author: Emery, Y. C.

text:
    Arthur W. Moore v. Ida R. Baker.
    [Filed May 23d, 1903.]
    1. The burden of proving that an agreement was induced by false representations is on the person who seeks a cancellation thereof.
    2. Under the statute, a married woman may be compelled to perform, as vendee, a contract for the conveyance of land, though she is declared not authorized to convey her real estate, and could not be compelled to perform as vendor.
    On bill, answer and cross-bill, and replication and proofs.

      Mr. Charles E. S. Thorn and Mr. William J. Kearns, for the complainant.

      Mr. Edward D. Dufjield, for the defendant.
   Emery, Y. C.

Complainant and defendant (a married woman) entered into a written agreement, dated November 15th, 1899, for exchange of lands. Complainant was to convey his lands to defendant on or before September 1st, 1900, and to pay $1,700 to defendant on or before November 20th, 1899, on which last-mentioned date defendant was to convey her lands to complainant. Defendant was further to pay to complainant $200 by note, payable January 15th, 1900, and to pay $1,500 to complainant on September 1st, 1900, with interest from November 20th, 1899, on which date complainant was to enter into possession of defendant’s lands. He did so enter; the lands were subsequently conveyed to him; defendant’s note for $200 has been paid, and complainant has paid the $1,700. Nothing remains to be performed of the agreement except defendant’s taking the deed of complainant’s lands and paying the balance of the purchase-money on her part — $1,500. She refuses to accept the deed or complete the contract, alleging that it was procured by false representations, and also files a cross-bill to have the agreement delivered up and canceled. Complainant has sold the property conveyed to him under the agreement.

On reading over and further considering the evidence in the case, I am confirmed in the impression made upon me by the evidence at the hearing — that the defendant has failed to support the claim of her answer and cross-bill that the agreement was made in reliance on any false representations by complainant as to the property owned by him. The burden of proof was upon her to make out this case, and not only has she failed to do this, but the fact that after her husband (who acted as her agent) was familiar with all the facts as to the situation, location and character of the property, which are now set up, he gave her note for $200 in part performance of the contract, and that she afterwards paid this note, points strongly to the conclusion that the objection to the contract and the defence is an .afterthought.

I find, therefore, that the defence set up in the answer is not made out, nor is there any sufficient evidence of such inequality ■of values in the properties exchanged as would justify the court in refusing to carry out the contract as an inequitable one. The further objection is made that, under the decision in Corby v. Drew, 10 Dick. Ch. Rep. 387, 391 (Vice-Chancellor Stevens, 1897), the specific performance of the contract cannot be decreed against the defendant, who is a married woman. The •case would be applicable if the defendant were here as the vendor resisting performance. But she has performed the contract of exchange, so far as she is vendor, by conveying her land to the complainant, and she is now simply the vendee, and the •question is whether a married woman, as vendee, can be required to perform a contract for the purchase of lands, which can be •carried out without requiring her to convey lands. The statute in force — act of June 13th, 1895 (P. L. of 1895 p. 821; Gen. Stat. p. 2017) — when the contract was made controls the case on this point, and makes the contract for purchase enforceable in equity:

“Any married woman shall after the passing of this act have the right to bind herself by contract with any person in the same manner and to the same extent as though she were unmarried, which contracts shall be legal and obligatory, and may be enforced at law or in equity, by or against such married woman, in her own name, apart from her husband.”

The fourteenth section of the Married Women’s act (Gen. Stat. p. 2015) prevents this section from authorizing her to convey her real estate, and therefore, as Vice-Chancellor Stevens held, relieves her from being obliged to specifically perform a contract to convey lands. But it does not affect her contract to purchase lands, and such contract may therefore be carried into effect by decree for specific performance, where the further performance of the contract on her part does not require a conveyance of lands by her. I will advise a decree for complainant, and that the cross-bill be dismissed.


source: Caselaw Access Project

author: Emery, V. C.

license: Public Domain

text:
    John P. Manning, administrator, &c., of Philander S. Pierson, deceased, v. Walter P. Lindsley, executor of Mary E. Pierson, deceased.
    [Filed September 29th, 1903.]
    The remainder interest in money bequeathed to testator’s wife for life, not otherwise disposed of, passes to her under a clause giving- to her the-residue and remainder of his estate.
    On demurrer to bill.

      Mr. Joseph D. Gallagher, for the demurrant.

      Mr. Malcolm MacLear, for the complainant.
   Emery, V. C.

This hill, which involves the construction of a will, discloses the following material facts: Philander S. Pierson, by his will, directed (1) the payment of his debts, (2) bequeathed to his wife, Mary S. Pierson, his household furniture, horses, wagons and riding equipments, with a direction that no inventory or accounting of these should be made; (3) devised his homestead property, with' certain other lands, to his wife for life, with remainder over to other persons. The fourth item, one of the items now in question, is as follows:

“Fourth. I give and bequeath to my wife aforesaid the sum of Fifteen Thousand Dollars during her natural life, with the privilege of selecting that amount from any securities held by me at my decease, at the par value of the same.”

By the fifth item he bequeathed to Emma L. Harrison $5,000, and gave to her the second choice of selection from any securities held at his decease. Pour other legacies, three of $1,000 each, and one of $2,000, are given by the sixth, seventh and eighth clauses, and by the ninth clause the wife was made residuary legatee, as follows:

“Ninth. The residue and remainder of my estate I give and bequeath to my wife aforesaid, but if at my decease there shall not be sufficient property, together with the proceeds of sale of any and all real estate not otherwise disposed of by this my last will, to pay all the foregoing bequests, then and in that case I order the bequests to my wife and Emma L. Harrison to be paid first and the residue and remainder to be divided pro rata according to the- several bequests made.”

Testator’s wife was appointed sole executor of the -will, with the power to sell real estate. She received the securities left by the testator, selected the $15,000 from them, retained these during her life and afterwards died, having made a will, of which the defendant is executor. By this will she disposed of all her real and personal estate. The bill alleges that the defendant, as executor of Mary E. Pierson, has taken possession of the $15,000 in securities and now claims them as part of her estate for distribution under her will. After Mary E. Pierson’s death, complainant was appointed substituted administrator of Philander S. Pierson, and files this bill for an account of this fund and payment of it to him as a part of the husband’s estate. Complainant’s claim is that the remainder interest in this fund of $15,000, after the bequest to testator’s wife for life, did not pass to her under the residuary clause, and therefore, not being disposed of, testator died intestate as to this sum. This contention cannot be sustained.

The bequest of $15,000 to the wife for life left the sum undisposed of after her death. The ninth item disposed of “residue and remainder” of testator’s estate, and these words, in their ordinary and natural import, include the interest on the $15,000, undisposed of by the fourth clause. Had this “residue and remainder” been given to any person other than the wife, no possible question could have been raised as to the residuary legatee being entitled to the sum after the wife’s death. The mere fact that the residuary legatee is also the legatee for life is not of itself sufficient to restrict this ordinary operation of the words. Nor in the form of the bequest to the wife for life is there anything to exclude the operation of the residuary bequest. In Clark's Executors v. Richards, 6 C. E. Gr. 361 (Errors and Appeals, 1869), it was held that a gift of the interest of a bond and mortgage and of the dividends of stock to testator’s daughter, by bequests which were construed to be bequests for life, with a provision for using the principal for her support, if necessary, did not have the effect of restricting the operation of a general residuary clause, which divided the principal between the life tenant and another as residuary legatee. Both the life estate and residuary legacies were held to be operative. This is also the rule of construction applied where there is a devise for life of real estate, and a subsequent residuary devise in fee to the tenant for life, either alone or in connection with others, and in such case the mere fact that there is prior devise to the tenant for life does not, by implication or construction, restrict the full operation of the residuary devise. 2 Jarm. Wills (R. & T. ed.) *649; Williams v. Goodtitle, 10 Barn. & C. (21 E. C. L.) 895 (1830); Ridout v. Pain, 3 Atk. 486, 493 (Lord Hardwicke, 1747). A fortiori this must be the rule in bequests of personalty, and this is the conclusion reached in other courts in such bequests. Read v. Payne, 3 Call 225; 2 Am. Dec. 550 (1802). Even had'the bequest for life been made in such terms as to show a clear intention that the tenant for life should not herself have the corpus, or have, anything but the interest, then, as Chief-Justice Beasley points out in Clark v. Richards, supra (at p. 363), the residuary gift to the tenant for life must be held to take effect by giving to the life tenant the power to dispose of the corpus by will. That has been done in this ease, and the defendant claims under the will of the tenant for life.

Complainant has no claim to this fund in question, and the demurrer must be sustained.


text:
    Emma K. Lister, petitioner, v. Robert Lister.
    [Filed October 15th, 1903.]
    1. Where a wife is justified in leaving her husband on acco.unt of his cruelty, the separation is legally chargeable to the husband, and constitutes a legal abandonment or desertion upon his part.
    2. Where a wife leaves her husband, and seeks to establish constructive desertion by him on account of cruelty, her testimony must be corroborated.
    3. After a separation caused by cruel conduct of a husband, it is his duty to reform his habits, and within two years seek out his wife and apply to restore tlie marital relations, giving her reasonable assurance of the sincerity of his reformation and of her probable safety in resuming the marital relations.
    4. If, at the time of offering to return to live with his wife, the husband was, in fact, living in adultery, or if he willingly permitted the wife to remain under the impression that he was guilty of adultery, the offer to return cannot be considered as one made in good faith, or to be an offer which the wife was bound to accept for the purpose of terminating the desertion.
    On petition, answer and cross-bill, replication and proofs.

      Mr. Elvin TV. Grane, for the petitioner.

      Mr. Samuel Kalisch, for the defendant.
   Emery, Y. C.

In this case there are cross-petitions by wife and husband, each charging desertion by the other. The actual separation of the parties took place about October 15th, 1899, when the wife left the hotel, in Newark, where the husband, herself and the children had been boarding since January, 1899.. She left the husband and took the children with her, and her claim is that she was obliged to do this on account of her husabncTs cruelty. Where a wife is justified in leaving her husband on account of his cruelty, the separation is legally chargeable to the husband, and'cbnstitutes a legal abandonment or desertion upon his part. This is the settled rule in this state. Weigand v. Weigand, 14 Stew. Eq. 202, 209 (Vice-Chancellor Van Fleet, 1886); affirmed on appeal, for the reasons stated below, 15 Stew. Eq. 699; subsequently approved in Dummer v. Dummer, 41 Atl. Rep. 149, 150 (Errors and Appeals, 1898); McVickar v. McVickar, 1 Dick. Ch. Rep. 490 (Vice-Chancellor Pitney, 1890). The husband alleges that the separation was without justification, and was a desertion by the wife, which has been continued obstinately and against his efforts to terminate it. The questions involved are altogether questions of fact, and the first one is whether the petitioner has satisfactorily established that the cruelty of her husband was such as to justify her separation from him, as necessary for the protection of her life or health. If her own evidence is true, she has certainly established a case of extreme cruelty, but as the case is one of constructive desertion, her evidence alone is not sufficient, and it must be satisfactorily corroborated; and the real question, therefore, on this branch of the case, is whether she has produced such corroborative evidence. In my judgment she has. The defendant’s vindictive feelings toward his wife and his abusive language to and about her, while under the influence of liquor, is established by the evidence of the proprietor of the hotel and his wife and employes of the hotel, and by -the evidence of former servants of the parties; and the evidence also shows that, when defendant was in this condition, his wife, in one instance at least, felt obliged to leave the family rooms, with the children; and stay elsewhere in the hotel for safety. This condition of intoxication and his abuse of his wife occurred from time to time after 1891, and while living at the hotel the proprietor felt called on to remonstrate with him about his conduct and treatment of his wife. Once before the petitioner left defendant on account of his erueltjq as she saj^s, going, in this instance, to the defendant’s mother’s, but she returned within a day or two, upon his promise to reform. The act of cruelty which led-to the final separation, on Sunday, October loth, 1899, was her husband’s choking her while in bed, abusing her and threatening to kill her. The wife is the only witness to this occurrence, and the husband denies that he either struck, choked or threatened her. Two witnesses, however, swear that, on that day, they saw on the wife’s neck marks or bruises, and one of them — the bellboy — says that, in her husband’s presence, the petitioner said defendant had done this. The other witness saw the marks on the neck and arm on the same day in New York, where ¡Petitioner had brought her children to stay. The husband, as to striking his wife, then or at any other time, says:

“She would get in some dispute — she was just as apt, and more apt many a time, to have the dispute out as 1 would, and she would come up and make a strike at me as quick as she would look for one from' anybody else, and if I would shove her, ‘Now, you have hit me — you have struck me — I have got a black and blue mark,’ the first thing every time after her helping every quarrel on.”

And again, in reference to ever striking her at the hotel, says:

.“I pushed her away from me when she has come up that way — pushed her away from me; she has been looking — she was always, up to the Continental Hotel, looking for me to make hlack and blue marks on her, and I notice she could show up black and blue marks if I looked at her— manipulate herself.”

Notwithstanding the husband’s denial of striking his wife, on his direct answer to the questions, I am inclined to think that the above evidence, taken in connection with the evident lack of self-control and his disposition toward his wife, shown by his evidence and bearing on the stand, is also corroborative of the wife’s evidence as to his treatment of her. His claim that the “black and blue marks are due to manipulation” would seem to amount to an admission that the marks were there, and, if so, the only question is, is there any sufficient reason to support the conclusion that they were self-inflicted. Upon the entire evidence in the case, my conclusion is that the wife has satisfactorily made out a case of cruelty on the part of the defendant, justifying her in separating from him, and that the separation is therefore legally chargeable to the husband. As to the duty of the husband, after a separation thus occasioned by his conduct, the rule applied is that it is the duty of the husband to reform his habits, and after such reformation, and within two years, seek out his wife and apply to restore the marital relations, giving her reasonable assurances of the sincerity of his reformation and of her probable safety in resuming marital relations. McVickar v. McVickar, 1 Dick. Ch. Rep. 490, 501 (Vice-Chancellor Pitney, 1890). This is a special application of the general rule settled by our decisions that, where the husband has, by his conduct toward his wife, contributed to the desertion, he must make such advances and concessions as a just man would make, and might reasonably be expected to m'ake, in order to induce her to return. Cornish v. Cornish, 8 C. E. Gr. 208 (Chancellor Zabriskie, 1872); Hall v. Hall, 15 Dick. Ch. Rep. 469, 470 (Errors and Appeals, 1900). What the assurances should be depends upon the circumstances of each case. The husband did in this case apply to his wife to return to him. but his wife was unwilling to return, because she did not trust him or believe he wras living a proper life. She thought he was still continuing his habits of drinking, and also that he had been living unfaithfully after the separation. If, at the time of offering to return to live with his wife, the husband was, in fact, living in adultery, the offer to return cannot be considered as one made in good faith, or to be an offer which the wife was bound to accept, for the purpose of terminating the desertion. In Mallinson v. Mallinson, L. R. 1 Pr. & Div. 93 (1866), Lord Penzeance, judge-ordinary, says, upon this point, that the mode of life of the respondent, at the time the alleged offer to .return is made, is material, as showing whether or not the offer was sincere. Shortly after their separation, and in February, 1900, the petitioner, under the advice and arrangement of counsel, employed detectives to watch her husband’s movements, and the detectives reported to her counsel that the husband had been followed by them to a hotel in New York, and had been seen to go into a room with a woman, in whose company he had previously dined at the hotel. Defendant. and his counsel, Mr. Prank M. McDermit, had both seen petitioner’s detective immediately after this occurrence, and defendant then had a conversation with the detective. Within two or three days defendant’s counsel, Mr. McDermit, with defendant’s consent, entered into negotiations with petitioner’s chief detective, and, in defendant’s presence, offered the detective money not to report wdiat had been seen. The present explanation of defendant and his counsel is that this woman whom defendant met was herself a detective, and that she was there, in' company with other detectives, and met defendant by arrangement, for the purpose of leading petitioner’s detectives into a trap, and ascertaining whether petitioner was employing detectives to watch her husband, she having denied that she was employing them. Mr. McDermit, who was sworn in this case, admits that an offer of money ($3,000) was made, in defendant’s presence, to the petitioner’s detective to suppress his report to petitioner’s counsel, but he now swears that this was a ruse, for the purpose of ascertaining whether the detective’really had the petitioner’s note for $2,000, as he claimed. The remarkable feature about this explanation, and the bearing which the explanation has uj)on the present inquiry, is that, until this explanation was given under oath on this hearing, it does not appear that the husband or his counsel ever made any effort to disabuse the mind of his wife or Of her counsel of the correctness of the impression given them by their detective that defendant had been seen with a woman, under suspicious circumstances, in New York by the detectives, and that defendant had offered money to suppress the report. And not .only this, but defendant seems to have allowed his wife to pay, or to have been willing that she should pay, the detective she had employed a large sum of money ($1,000) for information which, as he now claims, gave her a wrong view of his conduct. After receiving this information from the detective the petitioner, as she swears, spoke to her husband about it, and told him “he had been caught with a woman,” to which his reply was, “What are you going to do about it?” The husband did not, at any time previous to this hearing, correct, or attempt to correct, in any way, the impression received by his wife from the reports of the detectives as to the occurrence at the hotel in New York. Mrs. Lister says that, before this conversation, when he asked her to come back and she refused, he had said to her that if she wouldn’t come back, she had better sue for an absolute divorce.

Upon the evidence offered by defendant it is difficult to resist the conclusion that tho defendant, in this incident of the hotel, intentionally supplied to petitioner’s detectives, who seem to have been acting in entire good faith, evidence that would, to some degree, tend to support a charge of adultery, and that he made no effort to correct the effect of this evidence. A request to return, made by the husband to the wife while she was allowed to remain under this impression as to his conduct, cannot be considered as a bona 'fide offer, or as one which changed the character of the separation. The defendant also seems to have been willing to allow his wife’s state of mind as to his unfaithfulness to her in other instances to continue after the separation. For six months, and up to within four or five weeks of the hearing, he has made, as he sa3rs, his headquarters in New York, in a flat or apartment in Eighty-third street, where a woman lives with her two daughters. He goes there, when he is in New York, spends two or three days, either alone or with a friend, and pays board — a fair amount ($4 or $5 a week) — and defendant goes out with these women. Petitioner was informed by her counsel that defendant was at this place, and when he spoke to his wife, in the summer of 1900, about coming back to live with her, she said to him, “I don’t see how you can ask me to do that when you have got this woman in New York.” Defendant had previously denied having a woman there, but on this occasion he said, “Well, she is a Jewess, but she has a white heart.” The husband denies any improper relations with these women, but does not deny this conversation, and, if it occurred, the husband was not unwilling that the wife’s impression as to his unfaithfulness should continue. >3he was not bound, in my judgment, to consider this request to return as made in good faith.

Whether the husband’s habits as to drinking have been reformed has not been shown, and, under all the evidence in the ease, I reach the conclusion that the husband has not shown in this case any such change in his habits, or such a mode of living after the separation, as was calculated to give to his wife the reasonable assurance of his reformation, and of her probable safety in resuming marital relations, to which she was entitled. The continuance of the separation, therefore, must be held to be due to his continued, wilful and obstinate conduct, and the wife is entitled to a divorce for desertion. The cross-bill of the husband will be dismissed.


text:
    In the matter of the sale of lands of John Lansing Miner, an infant.
    [Filed October 15th, 1903.]
    3. The share of an afterborn child, provided for by Gen. Stat. p. 3760 ¶ 19, so far as the ascertainment thereof is concerned, is subject to the widow’s dower in real estate and to her share as distributee of the personal estate. . '
    2. The allowance for such dower deducted from the share of the after-born child directed to be held bjr the executors under the will,, and in the same proportion as they were entitled to the remainder of the purchase-money.
    On application of special guardian of infant for distribution of proceeds of sale of infant’s lands.

      Mr. James E. Iiowell, for the petitioner.

      Mr. Robert H. McCarter, for the infant.
   Emery, Y. C.

Henry C. Miner, domiciled in New York, by his will, dated March 29th, 1897, after specific bequests of personal property to his four sons and also to his wife, devised the residue of his estate, real and personal, and wherever situate, to his executors in trust (among other tilings), 'to manage his real estate, collect the rents, &c., and to divide four-fifths of the net income between his four sons, and to pay annually the remaining one-fifth to his wife during the trust. The trust was to terminate-on the arrival of his son- George at the age of thirty-two, or his death under that age; and on such termination the executors were directed to divide the residuary estate with accumulations of interest or income into five equal parts, one of which was devised and. bequeathed absolutely to testator’s wife. To' each of his four sons was also given one-fifth of the residue, with limitations over in case of the death of either. These provisions for the wife from the income and principal fund of the residuary estate were declared by the will to be in lieu of dower. The wife and four sons were appointed executors and trustees, and were authorized to sell any of testator’s real estate. By a codicil, dated-November 22d, 1899, the testator devised to his wife, in fee, his residence in New York City, free from encumbrances. This1 devise was not expressed to be' in lieu of dower. At the time of the execution of the will and codicil testator had four children — the sons especially named in the will and codicil. On January 10th, 1900, another son — John Lansing Miner — was born. Testator died on February 22d, 1900, seized of real estate in New Jersey, as well as New York. The son John Lansing was neither provided for nor disinherited in the.will or codicil. Under the statute of wills (Gen. Siat. p. SI60 19) it is provided that the afterborn child in such case

‘‘shall succeed to the same portion of the father’s estate-as such child * * * would have been entitled to if the father had died intestate, towards raising which portion the devisees and legatees, or their representatives, shall contribute' proportionately out of the .part devised and bequeathed to them by the same will and testament.” ■

, On, the application of the infant’s general guardian,, his interest in a tract of land in Newark has -been sold, in connection with a sale by the executors under the will. Of-the whole purchase-price ($20,000), one-fifth has been paid into court, and the question now is whether, under the statute, the infant is entitled to the whole amount paid in, or whether this amount must be decreased by the value of the widow’s estate in dower. The widow, by documents duly executed and filed in New York, elected to accept the provisions of the will in lieu of-her dower, and the sale in this case is free of the widow’s dower, but reserving her rights, if any, in the proceeds paid into court.

Two questions arise in applying the statute — first, is the infant’s interest-in the proceeds of its sale to be ascertained without making any allowance for the value of the widow’s dower? second, if such allowance is made, to whose benefit does it enure —that of the widow, or of all the devisees proportionately? Upon the first question the language of the statute creating the estate or interest in favor of the afterbom child is in its very terms a limitation of the extent or amount of the interest, and ■this interest thus fixed by the words of the statute cannot be made larger by construction or implication. This interest is “the same portion he would have been entitled to if the father had died intestate.” For the purpose of ascertaining this portion to- which the afterbom child is entitled the will, with all its provisions, whether relating to dower or any other interest in the lands, is to be taken as non-existent and ineffective, and testator is, for the purpose of this ascertainment, to be taken as having made no will, which could change either for or against the afterbom child, the extent or character of his interest in the real estate which would have descended to him had there been no will, or his distributive share in the personalty. The share must, therefore, so far as the ascertainment is concerned, be subject to the widow’s right of dower in real estate, and her share as distributee of the personal estate. This method of ascertainment of the value was adopted in Lutjen v. Lutjen, 18 Dick. Ch. Rep. 391, 396 (Vice-Chancellor Pitney, 1902). The same rule as to ascertainment is adopted by courts -in other states having similar statutes. Mitchell v. Blain, 5 Paige 588, 589 (Chancellor Walworth, 1836); Ward v. Ward, 120 Ill. 111, 120 (1887). The value of the widow’s dower interest in the lands has-been reported by the master to be $3,726, but I will hear counsel further on this point and direct special inquiry if necessary.

'Second. This sum deducted from the proceeds of sale, to represent the widow’s dower, must be held by the executors for the benefit of all the devisees of the land under the will, and in the same’proportion as they were entitled to the balance of the purchase-money. The present deduction from the proceeds of sale is made solely because it was necessary in order to ascertain the statutory “portion” of the estate to which the afterbom child was entitled, and the existence of the widow’s dower or its value in the lands, cast on the infant by the statute,- is not to be assumed for the purpose of giving such estate to- the widow; as if the testator had died intestate, if she be not otherwise entitled to dower. Such, use of her supposed estate would extend the statute beyond its terms and intentions, and, if allowed,' would, in this case, and probably in most cases, revoke the will, of the testator, beyond the revocation, pro tanio, which occurs in order to carry out the statute. All the devisees of the land sold, including the widow, must share proportionately in the loss resulting from the deduction of the portion of the proceeds of sale payable to infant, and in the balance of the proceeds of sale they share precisely as if this balance were the whole proceeds of sale, and there were no other directions as to its division than the terms of the will, under which alone they all claim. If the lands had not been sold, the estate in dower, to which the estate of the infant is subject, would probably be considered as a legal estate held by her, under this statute, solely to effect the purposes of this gtatute and as a legal title necessarily held by the widow under the statute for the equitable proportionate benefit of the devisee under the will (including herself), whose estates under the will have been diminished solely for the benefit of the afterborn infant.


author: Reed, V. C.

text:
    The Trenton Trust and Safe Deposit Company, trustee under Theodore Blackwell’s will, v. Bessie Blackwell Donnelly et al.
    [Filed May 25th, 1903.]
    3. Money was bequeathed in trust to pay the interest to one for life, the corpus to go to others on her death. The corpus was' diminished by unfortunate investments, and thereafter interest on the reduced corpus' alone was paid the life tenant. — Held, that the loss should be apportioned by paying the reduced corpus to the remaindermen and the personal representative of the life tenant in the proportion that the original corpus bears to the unpaid interest on the part of the corpus which was lost. ,

      2. Honey was bequeathed in trust to pay the interest, less the taxes, to one for life, and after her death the corpus to others. The trustees loaned it on a mortgage, which, in consideration of a low rate of interest, bound the borrower to pay the taxes. The trustees were obliged to foreclose, and bought in the property, selling it for less than the corpus of the bequest, after paying taxes, which wore a lien on it when they bought it. — Held, that such payment of taxes was not to be charged to the life tenant’s interest.
    3. The word “heirs” in a will giving- personal property to a person, or, in case of his death, to his heirs, means next' of kin.
    4. Where testator bequeathed money in trust to pay the interest to his wife for life, and at her death bequeathed part of the principal to his sister, or, if she should die before receiving- her share, then to her heirs, and the remainder of the principal to the heirs of his deceased brother, the next of kin of the sister are to be ascertained as of the date of her death, she dying before receiving her share, and those of the brother as of the date of testator’s death.
    On. bill for tire construction of a will.

      Mr. James Buchanan, for the complainant.

      Mr. William M. Banning, for the defendants Florence Blackwell and Emily Blackwell.

      Mr. Alfred M. Bafeira, for the defendant Bessie Blackwell Donnelly.

      Messrs. Duhgan & Reger, for the defendant Jacob Kline, Jr.

      Mr. Frederic M. Pearce, for the defendant Morgan.
   Reed, V. C.

Theodore Blackwell made a will on October 12th, 1872; the fourth, fifth and sixth clauses are as follows:

“Fourth. I give, devise and bequeath to my said Executors and the sur- - vivor of them the sum of Twenty Thousand Dollars, In Trust, nevertheless, to invest and keep the same invested, and the interest which shall accrue thereon less taxes and necessary expenses to pay semi-annually to my beloved wife Sarah I. Blackwell for and during the term of her natural life, or during the time she remains my widow which shall be in lieu of her right of dower in my estate.
“Fifth. All the rest and residue of my estate I give, devise and bequeath as follows to wit, one Third thereof to each one of my two sisters Rebecca Weart and Elizabeth Rockwell share and share alike and to their heirs forever,- and the remaining one-third thereof -to the heirs of my deceased brother Philemon Blackwell.
“Sixth. At the decease of my said wife or at her marriage, the said sum of Twenty Thousand Dollars invested for her use as hereinbefore directed I also give, devise and bequeath as follows, to wit, one-third thereof to each of my said sisters Rebecca Weart and Elizabeth Rockwell, share and share alike, and if either one or both of my said sisters should die before receiving the share or shares to them given in this my will, then the lawful heir' or heirs of such deceased sister shall have and take the share of such deceased ancestor, and the remaining one-third thereof I give, devise and bequeath to the heirs of my deceased brother Philemon Blackwell.’'

Testator died without issue November 4th, 1872. He left surviving him his widow, Sarah I. Blackwell; a sister, Eebecca Weart; a sister, Elizabeth Eockwell, and two children, Jacob Blackwell and Ephraim W. Blackwell, the children of a deceased brother, Philemon Blackwell. Sarah I. Blackwell, the widow, died July 21st, 1902.

The questions propounded ar.e in respect to the course which the remainder of the legacy of $20,000 shall take, the life tenant being dead.

Eebecca, one of the sisters, married John A. Weart. She died July 13th, 1888, leaving a child — John A. Weart, Jr. By her will she left her property to John A. Weart, Jr., and her granddaughter, Bessie B. Weart. The wife of John A. Weart, Jr., •died intestate, leaving Bessie B. Donnelly (nee Weart) her only next of kin.

Elizabeth Eockwell, having married one Charles Morgan, who predeceased her, died intestate in February, 1885, leaving a number of children by. this marriage surviving, three of whom are now dead.

Philemon Blackwell died intestate August 2d, 1844, leaving two children, one of whom — Jacob—died April 1st, 1863, before the death of the testator. The other son — Ephraim—died August 10th, 1888, after the death of the testator.

The first question arises between the personal representative •of the life tenant and the remaindermen, and it arises because •of the fact that the corpus of the estate of $20,000, devised in tlie clauses already displayed, has become diminished by unfortunate investments, so that the trustees instead of having in hand the sum of $20,000, have only the sum of $14,232.51. The corpus of the estate was secured by a mortgage, which was foreclosed, and the mortgaged property was bought in by the trustees, who afterwards sold the same for the sum of $16,000, which sum, after paying the expenses of reducing the same to money, the taxes and commissions, was, as already remarked, reduced to the sum of $14,232.51. The property was bought in by the trustees at foreclosure sale on October 4th, 1899, and was sold by them fifteen days later.

The life tenant was paid interest in full upon the $20,000, less expenses, down to October 1st, 1898. Thereafter the trustees paid interest upon the reduced amount that came to their hands down to the death of the widow, with the exception of $225.06.

The question propounded is whether the executors of the widow are entitled, not only to this sum of $225.06, but also to the amount of interest which should have been paid had the corpus of the estate remained unimpaired down to the date when the security held by the trustees was turned into money. The amount of this unpaid interest is admitted to have been' $1,144.03.

The rule which has been laid down in a number of cases respecting the apportionment of a loss occurring under conditions like the present is that the loss shall be apportioned between the life tenant and the remainderman in the proportion that the debt due the first bears to the amount which should come to the second, namely, the amount of the corpus of the estate; or, conversely, the amount realized shall be set apart to the remainderman and the life tenant in the proportion that the corpus bears to the unpaid interest due the life tenant. By force of this rule the $14,232.51 should be divided in the proportion that $20,000 bears to $1,114.03.

But it is insisted that the taxes paid by the complainant should be deducted from the life tenant’s share thus ascertained. In my judgment, this position is not tenable. I am aware that Chancellor McGill, sitting as ordinary, did so order in Tuttle’s Case, 4 Dick. Ch. Rep. 260, where the trustee had paid taxes which had been assessed upon real estate intervening the time of the trustees' acquisition of the land and the time of the sale made of the same by the trustees. Under the conditions presented in that case, the ordinary thought it equitable to deduct these taxes from the life tenant's share, after it had been apportioned according to the rule already mentioned. In the present case the tax paid, so far as appears, was not assessed upon the property during the time it was held by the trustees under the title got by them at the foreclosure sale. The taxes were paid as a lien upon the property when it came to the hands of the trustees. The property could have'been sold subject to this lien, but the trustees thought it advisable to discharge this lien so as to give an unencumbered title. The payment of the tax was therefore, in reality, one of the expenses incurred in .transmuting the realty into cash to the best advantage.

Nor was the tenant for life bound to pay taxes upon this property spéciíicalty, either before or after the right of the trustees to enter, for breach of condition in the mortgage accrued. The life tenant was obliged to pay the tax upon the corpus, and she was entitled, not to the income of this real estate, but to the income which $20,000, less the taxes, would produce. Now, if five per cent, upon this amount, upon the basis of which the debt due the life tenant is computed, is more than.the $20,000 would produce, less taxes, it would follow that the debt of $1,144.03 is too much.- This follows because she was only entitled to the production of the corpus, less the taxes which she was bound to pay. By the provision in the mortgage these taxes were so paid by fixing the interest to be paid by the borrower at a lower' rate and binding him to pay the taxes. There is nothing to show that the corpus would not have produced the five per cent., as well as the amount of the tax, up to the time the security was realized. By reducing the annual income to five per cent, the taxes were, in fact, deducted from the income of the life tenant. In my judgment the representatives of the life tenant are entitled to share in the corpus in the proportion already indicated, and her share is not to be diminished by any reduction on account of these taxes.

Another question propounded is whether the testator, in the usé of the word “heirs” in the fifth and sixth clauses of his will, is to be regarded as intending by that term “the next of kin of the' legatees.”

The testator was dealing with property which he ’had peremptorily directed to be transmuted by his executors from realty into personalty. It may be regarded as settled in this state that the word “heirs” is interpreted in reference to the kind of propert}r, whether real or personal, which is the subject of testamentary disposition; and when those words are used in' respect to personal propertjq they will be construed to mean “next of kin.” Scudder v. Vanarsdale, 2 Beas. 109; Leavitt v. Dunn, 27 Vr. 311.

In respect to the 'time when the next of kin are to be ascertained, I am of the opinion that the gift to Mrs. Rockwell, or in the event of her dying before receiving the share given to her, she having died before receiving her share, this share goes to her next of kin ascertained as of the date of her death in February, 1885. Gundry v. Pinniger, 14 Beav. 94, 98; Jacobs v. Jacobs, 16 Beav. 557.

In respect to the gift to the “heirs of my deceased brother Philemon Blackwell,” his next of kin is to be ascertained -as of the date of the death of the testator — October 12th, 1872. Wharton v. Barker, 4 K. & J. 483, 488; Philps v. Evans, 4 De G. & S. 188.

These answers dispose of all the mooted queries propounded in the bill.


author: Reed, Y. C.

text:
    Leverett Newcomb v. Samuel J. Lubrasky et ux. et al.
    [Filed May 25th, 1903.]
    1. Where one who had acquired the equity of redemption to property covered by three separate mortgages paid the-amount of the first mortgage on the filing of a bill to foreclose that mortgage, and obtained a decree, by consent of the mortgagee, that the bond and mortgage be assigned to him, 'he thereby became subrogated to the rights of the mortgagee, and the mortgage was not satisfied.
    2. One who had acquired the equity of redemption to property covered by three separate mortgages redeemed the property on the filing of a bill to foreclose by the first mortgagee, and obtained a decree that the mortgage be assigned to him. Afterwards the second mortgagee brought foreclosure proceedings, making the first mortgagee and the assignee, as owner of the equity of redemption, defendants, and alleging that the first mortgage was paid, though uncancelled of record, and obtained a decree by default that the property be sold, and that the foreclosed mortgage and the subsequent one be paid, and the surplus brought into court. — Meld, that, as this decree did not adjudge that the first mortgage was paid, it did not conclude the assignee of that mortgage from bringing a subsequent suit to foreclose it.

      Mr. Levereti Newcomb, pro se.

      Mr. Isaac O. Acton, for the defendants.
   Reed, Y. C.

This bill is filed to foreclose a mortgage given July 31st, 1888, by Samuel J. Lubrasky to’ the Alliance Land Trust, to secure the sum of $180. „

Lubrasky and wife, on April 25th, 1893, executed a second mortgage upon property already mortgaged, and other lands, to the Franklin- Land and Building Association of Salem, to secure $1,600. He also made a third mortgage, which does not figure in this case. The equity of redemption in the premises covered by these mortgages was acquired by the complainant, Leverett Newcomb. The present contest is between the complainant and the second mortgagee, the Franklin Land and Building Association, which is made a party defendant to the present foreclosure suit.

It appears that the Alliance Land Trust, on January 29th, 1897, then owning the first mortgage now sought-to be foreclosed by Mr. Newcomb, filed a bill for that purpose. Whereupon Mr. Newcomb, as owner of the equity of redemption, filed an answer asking to redeem, and paid into court the amount due upon the mortgage, with costs, which moneys were taken out by the complainant. Subsequently the complainant assented to a decree that the bond and mortgage should be assigned to Mr. Newcomb. The payment by Newcomb of the amount due upon the mortgage under these conditions was not a satisfaction of the mortgage, but a redemption. It put Mr. Newcomb in the position of an equitable assignee of that mortgage. Without the assignment he had the right to have the mortgage delivered to him uncanceled, and this, in equity, is a complete assignment. Such redemption put him in the place of the mortgagee and gave him all the mortgagee’s rights against the mortgagor. He thereupon became entitled to hold it as an existing mortgage until the owner of the equity of redemption'redeemed it or he himself foreclosed it. Jones Mort. § 1086; Hamilton v. Dobbs, 4 C. E. Gr. 227.

The important question is whether Mr. Newcomb lost his right to foreclose that mortgage by reason of the effect to be given to a decree made in a subsequent foreclosure suit brought by the second mortgagee, the Franklin Land and Building Association of Salem.

This suit was begun October 5th, 1901. The bill set out the subsequent encumbrances upon the property, and also contained an allegation as follows:

“That on or about July 31st, 1888, Samuel Lubrasky and wife made a mortgage upon the said tract, to the Alliance Land Trust, a corporation of the State of New York, to secure the sum of $180, which said mortgage was duly recorded and so forth, and still remains open upon said record. But your, orator expressly charges that said mortgage, although uncancelecl of record, has in point of fact been duly paid and satisfied, and is no longer a lien upon said mortgaged premises, or any part thereof.”

The mortgage thus attacked is the same mortgage now sought to be foreclosed.

At the time the bill was filed in the suit by the second mortgagee, Mr. Newcomb was the owner of the first mortgage, and was also the .owner of the equity of redemption. Both the Alliance Land Trust and Mr. Newcomb were made parties in that suit, the latter because he claimed some right or interest in the said premises, by reason of the conveyance to him of the equity of redemption. The service of the subpoena upon the Alliance Land Trust appears thus: “Service 'acknowledged this fifteenth day of November, 1901, the Alliance Land Trust, William W. Banthall, Solicitor.” Whether this was an adequate service upon the Alliance Land Trust need not be decided. Actual service upon Mr. Newcomb is returned. No appearance or answer was filed by either of these parties. The usual decree pro confesso was taken, followed by a reference and report and final decree. The final decree directs the payment of $684, and costs, to the Franklin Land and Building Association 'out of the proceeds of the sale to be made of the mortgaged premises, and any surplus to be applied to the payment of the subsequent mortgage, and then, if any surplus remain, it was to be brought into court. The mortgage to the Alliance Land Trust is not mentioned in the decree.

The question is whether, by force of this decree, the complainant is now estopped from insisting that his mortgage is still unpaid. The estoppel is set up by the Franklin Land and Building Association in its answer in the present case. The answer, upon the trial, made to this insistence was that tire first mortgagee was not bound to take notice of the suit to foreclose brought by the second mortgagee. The equitable owner of the first mortgage relied upon the doctrine that a second mortgagee cannot foreclose the equity of the first mortgagee. p This familiar doctrine is applicable whenever a subsequent mortgagee recognizes the existence of a prior mortgage. Such subsequent mortgagee cannot compel the prior mortgagee to submit to a foreclosure of his mortgage. Such prior mortgagee need take no notice of the existence of such a suit, but he may come in and assent to the sale of the premises free of his encumbrance, and that his mortgage may be paid out of the proceeds. Any sale made of the property without such consent is made subject to the lien of his’ prior mortgage.

But this suit brought by the Franklin Land and Building Association did not recognize the existence of the recorded prior mortgage. On the contrary, it attacked its existence by charging that it had been paid. The bill therefore was not to foreclose the first mortgage, but to have it decreed to have been paid and to have it cancelled of record. In Gihon v. Belleville White Lead Co., 3 Halst. Ch. 536, it was said: “A man holding a second mortgage may file a bill stating that a prior mortgage has been given, and setting up that it is fraudulent and void, or has been paid, and ask to have it so decreed; or make a person so holding it a party, and ask to have the premises sold to pay the mortgage.”

This practice is recognized by Mr. Justice Yan Syckcl in Bigelow v. Cassedy, 11 C. E. Gr. 561. He says: “Even if the bill charges the prior mortgage to be void or paid, and it turns out to be a valid subsisting encumbrance, the mortgaged premises will not be sold to pay' the prior, mortgage without the consent of the prior mortgagee.” The charge in the bill, therefore, that the first mortgage was paid was entirely proper, and if Mr. New-comb had been brought into the suit because of his interest in such mortgage, and there had been a decree that this mortgage was paid, there can be no doubt that he would have been estopped from now setting up the existence of his mortgage.

And, although he was brought into the suit as the owner of the equity of redemption, yet he, having knowledge of his unrecorded equitable assignment of the mortgage, would, I think, have been bound to defend against the attack made upon the mortgage. But conceding all this, I do not see how the decree, as framed, can be regarded as concluding Mr. Newcomb, upon the question whether this mortgage was paid. There was no prayer in the bill for such a decree, and no decretal order was made adjudging that the mortgage to the Alliance Land Trust was paid and should be cancelled of record.

The decree, so far as it directed the payment of the money to be realized from the sale of the mortgaged premises, is in no way significant respecting the existence or non-existence of the first mortgage. There would have been no payment to the first mortgagee under the bill as framed in any event. The distribution of the money raised would have been exactly the same whether the property was sold free or subject to the lien of a prior mortgage. Now, with the exception of the direction as to the distribution of the money raised upon this foreclosure sale, the decree contains nothing but the ordinary order that the defendants stand foreclosed from all equity of redemption in so much of the mortgaged premises as shall' be sold. The first mortgagee had no right of redemption of which he could be foreclosed. He" held a superior interest, which, as already remarked, could not be foreclosed in that suit. The decree, therefore, applied to those defendants only who held subsequent encumbrances or interests.

There should be a decree for the complainant.


text:
    Ralph A. Johnson and Frank C. Cridland v. The Atlantic City Gas and Water Company.
    [Filed May 29th, 1903.]
    An injunction is not a proper process to compel a gas company to furnish gas to a consumer, unless it is shown that a mandamus is not an adequate remedy.
    On demurrer to bill.

      Mr. Clarence L. Cole, for the demurrer.

      Mr. John B. Black and William M. Clevenger, for the complainants.
   Reed, V. C.

This bill is filed by a landlord and by a tenant of a dwelling-house in Atlantic. City. It is filed to compel the defendant, a gas and water company, incorporated under the laws of this state, to supply this dwelling-house 'with gas. The house is connected with the gas company's reservoir by pipes. The tenant, Cridland, rented the house of Johnson, and then applied to the gas company to have the gas turned on. The company refused to do so until an unpaid bill for gas furnished to a former tenant was paid.

The ground taken by the demurrer is that, assuming that a duty rested upon the company to furnish gas (Omsted v. Proprietors of the Morris Aqueduct, 18 Vr. 311, 324), nevertheless, the complainants have no right to invoke equitable relief by way of injunction.

I am of the opinion that this objection is well taken. The duty of the corporation to furnish gas was a legal corporate duty, and such duty is enforceable only by writ of mandamus. New York Railroad Co. v. Montclair, 2 Dick. Ch. Rep. 591; Barber v. West Jersey Title Co., 8 Dick. Ch. Rep. 158.

The counsel for the complainants cited a number of cases decided in other jurisdictions, in which relief by injunction was granted to enforce corporate duties like this. But, upon examination, those cases will be found either to have been decided in states where the methods of judicial procedure are unlike ours, or they are cases in which some distinct element was presented which destro3red the adequacy of the relief afforded by writ of mandamus, or they were cases where the corporate duty was contractual and not legal.

For instance, in United States v. Union Pacific Railroad Co., 160 U. S. 1, 50, there were -agreements existing between the railroad company and the Western Union Telegraph Company, which agreements stood in the way of complete relief. The court held that, by the use of the writ of mandamus, the telegraph company could not be reached, and that the United States had the right to have these agreements cancelled, and so, having taken jurisdiction for this purpose, the court would decide the whole case.

In Webster v. Newell, 66 Mich. 508, an injunction was granted restraining the commissioner of the land office from selling land from which the defendant had the right to make a selection of lot. The court admitted the existence of the rule that, if there had been nothing required but the enforcement of the legal duty, the complainant’s appropriate remedy would have been mandamus.

In People v. Canal Board, 55 N. Y. 390, there was an application to restrain the doing of something, in violation of law, to the injury of the public.

In Whiteman v. Fayette Fuel Gas Co., 139 Pa. St. 492, and in Fleming v. Montgomery Light Co., 100 Ala. 656, the duty of the corporations arose out of contract.

In Sickels v. Manhattan Gaslight Co., 64 How. Pr. 33, the procedure was preventive; it enjoined the taking out of a meter already on the premises, through which gas was being supplied to a factory.

The injunction prayed for in this bill, although put in a preventive form, is, in fact, a mandatory writ. There is no fact or collocation of facts stated in the bill which display any inadequacy in. the relief which a writ of mandamus will furnish in compelling the performance of the legal duty of the defending company to turn on the supply of gas to this particular dwelling.

There should be an order allowing the demurrer.


text:
    Swedesboro Loan and Building Association v. James Gans et al.
    [Filed June 5th, 1903.]
    1. In the case stated no consideration was paid for the cancellation of the mortgage. — Eeld, that, as against the heirs of the mortgagor, complainant was entitled to a decree for the re-establishment and foreclosure of the mortgage.
    2. Cases of plain mistake or misapprehension of right, though not the effect of fraud 'or contrivance, are entitled to the interposition of a court of equity where there has been no negligence on the part of the applicant.

      Mr. Norman Grey and Mr. Wilfred B. Wolcott, for the complainant.

      Mr. Thomas B. French and Mr. Samuel Richards, for the defendants.
   Reed, V. C.

This suit is brought to have a mortgage which has been can-celled upon the record re-establishe'd and foreclosed. The facts, as I gather them from the pleadings, from the meagre testimony and from the position taken by counsel, are as follows: One Charles Gans, of Gloucester county, made a mortgage, dated March 11th, 1892, to the Swedesboro Loan and Building Association to secure the sum of $1,100, payable in one year. Charles Gans, the mortgagor, died June 9th, 1894, intestate, leaving him surviving his widow, Kate P. Gans, and as his heirs, two brothers — James and John — and three sisters — Jennie, Phebe and Mary.

On April 1st, 1895, the widow released to the complainants her right of dower in the mortgaged premises. The complainant accepted a deed from one Sebastian Gans, the father of Charles, the deceased mortgagor, under the belief that on the death of Charles the property descended to his father. After the execution of this deed, the loan and building association, believing that it held the legal title to the premises^ on August 5th, 1895, cancelled its mortgage. The procuration of the ,deed from Sebastian Gans seems to have been accomplished by one Benjamin McAllister, who was a scrivener and was at one time a director of the building association and did writing for them, and who seems also to have been mixed up in the settlement of the estate of Charles Gans. He apparently acted as intermediary between the building association and the Gans’, and got the deed which the complainant accepted upon his word as a conveyance of the equity of redemption in .the mortgaged premises. Upon the execution of this deed the complainant went into possession, and has since received the rents and -profits therefrom. There can be no doubt that the cancellation of. the mortgage was • induced by the belief that by force of the deed of Sebastian Gans the land association owned a complete title to' the property.

It is thus manifest that the equity of the situation is entirely with the complainant. The defendants, as heirs of Charles Gans, received the property subject to the lien of this mortgage. The cancellation of the mortgage was, a pure gift to the defendants of the mortgagee’s interest in the property. The heirs had not paid one cent to bring about this change in the respective position of mortgagee and heirs.

Neither has any purchaser, bona fide or otherwise, come into' existence upon the faith of the cancellation of the mortgage.

It is clear, therefore, that unless some inexorable rule compels otherwise, the complainant should be - relieved .from the predicament into which it was misled by its belief in its ownership of a complete title to the mortgaged property.

The substantial ground upon which the heirs resist the granting of this relief is that wnile the cancellation was-caused by a mistake of the complainant, it was a mistake of. law and not of fact. The maxim juris ignorantia non excusat is invoked by the defendants. This maxim is subject to so many exceptions that it is quite as often inapplicable as applicable to supposed mistakes of law.

That the present case, involving the release of private rights under a mistaken notion as to private ownership of property, is one in which the English courts of chancery would afford prompt relief cannot be doubted. The line of cases granting relief where a man purchased his own property through mistake (Bingham v. Bingham, 1 Ves. Sr. 127), or where a release was made so broad in its terms as to release rights of property of which the party was ignorant.(Chalmondeley v. Clinton, 2 Mar. 171), or where a party, under the misapprehension that he had no title, surrendered to the supposed owner (Pusey v. Desbouvrie, 3 P. Wms. 315), exhibit the degree in which courts of equity granted relief from such mistakes. In Livesey v. Livesey, 3 Russ. 287, an executrix, who, under a mistaken construction of a will, had overpaid an annuity, was permitted to deduct the amount overpaid from subsequent paj'ments. In McCarthy v. Decaix, 2 Russ. & M. 614, a person was relieved where he had renounced a claim of- property made under a mistake respecting the validity of a marriage, the lord-chancellor saying: “What he has done was in ignorance of the law, possibly of fact; but in a case of this kind this would be one and the same thing.”

In Cooper v. Phibbs, L. R. 2 H. L. 149, 172; S. C., 22 Eng. Bul. Cas. 870, an agreement was cancelled because it had been entered into through a mistake as to the ownership of a fishery. In this case Lord Westbury expressed the much-discussed sentiment that the word “jus” in the maxim is used to denote a general law, and has no application to private rights. The result of this decision of the house of lords was that an act caused through a mistake as to ownership of property would be remedied in equity. In Beauchamp v. Winn, L. R. 6 H. L. 223, 264; S. C., 22 Eng. Rul. Cas. 889, a mutual mistake in an agreement as to the rights of the- parties resulted in a correction of the agreement.

The result of the English cases is summed up by Mr. Kerr in the remark “that if a man through misapprehension or mistake of the law parts with or gives up private rights to property, or assumes obligations upon grounds upon which he would not have acted but for such misapprehension; a court of equity may grant relief, if under the general consideration of the case it is satisfied that the party benefited by the mistake cannot in conscience retain the benefit or advantage so acquired.” Kerr Fr. This statement of the equitable rule was cited with apparent . approval by Chancellor Kunyon in Macknet v. Macknet, 2 Stew. Eq. 54, 59, and in Martin v. New York, Susquehanna and Western Railroad Co., 9 Stew. Eq. 109, 112.

The equity cases in this cuuntry, more particularly the earlier cases, exhibit a less liberal spirit in granting relief for mistakes in law. 'This resulted mainly, I think, from the great influence which the early reported cases decided by Chancellor Kent had in sha’ping the early equity jurisprudence of this country.

The case of Lyon v. Richmond, 2 Johns. Ch. 60, was an application to set aside an agreement, because it was entered into under the influence of a supposed condition of the law, and afterwards the court of errors rendered a decision which changed the law as it was supposed to exist when the agreement was made. In deciding that the court could grant no relief, Chancellor Kent, having in mind, of course, the particular facts of that case, made some general remarks in respect to the impolicy of a court of equity attempting to relieve against mistakes of law. These remarks appear again and again in the earlier cases, being used as a general authority against the granting of relief in all cases of mistakes of law.

These remarks appear in the opinion in the case of Garwood v. Administrator of Eldridge, 1 Gr. Ch. 145, which case is invoked as conclusive against the restoration of this mortgage. In that ease Chancellor Pennington declined to re-establish certain mortgages which had been cancelled by a mortgagee who purchased the equity of redemption, and by the cancellation, a judgment, of the existence of which the mortgagee was ignorant, became a superior lien upon the property. The chancellor stated the rule to be that relief would not be granted to the complainant if his mistake was as to- the legal effects of the cancellation in advancing the lien of the judgment. The remarks of the chancellor were uncalled for, because he found that there was no mistake at law at all. The mistake was in the mortgagee’s failure to search the record, the result of his negligence being-that he was unaware of the existence of the judgment. His mistake was one of fact, and the negligence of the complainant was the real ground for his defeat.

This case and Lyon v. Richmond, supra, is cited in the case of Bentley v. Whiltemore, 3 C. E. Gr. 366, 374, in which case Chancellor Zabriskie stated that certain mortgages which had been cancelled upon the faith of an assignment, which assignment he held to be void, could not be restored because the cancellation was induced by a mistake at law. This case* was reversed (S. C., 4 C. E. Gr. 462), the court of appeals holding that the assignment was valid. The assignment, therefore,’being valid, the question of the establishment of the cancelled mortgages was eliminated from the case, and the chancellor’s remarks became dicta.

The. remarks of Chancellor Kent appear in Executors of Wintermute v. Executors of Snyder, 2 Gr. Ch. 489, where there was an assignment of the interest of certain parties under a will, and their ignorance of their rights under that instrument misled them to the execution of the assignment. Chancellor Yroom refused to grant relief, upon the ground that the mistake was one of law. The learned chancellor, however, was careful to exclude the inference that in his judgment there could be no instance where equity could relieve against mistakes of law. The case itself holds that this dispositive instrument, the execution of which had been induced by mistake of law, would not be rectified. This was the doctrine announced by Chancellor Runyon in Hampton v. Nicholson, 8. C. E. Gr. 423. The chancellor said that where a purchaser accepts a deed by which no title is conveyed when there is no misapprehension as to the .facts and no fraud and no warranty of title, he has no redress at law or in equity.

But in that case a mortgage had been cancelled and the chancellor proceeded to remark: “If the mortgage had been cancelled without actual payment on the mistaken supposition that the deed merged and satisfied it, and the debt of $300 due from the testator to the complainant had been given up and discharged on the belief that it was satisfied by the amount due for the conveyance, this cancelling and satisfaction being entirely without consideration, could in equity be set asicl.e and the debts be declared to be subsisting.”

In Skillman v. Teeple, Sax. 232, the holder of notes released a mortgagee from his liability upon the notes under a misapprehension as to her legal rights at the time. Drake, master, said: “In this case there can be no doubt that the complainant and Teeple acted under a mistake ór misapprehension of her rights. Under such a mistake she signed a parol agreement without any consideration and highly prejudicial to her interests. I am of the opinion that the- agreement should be set aside.”

Our later cases display a desire to.discover some ground to rectify an inequitable result flowing from mistakes of all kinds. Chilver v. Weston, 12 C. E. Gr. 435; Macknet v. Macknet, supra; Martin v. New York, Susquehanna and Western Railroad Co., supra; Young v. Hill, 4 Stew. Eq. 429.

The ability of courts of equity to rectify mistakes arising from ignorance of the law is everywhere acknowledged to exist in certain instances. The propriety of exercising this power must depend upon the circumstances which surround each case. It will depend upon whether a party who asks relief has been negligent; whether he has been led into his belief by the other party; whether other innocent parties will be injured by a rectification of the mistake, or whether the mistake can be regarded as one •of fact, although indirectly resulting from a mistaken notion •of the law. All these and other features are to be considered in deciding whether it is equitable and politic to put the mistaken' party in statu quo.

The cases in which the power has been exercised are collected and classified in 20 Am. & Eng. Encycl. L. (2d. ed.) 16. In my judgment the power should be exercised in the present case. The mistake was in respect to the ownership of the property upon which the cancelled mortgage was an encumbrance, and the English cases treat such a mistake as one of fact.

Again, the annulment of the mortgage was without any consideration whatever. Nothing was received by the mortgagee and nothing was paid by the heirs.

The language of the supreme court'of Maine (Freemen v. Curtis, 51 Me. 140, 145) in respect to the execution of a release induced by a mistaken notion of the rights of the releasor is pertinent. The court said: “There was nothing between the parties as a basis for any negotiation, and there was no claim of the one against the other, valid or invalid. It was an isolated act — the obtaining of a release of five-sixths of a valuable estate without any pretence of any consideration, through the ignorance of the parties giving it. Whether the defendant was ignorant or not, it would be a reproach to the law if he should now be permitted to retain the fruits of such a proceeding.” In my judgment the heirs cannot, in the present case, equitably retain the advantage which the mistaken act of cancellation gave them.

It is said, however, that the complainant was negligent in not applying earlier for relief. It does not so appear. Nothing appears to show when it obtained its knowledge of the true condition of affairs. The complainant has been in possession since 1895. If negligence rested anywhere it would seem to be upon the parties who permitted the complainant to receive the rents and- profits from the property up to the present time.

There should be the usual decree of foreclosure, with reference to a master to take an account of the rents and profits as a basis for ascertaining the amount due upon the mortgage.