text:
    Betsy E. Felt v. Joseph P. Felt.
    [Decided May 28th, 1898.
    Filed January 4th, 1899.]
    A husband, being a domiciled resident of Utah, brought suit in a court of that territory against his wife, residing in New Jersey, for divorce on the ground of desertion, and served her personally, in New Jersey, with a copy of his complaint and summons. She made no appearance or defence, and after more than two months from such service default was entered against her, and upon proofs produced to the court a decree of divorce was granted. — Held, a defence to a suit by the wife against the husband for divorce in this state. Semble — 1. That a suit for divorce is a proceeding in rem, in which the domicile of the plaintiff, within the territorial limits of the jurisdiction of the court, is sufficient to give jurisdiction and validate in other jurisdictions a decree for divorce based upon grounds recognized as sufficient by civilized peoples and established by proof to the satisfaction of the court, provided the best notice practicable has been given to the other spouse and a fair opportunity to appear and make defence allowed. 2. Service upon the other spouse, ■within the territorial limits of the state or territory of the court, is not necessary to the validity of such decree in other jurisdictions.
    Bill for divorce. Heard on bill, and plea admitted to be true.
    The bill sets out a marriage between the parties, a desertion of the complainant by the defendant on the 9th of April, 1892, and a continuance thereof for more than the statutory period, and also adultery on the part of the defendant, committed since that date, and prays for divorce and alimony.
    The plea sets out that, on the 12th of May, 1893, the defendant was, and for more than a year before that time had been, an actual and bona fide resident of and domiciled in the city of Salt Lake, in the county of Salt Lake, in the then Territory of Utah ; •that, by the laws of that territory, a certain court, within the limits of which he l’esided, viz., the district court of the third judicial district of the Tei’ritory of Utah, had, on the day last mentioned, and continued to have until after the 23d of August following, jurisdiction to hear and determine actions for divorce-brought by such residents and to award decrees therein; that on that day — May 12th, 1893 — the defendant brought suit in that court against the complainant for divorce, on the ground of desertion by her of him, praying for a divorce from the bonds of matrimony; that a summons was duly issued in the suit, directed to the complainant herein and published against her in a newspaper at Salt Lake City, in accordance with the laws and practice of that court, and that the same was also-served upon her by mailing a copy to her at her then place of abode in New Jersey, and that a copy of the complaint and summons was served upon her in person, at her said place of abode, on the 19th of May; that she failed to appear, and that on the 5th day of August, 1893, a default was entered against her in that suit; that afterwards the same was brought to trial upon evidence of witnesses, and the court found, upon such evidence, as a matter of fact, that the plaintiff was an actual and bona fide resident of the city of Salt Lake, and had been such for one year before May 12th, the day the suit was commenced;. that the parties had been duly married in 1882; that the complainant herein had been guilty of cruel treatment of the defendant herein and had driven him from her bed and board, and that she willfully deserted him on or about the 9th of April, 1892, and, as a conclusion of law upon those facts, the court held that the plaintiff in that suit, the defendant herein, was entitled to a decree for divorce against the defendant therein, and the court did proceed to adjudge and decree

      “ that the bonds of matrimony heretofore subsisting between the said plaintiff and the said defendant be and the same hereby are forever dissolved, and that said parties, plaintiff' and defendant, are restored to their rights as unmarried persons respectively.”
    The plea sets forth, m extenso, the statute laws of the Territory of Utah upon the subject of divorce and the practice governing suits therein, by which it abundantly appears that the court had jurisdiction of actions for divorce, and the suit in question was conducted in all respects according to the statute of the Territory of Utah.

      Mr. Frank L. Holt, for the complainant,
    cited People v. Baker, 76 N. Y. 78; Williams v. Williams, 130 N. Y. 193; De Meli v. De Meli, 120 N. Y. 485; Matter of Kimball, 155 N. Y. 62; Harris v. Harris, 115 N. C. 587; McCreery v. Davis, 44 S. C. 195.

      Mr. Washington B. Williams, for the defendant,
    cited Whart. Confl. L. (2d ed.) ch. 4 § 236; 5 Am. & Eng. Encycl. L. 760; Ditson v. Ditson, 4 R. I. 87; Cooley Const. Lim. (2d ed.) 401, note; Pennoyer v. Neff, 95 U. S. 714; Coddington v. Coddington, 5 C. E. Gr. 264; Loker v. Gerald, 157 Mass. 42; Hawkins v. Ragsdale, 80 Ky. 353; Van Orsdal v. Van Orsdal, 67 Iowa 35; Gould v. Crow, 57 Mo. 200, 204; Doughty v. Doughty, 1 Stew. Eq. 581; Cheever v. Wilson, 9 Wall. 108, 123; Cheely v. Clayton, 110 U. S. 701, 705.

   Pitney, V. C.

The admitted facts are that the defendant, for more than a year prior to the time of the commencement of the suit against his wife in Utah, was an actual and bona fide resident of and domiciled in that territory, and that the suit was brought in a court which had jurisdiction of the subject-matter and conducted according to the law and practice of that court. The jurisdiction of the defendant’s person in that suit was obtained in three ways — first, by publication in a newspaper; second, by mailing a copy of the summons and complaint to her at her residence in New Jersey, and third, by personal service upon her of those documents in this state.

It appears sufficiently, for present purposes, that the complainant herein has always lived in New Jersey.

A learned and elaborate argument was made in her behalf to support the position that a decree of divorce could not be rendered against her in another state which would be valid and binding in this state, without actual service of process upon her, made within the territorial limits of that state, or her voluntary appearance therein. The ground of this position was that the courts of another state could not obtain jurisdiction of her person for the purpose of a suit for divorce by publication or service upon her out of that jurisdiction, and hence the decree was a nullity in this state.

I am unable to adopt that view. I think it not only fairly covered by authority in this state, but that it has no foundation in reason.

Chancellor Zabriskie, in Coddington v. Coddington, 5 C. E. Gr. 264, held that proceedings with regard to the validity or dissolution of marriage are proceedings in rem, and actually operate upon the matter, and that the power of the court to deal with the marriage relation depends upon the fact of the domicile of one or both of the parties being within its territorial limits ; and that to enable the court to obtain jurisdiction one at least of the parties must be domiciled within the jurisdiction. Such domicile gave jurisdiction to proceed and determine the status of the parties.

In this case it is an admitted fact that the defendant herein was domiciled in the Territory of Utah for one year before and at the time the suit was commenced by him and the decree rendered against the wife. The power of the court of that territory to determine his status as to marriage was complete, and its action must be respected by us, provided it has been based upon grounds recognized as sufficient by civilized peoples, and reasonable notice and opportunity to appear and be heard has been given to the other party interested.

The mere residence of the wife in another state cannot affect the jurisdiction in that behalf of the court in which the husband is domiciled.

To hold otherwise, as has been done by the courts of New York in the cases cited by counsel, is, in effect, to deny relief to an injured spouse, provided the guilty party is able to escape beyond the jurisdiction of the court before service of process upon him or her.

This vexed question, in all its aspects, has been the subject of much diversity of judicial judgment in the various states of the Union, but I think it may now be considered as settled by the great weight of authority in conformity with the view just expressed.

The whole subject is discussed by Mr. Bishop in the second volume of his recent treatise on “ Marriage, Divorce and Separation,” sections 1 to 152 inclusive, and particularly sections 142 to 152. In the earlier sections of that volume he calls attention to the distinction between jurisdiction for the purpose of a pecuniary decree against the person, and jurisdiction for the purpose of declaring a status, holds with Chancellor Zabriskie that a suit for divorce is a proceeding in rem, and shows that a decree of divorce may be valid for the purpose of ending a marriage status, while it would not be valid for the purpose of enforcing a personal decree for alimony in the foreign jurisdiction. This distinction has not always been kept in mind.

The New York cases referred to, as I read them, go upon the basis that the marriage status may be held to have come to an end in the state in which the decree is declared, and still to exist in all the other states of the Union. I confess I am unable to see how that solution of the difficulty accords with reason. If one state in the Union has power to declare, and in a suit brought by one spouse against the other, in which the best notice practicable has been given to that other, does declare, upon grounds recognized by civilized men to be sufficient, that a once husband is no longer a husband and has no wife, I do not see how it can be held in any other state that such person is still the husband of his former wife, and that she is still his wife. Moreover, such a doctrine seems to me to be contrary to public policy. Its noxious tendency was well exemplified in the leading New York case of People v. Baker, 76 N. Y. 78. There the defendant, Baker, while living in New York, had been sued by his former wife, in a court of Ohio, for divorce; and a decree of divorce rendered against him by the Ohio court based upon substituted service. Relying upon that decree he contracted a marriage in New York, was indicted for bigamy based on such second marriage, aud convicted and sentenced to state prison.

IVe have not here to deal with a case where the ground of the divorce, as found by the foreign tribunal, was frivolous or not in accordance with recognized principles underlying the marriage state, or with a case where any imposition, fraud or concealment was practiced upon either court or party. On the contrary, actual notice was given and time to appear and defend allowed. Nor is it alleged that the wife was, for any cause, unable to defend, or that she had a defence which she now seeks to set up. "We are bound to presume that the finding of the court of Utah was based upon sufficient and unassailable evidence. Hence it appears that no injustice was done the wife.

I find nothing in our own decisions which contravenes the result at which I have arrived, and I think that it is fully sustained by the reasoning of Chief-Justice Beasley in Doughty v. Doughty, 1 Stew. Eq. 586. The decree of the court of chancery granting a divorce in that case, which was somewhat similar to this, was sustained on appeal distinctly on the ground that the decree of the State of Illinois, there set up as a defence, was not a decree in a suit for divorce, but was one in a suit of jactitation of marriage, and also on the ground that notice of it failed to reach the defendant by reason of designed neglect on the part of the plaintiff in the foreign decree to take proper pains to give her actual notice. The learned chief-justice, in dealing with the question, distinctly declared that it would be necessary for our courts, on the ground of comity, to recognize the validity of foreign divorces, obtained by substituted service upon fair proceedings and proper grounds, against residents of this state. He held that, as our system provided for the procuration of divorces against absent spouses, and expected every foreign jurisdiction to recognize the validity of such divorces, we must accord the same validity to the foreign divorces obtained under the same circumstances.

But the present case is within the authority-of the recent decision of Vice-Chancellor Reed in Magowan v. Magowan, 39 Atl. Rep. 364. There the wife sued the husband for maintenance, and he pleaded a decree of divorce granted by the court of the Territory of Oklahoma, and the decree in that case recited that Magowan was a resident of that territory. The wife, in answer to it, replied that he was not a resident of that territory; that he had imposed upon the court in that respect. But the learned vice-chancellor held that the recital in the decree was conclusive against the defendant in that suit, who had notice of it. That case goes much farther than it is necessary to go here, because it is an admitted fact in the ease that the husband was a bona fide domiciled resident in the Territory of Utah at the time the suit was brought and for more than a year prior thereto.

I will advise a decree in favor of defendant.

       Since the foregoing opinion was prepared, the decree in Magowan v. Magowan has been reversed. 12 Dick. Ch. Rep. 322.


source: Caselaw Access Project

author: Pitney, V. C.

license: Public Domain

text:
    Laura Lawson v. Martha W. Acton, Evaline Corsen et al.
    [Decided June 24th, 1898.
    Filed January 4th, 1899.]
    A widow in possession, by permission of the heirs, of all the land of which her husband died seized, permitted the taxes assessed upon the same during her occupation to remain in arrear and unpaid for many years, and twenty-two years after the husband’s death letters of administration were taken out upon his estate by a person pretending to act in the interest of the widow, who made an application to the orphans court for an order to sell lands based upon a statement showing that there was no personal estate, and falsely stating that the deceased was indebted for taxes to a large amount, upon which application the orphans court made an order of sale, and the land was sold and purchased by the widow, the heirs-at-law being in a foreign state and having no actual notice of the proceeding, or that the taxes were in arrear, until after the conveyance. — Held, (1) that the order of sale having been procured by fraud, the sale thereunder was void as between the heirs-at-law and the widow; hut (2) a mortgagee of the widow, without actual notice of the fraud, other than that disclosed by the proceedings in the orphans court, cannot, under the decisions in New Jersey, be held chargeable with notice of the fraud, although the fraud be apparent on the face of the papers; (3) that the heirs-at-law are entitled to a remedy over against the administrator and the widow severally for the amount which they shall lose by reason of the fraudulent proceedings. Semble, that while the orphans court has general jurisdiction of the sale of lands of decedents to pay their debts, it can exercise that jurisdiction in a particular case only upon application in writing being made by a personal representative of the decedent, and statutory notice given to the lieirs-at-law or devisees, and an order of sale not based upon such acquisition of jurisdiction would be void; and that a purchaser of real estate under such order of sale is bound to observe whether or not there has been such an application, but under the rule in New Jersey he is not bound to take notice of any indications of fraud apparent upon the face of the application.
    Heard on bill, answer, plea, replication and proofs in open court.
    The complainant is one of the lieirs-at-law of Samuel Lewis, deceased, late of the county of Camden, who died in 1870, seized of certain lands in the city of Camden. The object of the bill is to set aside a sale and conveyance of them by the administrator of Lewis, under an order of the orphans court of the county of Camden, to Lewis’ widow, Elizabeth Corsen, and a mortgage made by Mrs. Corsen to the defendant Martha W. Acton.
    The bill charges, first, fraud practiced upon the orphans court by the defendant C. W. T., a real estate broker of Camden; second, want of jurisdiction in the court to make the sale; and third, notice to Mrs. Acton, the mortgagee, of the defects in Mrs. Corsen’s title.
    Mrs. Acton, the mortgagee, denies all fraud or notice of any, and by plea claims the position of a bona fide purchaser without notice, resting her title upon the validity of the order of sale made by the orphans court.
    The facts of the case are these: Lewis, the grandfather of the complainant, and the husband of Mrs. Corsen, died in 1870, seized of the premises (which consist of a house and two lots of land, making in all forty feet front and one hundred feet deep, in the city of Camden), leaving the defendant Mrs. Corsen his widow, and leaving several heirs-at-law residing in different Western States. His widow was permitted by the heirs-at-law to occupy the premises, no attempt at partition or assignment of dower being made. About two years after his death she married a second husband, Mr. Corsen, who subsequently died, leaving her the second time a widow. She permitted the taxes on the premises to fall in arrear, and they were threatened with a sale. No proof was offered, nor can any inference from the facts be drawn, that any of these taxes accrued in the lifetime of Lewis, the former owner.
    About the 1st of June, 1892, C. W. T., having, presumably, learned these facts, applied to the surrogate of the county of Camden for letters of administration on the estate of Lewis, and produced to him a paper witnessed by him, purporting to be a renunciation by Mrs. Corsen in favor of his administration, and asking that C. "W. T. be appointed administrator.
    The signature of Mrs. Corsen to that renunciation is a forgery.
    On the 7th of June, 1892, C. W. T. presented his formal petitition for administration, setting forth that Lewis died on the 15th of September, 1870, leaving a widow, Evaline Lewis, and two children, Sylvanus E. Lewis and Reba M. Sticknev, one living in Indiana and the other in Ohio, and asking for administration. He also presented an administrator’s bond, purporting to be signed by himself, Mrs. Corsen and one Herman Morgner. The original paper being produced in court, the signature of Mrs. Corsen is shown to be a palpable forgery. Morgner is said to have been a United States recruiting sergeant. On the strength of these documents, letters of administration were issued to him. On the same day he made affidavit that there was no personal property belonging to the deceased that came to his hands, and on the same or the next day he applied, by petition, to the orphans court, asking for an order of sale of lands to pay debts on account of the insufficiency of the personal property. In the petition he states the personal estate as nothing and the debts as follows :
    Taxes on the two lots...................................................§248
    Costs and commissions.................................................. 52
    S300
    January 1st, 1889. To service of M. B. Taylor, for Lewis estate..................................................................... 10
    Total..................................................................Í §310
    and leaving a deficiency of that amount.

      M. B. Taylor was a well-known counselor-at-law of Camden county, who, at that time, had been dead several years; and it is to be observed that the bill does not pretend to be for services rendered to Lewis in his lifetime, who had then been dead twenty years, but for services rendered the Lewis estate.
    On the strength of that petition, verified by C. W. T., the orphans court granted an order to show cause why the land should not be sold to pay debts of the intestate, and on the return of that order and the proof of its publication in a newspaper in Camden, an order for sale was made September 2d, 1892, and a new bond given by C. W. T., with the same Herman Morgner, the recruiting sergeant, and one William S. Darnell, as sureties.
    The administrator subsequently reported that he had sold the land to Mrs. Corsen for $100. The sale was confirmed on the 9th of December, 1892, and a conveyance made by the administrator, C. W. T., to Mrs. Corsen. He then took from Mrs. Corsen a mortgage upon the premises to himself for $400, dated December 9th, 1892. He then settled his account in the orphans court, charged himself with $100 from the sale of the land and credited himself with $10 paid to the estate of M. B. Taylor, with surrogate’s fees, printing and advertising, and $7 allowed to himself as commissions, making the precise total of $100.
    The claim of M. B. Taylor was not presented under oath and no attempt was made at the hearing to show that it had the least foundation in truth and honesty.
    C. W. T., from time to time between that date and the month of June, 1893, paid taxes amounting to $273.89, as shown by copies of the vouchers on file in the tax office in the city of Camden, but to a friend of Mrs. Corsen who called on him about it, he claimed to have paid only $245 of taxes and interest.
    He then applied, in behalf of Mrs. Corsen, to Mr. Caleb D. Shreve, of the Camden bar, for a loan of money on mortgage on the property, and Mr. Shreve agreed to loan him $450 for the defendant Mrs. Acton, who was a client of his, living in Philadelphia, and set about examining the title in the ordinary way, employing therefor the West Jersey Title and Guaranty Company, who furnished him with an abstract of the title but not a guarantee of it. It does not appear what, if any, examination was made of the papers in the surrogate’s office with a view of looking into the foundation of the proceedings for the sale of the lands or the regularity thereof. The sum of $450 was actually advanced by Mrs. Acton to C. W. T., as the agent of Mrs. Corsen, and she executed to Mrs. Acton the mortgage in question, dated May 6th, 1893. Out of this money C. W. T. paid the balance of the taxes and expenses. The interest falling in arrear, Mrs. Acton filed a bill to foreclose her mortgage, and her suit proceeded to a decree, execution and advertisement, all without any actual notice to the heirs of Samuel Lewis, until the advertisement of the sale under foreclosure, when one of them, the complainant herein, filed the present bill, and an order was thereon made, staying the sale until final hearing.

      Mr. George JET. Peirce, for the complainant.

      Mr. Caleb D. 8 hr eve, for the defendant Mrs. Acton.
   Pitney, V. C.

The learned counsel for Mrs. Acton attempted at the hearing to justify the conduct of C. W. T., on the ground that his intention was good, but that he made a mistake in the means employed to accomplish the end in view.

I cannot accede to that argument. And I think the position is not improved by the justification set up in C. W. T.’s answer (not supported by the least proof), which is, briefly, that M. B. Taylor in his lifetime had been counsel for Mrs. Corsen, and that she received notice from the city authorities that her property would be sold, or had been sold, for taxes, and applied to C. W. T. to assist her in the premises, and that he undertook it, and, having consulted the surrogate, was advised by him that the proper plan was to have the property sold by proceedings in the orphans court, and the title vested in Mrs. Corsen, so that she could make a mortgage on it and pay the taxes and save the property for a home. He says that this was necessary because her title was only that of a dowress, and that she could not raise money by a mortgage. This is true, but did not in the least justify him in advising her to procure the title by the means suggested, or justify her in acting upon his advice. His duty and her duty plainly was to notify the heirs-at-law, the residence of two of whom was set up in his application for the sale of the land, and give them an opportunity to come forward and pay the taxes (if the widow was unable to pay them), and exercise their pleasure as to permitting her any longer to occupy the premises.

I think the case is not within the rule established in Spinning v. Spinning, 16 Stew. Eq. 215. I think the circumstances warrant the inference that the widow was permitted by the heirs to occupy the premises upon the understanding that she would pay the taxes, repairs, &c. It is to me quite impossible to believe that the heirs were acting, or rather resting, upon the supposition that the widow was allowing the taxes for all these years to fall in arrear. -Be that as it may, it was the least she could do under the circumstances to keep down the taxes. So far as the case shows, her husband died possessed of no other property.

The end proposed, namely, to procure the title to be vested in the widow, was therefore a dishonest one, and cannot receive the sanction of this court.

Then the application to the court was in itself a plain fraud— so plain and palpable that it seems strange it should have escaped the attention of the judges; and the fact that it did escape their attention is the only circumstance in the case to support the allegation of the answer that the scheme was devised by the surrogate. C. W. T. knew perfectly well that it was necessary that there should be a debt of Samuel Lewis, in order to warrant the orphans court in selling land, and so he produces the charge of $10 in favor of the estate of M. B. Taylor to give a color of a debt of the deceased. And this shows that he knew that the taxes were not the debt of the decedent, and would not justify the orphans court in selling land.

I come, therefore, without difficulty to the conclusion that the whole proceeding in the orphans court was founded upon a fraud practiced upon that court by C. W. T.; that the debts for which the lands were sold were not the debts of the decedent, but were in' effect the debts of Mrs. Corsen; that she was, in fact, the purchaser of the lands of the heirs of her husband at a sale made to raise money to pay what in morals, if not in equity, was her own debt, and that as between her and the complainant and the other heirs of Samuel Lewis her title must be declared void. And if the attempt had been to foreclose the mortgage given by Mrs. Corsen to C. W. T., which was canceled when Mrs. Acton’s mortgage was taken, there would be no difficulty. Neither Mrs. Corsen nor C. W. T., or, indeed, any person claiming under her with notice of the fraud, could derive any advantage from those proceedings.

Counsel for Mrs. Acton claims that she is in the situation of a bona fide purchaser without notice of this fraud.

A learned and elaborate argument was presented to me by him in favor of three propositions — first, that the orphans court had complete and unlimited jurisdiction over the subject-matter before it, and that, having acted, its decree cannot be questioned collaterally, and hence, second, it was not the duty of Mrs. Acton, in examining the title of Mrs. Corsen, to look into the proceedings in the orphans court and see whether there was anything defective in the jurisdictional facts upon which the order of sale was based; and third, that if she, by her counsel, had examined the proceedings in the orphans court, nothing in fact would have been disclosed that would suggest fraud or otherwise put her upon inquiry.

The extent and character of the jurisdiction of the orphans court in New Jersey, in matters of this kind, have been the subject of much discussion and may be considered as thoroughly settled by the following cases: Wilmurt v. Morgan (unreported), decided by Chancellor Williamson and decided at length by Chancellor Vroom in 2 Gr. Ch. 166; Pittenger v. Pittenger, 2 Gr. Ch. 156; Den v. Hammel, 3 Harr. 73 (where the lines of jurisdiction were clearly stated by Mr. Justice Ford, and his language in that behalf has been substantially adopted in every case which has since arisen); O’Hanlin v. Den, Spenc. 31 (see pp. 40, 50); Den v. O’Hanlin, 1 Zab. 582; Runyon v. India Rubber Co., 4 Zab. 467; Young v. Rathbone, 1 C. E. Gr. 227; Plume v. Howard Savings Institution, 17 Vr. 211; Clark v. Costello, 30 Vr. 234.

Notwithstanding some general and rather sweeping expressions contained in later opinions, I can find nothing to warrant the notion that the orphans court has been put upon any higher basis than that of the courts of common law in the matter of acquiring jurisdiction of the particular matter. With regard to those courts there can be no question that a judgment in personam of a common-law court must show jurisdiction of the person. The remark of Chief-Justice Beasley in Price v. Ward, 1 Dutch. 225 (at p. 227), is apt. He says: The record of every common-law judgment, though no appearance has been entered or defence made, regularly shows upon its face the jurisdiction of the court over the person of the defendant. The declaration avers that the defendant is in custody or that he was summoned or attached to answer, or that he is present in court in his own proper person or as an officer of the court.”

I apprehend that a judgment in personam of a common-law court which failed to show on its face jurisdiction of the person would be void. And it is perfectly well settled that the question of actual jurisdiction of the person in such cases may always be inquired into. The cases in New Jersey on this subject are the following: Moulin v. Insurance Co., 4 Zab. 223; Price v. Ward, 1 Dutch. 225; Mackay v. Gordon, 5 Vr. 286, and Elsasser v. Haines, 23 Vr. 10.

The decree of sale in this case, however, was not a decree in personam, but a decree strictly in rein. The physical object of the decree — the land in question — was situate within the territorial jurisdiction of the court, and the subject-matter of the suit was the sale of that land to pay the debts of the deceased. Of the subject-matter the court had, by statute, undoubted general jurisdiction; and it was within its power also to obtain jurisdiction pro hac vice of the persons interested in the land, by publication, without personal service. This mode of obtaining jurisdiction or quasi-jurisdiction of the person is necessary in all cases of this kind, otherwise there might be no remedy in case the owners of the laud lived beyond the territorial jurisdiction.

But to say that the court has general jurisdiction of the sale of lands of decedents to pay debts of the decedent, is no more than to say that it has power to acquire such jurisdiction in particular instances by certain proceedings, and the jurisdiction to proceed at all against the particular land depends, by the statute, upon an application by an executor or administrator to sell the lands for the payment of the debts. In my judgment, there must be a written application by the executor or administrator to the orphans court, and it must appear to have been actually presented. I apprehend that a mere order of the orphans court directing a sale of lands of a decedent by a personal representative, in the absence of any application for that purpose, would be void, precisely as would a mere entry of judgment in personam by a common-law court without any service of process on the defendant or appearance by him, or the entry of a decree in this court not based upon a bill filed and process served thereon, or an appearance by the defendant. And, in my judgment, a party claiming title through a sale by an order of the orphans court to pay the debts of the decedent, is chargeable with notice of whether or not, in fact, such written application was made.

This leads to the conclusion that the purchaser from Mrs. Corsen is chargeable with notice that an application was made, by petition, by the administrator in this case. Such petition is recited in the order to show cause why a sale should not be made, and was, in fact, upon the files of the court, open for inspection.

This brings us to the question whether or not she is chargeable with notice of its contents, and, if so, whether an inspection of the paper itself was sufficient to give her notice of the fraud in this case, or, which is the same thing, to put her upon further inquiry. And I think she is chargeable with notice of the contents of the petition, and, if the matter were res nova, I should say that she was chargeable with notice of the fraud. The petition shows that the decedent had been dead over twenty years, and that the debts, for the payment of which a sale was ordered, were, first, a claim by M. B. Taylor, for $10, for services rendered to the “estate of Samuel Lewis;” and second, for $248, for taxes against the property in question. The claim of Taylor was clearly not a debt of the decedent, and the strong presumption, with regard to the taxes, was that they accrued long since his decease. The injustice done by the transaction was, as I have said, palpable and manifest. Mrs. Corsen, an elderly and nearly imbecile woman, was, with innocence on her part, perhaps,' by the fraudulent practices of C. W. T., vested with the title in fee of premises of which she had really only a dower right, on the strength of her own default to pay the taxes levied against them and which it was her duty to pay. I think that the adoption and enforcement of a rule that the purchaser is chargeable with notice of fraud apparent on the face of the papers would be a safeguard against such a fraud as has been practiced here, and would not be any hardship on the purchaser. An examination of the authorities cited on this topic by Mr. Freeman, in his treatise on “Judgments,” and also in his treatise on “Void Judicial Sales,” shows that in many of the states of the Union a rule something like that obtains.

■ But I feel constrained, by authority in this state, to hold that the purchaser was not bound to notice the indicia of fraud just stated. That authority is the famous Leake Case, reported, as above cited, in Spenc. 31 and 1 Zab. 582. The circumstances of that case were these: Leake died seized of lands in Bergen county, leaving no heirs, so that they escheated to the state. Some years afterwards letters of administration were taken out on his estate and application made to sell land for payment of debts. The character of the application in that case is set forth in the opinion of Chief-Justice Hornblower in Spenc. 40, where he uses this language: “ But, in my opinion, it would be against public policy and private security to authorize the orphans court to order a sale of lands which have escheated to the state. This very case affords a striking commentary on such a practice. A foreigner comes into our state and purchases a valuable farm ; lie lias a wife and children in Europe, whom he intends to bring hither, but death overtakes him before he can effect his purpose. A stranger, as in this case, having no claims upon the deceased or his property, gets administration, trumps up an account, and, under an order of the orphans court, obtained upon’ an ex parte application, sells the whole estate to pay debts, when it is manifest upon the face of his own account that he had not one dollar of debt to pay. Is it not better that the state, as guardian of such property, should take it under its care and see that it is applied to the payment of debts, if any, and the surplus be given to the widow and children of the deceased, or to such persons as, by the ties of nature and consanguinity, would be best entitled to it?”

This statement shows the case to be much like the present. Messrs. Justices Nevius and Whitehead, who did not agree with the majority of the court in the result, did agree in holding that the sale in that case was valid. Spenc. 50, 51. And when the case reached the court of errors and appeals the point was taken that the sale by the orphans court was void on the ground of fraud, but the court stopped counsel on the other side on that point. 1 Zab. 586, 587, 597. It is true that those were mere dicta, not necessary to the decision of the cause, because that decision was against the parties taking the point upon other grounds, to wit, that the orphans court had no jurisdiction to sell the lands which had escheated to the state. But they were the dicta of distinguished judges in two courts after listening to elaborate arguments by the leaders of the bar, and are so far in consonance with the general strain of decision of similar questions in this state that I feel constrained to follow them.

The protection of heirs against such frauds must be found in judicial precautions for giving notice to non-residents by mail and by increased vigilance on the part of the courts.

It must be observed that the petition in this case was quite sufficient to give the court jurisdiction of the particular matter, upon the principle laid down by the late Chief-Justice Beasley in Plume v. Howard Savings Institution, 17 Vr. 211 (at pp. 227, 228). The question there involved was the jurisdiction of the orphans court to grant letters of administration upon the estate of a supposed decedent. The grant in that case was based upon a written petition, the substance of which is set out on pages 226 and 227, and the objection was that the petition did not show that the intestate was actually dead. With regard to that aspect of the case the chief-justice says that, though the court may have fallen into error in determining that he was dead, there was a petition presented which made what he happily called a color-able case and which gave the court jurisdiction.

In this case the presentation of the petition gave the court jurisdiction of the particular matter, and the only question is whether the facts did not put a purchaser upon inquiry as to whether or not there was a fraud practiced upon the court.

The complainant is not entitled to relief as against Mrs. Acton, but is entitled to relief against both Mrs. Corsen and C. W. T. for reimbursement of whatever she shall lose by the fraudulent proceedings in the orphans court.

I will advise a decree in accordance with these views.


author: Embry, V. C.

text:
    J. Elmer Nelson, administrator, &c., of Rebecca Covert, deceased, v. J. Elmer Nelson, administrator of Lewis Covert, deceased.
    [Filed January 6th, 1897.]
    1. A bequest of testatrix’s personal estate to her husband “for his use during his natural life ” will not deprive him or his personal representatives of their right to the remainder, under the law of intestacy, if no disposition thereof is made by testatrix.
    2. The act of 1864 (Rev. p. 638; Gen. Stat. p. 2014), making the will of a married woman as to personalty as valid as if she were single, does not affect the husband’s right to personal property in respect to which the wife dies intestate.

      3. Where a husband dies without having converted to his own use the personal estate of his deceased wife, undisposed of by her will, her administrator holds such estate in trust to pay over to the husband’s personal representatives, after payment of the wife’s debts.
    4. Where a husband dies before converting- the whole of his deceased wife’s personal estate undisposed of by her will, and the unconverted personalty is not sufficient to pay her debts, the husband’s estate must refund as much as is necessary for that purpose.
    5. Testatrix devised her real and personal estate to her husband for life, directing that after his death the realty should be given to such one of her nephews and nieces as the husband, who was appointed executor, might designate; but the latter died intestate without exercising such power, and the administrator cle bonis non of the wife’s estate, who was also the husband’s administrator, filed a bill for construction of testatrix’s will. — Held, that as complainant had no interest in the real estate in either capacity, title thereto could not be adjudicated in such suit.
    On final hearing on bill, answers, replication and proofs.

      Mr. Aaron E. Johnston, for the complainant.

      Mr. Acton C. Hartshorne, for the defendants, heirs and next of kin of Rebecca Covert.

      Mr. James Buchanan, for the defendants, certain next of kin of Lewis C. Covert.

      Mr. Charles H. Ivins, for the defendant Nelson as administrator of Lewis C. Covert, deceased.
   Embry, V. C.

This case involves the construction of the will of Rebecca Covert and a dispute between her own next of kin and legal representative on the one side, and the legal representative and next of kin of her husband on the other.

Rebecca Covert died October 8th, 1894, possessed of real and personal property, and having first made her will, dated March 2d, 1894, by which she directed as follows:

“After the payment of my just debts and funeral expenses, I give, devise and bequeath to my husband, Lewis C. Covert, all my estate, real and personal, of whatsoever kind and wheresoever found, for his use during his natural life; after his death I wish the property where I reside to be given to some one of my nieces or nephews as shall be designated by my husband, Lewis C. Covert, the said property to be kept in good repair as long as my husband shall live.”

She appointed her husband executor, and the will contains no other disposition of her property. Lewis C. Covert proved the will, took out letters testamentary, administered on the estate and filed an inventory of the personal property, which amounted to over $3,000. The bulk of this personal property consisted of securities and bank accounts standing in the name of Mrs. Covert at her death, and Lewis C. Covert, as executor, transferred these accounts to an account in his individual name, paying therefrom the funeral and probate expenses of his wife’s estate. A bond and mortgage for $1,800, belonging to his wife and standing in her name, was included in the inventory of her estate, but was not collected by Lewis C. Covert or transferred to his name before his death on January 23d, 1895, which occurred before he had fully administered upon his wife’s estate.

Administration de bonis non upon the wife’s estate was granted to the complainant on February 6th, 1895, and on the same day he was also appointed administrator of the estate of her husband, who died intestate and without having executed the power of designation or appointment given to him by the will. The complainant, as administrator de bonis non of the wife’s estate, has in hand about $2,100, including the bond and mortgage for $1,800, above referred to, and as administrator of the husband’s estate, about $800. There were no children or issue of children left surviving, and the next of kin of both wife and husband claim all the personal estate in the hands of complainant as coming to them respectively,, and the two classes of heirs-at-law make similar claims as to the real estate. The bill is filed by complainant to settle the right of the respective claimants to the personal estate which he holds in trust and also as to the real estate, but as to the latter no circumstances appear, by pleadings or evidence, which give the complainant any interest in these lands or any right to call upon this court for an adjudication of the title to the real estate as necessary to the discharge of the duties of his trust. This trust extends, so far as this case shows, only to the personal estate.

My conclusions in the case are:

First. The bequest to Lewis Covert by the will of his wife, Rebecca Covert, being expressly declared to be a bequest for his use during his natural life, cannot be construed as giving to him, by implication, an absolute interest in the personalty. The cases cited by counsel to sustain such absolute gifts of the principal by implication are all cases where the income or interest of the fund was given indefinitely and without express limitation in the will itself to the life of the legatee. Gulick v. Gulick, 12 C. E. Gr. 498 (Errors and Appeals, 1875), Harston v. Elden, 5 Dick. Ch. Rep. 522 (Chancellor McGill, 1892), and cases cited.

Second. There being no bequest in the will of Rebecca Covert, either expressly or by implication, of the remainder in the personal estate after the death of her husband, she died intestate as to this remainder. To this remainder the husband or (in case of his death before full administration) his representatives are entitled under the rule settled in Donnington v. Mitchell, 1 Gr. Ch. 243 (Chancellor Pennington, 1839), and the cases therein cited (at p. 247). This case was approved on this point by Chancellor McGill (1887) in Stoutenburgh v. Hopkins, 16 Stew. Eq. 577, 580; affirmed on appeal, 18 Stew. Eq. 890, for reasons stated. The circumstance that the testatrix gave her husband an express estate for life in the personal property is not sufficient to deprive the husband or his representatives of the rights in the remainder which devolve upon them by the laws relating to intestacy.

Third. The rule settled in the above cases as to the rights of the husband or his representatives to the personal property of the wife, in cases where the will of the wife does not dispose of the personal property, has not been changed by the laws relating to married women which were relied on by counsel. The act of 1852, as revised in 1874 (Rev. p. 636), reached only to the ownership and control of the wife’s personal property during her life, and did not affect the husband’s rights to her personal property on her death. The act of 1864 (Rev. p. 638; Gen. Stat. p. 2014), which provides that the will of a married woman as to personal property shall be as valid as if she were an unmarried woman, gives the wife power to bequeath her personal estate to her husband or to others than her husband, without his assent as previously required, and the statute is applicable only as to personalty which is bequeathed. Where the wife does not fully exercise the right of testamentary disposition, and, as to her personal estate or any interest therein, dies intestate before the husband, the rights of the husband or his representatives to the undisposed-of personalty remain unaffected by these laws and' come within the application of the rules above referred to in Donnington v. Mitchell, supra. In Van Liew v. Van Liew, 9 Stew. Eq. 638, the husband died before the wife (see report p. 638) and the case is therefore not in j)oint.

Fourth. The right of the husband to the wife’s personal property undisposed of by her will does not depend upon his actual conversion of her estate after her death to his own use, and, so far as the same has not been administered or converted by him, the administrator de bonis non of the wife’s estate will hold the estate in trust to pay over to the husband’s administrator, after paying the debts of the wife’s estate. This is the rule as settled by the cases above cited. And inasmuch as the husband’s interest in his wife’s personal estate, whether received as legatee or under the intestacy laws, is subject to the payment of the wife’s debts, it follows that if the amount of the wife’s estate remaining unadministered is not sufficient to pay her debts the husband’s estate is liable to refund the legacies he has received to an extent sufficient for that purpose.

Fifth. This court has no jurisdiction on this bill to adjudicate upon the legal title to the real estate after the termination of the life estate directly given by Rebecca Covert to her husband. The complainant, as administrator de bonis non of Mrs. Covert or as administrator of Lewis Covert, has no title to the real estate nor any such interest therein, either under the will of Mrs. Covert or otherwise, as to entitle the court, on his application, to adjudicate upon the title to real estate, and therefore no adjudication is made. No power of sale was given to her executor, and the questions as to the interest in the real estate resulting from the default in appointment by Lewis C. Covert, are evidently such as cannot properly be adjudicated upon this bill filed by her administrator de bonis non, whose interest in either of the estates reaches only to the personal property. As to the real estate the same question of title under the will is here raised between the nephews and nieces of Rebecca Covert and the heirs-at-law of Lewis C. Covert, the latter claiming that by the will of his wife Lewis C. Covert was entitled to the absolute fee. The construction I have placed on the will, so far as relates to Lewis C. Covert’s absolute interest in the personal property, may perhaps apply to the real estate, if my view of the construction of the will is sustained by the court before which the title to the lands comes in question, but in this case no adjudication upon the title to the real estate will be made.


author: Emery, V. C.

text:
    The Inhabitants of the Township of Summit v. The New York and New Jersey Telephone Company.
    [Submitted July 25th, 1898.
    Filed August 12th, 1898.]
    1. Highways of the township of S., which are shown to be in fact streets of a town and not county roads, within Gen. Stat. pp. 3458, 3461 ¶¶ 9, 24 (giving telephone companies the right to set their poles on public roads and highways of the state, provided no poles shall be placed in any “ streets of an incorporated town,” &c.), are streets of an incorporated town.
    2. Gen. Stat. pp. 3458, 3461 ¶¶ 9, 24, providing that telephone companies may use streets subject to such regulations and restrictions as the corporate authorities may impose, do not warrant a regulation which imposes new conditions on the exercise of the corporate franchise.
    3. An ordinance providing that no telephone wire shall be stretched across any public street without the consent of the township committee, is not a regulation and restriction, within Gen. Stat. pp. 3458, 3461 ¶¶ 9, 24, giving telephone companies the right to stretch wires over streets in incorporated cities and towns, under certain conditions, subject to such “ regulations and restrictions” as may be imposed by the corporate authorities.
    On bill for injunction, &c. Application for preliminary injunction, heard on bill and affidavits and answering affidavits.

      Mr. Corra N. Williams and Mr. Richard V. Lind,abury, for the application.

      Mr. Charles L. Corbin, contra.

   Emery, V. C.

The bill in this case is filed by the inhabitants of the township of Summit to enjoin a telephone company from running its wires over certain of the public streets of the township. The poles upon which the wires are suspended are not located in the public streets, but upon private property by consent of the owners, and, as appears by the defendant’s affidavits, where the wires cross streets the consent thereto of the owners of the land abutting on the street at the place of crossing has been obtained. The wires crossing the street are suspended at an elevation which does not interfere with public travel on the streets. The present application is for a preliminary injunction restraining the further erection of poles or suspension of wires across the street pending the hearing, and also for a mandatory injunction requiring the removal, pending hearing, of the wires already erected, but at the hearing mandatory injunction was not asked. The right of the township to enjoin the suspension of wires across the public streets is based upon the claim that, under the statute relating to telephone companies, and the ordinance passed by the township authorities under its authority, the telephone company has no right to suspend its wires across the public streets without the consent of the township committee, and that this consent has not been given. If the statute does require such previous consent, then, under the decisions of this court, this statutory right may be assured to the township by a preliminary injunction, which is the only method of enforcing it. Franklin Township v. Nutley Water Co., 8 Dick. Ch. Rep. 601; Stockton Attorney-General, v. Atlantic Highlands, &c., Railroad Co., 8 Dick. Ch. Rep. 418 (Chancellor McGill, 1895).

The main question on this application is whether the company is required, either by statute or ordinances made thereunder, to obtain the previous consent of the township authorities to suspend its wires across the streets. The “Act relating to telephone companies” (Gen. Stat. pp. 3458, 3461 ¶¶ 9, 24) provides that

“ any telephone company organized under the act shall have full power to use the public roads and highways in the state, on the line of their route, for the purpose of erecting posts or poles on the same to suspend the wires and other fixtures, upon first obtaining the consent in writing of the owner of the soil ; provided, however, no posts or poles shall be erected in any street of any incorporated city or town without first obtaining from the incorporated city or town a designation of the streets in which the same shall be placed and the manner of placing the same, and that the same shall be so located as in no way to interfere with the safety or convenience of persons traveling on or over the said roads and highways, and that the use of the public streets in any of the incorporated cities and towns of this state shall be subject to such regulations and restrictions as may be imposed by the corporate authorities of said cities or towns.”

The ordinance passed by the township committee in relation to wires provides that

“no wire shall be stretched across any public street, avenue or highway in said township, nor laid under the soil of any public street, avenue or highway without the permission of the township committee.”

No ordinance has been passed regulating in any other manner the use of the streets of the township for wires. Two questions arise under this statute and ordinance — first, whether the complainant is an incorporated town, within the meaning of the statute giving to such towns the right of regulation of the use of the streets; and, if so, then, second, whether the ordinance in question is a regulation of the use of the streets, within the meaning of the statute. Both questions must be answered in the affirmative, in order to sustain complainant’s right to an injunction, for the case of American Telephone Co. v. Town of Harrison, 4 Stew. Eq. 627 (Vice-Chancellor Van Fleet, 1879), is a controlling decision in this court, made directly upon the point, and to the effect that under this statute, and in the absence of a regulation by the municipal authorities for the use of wires across streets, a telegraph company, erecting its poles on private property with the consent of the owners, has a legal right to cross the street with its wires at a proper elevation above the street.

The township of Summit was created by special act March 23d, 1869 (P. L. of 1869 p. 538), and its inhabitants, on incorporation, were invested with the general powers of other townships in the county of Union. No special powers other than those conferred upon townships in general have been granted, and the defendant therefore contends that the township cannot be considered an “ incorporated town ” under the statute in question. The supreme court, however, in a ease where the point was directly involved, and was the preliminary question, held that the word “ town,” as used in this act, should receive an interpretation broad enough to include municipalities formally styled townships, boroughs or villages, where the public highways were in fact streets as distinguished from country roads. Broome v. Telegraph Co., 20 Vr. 624 (1887).

The judgment in this case was affirmed on error, but the court in affirming expressly reserved decision upon this point. S. C., 21 Vr. 432, 434. This reservation by the appellate court is relied on by defendant’s counsel as limiting the controlling effect of the judgment of the supreme court now in question, but I cannot so regard it. The reservation undoubtedly has, and was intended to have, the effect of leaving the appellate court itself free to examine the question de novo hereafter, when thought necessary, but the correctness of the decision below was not expressly questioned or declared to be doubtful, and therefore, as it seems to me, the decision of the supreme court must, by this court, still be considered as a decision by a court of coordinate jurisdiction directly upon a point involved. Under the general rule of comity of our courts, such decision of a court of co-ordinate jurisdiction should be followed (Palmer v. Johnson, 13 Q. B. Div. 351, 355, Brett, M. R., 1884), and there is nothing in the' present case to withdraw it from the operation of this general rule. For the purposes of the present application, I shall therefore apply the test laid down by the supreme court in Broome v. Telegraph Co., supra, as the character of the complainant corporation. The affidavits sufficiently show that the highways of the township of Summit, or at least the highways now involved, are streets of a town and not country roads, and I therefore hold that the township has the power under this act to regulate the use of these streets at the crossings in question.

The second question raised is whether the ordinance requiring the previous consent of the township committee to the suspension of wires across the streets is a regulation of the use of the streets within the statute. The statute itself, which is the only foundation of the right of the township to pass any ordinance on the subject, has not imposed the condition requiring such previous consent, nor does it expressly confer upon the township the right to prohibit or prevent the use of the streets. A right to prevent the use of the streets for suspending wires unless previous consent is obtained, if such a right be lawfully conferred, authorizes a refusal to consent at discretion and confers a virtual power of prohibition. The right to the use of the streets has been expressly granted by the legislature, and the power to prohibit or interdict this use so granted cannot be inferred from the declaration in the proviso annexed to the grant that the use should be subject to such regulations and restrictions as may be imposed. The restrictions intended in such a proviso must be held to be restrictions in the nature of regulations, and not restrictions which shall prohibit the use or impose new conditions to the power to exercise the franchise. A power to “regulate and control” the driving of cattle in streets does not give power to prevent it altogether. McConvill v. Jersey City, 10 Vr. 38, 44 (Supreme Court, 1876). Such power of prohibition, or of imposing conditions upon which the franchise should be exercised at all, was not vested, in the township authorities by the statute, nor can the township committee, by its own ordinance, confer upon itself this power or thS absolute right of previous consent. An ordinance imposing a new condition upon which the telephone company may use its franchise in or over the public streets, granted by the legislature, is an entirely different thing from an ordinance regulating and restricting the manner of erection and use in or over the streets. The effect of such ordinance is to interdict the enjoyment by the company of its franchise except upon terms and conditions which the legislature, in its charter, has not imposed. This is the language of Mr. Justice Depue in North Hudson County Railway Co. v. Hoboken, 12 Vr. 71, 75, in reference to an ordinance requiring a license from the city as a condition of running cars where no authority to require such license has been conferred, and the same principle seems to me to be applicable here. Counsel for the complainant rely upon the opinion of Mr. Justice Dixon in State, Home Telephone Co. v. New Brunswick, 40 Atl. Rep. 628 (Supreme Court, June, 1898), as indicating that, in reference to the construction of a local system of telephones such as is involved in this case, the municipal authorities have an absolute discretion. But this decision was upon the question whether, under the Telegraph and Telephone act, the municipal authorities could be compelled to make a designation of public streets in which the poles could be located for a local system. The court held that such designation of streets to be used was compulsory only for the through route of the company, but the decision does not, in my judgment, reach the present question. In the present case, the telephone company, having erected its poles for its local system, not on the public streets, but on private property and with the consent of the owners of the soil, does not require any designation or use of the public streets for the erection of its poles.

The right of the company to the use of the streets for the mere suspension of wires over them, is based on the authority expressly given by the legislature to use the highways for erecting poles to sustain wires, and on the consent of the owner of the soil; and this use is not, by the statute, made subject to the mere discretion of the municipal authorities. They can only regulate’ and restrict it by reasonable regulations.

Another case—State, Consolidated Traction Co., pros., v. East Orange, 32 Vr. 202—was also relied on to sustain the ordinance as a regulation. In this case an ordinance which provided that

“no person should trim, cut or break any tree, limb or twig thereof, &c.,. without first obtaining permission of the township committee or their authorized agent,”

was sustained as valid and reasonable. But the township in this-case had express legislative authority “ to authorize and prohibit, the removal or destruction of trees,” and the ordinance against removal or destruction, without previous consent, was therefore no extension of their power of prohibition, but a limitation of it; and, besides, the subject-matter of the ordinance, viz., the removal of trees, &c., was one of such character that the provision for the consent of the committee or its authorized agent, in each ■particular case of removal, was a reasonable regulation and perhaps the only practical regulation that could be made. Neither of these considerations, on which the decision was based, is applicable in the present case.

I conclude, therefore, that this ordinance in question is not a “regulation and restriction” under the statute, and that the complainant has therefore failed to show any right to a preliminary injunction, on the basis of the protection of a statutory right of previous consent. There being no interference-with the public travel or use of the streets, there can be no preliminary injunction upon that ground, and the application is therefore denied.


text:
    Charles S. Phillips v. Edgar W. Youmans et ux.
    [Submitted May 2d, 1898.
    Filed August 20th, 1898.]
    1. A bond maturing in two years, with an option of the mortgagee to declare it due on default of any payment of interest, was secured by a mortgage with a clause “ that the parties of the first part * * * shall have the right to redeem any or all” of the mortgaged property “at any time prior to the two years hereinbefore mentioned” on payment of sums certain to be applied on the mortgage debt. — Held, that the equity of redemption runs to the maturity of the bond, irrespective of an exercise of the mortgagor’s option, or of the fact that under Gen. Stat. p. 2112 ¶ 47, requiring foreclosure to be the first remedy to enforce such debt, his legal remedy is postponed.
    2. Where a mortgage specially provided that the equity of redemption should run to the maturity of the bond, no bill to foreclose can be filed until the expiration of that time, although the bond gave the mortgagee an option to declare it due at any prior time on default of payment of interest, since a decree of foreclosure necessitates a sale which is a final bar to the equity of redemption under the laws and practice of New Jersey.
    On bill to foreclose. Heard on bill and answer.

      Mr. Cortlandt Parker and Mr. Cortlandt Parker, Jr., for the complainant.

      Mr. William U. Corbin, for the defendants.
   Emery, V. C.

In this case I reach the conclusion that the special clause inserted in the mortgage, which makes special provisions for the redemption of the mortgaged premises, has the effect of postponing the right of foreclosure of the equity of redemption in the mortgaged premises until the expiration of the time fixed in this clause.

The bond is dated March 4th, 1897, conditioned for the payment of “$8,028.54 on or before March 4th, 1899,” with interest at six per cent., payable semi-annually, and with a special condition that on default in payment of interest for thirty days the entire principal and interest should become due at complainant’s option. Default for over thirty days was made in the payment of the interest due September 4th, 1897, and complainant, as exercising the option, filed this bill to foreclose on November 22d, 1897.

In the absence of any special clause in the mortgage, complainant’s right to foreclose at once, after default, defendants’ equity of redemption in the entire premises is not disputed, but it is claimed that the special clause relating to redemption inserted in the mortgage has the effect of preventing any absolute foreclosure of the equity until after March 4th, 1899, and that any decree for sale now made should reserve such right of redemption until March 4th, 1899.

The clause in question, as set out in the answer, is as follows:

“And it is hereby expressly agreed by and between the parties to these presents, that the parties of the first part, their representatives, heirs 01 assigns, shall have the right to redeem any or all of the seven pieces of property hereinbefore described, conveyed and tranferred as aforesaid, at any time prior to the two years hereinbefore fixed and limited upon payment in cash to the party of the second part, of the sum or sums herein fixed as the price or value for such redemption, and that upon payment of such fixed prices or value to the party of the second part, or to his heirs, executors, administrators or assigns in cash, the property so redeemed shall be fully released from the terms and lien of this conveyance or mortgage, and that the party of the second part, his heirs, executors, administrators or assigns, shall thereupon forthwith execute and deliver to Edgar W. Youmans, the party of the first part, his heirs, executors, administrators or assigns, at his or their own expense, any and all releases, conveyances or other papers that may be necessary for such purpose. The money paid to the party of the second part for such redemption shall he applied to the liquidation of and credited upon the amount secured by this mortgage and the bond accompanying the same at the time of such redemption.
“The prices or values fixed for the purposes of such redemption as aforesaid, are as follows:
“For the property described in paragraph hereinbefore designated ‘1,’ $2,500.
“For property designated in paragraph 2, $3,000,” &c.

While the complainant, under the special provisions as to default, has the clear right to consider the entire debt due, the question is whether, the entire debt being due, the complainant is entitled to foreclose the equity of redemption before the expiration of the time expressly given for redemption by this clause. The express agreement in terms is that the mortgagor “ shall have the right to redeem,” &c., at any time prior to the two years hereinbefore fixed and limited.”

It was entirely competent for the parties to enter into an agreement of this character relating to the equitable right of redemption, which would have the effect of extending the right given by law, and, as it seems to me, the only question now is whether they have, by their contract, so extended the right. It is altogether a question of the construction of the terms of a written contract. The terms of the contract give the - right of redemption at any time prior to the two years fixed (March 4th r 1899), being the date when the debt would at all events be due,, and the contract gives this right without any express qualification or modification as to the right of redemption if the debt came due previous to that time under the default stipulation,, and without express provision that the special right of redemption was dependent on the entire debt not being due.

Complainant’s counsel contend that, construing the entire document together so that all its words may prevail to carry out the object of the contract, the special provision as to redemption must be construed as inoperative in case the time for payment' of the entire debt had arrived, either by the limitation of time expressly fixed or by the default provision. But the special-clause, which is the only expression in the contract relating to-the subject-matter of redemption, contains within itself the limitations and conditions of its operation; these limitations expressly fixed- are applicable and the enforcement of them does not conflict with any of the express provisions of any other portion of the instrument. There is no basis, therefore, in my judgment, for holding that, merely upon the construction of the entire contract, the provision is inoperative if the entire principal of the debt becomes due by reason of the default provision. Such a construction would have the effect of adding to the clause relating to redemption an important modification, and would, in respect to the right of redemption, make a provision which the parties have not, in fact, made. As written, the limit of the time of redemption is a single fixed period, viz., “ at any time prior to the two years hereinbefore fixed and limited,” and this limit cannot be changed by construction to a period measured by a variable standard, viz., “at any time before the bond becomes due.”

Some difficulty in relation to the construction of this clause for redemption in connection with the default clause arises from the-fact that, under our statute (Gen. Stat. p. 2112 47), the foreclosure of the mortgage must be the first proceeding for the collection of the debt before a suit on the bond, and therefore any legal remedy for the collection of the debt must be suspended until after sale on foreclosure unless, perhaps, an ejectment on the mortgage. The debt being due, an ejectment might, perhaps, lie before the expiration of the two years, or entry might be made. Sanderson v. Price, 1 Zab. 646 note a; Blue v. Everitt, 11 Dick. Ch. Rep. 455.

The result of expressly extending the right of redemption to March 4th, 1899, might be to prevent the enforcement of any legal remedies before that time, but this result of the contract is not such as, in my judgment, to affect the construction of this clause, whether considered alone or in connection with the entire instrument and its object. And as a person may, by express contract, suspend the right to take legal proceedings on a debt due, the fact that this suspension results from a construction of the contract according to its plain terms is not sufficient basis to adjudge that the suspension was not intended to occur or that the express contract should not be enforced.

Defendants’ counsel’s view as to the effect of the clause was that, while it did not prevent filing a bill and obtaining a decree of foreclosure, yet such decree must expressly reserve the right of redemption for two years and be subject thereto. But, under our practice, the bill to foreclose is filed for the sole and express purpose of obtaining a decree for sale which expressly disposes of and forecloses all right of redemption, and there is no statute or practice (as in some states) authorizing redemption after sale. Gen. Stat. p. 385 71, sale authorized. Dick. Forms (2d ed.) 364. The sale under foreclosure decree conveys all rights of complainant as well as defendants, and includes the entire right of redemption. Wimpfheimer v. Prudential Insurance Co., 39 Atl. Rep. 916, 917 (New Jersey Chancery, 1898), and cases cited (at p. 918).

I conclude, therefore, that, under this clause, the right to foreclose the defendants’ equity of redemption is .suspended until the time limited, viz., March 4th, 1899, and that, until this time, complaiuant has no right to file a bill for that purpose. I will therefore advise a decree dismissing the bill, with costs..


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    Eva W. Day v. William J. Kingsland.
    [Submitted May 13th, 1898.
    Filed September 2d, 1898.]
    1. Vendor claimed under a decree of partition between “surviving heirs” entitled under a will. The record of the suit showed that two heirs had, more than thirty years previously, departed and had not since been heard from, and there was evidence therein that one of them- had died young and without children, and that a third had gone away more than fifty years before. The bill, without making them parties, alleged their death without issue before the estate vested, and that a named defendant was the only heir to their interest — Held, that the decree made the record title perfect.
    2. Where the record title of a vendor, consisting of a decree in partition, shows that all parties apparently in interest had been parties to the partition suit, the burden of proof is on the purchaser to show that some necessary parties were omitted, whereby the title was rendered unmarketable.
    3. Where the purchaser at a partition sale had with his privies held the land adversely for forty years, under a decree finding -that certain heirs were deceased without issue, which heirs, if alive, w.ould have been'entitled to a share in the land, the possibility that, under Gen. Stat. p. 1972 $ 2, making the limitation of actions thirty years, and Gen. Stat. p. 1977 $$ 16, 17, establishing that of other actions concerning real estate at twenty years and suspending the same as to persons non compos and infants, there are persons who can assert claims to such lands, is too remote to cast a doubt on the marketability of the title.
    On bill for specific performance, Ac.

      Mr. John J. Joyce, for .the complainant.

      Mr. Harry V. Osborne, for the defendant.
   Embry, V. C.

This is a bill by the vendor for the specific performance of a written agreement for the purchase of lands against the vendee, who refuses to accept the deed and carry out the agreement upon the ground that the complainant’s title to the lands is not marketable. • Complainant’s title to the lands is derived through proceedings for the partition of lands between the heirs of one Daniel Riggs. Daniel Riggs, who died seized of the premises in the year 1786, by his will, dated in October of that year, devised the premises in question to his son, Benjamin, and his heirs, with the provision that if he died without issue that the land given to Benjamin shall fall to my surviving heirs.” Benjamin died in 1854 without issue, and the bill for partition among the heirs of Daniel Riggs surviving Benjamin was filed August 25th, 1855. In this bill for partition it was alleged that Elias Bruen, John Bruen and Rachel Bruen, three of the children of Hannah Bruen (a deceased daughter of Daniel Riggs), removed to the city of Philadelphia more than thirty years previous to the filing of the bill, and had not been heard from in that time, and that said Elias, John and Rachael Bruen long since departed this life without leaving lawful issue, and that one Daniel Jenkins, who was made defendant, was the only heir-at-law then living of the said Hannah Bruen. Neither of these three persons, nor any persons as their heirs, were made defendants to the bill. If living they would each have been entitled to one-twentieth of the premises sought to be partitioned. An ancient witness, Mrs. Hannah Bell, called before the master in the partition proceedings, who knew the family of Hannah Bruen, and who was then in her eighty-fourth year, testified that John Bruen, one of the children of Hannah, died young without children; that Elias went away to the South or West and she had never heard from him since 1820, and that when she last heard from him he was not married. She also testified that Rachael went away more than fifty years previously and had never been heard of since.

Final decree for sale of the premises was made, and a, sale thereunder was made on May 22d, 1856, to one Samuel A. Baldwin, under whom complainant claims by divers mesne conveyances. Adverse possession of the premises by Baldwin and his successors in title, from the time of the purchase up to the present time, has been proved. It has not been proved by any evidence offered in this suit that either of these three children of Hannah Bruen, or any heirs of any of them, were living in 1854, at the date of Benjamin’s death, nor has any proof upon that subject been offered by either complainant or defendant.

The defendant objected to the title because of the failure to make these three children, or their heirs, parties to the partition proceedings, and the same objection is now urged as a defence to this suit, and it is urged that claimants under these heirs may exist, and for this reason the title is not marketable, and specific performance should not be decreed.

I had occasion to consider the decisions of our courts in reference to the question of marketable titles in Lippincott v. Wikoff, 9 Dick. Ch. Rep. 107, 114 (1895). Where the alleged doubt in relation to the title is one of fact, as in this case, the rule which has been settled by our courts is that the court will never compel a purchaser to take a title where the point on which it depends is too doubtful to be settled without litigation or where the purchase would expose him to the hazard of such proceedings. Dobbs v. Norcross, 9 C. E. Gr. 327 (Chancellor Runyon, 1874); Tillotson v. Gesner, 6 Stew. Eq. 313, 327 (Errors and Appeals, 1880); Cornell v. Andrews, 8 Stew. Eq. 7 (Chancellor Runyon, 1882).

In each of these cases, however, there was proof in the case itself of facts which cast a doubt upon the title, and specific performance was therefore refused. The other New Jersey cases upon the subject appear to have arisen where the doubt in relation to the title depended upon a doubtful question of law and not of fact, and as to these cases different considerations often apply. Lippincott v. Wihoff, supra.

No proof whatever has been offered in this cause showing the existence of either of these three children of Hannah or of any heirs of either of them at the time of the partition proceedings, and in the absence of any evidence in this suit rendering it probable that they or their heirs were then in existence and should have been made parties, the vendee cannot set up the failure to make them parties in order to avoid the contract. The mere possibility of the existence of these heirs or persons claiming under them, based on suspicion or conjecture and without the production of any evidencs-to support the conjecture, is not sufficient to relieve the vendee. The principles applicable to cases like the present are discussed and the rule stated in a late case in which the existence of supposed heirs was a question. Greenblatt v. Herrmann, 144 N. Y. 13 (1894). “The title,” says Chief-Justice Andrews, “must either be defective in fact or so clouded by apparent defects, either in the record or by proofs outside of the record, that prudent men, knowing the facts, would hesitate to take it.” The record title here (the partition proceedings) shows by the allegations in the bill that the three children of Hannah Bruen were then dead, and all dead without issue, and final decree was made in the suit, based on the proof, or attempted proof, of that allegation. It was held in this case that where the record title was good, the burden was upon the vendee to show the facts making the title doubtful, and also that the possibility of the existence of heirs, based on any claim and not on proof of any. facts to support it, did not raise a reasonable doubt as to the validity of a title good upon the record.

The adjudication by final decree in the partition proceedings is sufficient to make the record title perfect, so far as the partition proceedings go, and this adjudication so made puts upon the defendant the burden of proving in the present case facts which would render it so probable that these heirs or some of them were then alive, that a prudent man would hesitate to accept the title. Such proof has not been offered, and I therefore hold that the objection cannot be sustained on this ground.

A second answer to the objection to the title is furnished by the proofs made in the present case showing adverse possession for over forty years by the complainant and those under whom she claims. This possession, originating under a bona fide purchase, will, under our Limitation act (Gen. Stat. pp. 1972, 1977 §§ 2, 16, 17), bar all adverse claims arising under the supposed heirs, unless they arise under the provisos or one of them.

These heirs, or persons claiming under them, cannot be brought within the provisos of the act, except upon the supposition of the occurrence of an entire series of circumstances so remote and improbable that in the absence of any proof upon the subject, the mere assumption of their probable occurrence cannot be made the basis of a judicial determination that the title is clouded. By the body of these limitation acts, every one of the supposed heirs who was, in fact, living in 1854, is barred under the provisos to sections 16 and 17; only infants and persons non compos (and not femes covert) are relieved, and the possibility of claiming the benefit of these provisos is so remote that it is difficult to work out the entire series of contingencies under which a possible claim may arise. The death of one of the heirs previous to 1854, leaving an insane child, who was living and still insane as late as 1878, is the least complicated claim which can arise under the provisos. An infant child born in 1854 would have been barred in 1881, under section 2, and unless such infant died before 1876, leaving an infant heir who did not come of age before 1893, there would be no relief from the statutes under these provisos by reason of supposed infancy.

In the absence of any proof suggesting the probability of the happening of the series of contingencies upon which any possible claim under the provisos must be based, it must be held that the occurrence of the entire series of contingencies is so remote and improbable as not to render the title unmarketable.

A decree for specific performance will therefore be advised.


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    Louise Hughson et al. v. The Newark Mortgage Loan Company et al.
    [Filed October 21st, 1898.]
    1. Where a broker, acting as an agent in loaning money, charges a borrower, by the terms of the mortgage, more than one-half of one per cent, for obtaining the loan and for extending it from time to time, in violation of Gen. Stat. p. 3703 $ 5, the loan is usurious.
    2. Where a broker, in assuming an agency for lending money belonging to another, guarantees the loans as one of the considerations of the employment, an exaction by the broker from a borrower of a sum to guarantee the repayment to the lender is without consideration as between the broker and the borrower, since the broker is bound to guarantee the loans under its general contract with the lender.
    3. Where a mortgage, to secure a loan made by a broker as the agent of the lender, was allowed to be used to secure usurious compensation to the broker, who subsequently became the owner of the mortgage, the payments illegally received must be applied on the principal of the mortgage debt.
    On bill, &c.

      Mr. Herbert Boggs, for the complainants.

      Mr. Frank E. Bradner, for the defendants.
   Emery, V. C.

The bill in this cause is filed to restrain the foreclosure of a chattel mortgage given by complainants to the defendant Archer, and to compel the cancellation of the mortgage. Complainants’ right to relief under the bill and evidence is based upon the claim that the mortgage was usurious in its inception, and that they have paid upon the mortgage more than the amount actually advanced, together with the legal interest, and they are therefore entitled to a delivery of the mortgage as paid and to a delivery of the note which it was given to secure.

The note and mortgage were given January 20th, 1894, for $158.25, payable February 20th, 1894, and the mortgage was given by complainauts to Frank P. Archer upon the household chattels of Mrs. Hughson, to whom, jointly with her husband, the loan was made. Only $150 was in fact advanced — $147.50 in cash and $2.50 for the expenses of acknowledging and recording the mortgage. It was admitted by defendants that complainants have paid $129.10, which is properly to be credited on the principal of the mortgage, and it is also admitted that they have in fact made additional payments to the Newark Mortgage Loan Company, amounting in all to about $36 additional, and the question is whether, on the facts of the case, complainants are entitled to credit these latter payments on the mortgage; if so, the mortgage is paid. Complainants’ claim to credit the payment of the $36 rests on the charge that the loan was made to them by the Newark Mortgage Loan Company upon an usurious agreement to pay $8.25 for the month’s loan, and that the subsequent extensions of the loan from month to month made by the loan company were made in consideration of paying at the same rate upon the principal unpaid, the total paid for the alleged usurious extensions being $36. Defendants set up that the loan was made to complainants by the loan company as the agent of a client, Archer, who placed money with them for loaning on notes and chattel mortgages, and gave them authority to act for him in relation to these loans under a written power of attorney' which is produced. They further claim that the $8.25 which was added to the original mortgage and the other payments made for the monthly extensions of the mortgage, were payments made by complainants to the loan company, as the agents of complainants, for obtaining the loan and for guaranteeing payment to Archer. Archer resides, or is said to reside, in Indiana, and the guaranty is not produced. The form of the transaction between complainants and the defendants, as shown by the papers executed, confirms the account of the defendants, and I am inclined to think that the defendants’ statements on this point are to be relied on rather than those of the complainants. But the real question is whether, on the entire facts of the case, and as disclosed by defendants’ evidence, the payments for the original guaranty and extensions were not in violation of our laws against usury. I conclude that they were, and upon two grounds :

First. On the assumption that the loan of the $150 was a loan by Archer and not by the loan company, the mortgage is usurious, because by the consent of the lender, who makes the usurious agent his own agent for the purpose, an usurious brokerage, exceeding the one-half of one per cent, fixed by statute (Gen. Stat. p. 3703 § 5), was secured by the original mortgage, and the extensions of the loan and of the mortgage were also under a like consent of the lender, through his agent, made conditional on the payment of an usurious brokerage. The control of the mortgage loan was, by agreement or course of business between Archer and the loan company, so arranged as practically to make both the existence and continuance of the loan conditional on paying these sums for the benefit of the lender’s agent.

8eeond. Assuming the relations between Archer and the loan company to be as appears by the evidence of Johns, its manager, the loan company, in assuming the agency of Archer for lending his money, guarantees the loans to him as one of the considerations of the employment. Being bound, therefore, by its general contract with Archer to guarantee all loans made through it, the exaction from the borrowers of an additional consideration from them to do what it was bound to do by its contract with Archer, was without consideration as between the loan company and the complainants, and as between them the additional compensation must be taken in law to be what it was in fact, an illegal and usurious compensation made solely for procuring and continuing the loan; and inasmuch as the mortgage was, by the arrangement or course of business between Archer and the loan company, his agent, allowed to be used for the purpose of securing these payments, and the loan company who received them is now the owner of the mortgage, the payments illegally received must be applied to the mortgage.

The above conclusions are reached on the assumption that the loan company has sufficiently proved that it did in fact guarantee the mortgage debt as stipulated, but it should be noticed that no guaranty sufficient to bind the loan company has been proved, and if it be taken upon the whole case not to have been made, then the loan company, the present owner of the mortgage, must apply the amount received on account of the mortgage as so much money originally received without consideration and now equitably applicable to the mortgage debt as against them.

In any view of the case, therefore, the complainants are entitled to the delivery up of the note and mortgage for cancellation, and I will so advise.