson created in him an estate only during the continuance of her life, and this is so even though her deed to him was one of quitclainj and release, for it was founded upon a valuable consideration which gives it effect as a deed of bargain and sale notwithstanding the want of an estate in possession in the releasee (assuming that the rights reserved by Robeson do not amount to an estate in him, which is not decided). Havens v. Seashore Land Co., 47 N. J. Eq. (2 Dick.) 365. If she had an estate tail then the freehold would not ripen into a fee-simple until the limitation over took effect. Gen. Stat. tit. “Descent” p. 1195 § 11.

The act of March 24th, 1899 (P. L. 1899 p. 531), as amended bjr the act of April 9th, 1902 (P. L. 1902 p. 688), cited by counsel, has no application to the case at bar. That act simply provides that a conveyance to a given person, without more, shall, unless exception he made therein, be construed to convey a fee-simple, if the grantor have a fee-simple, without words of inheritance being included in the conveyance; and it also provides what construction shall be given to certain covenants in deeds.

The complainants insist that the rule in Shelley’s Case applies because they say that the grant is to Miss Hardison for life with a. limitation over of an estate which in terms is expressed to be given to her heirs, and therefore the estate given to her, the ancestor, although expressly given for life, is by force of the rule enlarged to a fee, the remainder over being executed immediately in the ancestor.

Whether or not the rule in Shelley’s Case applies depends upon the construction of the grant or devise under consideration. Martling v. Martling, 55 N. J. Eq. (10 Dick.) 771, 782.

In my opinion, the estate with which we are here dealing is one in which the limitation over is by way of contingent remainder, and, therefore, the rule in Shelley’s Case does not apply.

It is true the grant is to “Jennie Hardison, the heirs of her body and assigns forever,” which would, at common law, create an estate tail, and which would by our statute of descent create a fee-simple in her issue upon the determination of her life estate, but the limitation over is expressly controlled by the second condition in the deed. The limitation expressed more perspicuously, perhaps, than in the condition itself, is this: If Jennie Hardison should die during the life of Mr. Robeson and his wife, without leaving any heir of her body, then the premises shall revert to him, but if she should survive Mr. Robeson and his wife, and then die without leaving any heir of her body, the premises shall revert to the estate of Mr. Robeson (whatever “estate” may exactly mean in this connection). The person who is to take the remainder upon the death of Jennie Hardison cannot be ascertained until her death, and the taker may either be an heir or heirs of her body, or Mr. Robeson or his “estate;” therefore, as I said, the remainder is contingent.

If the conveyance had been to Jennie Hardison and her heirs general it would have created in her a fee-simple; if to her and the heirs of her body, without more, it would have created a fee-tail, but the limitation is to her and the heirs of her body, in default of which the estate shall revert to Eobeson or his “estate” as the case may be.

As we have seen, the estate of Jennie Hardison in the premises in question was one for her life only, with limitation over by way of contingent remainder, and therefore her conveyance to Eobeson was no more than the grant of an estate pur auire vie, that is, an estate whose duration is measured by her life.

The complainants in their bill charge that the second condition in the deed under consideration is null and void, because it is an attempt to make disposition of the estate of the grantor after his death without complying with the requirement of the statute of wills, but the point was not urged on the argument of the demurrer. This doctrine applies to the disposition in his lifetime of property which will be in the donor at the time of his death, the tradition to take place at or after death (Stevenson v. Earle, 65 N. J. Eq. (20 Dick.) 721), and to deeds intended by the grantor to be delivered after his death. Schlicher v. Keeler, 67 N. J. Eq. (1 Robb.) 635. It can have no application to a case where the grantor has by his conveyance divested himself of his property in his lifetime.

Mr. Eobeson divested himself of a fee-simple by his conveyance to Jennie Hardison, and he has not reacquired that estate in the lands. The provision in the conveyance that the estate should revert to Eobeson or his “estate” upon the happening of certain contingencies was only by way of limitation upon the grant. Whether that limitation is void for any reason it is not necessary to consider, for without it the estate in the grantee would be one in fee-tail, which, under our statute, would give her an estate for life with the remainder in fee to the heirs of her body.

My opinion is that in no aspect has the complainant Eobeson a fee-simple, and, consequently, he and his wife are unable to convey to the defendant an estate of the quality (fee-simple) which they admit he bargained for, and, consequently, the title is defective.

The demurrer must be sustained.