author: Magie, J.

text:
    Daniel Lindley and Alfred Adams and Executors &c. of Patrick O’Reilly, appellants, v. Jacob Keim, respondent. Jacob Keim, appellant, v. Catharine C. O’Reilly, respondent.
    1. Authority to sign an agreement for the sale of lands, binding on the principal under the statute of frauds, may be conferred upon an agent by parol.
    . 2. Such authority may be established by proof that it was expressly conferred, or by proof of circumstances from which it may be reasonably inferred.
    3. A signature to such an agreement made for another, without authority, may be by him adopted and ratified so as to be of the same force as if made by authority antecedently given, and such ratification may be inferred from circumstances. But knowledge that there was such an agreement signed for him is an essential prerequisite to proof of his ratification.
    4. A real estate agent or broker in whose hands an owner places lands for sale, or who is employed to sell lands, does not thereby acquire authority to bind his principal by signing an agreement of sale of such lands.
    5. The inference that such real estate agent or broker has been endowed by his principal with authority to bind him in a written agreement of sale cannot be drawn from circumstances entirely consistent with his employment as a mere agent and broker, nor without other circumstances clearly indicating the grant of such greater authority.

      Mr. David J. Pancoast (with whom was Mr. Cyrus G. Derr, of the Pennsylvania bar), for the executors and devisees of Patrick O’Reilly, deceased.

      Mr. Thomas B. Harned, for Daniel Lindley and Alfred Adams, Jr.

      Mr. Martin P. Grey and Mr. Samuel H. Grey, for Jacob Keim;
   „ The opinion of the court was delivered by

Magie, J.

Three appeals have been taken from the decree in this cause made by the court of chancery, upon the advice of Vice-Chancellor Pitney, whose opinion is reported in 30 Atl. Rep. 1063.

The surviving executors and the devisees of Patrick O’Reilly, deceased, appeal from the whole decree and complain that it erroneously requires them to specifically perform certain agree-, ments with Jacob Keim by conveying to him the lands therein mentioned, and that it erroneously vacates arid sets aside certain deeds and mortgages affecting said lands.

Lindley and Adams appeal from the whole decree and complain that it erroneously vacates and sets aside said deeds.

Keim appeals from so much of the decree as affixes conditions to be performed by him upon the specific performance decreed in his favor, which he claims to be erroneous.

These appeals were argued together.

Of the two agreements, specific performance of which was decreed, the first came into existence during the lifetime of Patrick O’Reilly, who was the owner, of the lands in question, and is as follows :

“§25.00.
“Atlantic Citt, N. J., March 25th, 1880.
“ Received of Jacob Keim the sum of twenty-five dollars on account of the purchase-money of the lot of land fifty feet in width [here follows the description]. The purchase price is to be twenty-five hundred dollars. Deed to be made and delivered as soon as practicable, not longer from the present time than one month. Said land to be conveyed belongs to Patrick O’Reilly, for whom the undersigned is agent.
“ J. J. Gaedneb, Agent.”

Patrick O’Reilly died on January 16th, 1881. The second agreement came into existence thereafter, and is as follows :

“Received, Atlantic City, N. X, October 29th, 1881, of Jacob Helm,'the sum of five hundred dollars, on account of the purchase-money of a certain tract of land situate in said city, as follows: Beginning at a point in the southeasterly line of Pacific avenue, at a distance of two hundred feet northeasterly from the northeasterly line of New York avenue, and extending thence (1) southeasterly on a line parallel with New York avenue, a distance of one hundred and fifty feet, thence (2) southwestwardly parallel with Pacific avenue, a distance of one hundred feet; thence (8) southwestwardly parallel with New York avenue, a distance of fifty feet; thence (4) southwestwardly parallel with Pacific avenue, a distance of fifty feet; thence (5) southwestwardly parallel with New York avenue, a distance of--to the exterior line (now under water) established in 18— by the riparian commissioners of New Jersey; thence (6) northeastwardly along said riparian line, a distance of one hundred and fifty feet; thence (7) northwestwardly parallel -with New York avenue, a distance of--1 to the southeasterly line of Pacific avenue; and thence (8) southwestwardly along said last-mentioned line, a distance of fifty feet to the place of beginning. And also all the additions and accretion to said tract of land, if any, which may hereafter be made on the sea front, it being the purpose of this purchase and sale to include all the land above described, and also the right, title and interest of the grantors, and of the estate of Hhe late Patrick O’Reilly, deceased, in and to the accretions of said land which may be made upon the sea front. The balance of the purchase-money, namely, the sum of $9,500, to be paid under tender of a good and lawful deed for said premises, free from encumbrance and opposing or contesting claims of title, with undisputed possession of the same, the grantee to have sixty days’ notice of such tender.
“ Including all the lands and rights of said estate between Pacific avenue and riparian line and beyond, and New York and Tennessee avenue.
' “John J. Gaedneb, Agent P. O’Reilly Estate."

Both these writings purport to be agreements for the sale of lands, and to be signed by one who professes to be an agent. They were, in fact, both signed by John J. Gardner. Keirn, who seeks by his bills in this cause to enforce these agreements, must preliminarily establish, by sufficient proof, that Gardner had such authority to sign them as is required by our statute of frauds. In respect to the first agreement made in Patrick O’Reilly’s lifetime, it must be made to appear that Gardner was lawfully authorized by him to sign it. In respect to the second agreement, made after Patrick O’Reilly’s death, it must be made to appear that Gardner was lawfully authorizéd to sign it, by those on whom the ownership of the lands had devolved or who had power to sell them.

(the second agreement (it may be said in passing) includes the lauds which were the subject of the first agreement. Yet it is conceded that the consideration mentioned in the second agreement was the consideration agreed to be paid for the lands included therein which were not included in the first agreement. I have searched the case in vain for a reasonable explanation of that fact. "Why Keim, who held, as he claims, an agreement from Patrick O’Reilly for the sale of one tract of 'land for $2,500, and who had agreed with Patrick O’Reilly’s representatives for the sale of adjoining lands for $10,000, should have drawn the latter agreement (for it was prepared by his agent) so as to require the conveyance of both tracts for the price of the latter, remains an unsolved mystery. Upon the evidence it is perfectly clear that Gardner, whether he was lawfully authorized to sign the second agreement or not, signed it under a mistake as to the consideration named therein. As that mistake has been admitted by Keim, the decree, in directing specific performance, has required him to pay the consideration named in both agreements, and the subject need be no further pursued. But the fact may not be without significance upon some of the questions before us.

It is suggested that, by the inclusion in the second agreement of the lands covered by the first agreement, the latter became merged in the former and ceased to have binding force. But the validity of the second agreement is contested. If it is found to be invalid, it is not perceived how a merger could occur, or why Keim might not insist upon performance of the first agreement. It is deemed better, therefore, to take up the agreements for consideration in the order of time, and first to determine whether, upon, the evidence, Keim was entitled to the decree for the performance of the first agreement.

The learned vice-chancellor laid down three propositions which he applied in the trial of this cause, the correctness of which has not been, and, I think, could not be, successfully contested. The first proposition is that authority to sign a memorandum of agreement for the sale of lands may be conferred by parol, and authority so conferred will satisfy the provisions of our statute of frauds, lln some states the statute of frauds has been extended so as to require that such authority shall be exhibited by writing. Reid St. Fr. § 380. But our statute has 'never been thus .extended, and it needs no citation of authorities to show that the construction of the statute from which ours was taken, and which construction we follow, has been, however inconsistent with its- general purpose, .that authority to sign a memorandum, of agreement for the sale of lands (which is required to be in writing) need not be conferred.-by writing, but may be conferred, by parol. But obviously courts should require proofs of authority conferred by parol in such case to be clear and decisive, or the wholesome provisions of the statute of frauds may be thus evaded.

. .The second proposition was that such authority to sign an agreement for the sale of; land could be established either by proof that it had been expressly conferred, or by proof of circumstances from which its grant may be reasonably inferred.

. The last" proposition waá that a signature for another to such an-agreement, if done .without antecedent authority, expressly or impliedly-conferred, may be ratified by the person for whom the signature was made, and that such ratification would establish authority to make it as' effectually as proof that such authority had been expressly conferred.

■ .Taking these propositions as correctly expressing the character of evidence which Keim is entitled to present in order to show Gardner’s authority to sign for Patrick O’Reilly the agreement of March 25th, 1880, we have to consider whether he has, by any such evidence, established that authority. Unless he has, it was error to require the enforcement of that agreement.

• It is conceded that there was no evidence adduced that Patrick O’Reilly ever conferred authority upon Gardner by express words to sign the agreement in question.

The contention is that the circumstances proved require the inference, either that such authority had been antecedently conferred by O’Reilly upon Gardner, or that Gardner’s act in signing the agreement had been subsequently ratified by O’Reilly'.

That the relation of principal and agent between O’Reilly and Gardner existed at the date of the agreement and prior thereto, is an undisputed fact in the ease. The dispute is as to the extent of the agency. On one hand it is contended that Gardner was clothed with power to bind his principal to the sale and conveyance of lands; on the other hand it is contended that he had O’Reilly’s lands in his hands for sale in the capacity of a mere real estate agent or broker employed to find a purchaser for such lands.

The learned vice-chancellor, ■ in his opinion, has reviewed at considerable length all the cases in our courts touching the power acquired by an ordinary real estate agent or broker, by his employment as such, and has summed up the results in these words: “ The mere employment of an ordinary real estate broker to effect a sale of a parcel of land, even though the price and terms be prescribed, does not amount to giving present authority to such broker to conclude a binding contract for the same. Moreover, such authority is not usually to be inferred from the use by the principal and broker in that connection of the terms ‘for sale’ or ‘to sell’ and the like. Those words in that connection usually mean no more than to negotiate a sale by finding a purchaser upon satisfactory terms.”

I am willing to adopt this language as expressing the established law of this state respecting the relation between a real estate owner and the ordinary real estate agent or broker and the authority acquired by the latter over his principal’s lands by virtue of his employment. It follows that he who seeks to establish the authority of an agent to bind his principal to the sale and conveyance of lands by proof of circumstances from which it may be inferred that such authority was granted, will not be successful if the circumstances proved merely justify the inference that the principal had placed his lands in the hands of the agent as an ordinary real estate broker. To establish the grant of the greater authority the circumstances must show more than the grant of the restricted authority.

The proofs taken on this subject are exceedingly voluminous. The circumstances claimed to have been proved and to justify an inference that O’Reilly had conferred upon Gardner authority to sign the agreement of March 25th, 1880, are marshaled at great length in the opinion below. No single fact which could bear, or be supposed to bear, upon the question has been overlooked, No useful purpose will be served by reviewing the facts. It is sufficient to say that, in our judgment, no single fact proved is inconsistent with the authority conferred upon Gardner by O’Reilly, having been the restricted authority of the ordinary real estate agent. All the facts together do not justify the inference that O’Reilly had conferred upon Gardner either general authority to bind him to the sale and conveyance of lands or special authority to bind him to the sale and conveyance of the lands mentioned in the agreement in question.

It has not been seriously argued that there is sufficient proof of the ratification of this agreement by O’Reilly in the few months which elapsed before his death. Proof which is said to tend in that direction, fails to establish ratification 'for one obvious reason. It does not make it appear that O’Reilly had knowledge of the act of Gardner in signing this agreement. Knowledge of the act which has been done without authority is an essential element of the ratification of the act. If we may draw a reasonable inference that O’Reilly knew.that Gardner had sold this land to Keim, and was satisfied with the sale, or that O’Reilly would have executed and delivered a deed therefor to Keim upon receipt of the purchase price, those facts fall short of ratifying Gardner’s act in executing for him a binding agreement of sale. There is no sufficient evidence that O’Reilly ever acquired knowledge of that act, and in the absence of proof of such knowledge, ratification could not be made out.

It results that upon the evidence Keim has failed to establish the binding force of this agreement, and could not enforce it against O’Reilly, if now living.

Turning now to the second agreement, that of October 29th, 1881, it is obvious that Keim’s right to the relief which has been accorded to him by this decree must depend upon his having established, by such proof as has been before indicated, that Gardner had been lawfully authorized to sign it, by those upon whom the title to the lands therein mentioned had devolved on the death of Patrick O’Reilly, or by those who had acquired power to sell those lands.

The first question is, who could, on that date, empower Gardner to sign that agreement? x

It appears in the case that Patrick O’Reilly had then died, leaving a will whereby he had devised the use of his real estate to his wife, Catharine C., for life, .and the remainder to his five children, one of the shares having been devised in trust. He thereby appointed his said wife and his sons, Francis P. and James A. O’Reilly, executrix and executors, and gave them, as executors, full power to sell his real estate. At his death, Patrick O’Reilly was a resident of Pennsylvania, and his will was proved in that state, in January, 1881, by the executrix and executors. It does not appear what proof of the execution of the will was there made. .

It further appears that in May, 1881, Catharine C. O’Reilly presented to the surrogate of Atlantic county her petition praying for an order to show cause why a duly-certified copy of the will of Patrick O’Reilly should not be filed and recorded in his office and letters testamentary thereon be issued to her. Upon this petition the surrogate made an order to show cause, returnable before him on July 5th, 1881, and directed that his order should be published in a specified newspaper for the space of thirty days next preceding the return-day. On that day, upon an affidavit of the publication of the order to show cause in the newspaper named for the space of four weeks preceding that day, the surrogate ordered the copy of the will to be filed in his office, and recorded the same and issued letters testamentary thereon to Catharine C. O’Reilly alone.

It is evident that these proceedings were taken under color of the provisions of sections 23 and 25 of the Orphans Court act. Rev. p. 757. Letters testamentary issued under these provisions are therein declared to be of the same force and effect as if the will had been produced and proved by the subscribing witnesses in the usual manner under the laws of this state, and it is further enacted that the record of such will is to be admitted in evidence and to have the same force and effect as if it had been proved in the usual manner under the laws of this state.

Two questions of importance are suggested thereon. The first is, whether these provisions of the Orphans Court act are to be construed as permitting the admission to record and giving force and effect to' wills made in other states which do not appear to have been executed according to the- requirements of our laws. As before stated, it does not appear what proof of execution of the will was made in Pennsylvania, and there is no evidence of its having been executed in the manner' required by our laws. Allaire v. Allaire, 8 Vr. 312; S. C., 10 Vr. 113; Nelson v. Potter, 21 Vr. 324; Lindley v. O’Reilly, 21 Vr. 636.

The second is, whether the surrogate acquired jurisdiction to record the will and issue letters thereon when it appeared in his proceedings that his order to show cause had not been published for the space of time thereby directed. .

By section 10 of the Executors and Adroimstrators act (Rev. p. 397), as amended by a supplement of March 17th, 1881 (Rev. Sup. p. 293), it is enacted, among other things, that -where by a will executed in due form of law lands have been ordered to be sold by executors therein named, and one or more of' them shall refuse or neglect to prove the will, then the trusts in the will shall vest in the executor who shall prove the will, unless it is otherwise expressed in the will. It is also provided that it shall be lawful for such an acting executor to sell and convey lands pursuant to the power, in the same manner as if all those to whom the power was granted had joined in the sale. As the section was construed by the supreme court, in Weimar v. Fath, 14 Vr. 1, and by the court of errors,' in Denton v. Clark, 9 Stew. Eq. 534, it is obvious that if Patrick O’Reilly’s will was in fact executed in the manner required by our laws, and Catharine C. O’Reilly had presented and proved it in the usual manner before the surrogate of Atlantic county, her letters testamentary would have enabled her to exercise the power of sale which the will conferred on her and her two sons.

Other serious .questions are here presented. One question is, whether these provisions operate upon wills recorded under sections 23 and 25 of the Orphans Court act and letters testamentary issued thereon, or at least upon such wills when it does not' appear "whether or not the execution thereof was in conformity with our laws. Another question is whether an executor who procures a foreign will to be recorded under the provisions of those sections, and secures letters testamentary thereon, can be said to have proved the will within the meaning of section 10 of the Executors and Administrators act, so as to obtain authority to exercise, by his'sole act, the power of sale conferred ■by the will on himself and others jointly.....

But it is unnecessary to decide any'of these questions, and-they are thus mentioned only- to avoid- any appearance'-of having passed upon- -them ; for, whether Catharine C. O’Eeilly acquired, by virtue of the letters testamentary issued to her-in Atlantic county, the sole power to sell these lands, or" whether-that power remained in herself and -her two sons, the executors, is, in the view I take of the case, wholly immaterial. If she acquired the sole power of sale, Gardner’s authority to sign the agreement in question must appear to have been conferred by her. If she and her son's remained the joint donees of the power of sale, it is equally necessary that Gardner’s authority should.have been conferred by her, for joint powers must be jointly exercised, and each donee must exercise his own discretion and will in the sale. Authority given to Gardner by Francis P. and James A. O’Eeilly would not have been sufficient. Such authority could not be given without her taking part in conferring.

'■ I will not prolong this opinion by undertaking1 to review in detail the evidence upon which it is claimed to have been established that Catharine C. O’Eeilly authorized Gardner to sign this agreement. There is no pretence that she ever conferred such áuthority by express words. The circumstances, which have been deemed to justify an inference that she antecedently conferred such authority, are' all consistent with the relation between them, if any existed, being that merely of principal and an ordinary real estate broker not empowered to bind his principal to a sale. All taken together, fall far short of indicating ■any grant by her to Gai-dner of larger power. Nor does the proof establish a ratification by her of Gardner’s act in signing this agreement. Knowledge on her part that he signed this agreement is essential to ratification, and such knowledge is, in our judgment, not proved.

"While this disposes of this part of the case, I think it proper to say that if authority to sign this agreement could have been conferred on Gardner by Francis P. and James A. O’Eeilly alone, evidence that such authority had been conferred is, in my judgment, wanting. I am unable to disregard their solemn denial, under oath, of any knowledge that Gardner had undertaken to bind the estate to this sale, upon inferences drawn from ■conduct in all respects consistent with the relation of Gardner being that of their real estate broker. Actual knowledge that Gardner had bound the estate to sell this land for $10,000 is quite inconsistent with their conduct in proceeding, without remonstrance, to expend upon the lands, and in litigation to obtain possession of them, a sum which the evidence indicates to •be about $15,000, and in rejecting Keim’s offer of pecuniary aid in the litigation.

But if I had reached the conclusion that the donees of the .power of sale, under Patrick O’Eeilly’s will, had authorized Gardner to sign the agreement in question, I should be unable to support the decree which requires its specific performance. In the first place, Gardner’s authority, if given at all, was not so extensive, for the $10,000 was to be the consideration for only part of the lands described and agreed to be sold. In the next place, the agreement is, in my judgment, beyond the power of these donees of the power of sale to make. They were empowered to sell the title of Patrick O’Eeilly in the lands. But those lands or some of them were then in possession of persons claiming adversely to the estate. The executors could not bind the estate to make a good title to the lands, much less to free them from “opposing or contesting claims of title.” If they could do so, the contract was so improvident that a court of . equity ought not to enforce it.

The result, however, is that the second agreement is not established by the evidence as an enforceable agreement against the donees of the power of sale under Patrick O’Reilly’s will.

It follows that the decree requiring the executors of his will to specifically perform the two agreements is erroneous.

It is equally erroneous in requiring the devisees under that will to specifically perform these agreements, for there is no pretence that they had given authority to Gardner to make the second agreement.

It also follows that the decree, so far as it affects Lindley and Adams, is erroneous, because they represent in some respects the interest of the O’Reilly estate in these lands or some of them.

The decree, therefore, in favor of Eeim and against the executors and devisees of Patrick O’Reilly, and against Lindley and Adams, must be reversed, and the record be remitted with directions to enter a decree dismissing the bill.

This disposes of the case, because Eeim’s appeal is rendered of no avail by the reversal of the decree, the- condition annexed to which was the subject of his appeal. - -

But it may be observed that the fact that the decree for specific performance in this case was only made upon such a condition, affords a strong argument against .the decree itself.

In decreeing specific performance of contracts for the sale of land, equity treats the buyer as having become the owner of the lands, and the seller as having become entitled to the purchase-money as of the time fixed for the performance of the contract. It then adjusts the 'incidents of the contract, such as rents and profits, taxes, interest &c., equitably between buyer and seller upon that theory.

The condition imposed upon Eeim by the decree does not, in my judgment, grow out of such incidents of the agreement. His sellers, by its terms, were to convey the lands to him free from all opposing.and contesting claims. -If it was a valid agreement it cast on the estate of O’Reilly the burden of such litigation as was necessary to enable such conveyance to be made. "Whether or not Eeim wbuld have consented to bear some of that burden, had he foreseen the great increase in the value of the property, is immaterial. His contract as made did not require him to contribute anything to such litigation. Yet this decree, by the condition annexed to the specific performance directed, imposes on Keim the total expenses of the litigation above the sum of $500. This sum is fixed upon as being what the parties probably contemplated as the costs of the necessary litigation. Such a decree does not enforce the agreement made by the parties, but adds a term thereto and directs the agreement as so amended to be carried out. The term added was based upon an arbitrary determination as to what the parties probably had in contemplation when making the agreement, and Keim was required to pay everything over that amount, obviously because it was deemed inequitable to enforce the agreement as it was made. It is unnecessary to say that an agreement which it is inequitable to enforce as made, ought not to be enforced at all, but parties should be left to their legal remedies.

O’Reilly et al. v. Keim—

For reversal — The Chief-Justice, Depue, Dixon, Garrison, Gummere, Lippincott, Ludlow, Magie, Van Syckel. Barkalow, Bogart, Nixon — 12.

For affirmance — None.

Lindley and Adams v. Keim—

For reversal — The Chief-Justice, Depue, Dixon, Garrison, Gummere, Lippincott, Ludlow, Mágie, Van Syckel, Barkalow, Bogart, Nixon — 12.

For affirmance — None.

Keim v. O’Reilly—

For affirmance — The Chief-Justice, Depue, Dixon, Garrison, Gummere, Lippincott, Ludlow, Magie, Van Syckel, Barkalow, Bogart, Nixon — 12.

For reversal — None.


source: Caselaw Access Project

author: Gummere, J.

license: Public Domain

text:
    William Fulper, appellant, v. James B. Fulper et al., respondents.
    Where lands are granted to a husband and wife, and it appears from the words of the grant that the intent was to create a tenancy in common, they will take and hold the lands granted as tenants in common and not as tenants of the entirety.
    On appeal from a decree advised by Advisory Master Dickinson.

      Mr. George H. Large, for the appellant.

      Mr. Henry A. Finch, for the respondents.
   The opinion of the court was delivered by

Gummere, J.

The complainant in this case filed his bill for the partition of certain lands in the county of Hunterdon, which were conveyed on May 9th, 1834, to his parents, Asher and Jane Fulper,- as tenants in common.” Both grantees are now dead, Asher Fulper having survived his wife, who died intestate. The husband, however, left a will, by which he devised the whole of his real estate to five of his children, disinheriting the remaining one, the complainant, who, the will declared, shall take nothing under this will.”

The complainant bases his right to a partition of the lands in question upon the fact that he is one of the heirs-at-law of his mother, and, as such, the owner of an undivided interest therein. His ownership is challenged by his brothers and sisters, the ground of their contention being that, notwithstanding the fact that the lands were conveyed to their parents as tenants in common, they, by force of law, held them as tenants of the entirety, and that, therefore, upon the death of their mother, the whole estate became vested in their father, by right of survivorship, as tenant in fee-simple.

The learned advisory master who heard the casé adopted the view advanced by the defendants, and held that the complainant had no interest in the lands which he sought to have partitioned, following the decision of the supreme court of Pennsylvania in Stuckey v. Keefe’s Executors, 2 Casey 397, which holds that, in consequence of the theoretic unity and entirety of the ownership of the husband and wife with respect to their intérest in lands, they cannot hold by moieties, and that where land is conveyed to them in common, they take an entirety of estate without regard to the intent appearing in the conveyance. The decision in Stuckey v. Keefe’s Executors rests upon the ground that there are certain incidents to a tenancy in common which cannot exist in an estate held by husband and wife. Those incidents are said to be — that tenants in common may sell their respective shares, that they are compellable to make partition, that they are liable to reciprocal actions of waste and account, that if one turns the other out of possession an action of ejectment will lie; and it is said that, where lands are held by a husband and wife jointly, he cannot sell his moiety free from her dower, nor can she sell hers at all without his consent, and that no action of partition, or account, or waste, or ejectment can be maintained by one against the other.

The fact that a husband cannot sell his moiety of lands held jointly with his wife, free from her dower, and that she cannot sell hers at all without his consent, does not seem to afford a substantial reason for concluding that they cannot, therefore, hold lands as tenants in' common. The same fact is equally true of lands held by either the husband or wife in severalty, and yet it has never been suggested that this fact would operate to prevent lands from being so held by a married person.

Nor does it seem to me that the fact of the inability of the husband or wife to maintain an action of partition or of waste, or of ejectment, or of account, against the other (admitting that such inability exists), justifies the conclusion that they cannot hold as tenants in common. The reason why, at common law, an action could not be maintained by the wife against the husband for an accounting of the rents and profits of an estate held by him and her, or for the joint possession thereof, was not because of anything characteristic of the estate so held, but because the husband, by the jits mariti, was entitled to the exclusive possession of his wife’s land during her life, and to the rents and profits thereof, whether held by her jointly with him or in severalty. Hiles v. Fisher, 144 N. Y. 306. So far as the husband is concerned, while it is true that he could not maintain an action at law against his wife for an accounting of the rents and profits of their joint estate, or for the joint possession thereof, or for waste committed, I see no reason why he could not have proceeded against her by a bill in equity, which has always been resorted to for the enforcement of rights and the redress of wrongs as between husband and wife. So, too, it seems to me, that a court of equity would, at the instance of the wife, restrain waste of the joint estate by the husband, whether they held as tenants of the entirety or as tenants in common. Nor can I concede that an action of partition of the joint estate cannot be maintained by the husband against the wife, or vice versa, unless, of course, there is a survivorship. Equity will decree a partition between husband and wife, if they hold as tenants in common, to the same extent which it would if they were strangers. It is reasoning in a circle to say that a partition of land cannot be made between husband and wife because their estate is by entireties, and that the proof that their estate is by entireties is the fact that there can be no partition between them.

It is a mistake to suppose that there is anything in the theoretic unity of husband and wife which prevents them from being able to hold moieties of the same estate. It has always been held that if a man and woman become possessed of an estate as joint tenants, or as tenants in common, and afterward marry, they still retain their moieties after marriage, and continue to hold as joint tenants or tenants in common. Co. Litt. 187 b ; 1 Pres. Est. 434; 3 Washb. Real Prop. 425, and cases cited. There being nothing in the marriage relation which prevents those who were tenants in common before marriage from remaining such after marriage, it would seem to follow necessarily that there is nothing in that relationship which would prevent a husband and wife from taking such an estate after marriage, provided it clearly appeared, from 'the deed or devise under which they took, that such was the intention.

This was the view taken by Chancellor Green in McDermott v. French, 2 McCart. 78. In that nase a bill was filed for a partition of land, .brought by a grantee of a, husband against the wife. The bill alleged that the husband and wife M'ere seized in fee of the land, as tenants in common, by virtue of a conveyance made to them, and that the husband had conveyed to the complainant all his interest therein. There was a demurrer filed to the bill on behalf of the wife, upon the ground, among others, that by the conveyance to them she and her husband took an estate by entireties. Discussing this point the chancellor says:

“ The bill alleges that the husband and wife were seized as tenants in common by virtue of a conveyance made to them. Even, therefore, if it appears by the bill that the conveyance was made during coverture, that fact is not absolutely inconsistent with the creation of a. tenancy in common. As there is a direct averment that the conveyance created a tenancy in common, it must be assumed that apt words were used in the deed for that purpose.”

In the case of Buttlar v. Rosenblath, 15 Stew. Eq. 651, which involved the effect of our Married Women’s act upon estates by entireties, Mr. Justice Van Syckel states that a tenancy in common between husband and wife may be created by deed, provided there be in the conveyance an expression of an intention to do so.

The same view has been taken by the courts of other states, as Well as by the United States supreme court. In the case of Miner v. Brown, 133 N. Y. 308, it is said that whether a husband and wife take as tenants in common or as tenants of the entirety, is to be gathered from the instrument which passes the estate to them, and that where it appears from the instrument that it was the intention that they should take as tenants in common, that intention must prevail, and it is said that such has been the rule from an early period in the history of the English law.

In Knapp v. Windsor, 6 Cush. 157, and Brown v. City of Baraboo, 90 Wis. 151, it is held that where lands descend to a husband and wife as heirs-at-law, they take and hold as tenants in common and not as tenants by entireties.

In the case of Hunt v. Blackburn, 128 U. S. 464, it is declared that, at common law, when lands are granted to husband and wife as tenants in common, they will hold by moieties as other distinct and individual persons would do.

It seems clear, both on principle and authority, that the rule laid down in McDermott v. French, that a husband and wife may be made tenants in common by express words contained in the grant, is the correct one; but even if it were otherwise, we ought to adhere to the rule as stated in the opinion in that case. Since its promulgation in 1862 it has been accepted by the bar of this state as a correct enunciation of the law on this subject, and has become/a rule of property upon which many titles undoubtedly are founded. It should not now be altered unless by legislative enactment.

The decree of the court of chancery should be reversed.

For reversal — The Chief-Justice, Depue, Dixon, Garrison, Gummere, Lippincott, Ludlow, Magie, Van Syckel, Barkalow, Bogert, Hendrickson, Nixon — 13.

For affirmance — None.


author: Barkalow, J.

text:
    The Princeton Savings Bank, appellant, v. Alfred W. Martin, respondent.
    A bill in chancery for deficiency will not lie against a surviving original obligor, upon a bond secured by mortgage, with whom no other defendant is joined.

      On appeal from a decree advised by Vice-Chancellor Bird, whose opinion is reported in Princeton Savings Bank v. Martin, 8 Dick. Ch. Rep. 463.

      Mr. P. A. V. Van Doren and Mr. Garret D. W. Vroom, for the appellant.

      Mr. William M. Lanning, for the respondent.
   The opinion of the court was delivered by

Barkalow, J.

The appellant in this case filed a bill in the court of chancery ■ against the respondent to recover the amount due upon a bond of the respondent, Alfred ~W. Martin, and his brother, Augustus L. Martin, executed on April 1st, 1867, and intended to be secured by a mortgage of the same date.

On April 1st, 1868, Augustus L. Martin, the joint owner with respondent of the mortgaged premises, conveyed his interest therein to the said Alfred W. Martin, the respondent. Subsequent conveyances vested the title to the mortgaged premises in other successive owners until they finally became the property of one Charles S. Bradfield, on September 27th, 1891, and by successive assignments the mortgage above described and the bond which it was given to secure, became the property of the appellant on February 12th, 1885.

On April 12th, 1891, Augustus L. Martin, the co-obligor with the respondent on the bond under consideration, died.

On or about February 25th, 1892, proceedings in foreclosure were begun upon the mortgage, which were carried to á sale, and resulted in leaving a deficiency due upon the bond which that mortgage had been given to secure. ■

In May, 1894, the bill in this case was filed against the respondent alone, not joining as codefendants either the heirs, devisees or legal representatives of the deceased co-obligor, or any subsequent grantee of the premises who might have assumed payment of the encumbrance, or any person whose relations to the obligation should suggest a necessity for the intervention of a court of equity.

The prayer of the bill is for a decree against the respondent for the amount of principal and interest due and to grow due upon the said bond, together with costs of suit, after applying the proceeds of the sale under foreclosure to the amount due.

The defendant demurred to the bill upon four grounds:

First. That the complainant had not stated such a case as entitled it to relief in a court of equity.

Second. That upon the matters stated in the bill the complainant had an adequate remedy at law.

Third. That the heirs, devisees and personal representatives of Augustus L. Martin should have been made parties to the bill.

Fourth. That the supposed cause of action in the complainant’s bill set forth did not accrue at any time within sixteen years before the filing of the bill in this suit.

After hearing and argument a decree was made in the court of chancery to the effect that the bill should be dismissed, with costs to the defendant, for reasons set out at length in the opinion filed by the vice-chancellor who heard the case.

From that decree the appeal now under consideration was taken.

We are of opinion that it is unnecessary to consider the grounds upon which that decree was based, because the complainant in this cause, if entitled to recover, had a complete remedy at law against the defendant, and was therefore improperly in the court of chancery under its bill as filed. And for that reason we affirm the conclusion arrived at by the vice-chancellor without discussing the views upon which it was founded.

The decree should be affirmed, and the complainant’s bill in this case should be dismissed, with costs to the respondent in this court aud in the court of chancery.

For affirmance — The Chief-Justice, Depue, Dixon, Garrison, Gummere, Lippincott, Ludlow, Mague, Yan Syokel, Barkalow, Bogert, Hendrickson, Nixon — 13.

For reversal — None.


author: Per Curiam.

text:
    Martha A. Swain, appellant, v. Henry R. Edmunds, respondent.
    On appeal from a decree of the ordinary, whose opinion is reported in 8wain v. Edmwnds, 8 Dick. Ch. Rep. 11$.

      Mr. Thomas E. French and Mr. William H. Corbin, for the ' appellant.

      Mr. Howard Carrow, for the respondent.
   Per Curiam.

Decree affirmed, for the reasons given by the ordinary.

For affirmance — The Chief-Justice, Depue, ' Dixon, Garrison, Gummere, Lippincott, Ludlow, Magie, Van Syckel, Barkalow, Bogert, Nixon — 12.

For reversal — None.


author: The Chancellor.

text:
    Archibald A. Hutchinson v. Isaac S. Van Voorhis and Thomas B. Hutchinson.
    1. Where the object of a bill in equity is to secure an accounting of a terminated agency, the agreement for which agency contemplated that the agent should be paid for his services, it is proper for the defendant agent, by cross-bill, to demand payment for his services and have such demand adjusted with the accounting, so that by its decree the court may give complete relief between the parties in respect of the agency.
    2. Facts stated in an answer which are not material to a decision of matter put in litigation by the bill are impertinent, and, if reproachful, are scandalous.

      On motion to strike out portions of the answer filed by the defendant Van Voorhis.
    The bill alleges that on the 19th of April, 1888, the complainant, then of Pittsburgh, Pennsylvania, constituted the two defendants his attorneys in fact under a duly-executed power of attorney in writing, a copy of which is annexed to the bill as Schedule A and made part of it. That writing gives power to the defendants to demand, recover and receive moneys, debts, merchandise and effects due, payable or coming or belonging to Archibald A. Hutchinson; to sell his goods, merchandise and effects; to purchase for his account goods, merchandise, specie and other commodities and sell them again for his benefit; to ship and transport goods and barter and sell them, when at their destination, upon his account; to insure his property; to accept bills of exchange or orders, make and endorse notes, bonds &c., and execute drafts, checks, recognizances and bonds in legal proceedings <&c. for his benefit; to grant, bargain, sell, exchange, assign or dispose of his bonds, mortgages, stocks and securities, executing in his name necessary instruments for that purpose; to purchase real estate, executing necessary contracts &o. touching the same; to mortgage his property; to settle and adjust his partnership accounts; to settle his disputes with others, submitting to arbitration when expedient; to substitute his securities for others; to compound for debts or demands owing to him; to execute releases, compromises, compositions &c.; to discharge debts due to him, to take possession of lands to which he should be entitled, to distrain for rent, to bring suits to enforce his rights, to confess judgments for him, to arbitrate and compromise suits, to receive securities impounded in legal proceedings, executing bonds of indemnity where necessary; “and generally to do and perform all matters and things, transact all business, make, execute and acknowledge all contracts, orders, deeds, writings, assurances and instruments” in and about his affairs, and substitute one or more attorneys under them.
    The bill also alleges that the complainant agreed- with the defendants that their compensation as his attorneys under the power should be $1,200 per annum, and also that on the 28th day of April, in the same year, the complainant left America and went- to Europe, where he remained until the 2d day of April, A. D. 1893, and that during his absence the defendant Van Voorhis acted under the power of attorney principally alone. It prays that the defendants may account as the agents of the complainant, and that payment of whatever balance may be found to be due to the complainant may be enforced in his behalf.
    The defendant Thomas B. Hutchinson, who is the brother of the complainant, has appeared in the suit by solicitors, but has not answered. The defendant Isaac S. Van Voorhis was served with subpoena at Atlantic City. Upon motion in his behalf, based upon the affidavit of his physician that he is now of unsound mind and incapable of managing his affairs, Barton B. Hutchinson was appointed his guardian ad litem in this suit, and in his behalf has filed the answer which is now objected to.
    The answer admits the making of the power of attorney referred to in the bill, and, at the same time, denies that any amount was agreed upon as the annual compensation of the attorneys, and, on the contrary, alleges that it was understood between Van Voorhis and the complainant that Van Voorhis was to be paid for his services whatever they should reasonably be worth. It further admits the absence of the complainant in Europe, and that Van Voorhis acted under the power of attorney, and, going further, it alleges that Van Voorhis had been the complainant’s lawyer and confidential adviser, and that Thomas B. Hutchinson was his brother; that it was designed that Van Voorhis should be the real agent and that the brother should be co-agent, for the purpose merely of observing and inspecting the acts of Van Voorhis and keeping complainant advised with respect to them; also, that Van Voorhis acted alone in whatever he did, but with the full knowledge and approval of Thomas B. Hutchinson. It further alleges that while complainant was absent, Van Voorhis, from time to time, sent him itemized accounts in writing, which the complainant received as satisfactory and had every opportunity through his brother to verify. It then proceeds in this language:

      “ That at a time just preceding the said agency this complainant was so overwhelmed with litigation and other matters requiring legal services, as herein below more particularly specified, and was so alarmed by the danger therefrom to his property and character that he was unwilling to face the responsibility of his acts before the courts of Pennsylvania, and felt obliged to find some person to whom to entrust his property and the management thereof, and after finding such person to at once leave for Europe; and it was to this end that he appealed to this defendant, his attorney and trusted friend, to not only manage his law business, but to take charge of his property and other business as his attorney in fact; that it was to this end also that he prevailed upon this defendant to protect him and that he executed the instrument in the bill of complaint set forth; that this defendant was so conscious of the said dangers to the reputation and property of his friend, the complainant, and was driven to such extremities and incessant labor, worry and anxiety to find legitimate means of protecting him, and the burden of obligations assumed thereby was so greatly increased by the said agency, that after successfully defending him, the said complainant, in the courts in most of the matters herein below specified and in all of those which so endangered complainant’s character and fortune, and after accumulating the profits hereinafter specified for the complainant, and being of a very sympathetic nature, the entire burden proved too great for his strength of body and mind.”
    It then proceeds to allege that in March, 1893, the defendant Van Voorhis was removed to a hospital for treatment and that, in 1895, his mind became permanently deranged and he became incapable of understanding any business or of making an account of the affairs of his agency and of giving instructions to that end. Also, that the complainant, by Thomas B. Hutchinson, had access to his books and papers and took some of them away, so that enough of them are not left to enable the defendant Van Voorhis to render an account. Also, that on the 6th of March, 1893, Van Voorhis and the complainant stated an account between them, which shows Van Voorhis to be indebted to the complainant in the sum of $21,166.75, which, by credits, is reduced to $10,727, which balance was agreed by them to be subject “to future litigation and adjustment,” having reference to the claim of Van Voorhis for compensation. Also, that out of the balance the defendant is justly entitled to $6,300 for his service under the power of attorney. The answer then continues as follows:

      “ That since the said 6th day of March, 1893, while this defendant remained (with the exception of a few months) within the jurisdiction of the courts of Pennsylvania, and while the witnesses necessary to his more complete defence were subject to the jurisdiction of said courts, and while records and data were complete, the complainant did not deem it wise to enter into any litigation in said state with this defendant concerning said amount in difference; and that when in the greatest extremities of bodily and mental illness this defendant was, under the instructions of his physician, removed to Atlantic City, in this state, for medical reasons and purposes, the complainant procured the service of the writ in this cause upon said defendant.
    “The complainant, for the reasons above set forth, is not entitled to any further accounting, and the simulation of such right at a time when this defendant is, in the various ways above stated, deprived of all chances or possibility of such accounting, is for the purpose of embarrassing him and preventing him from enforcing his claim against the complainant for amount still due him for services rendered as attorney in fact and attorney-at-law as aforesaid. And for the purpose of this complaint in simulating a right to an accounting of matters of which the complainant is already fully informed, is to force the friends of this defendant to procure a waiver of the just and reasonable claims of this defendant in order to avoid such disturbance of this defendant in his enfeebled condition as may result fatally to him.”
    The answer asks that the defendant may have the same benefit from the account stated and his inability to account by reason of his loss of books and papers and his mental condition, as if he had pleaded these matters in defence. It then proceeds, by way of cross-bill, to first allege that the complainant is still indebted to the defendant in the sum of $6,300 for services under the power of attorney, and then to specify services as attorney-at-law, meriting enough consideration, according to his claim, to absorb the remainder of the balance of the $10,727, shown upon the alleged account stated, and to pray that such compensation as he merits for all such services as attorney in law and attorney in fact may be allowed and paid to him by the complainant.
    The complainant now moves to strike out the portions of the answer which are above quoted as scandalous and impertinent, and to strike out so much of the answer as is by way of cross-bill, upon three grounds — -first, because it “ is not necessary to the defence of the said defendant; ” second, because “ the matters and things therein stated are alleged by the defendant and sought to be used by him as a means of obtaining relief against the complainant in respect to a cause or causes of action distinct from, and wholly unconnected with, the complainant’s cause of action; ” and third, because “ the matters and things in said answer, in the nature of a cross-bill alleged, afford no ground for equitable relief.”

      Mr. Charles L. Carrick (with whom was Mr. B. K. McElheny, Jr., of the New York bar), for the motion.

      Mr. Richard V. Lindbury, contra.

   The Chancellor.

The bill contemplates an accounting for the dealings of two attorneys in fact under the power of attorney. That power did not contemplate that either of the agents appointed should perform the services of an attorney-at-law. Incident to the performance of their duties, they had authority to employ the subordinate agency of an attorney-at-law, but no direct agency of that kind was created by the instrument. The answer, on the other hand, alleges that the employment of the defendant Van Voorhis was a single matter in which he acted in two capacities as attorney in fact under the power of attorney and as attorney-at-law, and that in both those capacities he was to act alone, it being agreed that Thomas B. Hutchinson was merely to supervise, understand and approve that which should be done under the power of attorney.

Under this allegation of the answer, the power of attorney did not deal with the entire employment. Its office was not to circumscribe the limits of the employment, but to confer such power as could be conferred only by such an instrument and which was requisite to the performance of the duties required of Van Voorhis in his capacity as attorney in fact.

The answer denies that a fixed rate of compensation was agreed upon, and avers that the understanding was that Van Voorhis should be paid what his services should be reasonably worth.

The object of the cross-bill is to secure for him, in the accounting invoked by the complainant, payment for all his services, not only for those rendered as attorney in fact, but also for those rendered as attorney-at-law, and thus enable the court to decree complete relief to him as well as to the complainant in respect of the whole agency.

If the allegations of the answer be true, and I so take them upon this motion, I deem the filing of the cross-bill' to be a necessary step by the answering defendant to obtain the complete determination of all the matters involved in the litigation which the original bill inaugurated. Such object is a legitimate use of a cross-bill. Kirkpatrick v. Corning, 12 Stew. Eq. 136; Krueger v. Ferry, 14 Stew. Eq. 432; S. C. on appeal, 16 Stew. Eq. 295; Shearman v. Morrison, 149 Pa. St. 386.

Proceeding to the consideration of the three portions of the answer which are objected to for scandal' and impertinence, I find that the first of them alleges that the complainant, overwhelmed with litigation and other matters which required legal services, and alarmed by the danger therefrom to his character and estate, was unwilling, in person, to face the courts of his state, and felt obliged to secure the services of some one to whom he might entrust the management of'his property and affairs and then go to Europe; that Van Voorhis had been and was his attorney and trusted friend, and hence he was appealed to in the emergency to assume the burden of that management, involving, as it did, both business and legal services; that Van Voorhis was conscious of the dangers and, actuated by his apprehension of them and by his sympathy with his friend, he bestowed such incessant labor and was subjected to such worry and anxiety in the successful performance of the duties required that he broke down in body and mind.

It is insisted that this passage of the answer is material and relevant upon the question of the value of the services which Van Voorhis rendered. In Woods v. Morrell, 1 Johns. Ch. 103, Chancellor Kent said: “As to impertinent matter, the answer must not go out of the bill to state that which is not material or relevant to the case made out by the bill'. Long recitals, digressions, stories, conversations and insinuations tending to scandal are of this nature. Facts not material to the decision are impertinent and, if reproachful, are scandalous; and perhaps the best test by which to ascertain whether the matter be impertinent is to try whether the subject of the allegation could be put in issue and would be matter proper to be given in evidence between the parties.” Wilkinson v. Dodd, 15 Stew. Eq. 234.

Applying the test thus stated I think that it is clear that the delicacy and difficulty of the services rendered and the peculiar fitness of Van Voorhis to render them, his devotion to them and the success of his efforts, are all matters pertinent to an inquiry as to the value of these services. Although I think that the pleader might safely have omitted this portion of the answer or might have stated its substance in language which would more succinctly and clearly and less reproachfully have defined the character of the services, I am of opinion that the motion to strike out in this particular should not prevail.

The remaining portions of the answer quoted should be stricken out. Under the test above applied, they are both scandalous and impertinent. They allege a baseness of purpose in the complainant which is not a defence, and complain of a delay in prosecution which was contemplated between the parties in March, 1893, when an unsettled balance was admitted to exist, as a matter for future litigation, and which does not present a case of laches which should induce this court to withhold from the complainant such relief as he may be entitled to at its hands. The allegation of the answer is that in March, 1893, this reservation for future litigation was agreed upon, and that in the same month Van Voorhis went to a hospital because of ill-health, which has resulted in the permanent derangement of his mind. It would seem to be a legitimate inference from such allegations that delay in litigation was contemplated by the parties and suffered by the complainant to admit of the recovery of Van Voorhis, and was not terminated until the impossibility of that recovery became manifest; and was not to subserve the base and dishonest purpose suggested by the answer.

The motion will be denied as to the first portion of the answer objected to and the portion by way of cross-bill, but as to the other portions of the answer will be granted.


text:
    Ruhamah W. Cresse, administratrix of the estate of Humphrey S. Cresse, deceased, v. The Security Land Investment Company et al.
    Appearance and answer by a non-resident defendant, pursuant to the provisions of the twenty-first section of the Chancery act (Uer. p. 106), is not a matter of right, but rests on the discretion of the chancellor, to be exercised in view of all the circumstances of the case. .The party applying for it must show merits and, where the circumstances demand, also surprise.
    On petition of the Bethlehem Iron Company, a non-resident defendant, for leave to appear and plead, answer or demur to the complainant’s bill and for a stay of proceedings under the execution issued upon final decree heretofore made herein until further order.
    The suit is for the foreclosure of a mortgage on land part of which was claimed by one Ryon, who mortgaged a portion of that part, with other land owned by him, to the Bethlehem Iron Company. Ryon and the Bethlehem Iron Company were both made defendants in order, among other things, that their claims upon part of the lands mortgaged to the complainant’s intestate might be adjudged to be without validity. The bill was filed in April, 1893, and promptly thereafter process of subpoena was issued against the defendants. The Bethlehem Iron Company was a corporation of Pennsylvania, having its principal office in Bethlehem, in that state, and not being found within this state, an order of publication was made against it pursuant to the provisions of the eighteenth section of the Chancery act, as amended in 1893, a notice of which, in the form prescribed by the fifty-eighth rule of this court, was published and mailed as required by law. Rev. p. 106 § 18 ; P. L. of 1898 p. 199. That notice was addressed to the Bethlehem Iron Company, and contained this paragraph:

      “And you, Bethlehem Iron Company, are made defendant because you claim to have an encumbrance upon said lands, or some part thereof, given to you by John T. Ryon, and in the said bill it is alleged that said John T. Ryon claims to own said lands through misapprehension and by mistake of facts, whereas in fact he never had any title to said lands or any part thereof; and it is alleged in said bill that the mortgage to said Bethlehem Iron Company is not, and never has been, an encumbrance on said land or any part thereof.”
    The Bethlehem Iron Company failed to appear or answer and a decree pro confesso was in due course, in July, 1893, taken against it. Ryon answered, asserting his title, and thereupon issue was joined, which, after having been litigated at considerable length and expense, was, in June, 1895, decided adversely to Ryon, and thereupon a final decree, dated in June, 1895, was entered against both Ryon and the Bethlehem Iron Company. From that decree Ryon appealed, but his appeal was dismissed, for want of prosecution, in June, 1896. Upon the record being remitted from the court of errors and appeals to the court of chancery, execution for the sale of the mortgaged'premises was issued, and pending advertisement of sale under it, on the 11th of August, 1896, the Bethlehem Iron Company presented its present petition, upon the filing of which the sale advertised was ordered to be adjourned from week to week and the complainant was called upon to show cause why the prayer of the petition should not be granted.

      Mr. Samuel H. Grey; for the Bethlehem Iron Company.

      Mr. Clement H. Sinnielcson, for the complainant.
   The Chancellor.

The petition admits that the Bethlehem Iron Company was duly proceeded against as a non-resident defendant. It does not deny that it had timely knowledge of the notice published and mailed which made known to it the character of the suit and its concern in the result thereof.

It is true, in an affidavit annexed to the petition, the counsel of the defendant company says that he knew of another litigation between the complainant and Ryon, to which the Bethlehem Iron Company was not a party, which he supposed was the only suit between those parties, but this lack of knowledge of the present suit upon the part of such counsel does not show that the notice referred to was not received, or that the managing officers of the said company did not know of this litigation and for some reason determine or fail to employ the affiant therein. Besides, there is a contradiction of the affidavit of such counsel in the affidavit of a former solicitor of the complainant, which is to the effect that he was told by the counsel of the Bethlehem Iron Company that that company would not answer in this cause or take any steps to protect its mortgage. It is not perceived that such a remark could have been directed to the other litigation between the complainant and Ryon, for to that litigation the Bethlehem Iron Company was not a party and therefore no question as to its answering or defending its mortgage therein could arise. If the notice to the Bethlehem Iron Company ever reached its counsel, it appears to be impossible, in view of its specific language quoted, that he should attribute it to litigation to which the Bethlehem Iron Company was not a party. The contradiction is, of course, due to some failure of memory or misapprehension which does not now appear. It is enough for present purposes that I cannot reconcile the statements of both affidavits, and that for that reason, if for no other, I should not base any judicial action upon the contradicted fact alleged in the affidavit of defendant’s counsel. But this contradiction arises upon matter contained only in the affidavits, outside of the petition. The petition does not aver that the Bethlehem Iron Company did not have notice and know of this suit, and at the argument it was expressly disclaimed that its present application is intended to at all rest upon that ground.

Nor does the petition aver that the Bethlehem Iron Company has a meritorious defence against the complainant’s claim which the final decree supports.

The application is put upon the facts that the Bethlehem Iron Company has an important interest in the suit; that it is a nonresident defendant; that it was not served with process within this state and did not appear in the suit, and that it was never served with notice of the decrees against it, and its argument is that, even though it knew of the pendency of the suit and stood by inactively for two years until Byon’s defence was overruled and a decree was made against him and it, that'now, in virtue of the Chancery act (Rev. p. 107 § 21), it being yet within three years from the date of the final decree, it has the right to appear and answer the complainant’s bill.

The section of the Chancery act referred to, stripped of verbiage and matter not pertinent to this inquiry, provides that where a decree shall be made against an absent defendant the chancellor “may,” before issuing process to compel performance of the decree, “if he deems it equitable so to do,” require the complainant to give a bond, with such security and in such sum as he may direct, conditioned for restitution of property which may be unjustly taken from the absent defendant, and that if such security shall not be given, execution for the performance of the decree shall not issue, but the estate and effects of the absent defendant may be sequestered and remain under control of the chancellor; and if the absent defendant shall, within six months after notice in writing of the decree is given to him, or within three years after the decree, if no such notice be given, petition the chancellor touching the matter of such decree, and pay or secure to be paid such costs as the chancellor shall think reasonable to order and direct,” he “ may be permitted to appear and answer the complainant’s bill, and thereupon such proceedings shall be had as if such absent defendant had appeared in due season and no decree had been made; ” or he may, within the times aforesaid, file his bill to recover back the excess over the complainant’s rightful recovery; but if he shall not present his petition or file his bill within the times aforesaid, the decree shall be deemed and adjudged to be confirmed as of the time of making it.

The scheme of this section of the statute obviously is to declare and, to some extent, regulate and limit the power of the chancellor not only to withhold execution in the enforcement of the decree against an absent defendant, but also to let the absent defendant answer, leaving the exercise of the power, subject to the limitations, within the discretion of the chancellor. The section treats of precaution that may be taken against injury from possible error in an ex parte decree. It has nothing to do with the process by which jurisdiction of the absent defendant is had. It is to be read in the light of the remainder of the enactment of which it is a part, and the objects and purposes thereof, and particularly in the light of the nineteenth section, amended in 1893 (P. L. of 1893 p. 199), which first provides that an absent defendant, who shall be served with notice of the suit as in the eighteenth section of the statute directed, shall be bound by the decree as if served with process within the state, and then if such defendant shall make oath that he did not receive the notice or have knowledge of it within ten days after the time within which it was directed to be served, or in cases. where actual service of the notice is affirmed by the complainant shall show that it was not made, “ the chancellor may, in his discretion, before executing the decree,” proceed to take security in the manner provided in the twenty-first section. In this section the legislature indicates its intention to be that the twenty-first section is not designed to relieve an absent defendant who has received notice of the suit given as the eighteenth section of the statute prescribes, but that the power described and declared in the twenty-first section to require security against error in the decree, or in default of its being given to withhold execution for a limited time, is to be available to the chancellor in case notice shall not have been received. But it does not require the chancellor to use that power. Its provision is that he “may” do so, and to emphasize that there is no mandatory requirement the words “in his discretion” are added. So in the twenty-first section the power to require security is submitted for use by the chancellor whenever he deems it equitable to use it, the language being “ may if he deems it equitable so to do.” And later, when it contemplates that there may be appearance and answer by the absent defendant, it does not give an absolute right to the defendant to appear and answer, but authorizes his application to the chancellor, who may permit appearance and answer, very properly leaving the affirmative or negative action upon the application to rest in a proper exercise of judicial discretion.

The seventy-third section of the Chancery act is of the same general character as the twenty-first section. It has for its object the protection of absent defendants from error in mortgage foreclosure cases. Its provision is, that after decree and. before sale of the mortgaged premises under execution, an absent defendant may enter his appearance and apply to the court for a writ of supersedeas to stay proceedings on the execution.

In Horner v. Corning, 1 Stew. Eq. 254, the court of errors and appeals held that this section of the statute is not mandatory as to the issuance of the writ of supersedeas, but is declaratory of a power which was inherent in the court when the section was enacted. “The act,” said Mr. Justice Dalrimple, in writing the opinion of the court, “simply declares it lawful for the court, under the circumstances named, to issue the supersedeas. Whether it shall or not issue depends not on the will of the party, but on the discretion of the court, to be exercised in view of all' the circumstances of the case. I think a party who invokes the aid of the court under this statute should show, at least, surprise and merits.”

If authority be needed to assure us that the proper interpretation of the twenty-first section is, as its language plainly indicates, that all indulgence to the absent defendant is left within the discretion of the chancellor, the case cited furnishes it.

I think that in this case it was incumbent upon the Bethlehem Iron Company to unequivocally allege and establish that it was never served with notice of the suit in the manner prescribed by the eighteenth section of the Chancery act, so that it actually received the notice of the suit, or to allege surprise in some other form which will justly call for this court’s interference in its behalf, and also that the defence it proposes to interpose is possessed of merit. The propriety of requiring the defendant to show surprise in this case is emphasized by the fact that for months the complainant and Ryon were engaged in trying the very issues upon which the claim of the Bethlehem Iron Company rests. It should have clearly appeared that during such litigation the defendant did not willfully stand by, watching the proceeding in hope that in the success of Ryon its mortgage would be protected, and did not negligently fail to defend. The application, in substance, asks the repetition of an expensive litigation, which should not be permitted except upon the presentation of a clear and strong ease of surprise and merits.

In the ease of Consolidated Electric Storage Co. v. Atlantic Trust Co., 5 Dick. Ch. Rep. 93, question as to the right of a non-resident defendant, under the twenty-first section of the Chancery act, to appear and answer, regardless of whether he has or has not a ground of defence, was presented to 'Vice-Chancellor Van Fleet but was not decided, because, there, so strong a meritorious defence was shown against the holding of a decree made- upon ex parte proofs, and at trifling expense to the complainant, that the vice-chancellor felt constrained to permit it to be set up, even though it appeared that the defendant had notice of the suit and opportunity to defend it. I apprehend, however, that he would have attached some importance to the failure to defend after notice if, during the delay, the complainant had been put to a long and costly litigation with other parties upon the very issues the proposed defence must raise.

A general expression of the vice-chancellor at the end of his opinion indicates that he was at least inclined to the opinion that importance was to be attached to the words of the twenty-first section, that the absent defendant could petition the chancellor touching the matter of such decree,” as restricting that which was to be considered by the chancellor upon the application to the substance adjudicated by the decree, excluding the question as to surprise. I take a broader view of this language. I think that by use of the words “ matter of such decree,” the legislative intent was to comprehend everything that might justly be considered to sustain or defeat the decree.

I think that the case presented by the petition is insufficient to justify my granting the prayer of the petition, and therefore, no desire to amend having been expressed, I will deny the application and discharge the restraint upon the sale.


author: Ti-ie Chancellor.

text:
    Mary A. McTague v. Austin Finnegan et al.
    1. Where the object of a suit in equity is to secure the specific performance of an alleged parol contract to leave the estate of a foster-parent to the child the rule is that the agreement must be clearly established by satisfactory proofs. Such proofs do not exist in uncertain and unnecessary inferences.
    2. Where parties to a contract have put it in writing, and that writing, upon its face, purports to contain the whole agreement between them, it will be the only evidence of the contract as concluded, and no parol proof of what was said and done during the negotiations which led to it will be admitted to alter or contradict it or to supply additional terms.
    3. In such case proof will not be received to show a collateral promise between the parties at the negotiations, unless that promise relates to-a subject distinct from that to which the written contract applies.
    On bill, answers, replications and proofs.

      Mr. John H. Fort, for the complainant.

      Mr. Alfred Mills, Mr. James R. English and Mr. Thomas F. MoCormiok, for the defendants.
   Ti-ie Chancellor.

The complainant’s bill alleges the existence of two contracts whereby, at the death of Patrick Rehill and Elizabeth, his wife, the complainant was to have their respective estates, and its object is to secure the specific performance of those contracts so far as the estate'of Patrick Rehill is concerned.

The allegations of the bill are, that soon after the corhplainant’s birth, in December, 1839, her mother died and her father committed her to the care of his sister, Elizabeth Rehill, and Patrick Rehill, her husband, who were about to visit Ireland, to conduct her to the home of her grandparents in that land; that the Rehills, having no children, became attached to her and instead of delivering her to her grandparents kept her and treated her as their own child, and, after six or seven years, returned with her to America; that upon their return to America her father sought her surrender to him, and then the Eehills bargained and agreed with him that if he would make complete surrender of her to them, they would adopt her as their child, and maintain and educate her and “make” her the “beneficiary” of their joint and separate estates at their demise; that the surrender thus stipulated for was duly made, and the complainant thereafter remained with the Eehills as their adopted daughter, known by their surname, and rendered them service and obedience as their daughter until November, 1861, when, with their consent, she married one Peter S. McTague; that McTague thereafter became the partner of Patrick Eehill, in business as general contractors in the construction of railroads and work of kindred character, and remained such partners for many years; that in process of time McTague sued Eehill to secure an accounting of the partnership dealings, which suit resulted in a judgment for $17,000 in McTague’s favor; that thereupon Eehill conveyed his real estate.to a nephew and converted a large portion of his personalty into cash and fled to Ireland to escape the payment of the judgment; that Elizabeth Eehill, suffering from a cancer, was unable to follow her husband and therefore sent for the complainant and induced her to influence McTague to compromise the judgment; that the judgment was compromised for $5,000 in cash (which was subsequently paid) and an agreement that the family affection, which had existed before the suit, should be restored and the complainant should be recognized as the adopted daughter of the Eehills, “ with,” using the language of the bill,

“ all the rights and privileges of inheritance of a child, and with the understanding that your oratrix was to be the beneficiary to their estates at their demise as fully and freely as if no estrangement had ever taken place; * * * and upon this express understanding and agreement that the matter of inheritance should not be disputed and that your oratrix should in nowise be affected by any misunderstanding existing between said Peter S. McTague and Patrick and Elizabeth Eehill, but that every provision, condition and understanding that existed before the suit should, by the terms of the agreement, and in consideration of a reduction of §12,000 on said judgment of §17,000, be removed and the rights and privileges of your oratrix remain unaffected and the question of her adoption and the question of her inheriting as the beneficiary of their estates should be undisputed;

that after the compromise had been effected Mr. Rehill returned to the United States, presented his wife with $40,000 of his moneys, made a will by which he bequeathed and devised the remainder of his estate to others than the complainant, and, a few days thereafter, died; and that a few months later Airs. Rehill made her will, by which she bequeathed all her estate, including therein the $40,000 received from her husband, except $1,000, to others than the complainant and, shortly thereafter, died ; and that before the suit by AIcTague against Patrick. Rehill was brought, and while the complainant continued to be recognized by the Rehills as their daughter, her own father, John Lee, died possessed and seized of a considerable estate, of which he bequeathed and devised to her a much smaller portion than he would have given her if he had not believed that she would take the estates of the Rehills.

The complainant’s object in this suit is to recover the estate of Patrick Rehill, including as part thereof the $40,000 which was given to Mrs. Rehill upon the return of Pátrick from Ireland, and which constituted practically the whole property disposed of by Mrs. Rehill’s will. The defendants are the executors, devisees and legatees under the two wills. . The decree sought by the complainant, if made, will require the surrender of both- estates and defeat the provisions of both wills.

It thus appears that the complainant relies upon two agreements, the first made about the year 1845, when she insists her father surrendered her and she became the adopted child of the Rehills, and the second when, in 1886, the proofs show the $17,000 judgment was satisfied.

The facts alleged concerning the first agreement, it is insisted, bring it within the principles decided in Van Dyne v. Vreeland, 3 Stock. 370; 1 Beas. 142. It is urged that it was a parol contract made by a father for the benefit of his child, in good faith, fully performed upon her part by her surrender to the Rehills and her dutiful obedience to and service of them as their child, until, with their consent, she married, and her irretrievable detriment in the loss of a portion of the bounty of her father, which, but for his reliance upon the agreement, she would have had, which contract will be enforced in equity upon the ground that the non-performance will operate as a fraud upon the complainant.

The first difficulty I have with this alleged agreement, and it is an insurmountable one, is, that it is not proved to have ever been entered into. There is no direct proof that it was made. The facts that the complainant’s father suffered the Rehills to keep his daughter; that she was called by their name and known as their daughter; that they said she was their adopted daughter, and taught her and suffered her to call them respectively “father” and “mother,” and that they frequently declared to her husband and strangers that she would have their properties when they should die, are clearly established, but I do not perceive how they warrant the inference contended for, that the Rehills had absolutely bound themselves to John Lee to give the complainant their estates at their death.

Lee had lost his wife. He desired to make some disposition of his infant daughter. Mrs. Rehill was his sister. She and her husband were about to go to Ireland, and, taking advantage of the opportunity their proposed visit offered, he besought them to take the child to its grandparents. Mrs. Rehill was childless, and upon the voyage she and her husband became attached to the child committed to their care and kept it. That the father after-wards demanded it, is not proved. That he acquiesced in their retention of it and treatment of it as their own child, is clear. He married again and had five children by his second wife, and, upon the death of his second wife, married a third time and had two more children. As his family increased he witnessed the affection that his sister and her husband lavished upon the daughter of his first wife and her return of it, and knew of the increasing wealth of Patrick Rehill and his declared purpose to leave that wealth to this child. If he should take the child, he must take it from this opportunity and a happy home, and to the care of a stepmother who had children of her own. Under such circumstances his acquiescence is not necessarily attributable to a-surrender of his child under contract. It may as well be attributed to his resolution that it was best for her interests, in view of the probability of her ultimately having the estates of the Rehills, that he should leave her with them. He witnessed her marry a man' in good circumstances, who, before Mr. Lee’s will was made, became probably as rich as Lee himself. In view of that circumstance and of his daughter’s prospect of bounty from the Rehills, it does not appear to have been unreasonable for him, in the disposition of his estate in absence of any contract with the Rehills, to put her, as he did, on a par with her half brother, who was able to maintain himself. The disposition of Mr. Lee’s will was this: He allowed a married' daughter the use of a dwelling-house until the final distribution of his estate. He gave the income of the residue of his estate to his wife for her life, requiring her to pay therefrom three annuities during her life to three of his children, no one of which annuities exceeded $400, and also enough from that income to educate two other children, and he provided that, upon the death of his wife and the completion of the education of those two children, the whole of the principal of his estate should be distributed equally among his seven living children, among whom the complainant was included.

I am inclined to think that the more natural inference from this testamentary provision for the complainant is that Mr. Lee did not have an agreement with the Rehills that his daughter should have their estates, but considered her taking them as an uncertainty, for otherwise he would probably have thought that with Rehill’s estate and her husband’s wealth she would have enough without sharing his estate with the six other children. The first contract is not proven.

It is claimed that the second contract was made at the settlement of the judgment which McTague recovered against Rehill. The agreement for that settlement was effected on the 20th of October, 1886, between McTague and Mrs. Rehill. It was brought about in this way : Rehill sent for his wife to join him in Iré]and. She was then suffering with a cancer and feared she could not survive the ocean voyage. The only escape from that peril apparently possible to her, was to secure the satisfaction of the judgment, so that her husband might return to America. To this end she directed her attention to enlisting the services of friends to induce McTague to enter into a compromise. On the 19th of October the son of McTague, a young man some twenty-four years of age, at the instance of his mother, called upon her at her residence in Philadelphia. She told the young man of her condition and wishes, and sent him to bring his mother to her. Mrs. McTague came on the 20th of October, and, joining in the effort to settle the judgment, sought her husband, who, on the same day, had an interview with Mrs. Eehill, at which he says he said to her:

“ There is only one way that matter can be settled without paying the full amount to the court, and that is that Mr. Eehill and you recognize Mrs. McTague as your adopted daughter, as she always was, and heir, and I will settle with you,”

and that thereupon she assented to the terms he thus proposed. On the same day, immediately after this conversation, it appears that McTague and Mrs. E.ehill went to the office of a Mr. Boyer, who had been the counsel of Mr. Eehill in the suit in which the judgment was recovered, to have their agreement reduced to writing, and stated to him its terms. Mr. Boyer drew the agreement in the shape of au unilateral contract, signed and sealed by McTague alone, in which he agreed, in consideration of $1 to him paid by Mr. Boyer as the attorney of Mr. Eehill, and for the further consideration,” quoting the language of the instrument, “ of the relation of myself and family to P. Eehill and Elizabeth Eehill, his wife,” upon the payment to him of $5,000 within sixty days by Mr. Eehill or his representatives, he would satisfy the judgment. The $5,000 was paid to him nine days later, on the 29th of October, by a Mr. Bines, who had formerly been employed as a civil engineer by Mr. Eehill, and who interested himself in Mrs. Eehill’s efforts to secure a settlement of the judgment, and thereupon, advised by his own counsel, McTague duly satisfied the judgment of record. It was not stipulated in the writing that Mrs. McTague was to receive the estates of Mr. Rehill and his wife when they should die. Mr. Boyer is positive that he embodied in the agreement all the terms that were stated to him, and also that nothing was said to him about Mrs. McTague having Mr. Rehill’s property at his death, and that before the agreement was signed he read it aloud to Mr. McTague and Mrs. Rehill. He is contradicted in these particulars by Mr. McTague, who insists that he instructed Mr. Boyer that his wife was to be recognized as the adopted daughter of the Rehills and have their estates at their demise, and that the paper signed was not read to him or in his presence. It further appears that, after the execution of the paper, Mr. McTague was advised by his counsel who called on Mr. Boyer and saw the agreement, and. that, after he had been so advised, he executed the agreement as drawn by taking the $5,000 and actually satisfying the judgment of record.

It is au established rule of evidence that where parties have put their contract in writing, and that writing, upon its face, purports to contain the whole agreement between them, it shall be the only evidence of the contract as finally concluded, and no oral evidence of what was said and done during negotiations leading up to it will be admitted to alter or contradict it or to supply additional terms. Also, that no proof will be received to show a collateral promise between the parties at the negotiation, unless that promise relates to a subject distinct from that to which the written contract applies. Naumberg v. Young, 15 Vr. 331.

I think that the writing in this case, upon its face, purports to contain the whole agreement between Mr. McTague and Mrs. Rehill. It treats of the compromise and settlement of the judgment, and provides that Mr. McTague, for $1, and because of the relation of himself and family to the Rehills, agrees to take $5,000 in satisfaction of the judgment. To add to it, by parol evidence, the additional term that the Rehills were to leave their estates to Mrs. McTague, would violate the rule above stated. Such a term cannot be considered a collateral promise. It relates to the subject of the written agreement — the satisfaction of the judgment. It is true the testimony of Mr. McTague, that the writing was not read and that he insisted upon the insertion of the alleged missing term in it, is evidence tending to show that the instrument is the product of a fraud practiced upon him, but that evidence is clearly not strong enough to defeat the instrument which is supported by Mr. Boyer’s oath and is vouched as valid by Mr. McTague’s signature, and was carried into execution by him under the advice of his counsel.

But it is also remembered that this suit is for the recovery of the estate of Patrick Behill, not for the recovery of the estate of Elizabeth Behill. How was Patrick bound by the parol promise of his wife if such promise was in fact made ? There is no proof that either she or Mr. Boyer acted under his authority. It is true he paid the $5,000, which Mr. Bines advanced, when he returned to America. If his payment may be said to ratify anything, it was the written agreement which was carried into execution by Bines’ payment of the $5,000. Beyond that the proofs do not show that he is bound by anything that Mrs. Behill or Mr. Boyer did.

I do not find that either of the alleged contracts alleged in the bill has been established, and, upon consideration of the whole evidence, I do not believe that any such contracts were ever, made. It was the duty of the complainant to establish them by clear and convincing proofs, for parol agreements of the kind, because of the situation and relation of the parties to them and the consequent opportunity for misunderstanding and the perpetration of fraud, ai-e naturally regarded with suspicion, and when their enforcement is sought are properly the subjects of close scrutiny. Vreeland v. Vreeland, 8 Dick. Ch. Rep. 387.

Having reached the conclusion stated, it is not necessary for me to consider whether the terms of the second contract, as asserted, are sufficiently definite and certain to be enforced, nor whether the consideration relied upon to support the first contract is sufficient.

I think that Mr. Behill’s frequent declaration of his intention to leave his estate to Mrs. McTague may, to some extent, have influenced her conduct towards him and secured from her] through her desire to please and thus retain his intention in her behalf], possibly more assiduous devotion to her foster-parents and their interests than she would otherwise have accorded them. But those declarations do not appear to have been made for the purpose of inducing such devotion. They were rather the voluntary exhibition of his love and admiration for her, and though Mrs. McTague may have had faith in them, they did not bind him to any legal liability. Drake v. Lanning, 4 Dick. Ch. Rep. 452. There can be no doubt that when he made them it was his honest purpose to fulfill them, and there can be little doubt that he would have done so had it not been for Mr. McTague’s unfortunate exaction of his legal rights by resort to a litigation which embittered Mr. Rehill against him and his wife who sympathized with him, and resulted in RehilFs becoming a fugitive from his home and country and in the wreck of his hopes and happiness and, probably, in the expedition of his death.

The bill will be dismissed, with costs.