text:
    Byron K. Stickle et al., respondents, v. High Standard Steel Company et al., defendants.
    [Argued March 16th, 1911.
    Decided June 19th, 1911.]
    1. To a bill filed to foreclose a vendor’s lien for unpaid purchase-money, a bondholder, under a mortgage given by the purchaser, answered that the complainants had agreed to waive in his favor any and all rights they had to any part of the selling price of the lands so that the defendant would have a first and prior lien. — Reid, that under the issue thus made, he must prove the waiver¡ and upon his failure to do so, the complainants were entitled to priority of payment.
    2. The expression “vendor’s lien” is an agreement by which the vendors assented to the making of a mortgage by the purchaser but provided that they should have a vendor’s lien for unpaid purchase-money, sufficiently indicates a lien prior to the mortgage.
    On appeal of Alfred W. Hoyt from a decree of the court of chancery advised by Yice-Chancellor Howell.

      Mr. John R. Hardin, for the respondents.

      Mr. George G. Tennant, for the appellant.
   The opinion of the court was delivered by

Swayze, J.

The complainants seek to foreclose a vendor’s lien upon property conveyed by them to the High Standard Steel Company, a New Jersey corporation, by deed dated October 1st, 1907. The appellant Hoyt claims to be a holder of bonds secured by mortgage, which bears even date with the deed and was given to the Carnegie Trust Company to secure a bond issue of $250,000. It contained a provision that the bonds should, upon demand of the steel company, be certified by the trustee and delivered to that corporation, or upon its order, but only upon presentation to the trustee of a resolution of the directors recommending the issue and requesting the certification and delivery of the bonds. The deed and mortgage were both recorded on November 15th, 1907. At the same time an agreement was entered into between the steel company and the present complainant, bearing even date with the deed and the mortgage. The steel company agreed to pay the complainants $105,000 as the consideration of the conveyance of which $50,000 was to be paid by five hundred shares of the steel company’s stock of that par value, and the .balance, as the agreement states, in cash,

“As follows: Said High Standard Steel Company will deliver to said Byron K. Stickle and George W. Stickle fifty-five of the coupon bonds of said High Standard Steel Company of the par value of one thousand dollars each, dated October 1st, 1907, and bearing interest at the rate of six per cent, per annum, payable semi-annually.”

The agreement must mean that the $55,000 was to be paid in cash and the payment was to be secured by the bonds, since it would be extraordinary, if the language was taken literally, that the $55,000 was to be paid in cash as follows — that is, by bonds. The agreement further provided that the steel company should deposit with the Carnegie Trust Company the balance of the bond issue, $195,000, and

“That as said bonds so deposited are sold the proceeds of said sale shall, be disbursed as follows, that is to say: First, to the repayment of twenty thousand dollars advanced to said High Standard Steel Company by . Second, to pay one-half of the remainder to said Byron K. Stickle and George W. Stickle until said amount of fifty-five thousand dollars with legal interest thereon from date, is paid. Third, the balance remaining thereafter to be paid to said High Standard Steel Company.”

The Stickles agreed upon the payment of the $55,000 to surrender to the steel company the fifty-five bonds. The agreement further provided that the Stickles should have a vendor’s lien upon the premises conveyed by them to the steel company to the extent of so much of said balance of $55,000, with interest, as should remain unpaid. The effect of this agreement undoubtedly was to preserve for the complainant the vendor’s lien for purchase-money. It is manifest that tlie intent was not that the bonds should be taken in payment and satisfaction of the vendor’s lien, but as collateral security therefor. Since a vendor’s lien rests upon the theory that there is a constructive trust, and that the purchaser is a trustee of the land for the vendor until the purchase-money is paid (Graves v. Coutant, 31 N. J. Eq. (4 Stew.) 763, and cases there cited), it clearly must be prior to claims arising after the conveyance unless it is in some way cut out. As wo said in that case, if the lien exists, it must be concurrent with the constructive trust and attach at the time the vendor obtains his right in the property. Since, however, it is only an equity, it cannot prevail against a subsequent Iona fide purchaser for value. In this case the complainants, by parting with the title and in effect consenting to the making of a mortgage to secure an issue of bonds, assumed the risk that their lien for unpaid purchase-money might be supplanted by the rights of bondholders claiming under the mortgage if they took their bonds for value and without notice of the complainant’s lien. The position of Hoyt is peculiar. He advanced $15,000 to the steel company upon two promissory notes, one for $10,000, dated April 20th, 1908, and one for $5,000, dated July 25th, 1908. Each note, after the ordinary words of promise to pay the amount, contained the following language:

“And as collateral security for the same to deposit with him or subject to his order with the Carnegie Trust Company of the city of New York, two hundred and forty-eight thousand dollars of the first mortgage, six per cent., twenty-year gold bonds of the High Standard Steel Company.”

(The difference of $2,000 of bonds is explained by the testimony, but is immaterial for the present issue.) The resolution of the company under which the note of April 20th was issued, reads as follows:

“Whereas, The High Standard Steel Company has borrowed from Alfred W. Hoyt, of New York, a certain sum of money, and has agreed with him that until the repayment of the said sum of money no bond issued or to be issued under the terms of the mortgage of deed of trust given by this company to the Carnegie Trust Company, dated -.October 1st, 1907, shall be certified (excepting only bonds Nos. 1 and 2, which have already been so issued and certified), by the trustee and delivered to the said Steel Company or its order, except upon the consent in writing of the said Alfred W. Hoyt, and whereas the time for the payment of the said loan is on or before the 20th day of April, 1909,
“Be it resolved, That the Carnegie Trust Company be and it is hereby requested and instructed not to certify or deliver any of the said bonds so secured by the mortgage aforesaid (excepting only bonds Nos. 1 and 2 as aforesaid), except by the written consent of the said Alfred W. Hoyt.”

The unusual feature in this arrangement is that the notes did not contain a distinct pledge of the bonds, but only .a promise to pledge them, and the resolution, instead of directing the trust company to issue the bonds to Hoyt, as would have been natural in case they had in fact been pledged, merely attempted to put it in Hoyt’s power to prevent the issue of the bonds without his consent. An examination of the agreement of October 1st, 1907, between the complainants and the steel company, suffices to explain the reason for this unusual method of doing busine'ss. Under that agreement the complainants were entitled to $55,000 of the bonds as collateral for the unpaid purchase-money; only the balance, $195,000, was to be left with the trust company to be disposed of for cash; and the utmost that the steel company could legally do, by way of security to Hoyt, was to transfer to him as collateral the $195,000 in bonds, or after deducting bonds Nos. 1 and 2, $193,000. In equity he was entitled to enforce the promise of the steel company as far as they were able to perform it, but his equity to compel them to request the trust company to certify the bonds was later in time than the equity of the complainants to have the $55,000 in bonds delivered to them as collateral for their vendor’s lien, and was necessarily subsequent in time to their equity to enforce the vendor’s lien if they were able to do so. A question of fact is raised as to whether or not the complainants did not assent to or ratify the arrangement between the steel company and Hoyt, and there is much in the case which makes it seem probable that the complainants were willing that Hoyt should have all the advantage of the bonds and the mortgage that secured the same. It is unnecessary to $ass upon this disputed question. The most that is claimed on behalf of Hoyt is a lien by virtue of the mortgage. That lien is inferior to the vendor’s lien of the complainant unless Hoyt is a Iona fide purchaser for value without notice. The evidence is to the contrary. By his answer he himself says:

“That some time in the month of April, 1908, this defendant agreed to make some advances provided he could be reasonably secured therefor, and was then assured by the said complainant that if this defendant would assist the company the complainants would agree that this defendant would be first paid the amount he would advance to said company, and that they, the said complainants, would waive any and all rights they had to any part of the selling price of the said lands and premises so that this defendant would have a first and prior lien for such advancement as he might make. And this defendant further charges that with this understanding he agreed to and did make advances to said company to the extent of fifteen thousand dollars. That the understanding of all parties .concerned was that the mortgage to the Oarnegie Trust Company and the issue of the bonds aforesaid, would secure this defendant for the advances so made by him.”

This is a clear admission that prior to making his loan he knew that part of the purchase-money was unpaid to the complainant. If that were not so, the agreement that he should have the first and prior lien, upon which he relies, would have been quite unnecessary. He would have had this lien by virtue of the mortgage. He rests his case, not on lack of notice, but upon an agreement upon the part of the complainants to waive the priority of their vendor’s lien. This waiver he fails to prove. The witness upon whom he relies goes no further than to say that the complainants were willing- to have the mortgage bonds pledged to raise this money, and he distinctly testifies that George W. Stickle said he was willing to have the lenders “secured to get the first money out of the sale of the bonds.” He says that he told Hoyt that Stickle had said that he might pledge, the bonds and that the company was authorized to pledge them. "When the witness was asked what Stickle said about the priorities he answered, “That the security on the bonds is good and the property is valuable, worth more than fifty thousand dollars.” Counsel for Hoyt was naturally not satisfied with this answer, and he repeated the question, to which the witness answered, “That the loan would be the first money that would be paid out of the bonds.” Subsequently, he was asked,

“Q. Have you mentioned all the securities that Mr. Hoyt was to have for his loan to the company? A. Yes.
“Q. That is to say he was to have nothing more than the bonds. A. He was to have mortgage on the bonds. On the two hundred and fifty thousand, first mortgage, first lien.”

Counsel for Hoyt then asked him: “Q. First lien on what? A. On the two hundred and fifty thousand mortgage bonds in the Carnegie Trust Company.” This testimony obviously falls short of proving that the complainants have waived a lien that was superior to the. mortgage and bonds, which, by special agreement, they had been so careful to preserve. The point of the testimony above quoted from Hoyt’s witness, the man who had carried on the negotiations with Hoyt for the loan, is made apparent by his subsequent testimony that he told Hoyt that there was a contract that regulated the rights of the parties to these bonds. This could have meant only the contract of October 1st, 1907, and that specifically provided for the vendor’s lien. This not only charged Hoyt with notice of the outstanding claim of the complainants for unpaid purchase-money, but it charged him with notice of their equity to have $55,000 of the bonds pledged as collateral, for the purpose of securing the unpaid purchase-money. With this knowledge, Hoyt was naturally anxious to have control 'of all the bonds. Taking the evidence most strongly against the complainants, it goes no further. This is insufficient to sustain the position taken in the answer that the complainants waived not only their right to the bonds but all rights they had to any part of the selling price of the land. The claim of the complainants, under their vendor’s lien, is therefore superior to the claim of Hoyt under the mortgage unless it has been lost in some other way. It is suggested, first, that the complainants agreed to take bonds in satisfaction of the purchase price, but the agreement of October 1st, the subsequent agreement upon the reorganization and the formation of the New York corporation, and all the testimony in the ease is to the contrary. They were to have the bonds only as collateral for the unpaid purchase-monejq and when that was paid, they were to return the bonds. It is not suggested that they took the promise to give bonds in satisfaction of the purchase-money, and unless they accepted the promise in satisfaction, there was no payment of the purchase-money even by the bonds; for these were never actually received by the complainants. Second, it is said that the agreement of October 1st, 1907, fails to provide for the priority of the claim for unpaid purchase-money. The suggestion is that although the agreement expressly says that the complainant shall have a vendor’s lien to the extent of the unpaid purchase-money, this is not inconsistent with a lien subject to the mortgage to the Carnegie Trust Company. The expression “vendor’s lien,” used in the agreement, was an expression well known to our law as indicating a lien highly favored in our equity jurisprudence, which this court had said was based upon a constructive trust, arising at the instant of the conveyance. It cannot be held, in view of our decisions, that “vendor’s lien” means a lien by contract subsequent in priority to a mortgage given by the vendee after the conveyance. Such a secondary lien would be contractual, arising out of the terms of the contract, and not a vendor’s lien arising out of the rules of equity jurisprudence. The complainants, who had evinced so much anxiety to preserve this vendor’s lien, could not have meant- that it be postponed to a mortgage for $250,000. An inferior lien of that kind would be of less value than the security of the $55,000 bonds. If, however, the words “vendor’s lien” are used in the' agreement in their ordinary sense, there was a reason why the complainants should want in addition the $55,000 in bonds, for the vendor’s lien might be supplanted by the claim of a tona fide purchaser for value, and in that event, the $55,000 in bonds would be important to the complainants, and if the property were worth the mortgage, would suffice to secure the unpaid purchase price. Third, it is argued that the complainants have no lien because the purchase price has already been paid. The basis of this argument is that they took stock of the company to the amount of $50,000, and that the property was worth no more. The case shows that the complainants were willing to sell the property for $50,000 in cash; that when they found they were not to receive cash and that the steel company proposed to put a mortgage for $250,000 upon the property, they demanded more, and that it was finally agreed that they should be paid $105,000, of which $55,000 was to be in cash and $50,-000 in the stock of the company. If this stock had been an original issue of stock by the company in exchange for the real estate conveyed by the complainant, an interesting question of stockholders’ liability might have been presented, but such is not the fact. The steel company had been organized and this stock issued to Snyder, the promoter of the company, months before any negotiations with the Stickles, and the stock, instead of being issued for the real estate conveyed by the Stickles to the company, had been issued for patent rights and other property conveyed by Snyder or someone on his behalf. That Snyder was willing to use this stock that had already been issued to him for the patents and other property, for the purpose of benefiting the company in which he was largely interested, is not surprising. If there was an overissue of stock, it had nothing to do with the conveyance by the Stickles, and no evidence was offered to show that the patents for which this stock was issued were not worth the full amount of the par value of the stock. Fourth, the only argument that remains to be noticed is that the complainants are estopped to set up their claim for unpaid purchase-money. They did not negotiate with Hoyt nor did Birmingham negotiate on their behalf. He was acting as agent for the-steel company; Hoyt was loaning money to the steel company. The utmost that can be claimed under the evidence, taking the most favorable view for Hoyt, is that the complainants led him to believe that he would have a first lien upon all of the mortgage bonds with the exception of the two outstanding bonds. If this is conceded to him, the complainants still retain their vendor’s lien, as we have already said.

We agree, therefore, with the vice-chancellor, and the decree is affirmed, with costs.

For affirmance — The Chiee-Justice, Garrison, Swayze, Trenoi-iard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenbuiigh, Congdon, Sullivan — 12.

For reversal — None.


source: Caselaw Access Project

author: SWAYZE, J.

license: Public Domain

text:
    Amelia E. Collerd, appellant, v. John J. Tully et al., respondents.
    [Submitted March Term, 1911.
    Decided June 19th, 1911.]
    1. Upon a conditional sale where the goods are delivered to the buyer and the title is retained by the seller as security for unpaid purchase-money, the risk of loss is the'seller’s.
    2. A precedent debt is a good consideration for a chattel mortgage.
    3. The affidavit required to be annexed to a chattel mortgage must set forth the consideration completely, and if it fails so to do the chattel mortgage is absolutely void as against creditors.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 77 N. J. Eq. (7 Buch.) 439.

      Mr. James A. Gordon, for the appellant.

      Mr. James E. Pyle, for the respondents.
   The opinion of the court was delivered by

SWAYZE, J.

We agree with the result reached by the vice-chancellor, and with the essential portion of his reasons. His opinion, however, contains some inadvertent expressions which call for remark. He says, in discussing the question whether the horses sold by Brown to Tully were upon a conditional sale: “Some of the horses died after they were delivered to Tully, but this fact was ignored by Brown in his account. He did not, by reason thereof, lessen his claim against Tully as he undoubtedly would have and must have done if the sales were conditional and the horses were his and not Tully’s.”

This passage indicates that in the case of a conditional sale, where the goods are delivered to tire buyer and the title is retained by the seller as security for unpaid purchase-money, the risk of loss is the seller’s. The weight of authority is to the contrary. Willis. S. § 304; American Soda Fountain Co. v. Vaughan, 69 N. J. Law (40 Vr.) 582, cited with approval by this court in American Soda Fountain Co. v. Stoltzenbach, 75 N. J. Law (46 Vr.) 721 (at p. 724). The rule has been embodied in section 22 (a) of the Sales act of 1907. P. L. 1907 p. 321.

The vice-chancellor also says: “The mere fact that she held the judgment would not be a consideration for the mortgage, unless she agreed that upon receiving the mortgage she would be bound in some way with respect to the judgment. Otherwise it would be a nudum pactum. It is argued that the mortgage was given as collateral security for the payment of the judgment, but even so, there must be a consideration for the mortgage, and unless the mortgagee was disadvantaged or the mortgagor was advantaged by reason of the giving of the chattel mortgage there was no consideration. There is no proof of disadvantage to the mortgagee, or of advantage to the mortgagor as a consideration of the mortgage, and no proof of any agreement of any kind by the mortgagee respecting the judgment.” This passage from the opinion assumes that in order to make a chattel mortgage good, there must be a then present consideration when it is given. It has, however, been held by this court that a precedent debt is a good consideration for a chattel mortgage. Muchmore v. Budd, 53 N. J. Law (24 Vr.) 369 (at p. 397). Justice Reed said: “In regard to the objection that there was no consideration for the assignment, little need be said. The point could only have substance when the transfer was regarded as an absolute bill of sale. Viewing it either as a mortgage or a trust, all question in respect to the consideration disappears, as the debts intended to be secured were admittedly existing.” In the later case of Knowles Loom Works v. Vacher, 57 N. J. Law (28 Vr.) 490, affirmed on Justice Van Syckel's opinion, 59 N. J. Law (30 Vr.) 586, we not only held that a chattel mortgage given for a pre-existing debt was valid, but also that it was entitled to priority over an antecedent conditional sale not recorded. A distinction is to be made between the validity of a chattel mortgage given for a precedent debt, which is not questioned in our cases, and its'right to priority which might in some-cases depend on whether it was required to be for a valuable consideration, as that term is used in some of our. registry acts. It is not disputed that one who acquires a mortgage as security for an antecedent debt is not a holder for value. Empire State Trust Co. v. Trustees of William F. Fisher & Co., 67 N. J. Eq. (1 Robb.) 602. The complainant in this case does not seek to supplant the judgment creditor; her liens are prior in time and she does not need to show that she is a holder for value. All that is necessary is to show a consideration for the chattel mortgage and the antecedent debt suffices for that purpose. No new consideration is necessary to sustain the validity of these chattel mortgages. It is enough that the parties intended to secure an already existing debt, and it is unnecessary to resort to the theory that there was an implied extension of time for payment as the vice-chancellor held in the case of Perkins v. Trinity Realty Co., 69 N. J. Eq. (3 Robb.) 723; affirmed, 71 N. J. Eq. (1 Buch.) 304.

It is suggested by the appellant that if the second chattel mortgage is void as to Brown because it fails to state the consideration of the indebtedness which Abraham Collerd assigned to the appellant, it is valid to the extent that it secures the judgment recovered by Winant against Tully and assigned to the appellant. There are two difficulties with this argument. Section 4 of the Chattel Mortgage act (P. L. 1902 p. 487) makes the chattel mortgage absolutely void as against creditors unless the affidavit is annexed, and the statute makes it obligatory that it should set forth the consideration of the mortgage, not partially, but completely. The affidavit is, however, defective in stating the consideration even so far only as it secures the judgment. We do not agree with the vice-chancellor that it is sufficient to say that the consideration is a balance of $700 due upon a judgment recovered by Effie C. Winant against John J. Kelly and assigned to appellant. The affidavit ought to show either the origin of the debt upon which the judgment was based or the amount, if anything, paid by the mortgagee for the assignment of the judgment. It is in this respect that the present case differs from Simpson v. Anderson, 75 N. J. Eq. (5 Buch.) 581. Mr. Justice Bergen was careful to say in that case: “If it did not appear that the appellant had paid something for the assignment, a different question would arise.”

The decree appealed from is affirmed, with costs.

For affirmance — -The Chibe-Justice, Garrison, Swathe, Trenci-iard, Parker, Bergen, Yoorhees, Minturn, Bogert, Yredenburgi-i, Congdon, Sullivan — 12.

For reversal — None.


author: Trenchard, J. Garrison, J.

text:
    Florence W. Faitoute, complainant, v. Seamon L. Wright et al., defendants.
    [Submitted December 5th, 1910.
    Decided June 19th, 1911.]
    1. While a judgment obtained on a claim against a contractor under section 4 of the Mechanics’ Lien law (P. L. 1898 p. 589), as amended in 1899 (P. L. 1899 p. 81/8), is conclusive as to the correctness of the claim upon the parties to the action and their privies, it is not conclusive in that respect upon the owner of the building nor upon other persons claiming the contractors moneys by reason of assignments thereof made before the suit resulting in such judgment was begun, who had no notice of the suit, and who have not by their actual intervention brought themselves within its binding effect.
    2. A judgment obtained on a claim against a contractor under section 4 of the Mechanics’ Lien law (P. L. 1808 p. 589) as amended in 1899 (P. L. 1899 p. 848), may be given in evidence, in an interpleader suit brought to determine the respective rights of rival claimants of moneys earned by the contractor, to show, prima facie, the amount due; but it will not prevent a person claiming the contractor’s moneys by virtue of an assignment thereof made before the suit resulting in such judgment was begun, who had no notice of the suit, and who had not intervened therein, from proving that the claim is in fact unfounded.
    On appeal from a decree of the court of chancery, in an inter-pleader suit, which decree was advised by Vice-Chancellor Stevens.

      Mr. Ativood L. De Coster and Mr. Frank E. Bradner, for the appellant, the T. B. Miller Company.

      Messrs. Guild & Martin, for the respondents, Seamon L. Wright, the First National Bank of Summit and Emma S. Helms.
   The opinion of the court was delivered by

Trenchard, J.

This is a contest over $1,209.95, the final payment due from the complainant, the otvner, to the defendant Seamon L. Wright, a contractor, on a building contract in writing. It appears that on September 18th, 1907, Wright, by writing, assigned the final payment under such contract to the defendant Emma S. Helms, for the use of the defendant the First National Bank of Summit, as security for the payment of a debt of $1,900, then due from Wright to the bank; that on December 6th, 1907, the defendant, the T. B. Miller Company, served upon the owner a notice under section 3 of the Mechanics’ Lien law (P. L. 1898 p. 538), as amended in 1905 (P. L. 1905 p. 311), alleging that there was due it from Wright $1,542.23 for materials furnished by it to Wright and used in the erection of the building under the contract, which sum had been demanded and refused; that upon the receipt of this notice the owner notified Wright of its receipt; that, later, Wright served the Miller company with a notice disputing its claim, and requesting it to establish it by judgment in pursuance of section 4 of the act as amended in 1899 (P. L. 1899 p. 348); that, still later, Wright was adjudicated bankrupt by the district court of the United States for the district of New Jersey, and Harry H. Poole was appointed trustee in bankruptcy for Wright; that, subsequently, leave was given by the bankruptcy court to the Miller company to bring suit against Poole, trustee in bankruptcy for Wright, on the disputed claim, and such suit was instituted in the Union county circuit court and resulted in a judgment for the plaintiff for $1,635.55; that, at about the same time, Emma S. Helms begun a suit in the supreme court of this state for the use of the First National Bank of Summit against the owner to recover the moneys alleged to be due the bank by virtue of the assignment to the bank; that thereupon the owner filed her bill of interpleader and paid into the court of chancery the sum of $1,-209.95; and that subsequently a decree of interpleader was entered, the taxed costs ordered paid, leaving a balance of $1,064.45, to be disposed of in this litigation.

The cause was heard by Vice-Chancellor Stevens, who advised a final decree in favor of the bank. The appeal of the Miller company from such decree is now here for review.

We are of the opinion that the decree should be affirmed.

It appeared, by the proofs, that the final payment upon the contract was not due when it was assigned to the bank on September 18th, 1907. If, therefore, the Miller company had an unpaid claim for materials furnished the contractor and used in the erection of the building, by serving a notice upon the owner in accordance with the statute, it thereby secured, with respect to any moneys thereafter growing due upon the contract according to its terms, a right to payment in preference to the rights of the bank to whom the contractor had assigned such moneys before the notice was served. Slingerland v. Binns, 56 N. J. Eq. (11 Dick.) 413. See, also, section 6 of the act of 1898. P. L. 1898 p. 540.

But the bank contended, and the vice-chancellor found, that the materials furnished by the Miller company, which were used in the erection of the building, had been paid for, and that consequently the fund belonged to the bank. We think such finding is fully supported by the proofs. While Wright owed the Miller company a large sum of money, yet the evidence is quite convincing that he paid for all the material entering into the “Faitoute house” by a cheek for $1,500, drawn to the order of the Miller company on September 20th, 1907. This is shown by an inspection of the check itself, on which was written the words “on Faitoute house;” by the testimony of Wright himself and his bookkeeper as to the application of the payment; by the testimony of Mr. Garrabrandt, another materialman, who appears to have been disinterested, and by the circumstance that the bank had insisted upon this application of the payment.

It is contended, however, that the judgment obtained by the Miller company against the contractor’s trustee in bankruptcy is conclusive against the bank. The vice-chancellor held that it was not; that it was res inter alios acta. We agree that the judgment is not conclusive in this case against the bank for the reasons we will now state.

We assume, without deciding, that the judgment against the trustee in bankruptcy of the contractor had the same legal effect as a judgment against the contractor. Now it appeared that the bank’s right had been vested months before the suit resulting in the judgment was begun, and that neither the bank itself nor the owner was a party to or had notice of the suit.

In determining what force, as between rival claimants to a fund in the owner’s hands, is to be accorded to a judgment obtained on a claim against the contractor under section 4 of the Mechanics’ Lien law (P. L. 1898 p. 539), as amended in 1899 (P. L. 1899 p. 348), we must have recourse, as in all cases, to the established rules of statutory construction, and to the general principles of law. In applying the former, we look at the state of things that existed before the passage of the statute, and then at the changes the statute worked in such situation. As to a stop-notice claimant, section 3 of the act of 1898 (at p. 538), afterward amended by the act of 1905 (P. L. 1905 p. 311), and now again amended by the act of 1910 (P. L. 1910 p. 500), provided that with respect to “moneys or wages due to him” demanded of the contractor and unpaid, he might stop payments due to the contractor from the owner, and have such sums retained by the owner, who was authorized to pay out the contractor’s money to such claimant “on being satisfied of the correctness of such demand.” Whether or not this was just to other claimants, including other stop-notice claimants and persons claiming such moneys, or any part thereof by reason of orders or assignments thereof, was a legislative question, concerning the determination of which they cannot complain, since all they get by this statute is an act of grace and not of common right. That it was not just to the contractor, whose moneys earned under his contract were thus disbursed to pay a claim against him of whose correctness he alone had personal knowledge, was so apparent that the section now under’ consideration (section 4) was added to the legislative scheme, giving to the contractor, and to him alone, a remedy by which his knowledge of the correctness of a claim against him could, at his option, be made available to prevent the diminution of the total sum due to him under the contract. The remedy was that the contractor might, by a timely notice to the owner, and a like notice to the stop-notice claimant, compel the latter to bring an action on his claim which was to be established only after the contractor had thus had an opportunity to dispute its correctness. That the remedy was for the contractor’s benefit is shown by the fact that he alone could set it on foot, and that the notice of his purpose to avail himself of his remedy was limited to the single claimant whose demand was disputed. Whether or not this was just to other claimants was also for the determination of the legislature, concerning whose action no complaint can be made for the reasons before stated. As the result of the remedy thus given, the statute contemplates a judgment which binds the persons who are parties and their privies and those who have intervened, as in Ludy v. Larsen, 79 Atl. Rep. 687, as to the correctness of the claim, and upon which the owner may safely rely as establishing the amount due from the contractor to the materialman or laborer whose claim is contested. If, in the absence of fraud or collusion, and without any notice of its dispute by persons not parties to the judgment, the owner should be satisfied with the correctness of the claim so established and pay it, the judgment would no doubt protect him against other claimants to the fund of whose intention to dispute the payment he had no notice. The primary purpose of this section of the statute is the establishing of the correctness of a claim which the contractor disputes, but this does not justify the owner in paying if he has notice of other claimants to the fund who have not had an opportunity to be heard with respect to the correctness of the disputed claim. Of course such claimants cannot stand by without giving notice that they intend to dispute the correctness of the claim, and by their silence allow the owner to assume that they are content with the finding, and to pay as re-, quired by the statute, and then call upon him to pay a second time.

In the present case it is admitted that the owner had notice of the assignment to the bank and that the bank disputed the correctness of the claim of the Miller company. By filing her bill of interpleader, the owner said in effect that she was not "satisfied of the correctness of such demand”-of the Miller company. In such situation she took what we deem to be the proper course when she filed her bill of interpleader and called upon all claimants to establish their rights to the fund. Hence, while the judgment is conclusive as to the correctness of the claim upon the parties to the action and their privies, and no doubt is a protection to an owner of the building who has in good faith relied upon it as establishing the amount due and has paid without notice of other claimants who dispute it, it is clearly not conclusive as to the correctness of the claim upon the owner nor upon other persons claiming the contractor’s moneys by reason of assignments thereof made before the.suit resulting in such judgment was begun, who had no notice of the suit, and who have not by their actual intervention brought themselves within its binding effect. That the judgment cannot be conclusive upon strangers to it, but having claims, who have not intervened, is plainly indicated by section 6 of the act of 1898 (P. L. 1898 p. 540), which gives laborers and materialmen'serving notices preference over persons claiming under orders and assignments, and laborers preference over materialmen without reference to the date when the laborers shall have filed their lien or served their stop notices. The controversy over the claim is moreover a matter of which notice is required to be given to the owner, hence the judgment thereon is one of the circumstances to be considered by him in determining whether he is satisfied as to the correctness of the demand, which is and remains the statutory test of the propriety of its payment by him. The contractor, being a party to the judgment, is conclusively bound by it as to a payment made to the other party thereto, but as to the other claimants, the force of the judgment is the influence it rightly exerts upon the mind of the owner and not a force derived from the inherent attributes of a judgment' over those whose rights have been determined by it. Such judgment, of course, may be given in evidence, either in the claimant’s action at law against the owner upon his stop notice or in an interpleader suit brought to determine the respective rights of rival claimants, to show, prima facie, the amount due; but it will not prevent a person claiming the contractor’s moneys by virtue of an assignment thereof añade before the suit resulting in such judgmeoat was begun, who had no notice of the suit and who has not intervened therein, from proving that the claim is, in fact, unfounded. So to hold puts this case in accord with the decision of our supreme court in Taylor v. Wahl, 69 N. J. Law (40 Vr.) 471.

The application of these principles to the present case completely justifies the position taken by the vice-chancellor.

The appeal under review will be affirmed.

Garrison, J.

(dissenting).

The fund brought into court is the final payment due from the owner to the contractor who had assigned it to the bank as security for a note of his that it held. The contestants for the fund are this assignee of the contractor and a materialman (who had served a stop notice on the owner), each of whom claims under the contractor, the bank directly, the materialman under the Mechanics’ Lien act. Under the scheme of this act, the unpaid contract price in the hands of the owner is a fund for the payment of certain claims, which, even before notice is served on the owner, are inchoate liens on the money so due to the contractor, to be worked out by the machinery of the act, one feature of which is that the correctness of such claims, if disputed by the contractor, shall be established by an action at law. The sole purpose of this statutory provision is to protect the fund which, after such statutory claims upon it are paid, belongs to the contractor or his assigns. An assignee of the contractor, therefore, upon familiar principles, takes the fund subject to such inchoate liens upon it as may be worked out in compliance with the terms of the statute. In accordance with such terms, the correctness of the claim of the materialman in the present case was established as against the fund in so far as it would have gone to the contractor had he not assigned it, and hence, was established as against the contractor’s assign of the fund, not upon the ground of privity or under the doctrine of res judicata, but because such assignee of the fund took it subject to its being diminished by claims, the correctness of which was established in the manner prescribed by the statute. The bank therefore had no better standing to question in the court of chancery the correctness of the claim than the contractor had or than the bank would have had if the owner had paid to the materialman the amount of his judgment in the action at law.

This, in my opinion, is the proper construction of the Lien act in respect to the establishment of a claim against the unpaid balance due to the contractor, hence, I think that the decree in the present ease was erroneous and therefore vote to reverse.

For affirmance — The Chief-Justice, Swayze, Trenchaed, Bergen, Yoorhees, Bogert, Yredenburgh, Yroom, Congdon, Sullivan — 10.

For reversal — Garrison, Parker, Minturn — 3.


author: Parker, J.

text:
    Horace G. Hazard et al., partners, &c., et al., appellants, v. Phœnix Woodworking Company et al., defendants, James J. Davidson et al., respondents.
    [Submitted March 27th, 1911.
    Decided June 19th, 1911.]
    1. When an appeal is submitted by consent to be argued in this court on briefs and appellant fails to submit any brief, the appeal will be considered as abandoned and will be dismissed.
    2. A brief not signed by a counselor-at-law of this state or by counsel of another state admitted pro hao vice will not be considered.
    8. Under the Municipal Lien act (Gen. Stat. p. 2078) the failure to begin suit and give notice of the pendency of such suit in the manner provided by the act within ninety days after filing the claim, will defeat such claim.
    4. A claimant is not required to give separate notice of suit if his claim is included in a suit brought by another claimant and his claim is specified in the notice o£ such other claimant.
    5. A subpoena to answer in chancery is not sufficient as notice of pendency of a suit under the act in question.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 75 Atl. Rep. 237.

      Messrs. French & Richards, for the appellant Thomas Ward.

      Mr. Joseph J. Summerill, for the respondents Davidson and Dietrich.

      Mr. Austin H. Swackhamer, for the respondent Mayer.
   The opinion of the court was delivered by

Parker, J.

The controversy was over the unexpended balance of a building fund in the possession of the board of education of the borough of Swedesboro, arising ont of a contract of that board with the Phœnix Woodworking Company for the erection of a school building. A number of claims were presented and bills filed thereon under the provisions of the statute of 1892, lmown as the Municipal Lien act (Gen. Stat. p. 2078), the various suits were consolidated and the rights of the parties settled, subject to appeal, by the decree in the above-entitled cause. The amount available was $2,506, which the court of' chancery, for reasons stated in the opinion of the vice-chancellor, distributed by awarding — first, certain costs to the board of education; second, to the complainant Davidson, $857.27; third, to complainant Dietrich, $1,608.94; fourth, to complainant Horner, $210.85; fifth, to complainant Charles Warner Company, $1,058.98, with interest on said sums respectively, and costs. It is evident that the Charles Warner Company, and in all probability Horner, will take nothing by the decree, as the first two claims with the costs and interest will fully absorb the amount to be distributed. As to Hazard & Company, Thomas P. Ward and Louis P. Mayer, the bill was dismissed. Horner appealed from the decree, but as this cause was submitted on briefs and no brief was presented by him, we must consider his appeal abandoned; and this leads to a dismissal of that appeal. Hazard & Company likewise appealed, but the brief submitted for them is not signed by counsel, and hence cannot be considered. Leaver v. Kilmer, 54 Atl. Rep. 817; Duysters v. Crawford, 69 N. J. Law (40 Vr.) 229. The result of this is that the Hazard appeal stands as though not moved, and under rule 17 of this court, respondents may enter an order of affirmance on this appeal.

This leaves for consideration only the appeal of Ward. His claim was disallowed because the vice-chancellor held that he had not fastened it upon the fund by taking the proceedings required by the statute for that purpose; that no notice of pendency of any suit, naming Ward as a claimant, was filed by him, nor was any such notice filed by anyone else in which he was named. The vice-chancellor properly decided that this was fatal to the Ward claim. National Fire Proofing Co. v. Daly, 76 N. J. Eq. (6 Buch.) 35, affirmed in this court on the vice-chancellor’s opinion, 77 N. J. Eq. (7 Buch.) 588. Ward does not dispute the correctness of this ruling; but now takes the position that by reason of alleged failure to comply with the statute, every one of the claimants, including those decreed to be entitled, had failed to perfect a claim on the fund; and he now says that the maxim “equality is equity” should be applied and the various claimants should share, one and all, pro rata, in the fund. He cites no authority to support this somewhat remarkable proposition, and we know of none; and as he has not acquired any lien on the fund either by complying with the statute under which these bills were filed, or by judgment and execution and a receiver appointed in proceedings supplementary thereto, or by attachment, or proceedings against the woodworking company for an adjudication of insolvency and a receiver, or in any of the recognized methods open to a creditor to compel the application of his debtor’s property to payment of the debt, we fail to see how he has any standing on this appeal to attack the decree in favor of other claimants, especially as we do not understand that any such claim was made in the court below. The decree, as to appellant Ward, should therefore be affirmed.

For affirmance — The Chief-Justice, Garrison, Swatze, Trenchard, Parker, Bergen, Yoorhees, Minturn, Bogert, Yredenbuhgh, Congdon, Sullivan — 12.

For reversal — None.


author: Bergen, J.

text:
    Ocean View Land Company, complainant-respondent, v. William B. Loudenslager, defendant-appellant.
    [Submitted March 14th. 1911.
    Decided June 19th, 1911.]
    Where, under a bill to quiet title (Gen. Stat. p. 3486), the complainant has established, to the satisfaction of the court of chancery, that he is in peaceable possession of the lands described in his bill of complaint claiming to own the same, and that his title is denied or disputed, and no suit is pending to test the validity of such hostile claim, the burden of establishing such adverse claim is upon the person setting it up, in which case the court of chancery may order that, in a feigned issue framed to test the validity of such claim, the defendant, or party setting it up, sustain the issue as plaintiff.
    On appeal from a decree of the coxirt of chancery advised by Vice-Chancellor Learning.

      Mr. George A. Bourgeois, for the respondent.

      Messrs. Thompson & Cole, for the appellant.
   The opinion of the court was delivered by

Bergen, J.

The complainant filed its bill in this cause for the purpose of quieting its title to certain land therein specifically set out, and called upon the defendant to answer and set forth what claim or title to the land he made, and in what manner it was derived or created, and prayed that the court fix and settle the rights of the parties to the land. The complainant exhibited in its bill a paper title by deeds duly executed and recorded, and charged that it was the owner in fee and in peaceable possession of the property. The defendant, in his answer, claimed title to the lands by virtue of two deeds duly executed and recorded, and denied that the complainant was ever in peaceable possession thereof, and averred that he was in peaceable possession, and then demanded a trial by jury to determine the issues involved.

The first section of the act which is entitled “An act to compel the determination of claims to real estate in certain cases, and to quiet the title to the same,” as amended in 1901 (P. L. 1901 p. 57), provides for two cases in which a bill for such purpose may be filed, one, where any person is in peaceable possession of land, claiming to own the same and his title thereto is disputed, and no suit is pending to enforce or test the validity of such adverse title, and the other where lands by reason of their extent, or being wild, waste, uninclosed or unimproved shall not be in the actual possession of the owner claiming to own the same in fee under a deed duly recorded, and who sliall have paid taxes upon such land for five successive years immediately prior to the commencement of the suit. The first ground of jurisdiction was provided for in 1870 (P. L. 1870 p. 20; 3 Gen. Stat. p. 3486), and the second, by the amendment of 1901. The bill of complaint, in the present case, charges that the complainant has a paper title, and that it is in peaceable possession of the land claiming to own the same, so that it falls within the first jurisdictional class as established prior to the amendment of 1901.

At the hearing before the learned vice-chancellor, proof was made of the jurisdictional facts, namely, that the complainant was in peaceable possession claiming to own the lands, and that no suit was pending to enforce or test the validity of the title or claim of ownership made by the defendant as set up and specified in his answer. The defendant offered no testimony on the question of peaceable possession by complainant, but insisted that on that produced by the complainant, no legal inference could be drawn that such required possession existed. The learned vice-chancellor advised that it be ordered, adjudged and decreed that at the time of the filing of its bill the complainant was in peaceable possession of the lands and premises described in the bill of complaint, and also that an issue be framed to try the title to the land, in which issue the defendant should be the plaintiff, and the complainant defendant, from which order and decree the defendant has appealed. We agree with the learned vice-chancellor that the complainant has shown it was, when the bill of complaint was filed, in peaceable possession of the land, claiming to own the same by virtue of duly executed conveyances.

The next question to be considered is whether that part of the order which adjudges that the defendant be the plaintiff in the issue framed to try the title to the land, is erroneous. The statute, after requiring the defendant, if he shall answer, to specify and set forth the estate, interest or encumbrance he may claim, provides for an issue at law, upon the application of either party, “to try the validity of such claim,” meaning, manifestly, the validity of the claim specified by the defendant in his answer.

As this question, so far as we can discover, has never been squarely presented to, or passed upon by this court, a brief consideration of the cases indicating the practice of the court of chancery relating to it may be of assistance. The statute under consideration was passed in 1870, and at the October term of the court of chancery, 1876, Chancellor Runyon, in dealing with this statute, said, in Powell v. Mayo, 27 N. J. Eq. (12 C. E. Gr.) 440: “The defendants here were, properly, plaintiffs in the issue. It is incumbent on them to establish their title on the trial of the issue, as in an action of ejectment.” This ease seems to have stood unchallenged for over thirty-four years as indicating the practice of that court. The rule established in that case was followed by Vice-Chancellor Pitney in Beale v. Blake, 45 N. J. Eq. (18 Stew.) 668, where the point under consideration was whether the question of complainant’s peaceable possession should not be tried in the law court, with the issue framed to determine the validity of the defendant’s title. This was refused, and the question of possession by the complainant was heard and disposed of before the issue at law was framed on the main question, viz., the validity of defendant’s claim. On this point the learned vice-chancellor said: “The issue is quite distinct from the main issue of title or no title in the defendant. On it the complainant has the affirmative and occupies the position of plaintiff, while on the issue of title or no title in the defendant, the position of the parties is reversed, and the defendant holds the affirmative and the position of plaintiff.”

In McCullough v. Absecon Beach and Land Improvement Co., 48 N. J. Eq. (3 Dick.) 170, the same vice-chancellor held, where the question of title was determined by him, no application for a trial at law being made, that “the complainant being in possession, the burthen is east upon the defendant of showing its title, and that it is superior to the complainant’s. It becomes the actor.”

In Brady v. Carteret Realty Co., 66 N. J. Eq. (21 Dick.) 243, Brady filed his bill against the realty company under the statute to quiet his title against the adverse claims of the defendant, and while the order made when the issue was framed to test the title at law does not appear, it was said by Chancellor Magie (S. C., 68 N. J. Eq. (2 Robb.) 55), in considering the awarding of a new trial, “the realty company was the plaintiff and Bra,dy was the defendant in the issue,” and Mr. Justice Reed, in an opinion in this court, in the same case (70 N. J. Eq. (4 Robb.) 748), said that the chancellor made an order “between the Carteret Realty Company as plaintiff and Brady as defendant.”

Our attention has been called by the appellant to the case of Oberon Land Co. v. Dunn, reported in 60 N. J. Eq. (15 Dick.) 280, in which Vice-Chancellor Grey said that at the trial of the feigned issue, “a verdict was found in favor of Mary Dunn and others, defendants, as appears by the postea,” from which it is argued that in that case the defendants in equity were also defendants at law. The question of parties was not material to the matter under consideration, and the learned vice-chancellor may have referred to them as they appeared in the equity suit he was determining, but if it be otherwise, it does not appear that any order was made fixing the status of the parties in the issue at law. Yet if it be granted that in that case the order was that the complainant be plaintiff, it was antagonistic to the general rule observed in the court of equity for many years, which has been to put upon the complainant the burden of establishing, to the satisfaction of the court of chancery, the peaceable possession and claim of ownership which the law requires before he can call upon the defendant to show the validé of his claim, and when so established, the burden falls upon the defendant to make out his adverse claim. The purpose of the act is to relieve, not persons who have the power to test the hostile claim by a direct proceeding in the usual mode, but to aid persons whose situation afford them no such opportunity. Jersey City v. Lembeck, 31 N. J. Eq. (4 Stew.) 255, 272. It lends its aid to one in peaceable possession under claim of ownership to compel an adverse claimant to establish his claim; he may do so in equity or at law, but in either case he is asserting a hostile claim against one in peaceable possession, which he must proceed to establish or abandon.

In our opinion where the complainant has established, to the satisfaction of the court of chancery, that he is in peaceable possession of the land described in a bill to quiet title, claiming to own the same, and that his title thereto is denied or disputed, and that no suit is pending to test the validity of such hostile claim, the burden of establishing the validity of such claim is upon the person setting it up, and that in such case the court of chancery may lawfully order that, in a feigned issue at law, framed to test the legality of the claim adverse to complainant, the defendant assume the burden and sustain the issue as plaintiff. It is not intended now to express any opinion regarding the situation that may arise under the addition to the original act made by the amendment of 1901, above referred to, regarding lands not in actual, but perhaps constructive possession under deeds recorded, and where taxes have been paid for five successive years. This question was passed upon by Vice-Chancellor Leaming in McGrath v. Norcross, 73 N. J. Eq. (3 Buch.) 274, but its consideration is not required in disposing of this cause.

The order and decree under review is affirmed.

For affirmance — The Chiee-Justice, Garrison, Swayze, Trenchaeb, Parker, Bergen, Voorhees, Minttjrn, Bogert, Vredeneurgh, Congdon, Sullivan — 12.

For reversal — None.


author: Per Curiam.

text:
    Alexander Hotovitsky v. Little Russian Greek Catholic St. Peter and Paul Church of Jersey City.
    [Argued December 2d, 1910.
    Decided March 8th, 1911.]
    On appeal from a decree in chancery advised by Vice-Chancellor Garrison.

      Mr. Harry B. Brochhurst, for the appellant.

      Mr. Herbert O. Gilson, for the respondent.
   Per Curiam.

To a bill for relief the defendant filed a plea similar to that set out in our opinion in the case of Ewald v. Ortynsky et al., decided at the present term. The case went to hearing upon the plea before Vice-Chancellor Garrison, and, after consideration, an order was advised by him that the plea be overruled, with costs. The order also reserved the right to the defendant to use the matter contained in its plea upon a motion to set aside the service of subpoena upon it, upon the payment of the costs of its plea, provided the motion was made within seven days from the date of the order. The order further' provided that if the defendant failed to make that motion within the time limited, it might answer the complainant’s bill within twenty days from that time, and if it failed to answer within such time, the bill of complaint should be taken as confessed against it. We think this order proper in all its parts. The inquiry when a case is heard upon a plea is substantially as if the complainant had demurred to the plea. If it is found to be bad, the proper practice is to overrule it. Davison v. Johnson, 16 N. J. Eq. (1 C. E. Gr.) 112. The conclusion of the vice-chancellor that the plea was bad we concur in for the reasons expressed in onr opinion in Ewald v. Ortynsky. With the plea overruled the case showed a bill filed against the defendant, a subpoena issued against it, and a return of the writ showing service upon it. The sheriffs return is presumptive proof of the fact recited in it. The leave granted to the defendant to move to set aside the service on the ground that the return was untrue, in fact, was a privilege granted to it of which it could take advantage or not as it chose. On the overruling of the plea, unless the service was set aside, the defendant was required by the twenty-fourth section of the Chancery act (P. L. 1902 p. 519) to file its answer to the complainant’s bill in twenty days thereafter, or submit to have the bill taken as confessed against it.

The defendant asks in its plea to be dismissed, with costs against the complainant. If the plea had been sustained, it would, presumably, have been entitled to them. The plea having been overruled, it is only fair that it should pay costs to the complainant.

The order appealed from will be affirmed.

For affirmance — The Chief-Justice, Garrison, Swayze, Reed, Teencitakd, Parker, Bergen, Voorhees, Minturn, Bo-GERT, VREDENBURGH, VROOM, CONGDON — 13.

For reversal — -None.


text:
    Byron K. Stickle et al., complainants-respondents, v. High Standard Steel Company, defendants-appellants.
    [Argued March 16th, 1911.
    Decided June 19th, 1911.]
    On appeal of George D. Hendrickson, receiver, from a decree of the court of chancery advised by Vice-Chancellor Howell.

      Mr. George D. Hendrickson, pro se, for the appellants.

      Messrs. Pitney, Hardin & Skinner, for the respondents.
   Per Curiam.

The decree is affirmed, for the reasons stated in the opinion on the appeal of Alfred W. Hoyt, ante p. 549.

For affirmance — The Chiee-Justice, Garrison, Swayze, Trenohard, Parker, Bergen, Voortiees, Minturn, Bogert, VrEDENBURGH, CONGDON, SULLIVAN — 12.

For reversal — None.


text:
    Virginia M. Woolsey, respondent, v. Eugene Woolsey, appellant.
    [Argued March 21st, 1911.
    Decided June 19th, 1911.]
    On appeal from a decree of the prerogative court made by the ordinary.

      Mr. Charles L. Carrick, for the appellant.
    Mr. Sherrerd Depue, for the respondent.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of the ordinary, reported ante p. 517.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenoi-iard, Bergen, Voorhees, Minturn, Bogert, VredenBURGH, CONGDON, SULLIVAN — 11.

For reversal — None.


text:
    Edward Kayhart, executor, &c., of Wilbur Kayhart, deceased, respondent, v. Adeline Whitehead et al., appellants.
    [Argued December 1st, 1910.
    Decided June 19th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 77 N. J. Eq. (7 Buch.) 12.

      Mr. Harrison P. Lindabury, for the appellants.

      Mr. Charles A. Rathbun, for the respondent.
   Per Curiam.

The decree appealed from is affirmed for the reasons statod in the opinion of Vice-Chancellor Emery.

For affirmance — The Chiee-Justice, Garrison, Swayze, Trenchakd, Parker, Bergen, -Voorhees, Minturn, Vredenburgh, Congdon — 10.

For reversal — None.


text:
    The Bayview Cemetery Association et al., respondents, v. Margarette B. Cole et al., appellants.
    [Argued March 9th, 1911.
    Decided June 19th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison.

      Mr. Edward A. S. Man, for the appellants.

      Mr. Gilbert Collins and Mr. John J. Treacy, for the respondents.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Garrison.

For affirmance — The Chief-Justice, Garrison, Swayze, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Congdon, Sullivan — 11.

For reversal — -None.


text:
    Nathan Bijur, appellant, v. Standard Distilling and Distributing Company, respondent.
    [Argued March 9th, 1911.
    Decided June 19th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 74 N. J. Eq. (4 Buch.) 546.

      Mr. Benjamin N. Cardoza (of the New York bar), for the appellant.

      Mr. Levy Mayer (of the Illinois bar), for the respondent.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Emery.

For affirmance — The Chiee-Justice, Garrison, Swayze, Parker, Bergen, Voori-iees, Minturn, Bogert, Vredenburgh, Congdon, Sullivan — 11.

For reversal — None.


text:
    Peoples Brewing Company of Trenton, respondent, v. Harris Levin and Samuel Levin, appellants.
    [Argued March 9th, 1911.
    Decided June 19th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker.

      Mr. Franklin W. Fort, for the appellants.

      Mr. John H. Backes, for the respondent.
   Per Curiam.

The decree appealed from is affirmed for" the reasons stated in the opinion of Vice-Chancellor Walker.

For affirmance — The Chief-Justice, Garrison, Swayze, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Congdon, Sullivan — 11.

For reversal — -None.


text:
    Charles G. Cook et al., substituted trustees, respondents, v. Charles Jack et al., appellants.
    [Argued March 15th, 1911.
    Decided June 19th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker.

      Mr. Malcolm G. Buchanan, for the appellants.

      Mr. John H. Backes, for the respondents.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Walker.

For affirmance — Tt-ie Chief-Justice, Garrison, Swayze, Trenct-iard, Parker, Bergen, Voori-iees, Minturn, Bogert, Vredenburgi-i, Congdon, Sullivan — 12.

For reversal — None.


text:
    John R. McNulty, respondent, v. Eugene J. McCarthy et al., appellants.
    [Argued March 15th, 1911.
    Decided June 19th, 1911.]
    On appeal from a decree of tbe conrt of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. 865.

      Mr. Edward J. Luce, for the appellants.

      Mr. Charles H. Hartshorne, for the respondent.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Stevenson.

For affirmance — The Chiep-Justice, Garrison, Swayzb, Teen chard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenrurgh, Congdon, Sullivan — 12.

For reversal — None.


text:
    Herman Goelz, appellant, v. Benjamin W. Carlow, respondent.
    [Argued March 27th, 1911.
    Decided June 19th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson.

      Mr. William S. Sluhr, for the appellant.

      Messrs. Lum, Tamblyn & Colyer, for the respondent.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Stevenson.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Bogekt, Vredenburgh, CONGDON, SULLIVAN — 11.

For reversal — None.


text:
    Robert Jourdan, appellant, v. Walter Burstow et al., respondents.
    [Argued March 27th, 1911.
    Decided June 19th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 55.

      Mr. Frank Sommer, for the appellant.

      Messrs. Riker & Riker, for the respondents.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion o£ Vice-Chancellor Stevens.

For affirmance — The Ciiiee-Justice, Garrison, Swa,yze Trenohakd, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgii, Congdon, Sullivan — 12.

For reversal — None.


text:
    Albert Moyer, respondent, v. Flora H. Moyer, appellant.
    [Argued March 27th, 1911.
    Decided June 19th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell.

      Mr. Samuel Kalisch, Jr., for the respondent.

      Messrs. Pitney, Hardin & Skinner, for the appellant.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Howell.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Congdon, Sullivan — 12.

For reversal — None.


text:
    Frederick M. Rogers, appellant, v. Alice C. Bailey, respondent.
    [Argued March 27th, 1911.
    Decided June 19th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 29.

      Mr. Frank Benjamin, for the appellant.

      Mr. Benjamin G. Demarest, for the respondent.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Stevens.

For affirmance — The Chiee-Justioe, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert. Vredenburgh, Congdon, Sullivan- — IB.

For 'reversal — -None.


author: Pitney, Chancellor.

text:
    Caroline Wood, guardian, &c., v. Robert A. Price et al.
    [Decided July 29th, 1910.]
    1. In a suit for alimony brought under section 26 of “An act providing for divorces and for decree of nullity of marriage, and for alimony and the maintenance of children” (P. L. 1907 p. 48S), upon proof made in accordance with that section, a writ of sequestration was issued requiring the defendant’s estate, property and effects, and the rents and profits thereof, to be sequestered, to compel his appearance and the performance of any order or decree that might be made in the suit. The writ of sequestration was executed by actual entry upon the lands in question and delivery of a copy of the writ to the tenant in possession.—Held, that by the issuance of said writ and the actual execution thereof a lien was acquired upon the land in favor of the wife that took precedence over a title acquired by a subsequent purchaser from the husband.
    2. Under section 26 of the Divorce act (P. L.1907 p. 482), it is the legislative purpose to place in the custody of the law the corpus of the real estate, as well as the rents and profits thereof, where the defendant cannot be found within this state to be served with process, and to retain the property thus sequestered to compel either his appearance and the giving of a bond as provided in cases of ne exeat, or, if he does not appear, the enforcement of the decree out of the corpus of the estate and the rents and profits thereof.
    3. Section 26 of the Divorce act (P. L. 1907 p. 482), in providing for a sequestration of the property of a non-resident defendant in a suit for alimony in order “to compel his appearance and performance of any decree or order which may be made in the suit,” at the same time declares that where the defendant does not appear the decree shall be enforceable only out of and against the estate sequestered.—Held, the proceeding thus authorized is a proceeding quasi in rem, permissible under the construction of the fourteenth amendment to the federal constitution, established in Pennoyer v. Neff, 95 V. 8. 714-

      4. McGmnness v. McGmnness, 72 N. J. Eg. (2 Buck.) 381, distinguished.
    5. Section 1 of the “Act respecting lis pendens” (P. L. 1902 p. 477), does not override the effect of an actual sequestration of real estate in an alimony suit against a non-resident.
    6. Sections 44 and 46 of the Chancery act (P. L. 1902 pp. 524, 525) have reference to money decrees rendered in personam, and do not limit the effect of that section of the Divorce act which provides for a decree for alimony against a non-resident enforceable only out of the estate that has been sequestered for the purpose.
    7. After sequestration of the husband’s property in this state in a suit for alimony brought by the wife under P. L. 1907 p. 482 § 26, the husband brought an action for divorce in another state, and the wife, having appeared to make defence in'that action, made application to the court there for alimony, expense moneys and attorney’s fees to enable lies- to defend the action.—Held, that this application for alimony, being incidental to her defence to the divorce suit, was not to be deemed a waiver or abandonment of her alimony suit pending in this state.
    On petition of Jacob C. Price for surplus money.

      Messrs. Vreeland, King, Wilson & Lindahury, for the petitioner, Jacob C. Price.

      Mr. Charlton A. Reed, for the defendant Alice C. Price.
   Pitney, Chancellor.

The main cause was a suit for the foreclosure of a first mortgage made by Eobert A. Price and Alice C. Price, his wife, upon improved lands in Morristown. The parties defendant are Eobert A. Price and wife, Anderson M. Guerin, tenant of the mortgaged premises, and Martha E. Struble, a judgment creditor of Eobert A. Price. A final decree was made therein July 20th, 1908, providing for a sale of the mortgaged lands in order to pay to the complainant the amount of the mortgage debt with interest and costs, and to the defendant Struble the amount of her judgment and costs, and requiring the surplus money to be brought into court. Pursuant to this decree a writ of fieri facias was issued to the sheriff of Morris county on July 31st, 1908, and the property was duly sold on October 12th for an amount sufficient- to satisfy the mortgage and judgment and yield a substantial surplus. The sale was confirmed by order bearing date October 26th, 1908.

The successful bidder was Dr. Jacob 0. Price, a brother of the mortgagor. After the confirmation of the sale, but before the sheriff’s deed had been accepted by the bidder, the latter filed his petition herein setting up that Eobert A. Price, by deed of conveyance bearing date August 12th, 1908, and recorded in the Morris county clerk’s office on August 20th, had sold and conveyed to the petitioner, Jacob C. Price, the mortgaged lands in question, by virtue of which sale and conveyance the petitioner claimed to be entitled to receive the surplus money, and prayed the court to make an order directing the sheriff to accept the petitioner’s receipt as payment to that extent of the purchase-money. An order of reference was made to a special master to ascertain the truth of the allegations of the petition and make report thereon.

Mrs. Price, the wife of the mortgagor, who did not join in the deed to Jacob C. Price, appeared by counsel before the special master, and afterwards before me, setting up a claim upon the surplus money by virtue of her inchoate right of dower, and also and especially by virtue of the sequestration proceedings presently to be mentioned.

In order to facilitate the determination of the matter, counsel for the petitioner and for Alice C. Price consented that the testimony taken before the special master should be returned to me without the formality of a master’s report upon the facts, and the matter was then brought on to hearing before me upon the testimony taken before the master and other testimony submitted to me in open court.

From the evidence it at once appeared that Alice C. Price, by virtue of her inchoate right of dower, was entitled to have some portion of the surplus money set apart to secure her dower interest in the event of her surviving her husband. And it further appeared that her claim to priority over the title of Jacob C. Price by virtue of a suit that she had brought in this court against her husband for alimony under P. L. 1907 p. 26, and in which (the husband being out of the state) a writ of sequestration had been issued and executed upon the mortgaged lands prior to the foreclosure sale, raised at least so serious a doubt of Jacob C. Price’s right to the proceeds of that sale that the question ought not to be summarily decided before the conditions of sale were complied with by the purchaser and the money paid by him to the sheriff.

For these reasons Dr. Price, under advice of his counsel, waiving so much of his petition as prayed that the sheriff might be required to accept his receipt, paid the balance of the purchase price to the sheriff in money, and the sheriff has paid into court the sum of $5,260.3é, which includes what is due to Mrs. Struble upon her judgment and an overplus of approximately $2,700, which latter is the subject-matter of the controversy as between the petitioner and Mrs. Price.

In the determination of that controversy the following are the important facts and dates:

Mrs. Price filed her bill for alimony against her husband on July 27th, 1908. The defendant being then, and at all times since, out of the state, and not to be found herein to be served with process, the subpoena ad respondendum was returned non estj and upon proofs submitted to the court, an order was made on July 30th (under P. L. 1907 p. 482 § 26) that a writ of sequestration should issue against the said Eobert A. Price, directed to the sheriff of the county of Morris, directing him to sequester the defendant’s estate, property and effects within this state and the rents and profits thereof, to compel his appearance and the performance of any decree or order which might be made in that suit. The writ of sequestration was issued accordingly, tested August 1st, 1908, and delivered to the sheriff, -who, on August 5th, entered upon the mortgaged lands in question and sequestered the same and the rents and profits thereof, and at the same time delivered to the tenant, Mr. Guerin, a copy of the wrrit. Guerin recognized the right of the sheriff under the sequestration by paying to him on August 24th the sum of $156.60 as rent for said premises. The sheriff returned with the writ a statement of what he did in execution of it.

An order of publication was duly taken in the alimony suit, folloAved by a decree pro confessó, and an order for proofs under which evidence was taken, and the case is now awaiting decision. Decision has been reserved pending the determination of the present controversy, because if it were found that Jacob C. Price is entitled to the proceeds of the sale of the land sequestered, there would be nothing beyond the small amount of rent just mentioned out of which to aAvard alimony.

By deed dated August 12th, 1908, acknowledged in South Dakota on August 17th, and recorded in the Morris county clerk’s office on August 20th, Eobert A. Price undertook to convey the lands in question to his brother, Jacob C. Price, for “one dollar and other good and valuable considerations.”

As already mentioned, the lands were brought to sale under the foreclosure on October 12th, and purchased by Jacob C. Price, the present petitioner.

On or about September 9th, 1908, Eobert A. Price, who was in- South Dakota, and claiming to be an actual and bona fide resident there, instituted an action against his wife in one of the courts of that state for a divorce. On October 9th a summons in that action was served upon Mrs. Price at Morristown, in this state, where she was then and long before that had been residing. The wife filed an answer in the South Dakota action denying that her husband was then or had been for more than six months preceding the commencement of his action an actual resident in good faith of the State of South Dakota and domiciled therein as he had alleged, and averring that his actual residence was in New Jersey. The answer also denied the allegations of his petition upon which he based his claim for divorce, prayed that he be required to furnish her with means sufficient for her support and maintenance and with proper expense money to defend the action, and that his complaint be dismissed. On November 4th, the South Dakota court made an order requiring the plaintiff, Eobert A. Price, to pay to the wife’s attorneys $200 attorneys’ fees, $50 for expenses in pajdng witnesses, notaries, &c., and also $10 a month as alimony to Mrs. Price, the first payment to be made on November 10th and subsequent payments on the 10th of each month following, during the pendency of the action or until the further order of the court. Eobert A Price complied with this order to the extent of paying the $200 attorneys’ fees, $50 of expense money and alimony for two months at $10 per month. The action came on to be tried on March 3d, 1909, whereupon the court, finding that none of the material allegations of the complaint were sustained by the evidence and that all the material averments of the answer-were sustained, rendered judgment denying the husband’s prayer for divorce, and dismissed his complaint on the merits and awarded costs to Mrs. Price.

The principal question now raised before me is whether by virtue of the writ of sequestration a lien was acquired upon the land that takes precedence over the title acquired by Jacob C. Price under the deed made to him by Eobert A. Price. As already mentioned, the writ was executed on August 5th, while the deed is dated August 12th, and certainly was not delivered prior to its date.

The legislative authority for such a writ, of sequestration originated in the Divorce act of 1902 (P. L. 1902 p. 508 § 20), and is now contained in section 26 of the act of 1907. P. L. 1907 p. 482.

In the Divorce act of 1874, the nineteenth and twentieth sections (Gen. Stat. p. 1270) provided for the enforcement of orders touching the alimony and maintenance of the wife and touching the care and maintenance of the children by the husband, by the sequestration of the defendant’s personal estate and the rents and profits of his real estate. Similar process and for the like purposes was provided by sections 19 and 20 of the Divorce act of 1902. Thus far the reference was to suits in personam. To the twentieth section of the act of 1902 this new provision was appended, viz.:

“In cases where a husband cannot be found within this state to be served with process, his estate, property and effects within this stdte and the rents and profits thereof may be sequestered to compel his appearance and performance of any decree or order which may be made in the suit; but the process of sequestration shall be issued only upon special order therefor, to be made upon proof of the claim alleged in the bill, and that the defendant cannot be found within the state for the service of process; upon process of sequestration a bond as provided in cases of ne exeat may be given in discharge of the writ, and the sum in which the party shall give bond, with sufficient surety or sureties, shall be indorsed upon the writ in words at length; where the proceedings are by process of sequestration and defendant does not appear, the decree shall be enforceable only out of and against the estate sequestered.”

Similar provisions are in sections 25 and 26 of the act of 1907.

Plainly it is the legislative purpose to place in the custody of the law the corpus of the real estate as well as the rents and profits thereof, where the defendant cannot be found within this state to be served with process, and to retain the property thus sequestered either to compel his appearance and the giving of a bond as provided in cases of ne exeat, or, if he does not appear, then to provide for the enforcement of the decree out of the corpus of the estate and the rents and profits thereof.

The proceeding is analogous to the familiar proceeding by foreign attachment in the common law courts. That it is within the power of the legislature to thus provide that the property of an absconding or non-resident husband situate within this jurisdiction shall be devoted to the support of his wife and children admits, I think, of no question. This point will be dealt with below.

It is, however, argued that the 'sequestration was of no effect as against Jacob C. Price because, as alleged, he was a bona fide purchaser for value of the equity of redemption without notice of the sequestration.

I overrule this contention, first, because the actual execution of the writ of sequestration by the entry of the sequestrator amounted to a placing of the property in the custody of the law, which on familiar principles must be held to be constructive notice to all the world, and secondly, because it was clearly proved, and without dispute, that actual notice was given to the tenant in possession, Mr. Anderson M. Guerin; and a subsequent purchaser taking without making inquiries of Guerin must be held charged with constructive notice of what he would have ascertained if inquiry had been made, viz., that the writ of sequestration had been executed. Dr. Price was not safe in relying upon his previous knowledge that Guerin was in possession as tenant of Bobert A. Price; he was bound to continue his inquiries down to the time that he took his title, or submit to be charged with notice of what he would have learned if such inquiries had been made.

It is next argued that no notice of lis pendens had been filed in the alimony suit at the time the deed from Bobert to Jacob Price was made and recorded. The act respecting notice of Us pendens (P. L. 1902 p. 477 § 1) provides that neither the issuing of a summons or subpoena, or other process or writ, nor the filing of a declaration or bill in any suit relating to or affecting the possession of or title to lands, nor any proceedings had thereon prior to final judgment or decree, shall be taken as constructive notice to any bona fide purchaser or mortgagee until a written notice of Us pendens has been filed in the office of the clerk or register of the county where the land lies. It is, I think, quite doubtful whether the pending suit for alimony is a suit relating to or affecting the possession or title of lands, within the meaning of this statutory provision respecting Us pendens. But whether so or not, Mrs. Price relies not upon the issuing of the process but upon its execution by the open and notorious entry of the sequestrator upon the property. And, in my opinion, the section just referred to has no such force as to override the effect of the actual sequestration of real estate in an alimony suit against a non-resident.

Reference is next made to sections 44 and 46 of the Chancery act (P. L. 1902 pp. 524, 525), the former of which provides that no decree of the court of chancery shall as against any person not a party become a lien upon lands other than those specifically mentioned in the decree until an abstract of the decree shall have been filed in the office of the clerk of the supreme court; and the latter of which sections provides that after decree obtained it shall be lawful for the court to issue process for the sequestration of the real and personal estate of the defendant to satisfy the demand of the complainant in the decree specified. These provisions are found in a revision that concerns the general practice of the court of chancery. The context shows that they have reference to money decrees rendered in personam,. They do not, I think, limit at all the effect of that portion of section 20 of the Divorce act of 1902 (enacted on the same day-and re-enacted in 1907), which provides for a decree for alimony against a non-resident, enforceable only out of the estate that has been sequestered for the very purpose of compelling defendant’s appearance and the performance of any decree or order which may be made in the suit.

It seems to me the plain object and effect of section 26 of the Divorce act is to impose a lien upon the defendant’s real estate at the inception of the alimony suit, where defendant cannot be found here to be served with process, that this lien commences when the writ of sequestration is executed, and persists for the benefit of the wife until it has been discharged either by the order of the court or by the defendant’s performance of the decree of the court. It is of course quite true that in ordinary cases a decree for alimony or maintenance is a judgment in personam, not to be obtained without service of process upon the defendant within the state. McGuiness v. McGuinness, 72 N. J. Eq. (2 Buch.) 381. The necessity for such service arises from the operation of the fourteenth amendment to the federal constitution, as construed in Pennoyer v. Neff, 95 U. S. 714, but there is here no limitation upon the authority of the state to subject property within its jurisdiction to the pajunent of the debts or performance of the obligations of non-resident owners. As was observed by Mr. Justice Field in delivering the opinion of the court in the ease just cited—95 U. S. (at p. 723) : “The state, through its tribunals, may subject property situated within its limits owned by non-residents to the payment of the demand of its own citizens against them; and the exercise of this jurisdiction in no respect infringes upon the sovereignty of the state where the owners are domiciled. Every state owes protection to its own citizens; and when non-residents deal with them it is a legitimate and just exercise of authority to hold and appropriate any property owned by such non-residents to satisfy the claims of its citizens. It is in virtue of the state’s jurisdiction over the property of the non-resident situated within its limits that its tribunals can inquire into that non-resident’s obligations to its own citizens, and the inquiry can then be carried only to the extent necessary to control the disposition of the property. If the nonresident have no property in the state, there is nothing upon which the tribunals can adjudicate.”

Section 26 of the Divorce act (P. L. 1907 p. 482) in providing for the sequestration of the property of a non-resident defendant in a suit for alimony in order to “compel his appearance and performance of any decree or order which may be made in the suit,” at the same time declares that where the defendant does not appear, the decree shall be enforceable only out of and against the estate sequestered. This renders it a proceeding in rem, or quasi in rem, such as is permissible.under the decision in Pennoyer v. Neff. The decree that -was under consideration in McGuinness v. McGuinness, 72 N. J. Eq. (2 Buch.) 381, was made prior to the act of 1902 which established this mode of procedure. That decree, so far as it awarded alimony, was a decree purely in personam. The decision in the McGuinness Case, and the reasoning of the opinion, do not bear at all against the validity of a proceeding and decree in rem, such as I am dealing with.

The decision of Chancellor Zabriskie in Vreeland v. Jacobus, 4 C. E. Gr. 231 (followed by the court of errors and appeals in Hervey v. Hervey, 56 N. J. Eq. (11 Dick.) 424, 428), to the effect that the conveyance of real estate before sequestration issued, although after the decree on which it is founded, is valid in the absence of mala lides, has no bearing upon the present question. Those cases had reference to decrees in personam, and the query was whether a sequestration out of chancery differed from an execution, so that any alienation made after the decree on which it was founded would be void. This query was answered in the negative. The present case is the very different case of a writ of sequestration both issued and executed prior to the alienation; the writ being issued prior to final decree, and issued by virtue of a valid enactment for the very purpose of rendering the final decree efficacious.

Finally, it is argued that the appearance and answer made by Mrs. Price in the South Dakota suit brought by her husband against her for a divorce was a waiver of her rights in New Jersey and an abandonment of her suit brought here for alimony. This argument is rested upon the ground that Mrs. Price was -not entitled to relief in both jurisdictions at the same time; that she must elect between them; and that she elected to secure her rights in South Dakota.

Whether the bringing of an action in personam by Mrs. Price against her husband in South Dakota should be deemed an election to abandon her pending action in rem, or quasi in rem, to enforce the payment of alimony out of his property here, is a question that I do not feel called upon to consider.

For, as I read the record of the South Dakota divorce suit, Mrs. Price did not seek there any affirmative relief against her husband excepting only such as was incidental to the making of her defence to his action for divorce. The pleading filed by her purports to be an answer. It denies the allegations of her husband’s complaint upon which his prayer for divorce was founded; it denies his alleged bona fide residence in South Dakota; avers that his residence is in New Jersey, and that he went to South Dakota for the sole purpose of obtaining a divorce against her, leaving her destitute of means so that she would be unable to make any defence to the pretended action brought by him for divorce'in the State of South Dakota. The answer then recounts the steps alleged to have been taken by the husband to place his property out of his wife’s reach; avers that he is a man of means, and that his abandonment and desertion of her was without her consent and without any just cause. It concludes by demanding judgment as follows:

“(1) That the plaintiff be required to furnish defendant means sufficient for her support and maintenance and with proper expense money to defend this action; and also a sufficient amount to pay attorney’s fees in defending said action for her;
“(2) That plaintiff’s complaint be dismissed;
“(3) And for such other, further or different relief as defendant may show herself entitled to in equity and good conscience upon the trial of this action.”

The prayer that plaintiff be required to furnish defendant with means sufficient for her support and maintenance seems to .have been intended only to provide for her maintenance while defending the action. So it was construed by the parties and by the court. The answer, with accompanying affidavits, was made the basis of an application for an order that the plaintiff, Eobert A. Price, be required to pay to the defendant “a reasonable alimony, counsel fees and suit money during the pendency of this action.” The order of the court made thereon recited that application was made “for counsel fees, temporary alimony and expense money;” and the order provided for the payment of $10 per month only during the pendency of this action, or until the further order of the court. The final decree, after reciting that upon the trial it appeared that all the material averments of the answer were sustained by testimony, decreed that the plaintiff was not entitled to a. decree of divorce as prayed for b}' him; that his complaint should be dismissed on the merits; and that the defendant should recover from him her costs to be taxed.

It is quite plain that Mrs.’ Price made no application for alimony in the South Dakota court except such as was incidental to the making of her defence to the suit for divorce brought against her. Such an application cannot be deemed a waiver or abandonment of her alimony suit pending in this state.

No doubt the $-20 that was paid to her under the order of the South Dakota court should be taken into consideration in determining how much should be allowed to her in her pending alimony suit, in the event of a final decree going in her favor. But this does not enlarge the present rights of Jacob C. Price.

Upon the whole, therefore, I conclude that by the writ of sequestration and by the execution of that writ as above mentioned, a lien was acquired upon the land in favor of Mrs. Price that has priority over the title acquired by Jacob C. Price under the deed made to him by Robert A. Price. The land having then been converted into money by a sale under judicial process for the satisfaction of an underlying encumbrance, Mrs. Price’s lien is of course transferred to the surplus money. It results that the whole of the money paid into court by the sheriff (save what is due to the judgment creditor) must be treated as property sequestered in the alimony suit and be held to abide the event of that proceeding.

Besides this, it is conceded that Mrs. Price is entitled to have her inchoate right of dower protected in the usual way.

The application of Jacob C. Price to have the surplus money now paid to him as purchaser will therefore be denied, with costs, reserving, however, his rights as against all other parties than Mrs. Price, and his right to the fund or to so much of it as may remain, if and when her rights are terminated or otherwise disposed of.