author: Per Curiam.

text:
    James S. Frazer et al., appellants, v. Public Service Railway Company, respondent,

    [Argued March 9th, 1917.
    Decided June 18, 1917.]
    On appeal from a decree of 'the court of chancery advised by Yice-Chancellor Howell, who filed the following opinion:
    The bill of complaint in this case is an injunction bill. It seeks to restrain the defendants from interfering with its street railway on Hamburg Place, in the city of Newark. The allegations of the bill are that prior to August 22d, 1913, the complainant and its predecessors in title were operating a street Tail-way in Hamburg Place, and that on that day the defendants Erazer and Burchenal, as partners, trading as Erazer & Burchenal, entered into a contract with the Passaic valley sewerage commissioners to construct a section of its intercepting sewer longitudinally in Hamburg Place near Avenue L. The contract provided that the work should be done by the method known as the open cut method, which contemplated an open ditch of sufficient width to permit of the removal of the excavated earth and the construction of the sewer at the bottom of the trench. The complainant’s railway is alleged by the bill to be a necessary part of its railway system—that it is used by many thousands of people every day, the ears thereon being operated at varying intervals of time from two and a. half minutes during a part of the day and every five minutes at other times; of this there is no denial. The tracks lie in the middle of the street and the plan of the construction of the sewer locates it in the middle of the street, but many feet below the surface. On November 21st, 1914, the defendants Frazer and Burchenal wrote a letter to the complainant in which they notified it that in tire construction of a portion of said sewer it would be necessary for the complainant’s tracks and overhead wires to be removed temporarily for a distance of approximately one hundred and fifty feet at the junction of Plamburg Place and Avenue L, and also to remove a dead-end track east of Avenue L, and, owing to the size of the necessary excavation and the nature of the soil, it would be unsafe to operate cars at that point while the work is being carried on, and claimed that it was the duty of the complainant to remove the wires and tracks aforesaid in order that the work on the sewer might proceed. By the same letter they renewed their offer that if the complainant would promptly remove the tracks and its wires for the required distance at the point mentioned and replace them when the surface of the street should be restored, they would pay the necessary expense thereof if a court of competent jurisdiction or an arbitrator should determine that they were liable therefor, to procure which they would furnish a satisfactory bond, and the complainant was notified that unless it commenced the removal of the tracks and wires on or before the morning of November 25th, 1914, it was their intention to begin the removal of the same, so far as it might be necessary to enable them to proceed with their work. On November 24th, 1914, the bill was filed to restrain Frazer and Burchenal from carrying out their threat to remove the complainant’s tracks and overhead wires. On the filing of the bill an order was made requiring these defendants to show cause why an injunction should not issue to restrain them from carrying out their threat, and at the same time the defendants were enjoined until the further order of the- court from taking up or in anywise interfering with the railway tracks of the complainant to the extent of any interruption of the operation of the street railway across, thereon or thereover. Upon the return day of this, order, or a continuance thereof, argument was had before Vice-Chancellor Emery, and on December 28th, 1914, it was ordered that a writ of injunction should issue against the said Frazer and Burchenal enjoining them from tearing up, disturbing or interfering with the street railway tracks of the complainant in Hamburg Place and Avenue L, as proposed in tlie letter above mentioned, but providing that tlie said defendants should be at liberty to lay a single-track street railway around the proposed open cut for the section of the sewer which they had contracted to construct, such single-track railway to be connected with the railway of the complainant on Hamburg Place north of the proposed excavation, and also with the same railway on Avenue L east thereof, so that the street railway service of the complainant might be maintained during the construction of the said section of the said sewer, and that thereupon the said defendants might remove the tracks of the complainant so far as it should be reasonably necessary to construct said sewer by the open cut method, but that before constructing the single-track railway, and its connections and removing the existing tracks as aforesaid, the said defendants should'give to the complainant an opportunity to construct said single track and connections and remove said existing tracks at the expense of the defendants Frazer and Burchenal, and that when said sewer should have been constructed the said single track and connections should be removed and the present tracks of the complainant restored to the location now occupied by them, by the defendants Burchenal and Frazer, provided that the complainant should first be given an opportunity by the said defendants to remove the single track and connections and restore the present tracks at the expense of the said defendants, and that the said defendants before removing or disturbing the tracks of the complainant should give a bond to the complainant in the sum of $4,000, with surety, conditioned for the pajunent of the cost of said work, if done by tlie complainant. The said order further provided that all proceedings in relation to the matter should be considered as made and taken under the provisions of the said order which it stated was made for the purpose of regulating and controlling pendente Hie the use and possession of the public street for the constructing of the sewer by the open cut method, interfering only so far as should be reasonably necessary with the public travel on the complainant’s present line of railwa}', and that such action or payment under this order should be without prejudice to the final determination of the contractors’ liability to such extent as against either the complainant or Passaic valley sewerage commissioners or to their right on such final determination to claim and demand the repayment or reimbursement of the same from either the complainant or the said commissioners or their right to be relieved from any obligation given to .complainant by bond or otherwise to secure the complainant for the payment of such expense; and leave was given to all the parties to apply to the court from time to time for further orders and directions.
    The single track for the accommodation of the complainant’s business, as provided for in said order, was constructed by the, complainant, was used by it until the completion of the said section of the sewer, which was in or about September, 1915. The work of restoring the complainant’s tracks to their, former condition and situation is finished, and, as I understand the fact, the total expense of both displacing and restoring tracks has been paid by the complainant.
    It, therefore, appears that the present controversy is over the question who shall pay for the removal and restoration of the complainant’s street railway at the point in question. The decision of this point requires an examination into the rights, duties and obligations of the several parties to the transaction.
    There is nothing in the ease to show when or by what means the complainant obtained the right to lay tracks and prosecute its business in Hamburg Place, nor is there anything to show the extent, duration or character of any such right as it may possess.
    I shall assume, however, inasmuch as no question is made about it, that the complainant is lawfully in possession of the portion of the street occupied by its tracks, and that it has a right given to it by some paramount authority to operate its railway over the said tracks, and that it has such rights and franchises for its purposes in the said street as give it a standing to file the present bill.
    The defendants Frazer and Burchenal derive all their rights in the street from the contract of August 22d, 1913, hereinbefore referred to, made between them and the Passaic valley sewerage commissioners, and the commissioners derive all their rights from two statutes, the first one being P. L. 1903 p. 158, and the other being P. L. 1907 p. 22. By section 7 of the act of 1903 said commissioners were given power to construct any sewer or drain by it to be made or constructed under or over any waters, course, under or over or across or along any street, turnpike, railway, canal, highway or other way, and in or upon private or public lands, and in or upon lands of the state and under water of the state, in such manner, however, as not unnecessarily to obstruct or impede travel or navigation, and may enter upon and dig up any street, road, highway or private or public lands, either in or without the said sewerage district, for the purpose of constructing or laying sewers or drains upon or benéath the surface thereof, and for maintaining and operating the same, and in general may do all acts or things necessary, convenient and proper to carry out the purposes of this act.
    By section 5 of the act of 1907 the commissioners were given power to construct an intercepting sewer or sewers and the necessary appurtenances thereto to the point or points of discharge and disposal determined by said contract, and for this purpose to pass through or partly through territory situated within the bounds of any other municipality than those contracting with it for the construction of said work, and full power to construct such intercepting sewer or sewers and its appurtenances along, over and under any water course or under or over or along or across any street, turnpike, road, railroad, highway or other way or public park or grounds, and in or upon private or public land under water; in such way and manner, however, as not necessarily (unnecessarily?) to obstruct or impede travel or navigation, and to enter upon or dig up any street, highway or private or public land for the purpose of constructing said work and appurtenances, and for repairing and maintaining the same, and in a general way to do all other acts and things necessary, convenient and proper in connection with the making and maintaining of the improvement contemplated by the act, and that the highways dug up and disturbed should be restored to their former condition as near as might be.
    It is difficult to conceive a broader grant of powers or a more specific designation of the particular things which the state in its sovereign capacity has authorized these commissioners to do. The authority of the commissioners to act in the premises and to employ agents to carry out its purposes and plans, such as the defendants Rrazer and Burchenal, is not disputed or even questioned. The complainant admits all that is claimed for the power of the state to construct underground sewers in streets which are already occupied by private individuals and corporations exercising the franchises for the benefit of the public. They admit that under the present-legislation on the subject the state by its municipal agencies has the right to construct the sewer in question or authorize its construction by all means in its power: but'it claims that the state agency in performing the work has exceeded the authority and power committed to it, in that it has attempted to violate, and has violated, the single limitation upon its power, that limitation being a requirement that it shall not unnecessarily obstruct or impede travel. I think there can be no doubt about what is meant by the word “travel.” It includes all the methods ordinarily in common use by which people on foot and with horses, wagons and power trucks may traverse Hamburg Place or other public streets of the state. It certainly includes travel by means of the street cars operated by the complainant over its tracks in the last-named street (Hendry v. North Hampton, 72 N. H. 351; 56 Atl. Rep. 922), and the question is, therefore, whether the method of building the sewer adopted by the commissioners and fastened upon the defendant contractors by their contract is or is not an unnecessary obstruction to travel. Vice-Chancellor Emery, in the opinion written by him on the decision of the motion for a preliminary injunction, interpreted the word “necessarily” according to one of its milder meanings. In Chicago I. & L. Railway Co. v. Baugh, 175 Ind. 419; 94 N. E. Rep. 571, it was said that the word “necessary” had no fixed meaning or character peculiar to itself; that it is flexible and relative; that it is an adjective expressing degrees, and may express mere convenience or that which is indispensable or an absolute physical necessity; that it may mean something which in the accomplishment of a given object cannot be dispensed with, or it may mean something reasonably useful and proper and of greater or lesser benefit or convenience, and its force and meaning must be determined with relation to the particular object sought and is a relative and comparative term depending on its application to the object sought, the character of and reasons for the convenience as public or private and its adoption to the public needs or public convenience, and especially is this true where it is based upon a condition or state of affairs in which the public are directly interested and as to which a public duty is imposed upon a public instrumentality as a railroad.
    The learned vice-chancellor’s interpretation of the idea of reasonableness seems to me to express exactly what the legislature must have had in mind when it provided that the work authorized should not unnecessarily interfere with travel. The limitation upon the power of the commissioners therefore is that in performing the work contemplated by the statute, and in formulating plans therefor, they must provide for the construction of the work in such way and manner as not'unnecessarily to obstruct travel. If they have violated this limitation, then they have exceeded their authority, and if they have exceeded their authority, they cannot enforce their plans and methods of construction upon the complainant. The idea of what is reasonable under all the known circumstances must be kept before us. What would be reasonable in one place or under one set of circumstances might be the very opposite in another place and under other circumstances. Would it be reasonable or would it be a reasonable exercise of the right given to the commissioners to completely tear up the tracks of the complainant at the point in question and leave them torn up for a period of three months during the inclement weather of winter ? The proposition of the defendant’s answer was that the work would require the use of the street for a period not to exceed three months. We now know that the work occupied about eight months. Suppose that by ordinary diligence the work of constructing the sewer under the defendant’s contracts were known beforehand to occupy the period of three months, and that the track of the complainant would have to remain torn up for that period, would that be a reasonably necessary obstruction to the public travel? If there were no method by which such an interruption could he avoided, it certainly would be an unreasonable obstruction; and this must have been in the contemplation of the legislature at the time it was formulating the statute in question. In such an event it would, in my opinion, be the plain duty of the contractors and the sewerage commission at their own expense to so arrange their work as to avoid the interference. This argument leads to a decision of the point in favor of the complainants and justifies the interference of this court on either of two grounds, viz., the restraining of a continuing trespass, amounting to an irreparable injury, or the regulation of conflicting easements in the property of the public.
    The contract between the sewerage commissioners and the contractors contains this covenant on the part of the contractors : “To make all provisions necessary to maintain and protect existing structures of whatever kind; to repair all damage done to such structures,” and that “care shall be taken to avoid injury to gas and water pipes, sewers, drains and other structures,” and that
    “care shall be taken not to move without the consent of the engineer any sewers, drains, water or gas pipes or Other structures, and in crossing these or in running parallel with or near them they shall, be sustained securely in place until the work is completed. Whenever it is necessary to interfere with said structures the contractor shall maintain their respective services, and, if necessary for that purpose, shall lay temporary water, gas or other pipes.”
    There are other expressions of the same character, all of which are relied upon by the complainant as covenants inserted in the contract for its benefit. I do not think that these covenants were made for the benefit of the complainant, but were inserted for the security of the commissioners. There is nothing to indicate that it was the intention of the contractors or the sewer commissioners to make a contract for the benefit of third persons. These covenants come within the rule laid down in Styles v. Long, 67 N. J. Law 413, and 70 N. J. Law 301. These expressions, while they cannot be made the basis of a decree, are useful in the case, however, for the purpose of showing not that the contract was one which could be taken advantage of by third parties, but rather that the sewerage commissioners did not contemplate any interference with the public travel.
    I place my decision, however, squarely upon the somewhat peculiar use of the word “necessary.” It is quite apparent from the testimony that methods might have been employed by the contractors in the construction of the work which would have prevented much of the inconvenience that would arise from the interruption of travel by suspending the railway operations for a period as long as three months. As far as I can see, the statements of the complainant’s witnesses on this point are not controverted. The engineers, on the part of the contractors, admit that some other plan might have been used, but object to it on the score of increased expense. Whether that consideration should affect the decision when we are dealing with the rights of the public I will not attempt to decide.
    I will advise a decree directing that the actual cost of taking up the tracks, of laying temporary tracks and of restoring the situation after the finishing of the sewer, shall be paid by the contractors. If the amount cannot be agreed upon by counsel, I will refer the matter to a master to ascertain the same and report.

      Mr. J. Edward Ashmead, for the appellants.

      Mr. Frank Bergen, for the respondent, Public Service Bail-way Company.

      Mr. Adrian Riker, for the Passaic valley sewerage commissioners.
   Per Curiam.

The decree is affirmed, with costs. We agree with the vice-chancellor’s construction of the powers vested in the Passaic valley sewerage commissioners and his definition of the word “necessary.” We express no opinion on the question whether the covenants in the contract between the sewerage commissioners and the contractors can avail the complainant.

For affirmance — Garrison, Swayze, Trenchard, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 12.

For reversal — None.


source: Caselaw Access Project

license: Public Domain

text:
    Weidmann Silk Dyeing Company, respondent, v. Mayor and Aldermen of the City of Jersey City, appellants.
    [Argued June 20th, 1918.
    Decided November 18th, 1918.]
    On appeal from a decree of the court of chancery.

      Messrs. Griggs & Harding, for the respondent.

      Messrs. Humphreys & Sumner, for the appellants.
   Per Curiam.

The decree is affirmed, for the reasons stated in a memorandum filed in No. 47. See ante p. 541.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Taylor, Gardner — 12.

For reversal — None.


text:
    Weidmann Silk Dyeing Company, respondent, v. The Mayor and Common Council of the City of Newark, appellants.
    [Argued June 20th, 1918.
    Decided November 18th, 1918.]
    On appeal from a decree of the court of chancery.

      Messrs. Griggs & Harding, for the respondent.

      Mr. William J. Kearns, for the appellants.
   Per Curiam.

The decision of the meritorious question is controlled by the memorandum in No. 47. See ante p. 541. The only matter calling for further remark is the contention of the city that the compensation for the diversion of water should be ascertained by the chancellor instead of in condemnation proceedings by a jury. It is enough to say that the chancellor is not obliged to take that course. We need not consider whether he might have taken it if the complainant had consented.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Taylor, Gardner-12.

For reversal — None.


text:
    The United New Jersey Railroad and Canal Company et al., respondents, v. The Board of Chosen Freeholders of the County of Hudson, appellant.
    [Decided October 11th, 1918.]
    On appeal from an order of the court of chancery advised by' Vice-Chancellor Griffin, whose opinion is reported ante p. 95.

      Messrs. Vredenburgh, Wall & Carey, for the respondents.

      Mr. John J. Fallon, for the appellant.
   Per Curiam.

The order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Griffin.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 12.

For reversal — None.


text:
    Frederick Smith, complainant-respondent, v. Edward C. Balch, defendant-appellant.
    [Argued June 19th, 1918.
    Decided November 18th, 1918.]
    On appeal from the court of chancery.

      Mr. William Tyacke, Jr., for the respondent.

      Messrs. Day, Day, Smith & Slingerland, for the appellant.
   Per Curiam.

The decree in this case is affirmed, for the reasons stated in the opinion of this court in a case between the same parties, June term, 1918, No. 31, reported ante p. 563.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Kalisch, Black, White, Williams, Taylor, Gardner — 11.

For reversal — None.


text:
    The Summit Silk Company, appellant, v. Fidelity Trust Company of Baltimore, a corporation, &c., guardian of Emily E. DeForest, a lunatic, and Emily E. DeForest, respondents.
    [Decided October 11th, 1918.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis and reported in 88 N. J. Eq. 113.

      Messrs. McDermott & Enright, for the appellant.

      Messrs. Vredenburgh, Wall & Carey, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Lewis.

For affirmance — The Chief-Justice, Swayze, Trenchard, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 12.

For reversal — None.


text:
    Robert A. Rockhill, appellant, v. Mary E. Herr et al., respondents.
    [Decided November 18th, 1918.]
    On appeal from a decree in chancery advised by Advisory Master Stockton.

      Mr. H. Burdett Herr, for the appellants.

      Mr. Joseph Beck Tyler, for the respondent.
   Per Curiam.

The purpose of the bill of complaint in this case was to obtain a decree compelling the defendants to execute and deliver to the complainant a release from a. mortgage held by them upon lands belonging to him in the city of Camden. The defendants failed to file any plea, demurrer or answer to the bill within the time limited by law, and for failure to do so a. decree pro confesso was entered against them and an order for proofs made. A consideration of the proofs taken under this order led the advisory master to the conclusion that the complainant was entitled to the relief sought by him in his bill, and he so advised the chancellor. Prom the decree entered upon this advice the defendants have appealed.

This appeal will not lie. It was decided by this court in the case of New Jersey Building, Loan and Investment Co. v. Lord, 66 N. J. Eq. 344, that neither by any ancient equity practice inherited from the mother country, nor in accordance with our own constitution and statutes, will an appeal lie to the court of errors and appeals from a decree in chancery made upon a bill which has regularly been taken as confessed against the appealing defendants, for want of plea, demurrer or answer, and upon proofs taken ex parte.

It is further declared in the cited case that proper practice permits either the dismissal of the appeal or the affirmance of the decree as this court in its discretion may direct.

We think it proper in the present case to affirm the decree, with costs.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner -13.

For reversal — None.


text:
    George Conover, appellant, v. Guarantee Trust Company et al., respondents.
    [Decided October 11th, 1918.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 88 N. J. Eq. 450.

      Mr. William M. Clevenger, for the appellant.

      Mr. Clarence L. Cole, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance — The Chief-Justice, Swayze, Trenchard, Bergen, Minturn, Kalisch, Black, Heppenheimer — 8.

For reversal — Williams, Taylor, Gardner — 3.


text:
    George Conover, appellant, v. Guarantee Trust Company et al., respondents.
    [Decided October 11th, 1918.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 88 N. J. Eq. 450.

      Mr. William M. Clevenger, for the respondent.

      Mr. Clarence L. Cole, for the appellants.
   Per Curiam.

The decree appealed from will he affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance — The Chief-Justice, Swayze, Trenchard, Bergen, Minturn, Kalisch, Black, Heppenheimer, Williams — 9.

For reversal — None.


text:
    Augusta M. Ahrens, complainant-appellant, v. Mary Kelly et al., defendants-respondents.
    [Submitted July 8th, 1918.
    Decided November 18th, 1918.]
    On appeal from a decree advised by Vice-Chancellor Lewis, whose opinion is reported in 88 N. J. Eq. 119.

      Mr. Henry W. Runyon, for the appellant.

      Mr. Randolph Perkins, for the respondents.
   Per Curiam.

The vice-chancellor found usury attributable to the complainant’s assignor, both at the making and the renewal of a bond on which the defendant Mary Kelly was an obligor, and a mortgage to secure it made by her son and his wife, who later conveyed to Mary Kelly, subject to the mortgage. On this appeal it is argued that usury was not shown by the proofs, especially so' far as the original mortgagee was concerned. Without going into the details of the evidence, which were fully discussed in the opinion of the court below, we think it sufficient to say that on a careful reading of the proofs we agree with the vice-chancellor that usury was fully proved, even under the exacting rule of burden of proof applicable to that class of cases, and that he properly held complainant chargeable therewith.

It is further urged that the respondent Mary Kelly.cannot set up’ usury because the property was conveyed to her expressly subject to the usurious mortgage; and in support of this the line of decisions typified by Lee v. Stiger, 30 N. J. Eq. 610, is relied on. Those cases are not applicable here; for 'defendant Mary Kelly was a party to the bond as obligor, and as such ultimately liable for any deficiency arising on a sale of the mortgaged premises; and as such is clearly entitled to question the amount due by setting up this defence. Scull v. Idler, 79 N. J. Eq. 466. Patrick Kane, the original mortgagor and co-obligor, is also a party defendant and joins in the defence, as he is entitled to do. It could scarcely be said that a decree for one amount could be entered as to him, and for another amount against Mary Kelly.

The decree will be affirmed.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 13.

For reversal — Nolle.


text:
    William R. Ross, respondent, v. Eleanor J. Ross, appellant.
    [Decided October 11th, 1918.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported ante p. 261.

      Messrs. Queen & Stout, for the respondent.

      Mr. J. Emil Walscheid, for the appellant.
   Per Curiam.

We concur in the view of the vice-chancellor that the proofs submitted fully justify the conclusion that the respondent was entitled to the relief sought by him in this case. The decree 'of divorce which the appellant seeks to review will be affirmed.

For affirmance — The Chief-Justice, Swayze, Trenchard, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 12.

For reversal — None.


author: Pee Curiam.

text:
    Giovanna De Rogatis, respondent, v. William A. Megaro et al., appellants.
    [Decided October 11th, 1918.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, who filed the following opinion:
    There can be no reasonable doubt that Ianneci holds the property in trust for Megaro. Megaro lives in a part of the property and rents the rest. He pays the interest on the building and loan mortgage and other charges. What money was paid to Mr. Hood on the last sale ($500) was paid by Megaro. He has never rendered any account of moneys received and paid to Ianneci. He has spent a considerable sum of money of his own in improving the property and Ianneci has manifested no such interest in it as an owner usually manifests. Ianneci’s statements as to money lent or given to Megaro are vague and contradictory. The only tangible evidence that he produced is a check of $300, which bears date nearly a year and a half before the property was acquired from Schechner. The complainant is entitled to a decree.

      Mr. William Greenfield, for the respondent.

      Mr. Anthony R. Finelli, for the appellants.
   Pee Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Stevens.

For affirmance — The Chief-Justice, Swayze, Trenchard, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 12.

For reversal — None.


text:
    Leroi C. Slack, petitioner-respondent, v. Grace E. Slack, defendant-appellant.
    [Decided November 18th, 1918.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, who filed the following opinion:
    (After argument.)
    I will decide the case without further consideration. The petitioner charges his wife with having committed adultery on the morning of December 25th, 1916, at her residence on Stuyvesant avenue, in Trenton.
    These facts are undisputed in the case. The corespondent, Mitchell, was invited to the house to stay over night, on the afternoon or evening of December 24th. He went there about seven-thirty or eight o’clock and remained all night. Thompson, a boarder, but in fact a detective, on that night, was the only other adult occupant of the house up until about three o’clock in the morning. He then brought to the house the petitioner’s father and Bowne, also a detective. Shortly afterwards, in response to a call by Thompson, Mrs. Slack came from her room and went downstairs with him to look for the source of a supposed fire; Thompson having stated to her when he called her that her house was on fire. From the time that she got back to her room — a little after three o’clock — until half-past seven in the morning, the defendant and the corespondent were in that room together; and at half-past seven in the morning, after Mrs. Slack returned from downstairs, after a telephone call, Bowne, the detective, walked in upon them, and found them both on the bed, the baby, a child of the Slacks, between them.
    These circumstances raise a very strong presumption of guilt. And why do the inferences raise this strong presumption ? Here was a robust, healthy, full-blooded virile young fellow, with all the passions of youth and all of its weaknesses, and a mature woman of about his own age, apart from her husband for a long spell, occupying the same bedroom. What naturally took place, are we to suppose ? The presumption is, of course, rebuttable, bui; it requires evidence of a most plausible and persuasive kind, to satisfy one that the crime was not committed, and to this end the defence bent all effort — that is, to show that the relations of this man and woman in that room were entirely innocent and explainable. In fact, when the defendant was first charged with the offence, she declared the appearances capable of explanation, and all she desired was an opportunity to explain the matter to her husband. Some women can explain anything to some husbands, I have no doubt, but when they come into a court we must view their unconventionalities according to established standards, to which appeals and considerations in the domestic forum bear no relation.
    This man Mitchell, about twenty-seven years old, had been on friendly terms with Mrs. Slack’s mother, and Mrs. Slack before she was married, and afterwards with Mrs. Slack, and, probably, Mr. Slack, at their home. Pie had a key to their house. He was a sort of a “cock-biddy,” minding the baby, attending to fires and washing the dishes; some of the other boarders helped, too. He had free access to the house at all times — day and night. There is no evidence to show that before December 25th, 1916, there was any undue familiarity or intimacy which would lead one to seriously suspect anything wrong between the two up to that time. Whether there was in fact, I surely do not know; but it is not shown in the record that there was between them any such acts of familiarity, or other conduct, as would indicate a desire on the part of either to have sexual intercourse. But, on the night, or rather in the morning in question, they were certainly found in a most compromising situation, and yet this woman said in response to questions of mine on the witness-stand that she was not conscious of violating the proprieties; that she did not realize that to have this man in her bedroom from three o’clock in the morning until seven was, under the circumstances, an improper thing or would subject her to scandal if found out. She made that statement with apparent candor. She was very naive, and sought to impress me that she did not see anything wrong or improper, or anything that anybody could find fault with. That taxed my credulity considerably.
    To overcome, or to neutralize the presumption of guilt, her explanations must be probable; they must have the ring of truth; they must be supported. I do not say supported by the testimony of others, but by the surrounding circumstances, at least, to lend probability. It is true, as her counsel argued, that we cannot conjecture, we cannot speculate, as to crimes of this kind having been committed, and that we must have proof, clear and convincing, but when we have that proof in the form of admitted circumstances of a decidedly incriminating nature, unsatisfactorily explained, we are not driven to either in arriving at a verdict. Now, after eight or half-past eight in the evening, so her story goes, and on towards ten or eleven o’clock, they (she and Mitchell) began trimming the Christmas tree, and, having finished about half-past one in the morning, Mrs. Slack says she retired to her room to finish a piece of embroidery — a present she intended for her mother’s Christmas. When the telephone bell rang about half-past seven in the morning, the piece of embroidery had not been finished. She had gone up to work on it, so she says, and if, in fact, she did throughout the night, she necessarily must have worked with the light burning, which is all important to her testimony, as we shall see later. She was afraid of Thompson, the detective, according to her story, and on the day before had solicited her mother and two or three of her friends to come to her house and stay over night, expressing to them her fears of Thompson. When the fire alarm came at three in the morning she went downstairs with Thompson. She was not afraid. It may be that in the excitement she forgot her fear; that one fear drove away the other. But, why did she not call Mitchell, who was there to guard? After searching downstairs she returned, Thompson coming to the door with her, or near to it; and when she got in the room, she says she found Mitchell there, and that she asked Mitchell to stay to protect her against Thompson. The place to protect her against Thompson would have been, it seems to me, in the adjoining room of the boarder Custer (who was then away) wide awake and watching. This was the more suitable place, and the proper place, and if her conduct had been innocent, it is most likely that she would have said to Mitchell: "I wish you would stay there and awake; I am afraid.” But no, she told him to stay with her in her bedroom. She, so she says, went on with her work, with Mitchell lying on the bed with his head on the foot-board. or towards it, reading; that after awhile Mitchell fell asleep, and that she pulled the covers over him; that in the morning when the telephone bell rang she went out and returned, and it was then that Bowne, the detective, walked in on them. She further says that when she left to attend to the telephone, Mitchell reversed his position, lying with his head towards the headboard, reclining on the bed, playing with the baby in the crib to the left; that she told Mitchell to keep the baby in his crib, but that the baby climbed over Mitchell and went downstairs after her; that when they returned she told the baby to tell all about what Santa had brought; and it was then that Bowne walked in.
    It does not strike me at all as the natural thing a pure, innocent and unsophisticated woman would do. As free and intimate as people are in their households — as these people were— they do not have strangers of the opposite sex stay with them in their bedroom and with the doors locked, merely for protection. But that is not all. Her story is flatly contradicted, and in a vital part, by Mitchell, the corespondent; and his testimony in turn is impeached by most reliable witnesses. His explanation is absolutely shattered, and in his fabrication of the affair he destroyed whatever merit there otherwise might have been in the story told by Mrs. Slack. Mitchell’s version is as disingenous as that of Mrs. Slack. He says that after Mrs. Slack had gone upstairs after trimming the tree, and as he was in the house to protect her from Thompson, he took off his coat and vest, collar and necktie and left them down on the hall hatrack, and went up into Custer’s room. Mrs. Slack occupied the front room; Custer’s room was next, but not communicating. How, at half-past one in the morning, after trimming the Christmas tree (and all know, who have children, what a tiresome and wearing job that is), he put on Custer’s bathrobe and slippers and lay down on the lounge and smoked a cigarette before going to bed. I think he said he didn’t feel sleepy. Well, it doesn’t appear that Custer had any cigarettes in his room, and here is the first break. He was asked where he usually carried his cigarettes, and replied, indicating, in his vest pocket. Now, then, if on the night in question he left his vest and coat downstairs, which I do not believe, how did he happen to have a cigarette upstairs? He followed this slip up quickly enough by saying that he had this one in his pants’ pocket. I know it is not the practice to carry cigars in pants’ pockets, and I doubt that cigarette smokers carry cigarettes there. And then, he says, he fell asleep. Mind, he was there especially to protect this woman. He was awakened by a noise on the stairs, and heard Mrs. Slack in a fairly loud tone expostulating with Thompson for fetching her downstairs. What would a man ordinarily have done under the circumstances? Would he not, to protect his charge, have rushed downstairs and demanded of this stranger his- business with this woman at that early hour? But Mitchell, so he says, stepped instead into her room and hid in the closet. He says the room was in darkness. Now, if that was so, Mrs. Slack had not been embroidering, for it does not appear that she turned out the light when the alarm of fire came and relighted it after the commotion. In that respect he contradicts the crucial part of her story. If she had not been embroidering, as she said she had been, and, of course, she could not have been in the dark, then her recital must go down with that falsehood. In that one and very material matter their testimony is in hopeless conflict. This could hardly be due to a misconception of things, or forgetfulness on the part of Mrs. Slack or Mitchell. Mitchell certainly knew vdiether the light was on or off; Mrs. Slack must have known. Now, one or the other has told what was not the truth. I am inclined to think that Mitchell and the defendant were in her bedroom, with the light out, and when the fire alarm came he hid in the closet; that the defendant knew' it, and, consequently, was not startled upon her return when Mitchell spoke to her in the dark. Furthermore, Mr. Slack, Sr., left the house shortly after, and he says he saw no. light in his daughter-in-law’s room. There is a dispute between Mitchell and Mrs. Slack, on the one side, and Bowne, the detective, on the 'other, as to how the two were dressed in the morning when Bowne entered the bedroom. Bowne’s story is that they were both in the bed under the covers, Mrs. Slack in her nightgown and Mitchell with nothing on but an undershirt; that under orders Mitchell got up and dressed, and was taken under arrest to Mr. Cadwalader Slack’s house nearby. Mitchell says lie was fully dressed, with the exception of the articles he left down on the hallrack, having in their place the bathrobe and slippers of Custer. The defendant says she was fully dressed. Detective’s testimony is competent, but it is scrutinized carefully before given credence. While it is competent, and may be admitted, we do not rely upon it unless it is corroborated, and the reason for that is obvious. There are some honest detectives, but very few, and the few must suiter for the misconduct of the many. But, in the main, in this case, the detective is corroborated, and I have no reason whatever To doubt him.
    Now, what was the attitude of the pair when they were discovered? Mrs. Slack apparently took the situation very coolly. She was not greatly embarrassed. Bowne asked Mitchell if she was his wife, and Mitchell said “No.” She seemed not unduly excited by that. She telephoned her mother about bail, and still she protested on the witness-stand she was not conscious of any wrong having been done. It seems to me that her conduct on that morning is susceptible of an interpretation differing very much from that which she simulated, or that which counsel attempted to ascribe to it.
    Tn her letter of January 5th she wrote her husband of the delightful Christmas she had spent, in the hope, perhaps, that he had not heard of her escapade. What duplicity!
    Now, let us look at Mitchell’s story of what occurred later on, and what he said to Detective Bowne on their way to the home of Mr. Slack, Sr., and what he said there in the presence of Mr. Slack, Sr., Bowne and Miss Slack, by way of admitting his guilt. It is not evidence, of course, to support the charge, but is evidence in the case going to discredit the defendant’s witness, because on Mitchell the defendant depends to support her story; on him she relies to brush away the presumption of guilt that prevails against her from admitted circumstances. Upon Mitchell the defendant rests to show what actually occurred; that the circumstances do not reflect- the true situation, and that the appearance of things mistakenly point to guilt. 1 am only considering Mitchell’s testimony in the way of credibility. On his way to the senior Slack’s house he said — perhaps I do not restate his exact words — “What is the use of putting up a fight?” or “What’s the use when you are caught ?” And at Slack’s home he said that that was the first time he had stayed in bed with Mrs. Slack all night. An effort was made to show that the witnesses might be mistaken, and that what in fact Mitchell said was that that was the first time he stayed in the Slack house all night. Now, it is not likely that he would say to them that it was the first time he stayed in the house all night, because his sleeping there was a common thing and he knew that Slack knew he had stayed there many times all night. Miss Slack, an estimable young lady of nineteen or twenty, says positively she overheard Mitchell say that this was the first time he had stayed in bed with the defendant all night. She was at the head of the stairs and out of sight when the statement was made. Bowne says the same thing, and so does Mr. Slack, Sr. — they cannot be wrong. I believe he said it, and it stands out boldly against his story told here under oath — his explanation of his presence in the room with the defendant, and the reason for his being there. The testimony of the defendant and corespondent, was fabricated for the purpose of this ease — it is improbable and unbelievable. The crime is established and I will advise a decree of divorce. The infant son, two or three years of age, will be awarded to the mother, with privileges to the father, who will have to pay $10 a week for his support.

      Mr. Martin P. Devlin, for the appellant.

      Mr. Scott Scammell and Mr. Charles DeF. Besore, for the respondent.
   Per Curiam.

This is an appeal from a decree of divorce granted to Leroi C. Slack, the petitioner below, the ground of the decree being the adultery of the wife committed by her with one Andrew Mitchell. The case is one entirely of fact, and no good purpose will be served by a recital of the evidence; it is enough to say that we have examined -it carefully and reach the same conclusion as that expressed by the vice-chancellor, to wit, that the charge laid by the petitioner against Mrs. Slack is amply supported by the testimony of the witnesses'examined in the cause.

The decree appealed from will be affirmed.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Heppenheimer, Williams, Taylor, Gardner — 12.

For reversal — None.


text:
    August H. Riviere et al., appellants, v. Amzi Berla, respondent.
    [Decided October 11th, 1918.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lane, who filed the following opinion:
    The complainant and defendant were holders each of one-half of the capital stock of the corporation known as the Berla-Riviere Company: In March, 1916, the corporation was dissolved by mutual consent. The negotiations leading to the dissolution commenced in December, 1915, and culminated on the 26th day of April, 1916, by a sale from the complainant to the defendant of his stock in the concern for the sum of $17,000. The A. H, Eiviere Companjq one of-the complainants, was incorporated on the 17th day of April, 1916, and took over the business of the Berla-Biviere Company and has been continuing business since. Eive thousand dollars of the consideration has been-paid; the balance is represented by $12,000 in notes made by the A. H. Eiviere Company to August H. Eiviere, and by him endorsed to the defendant, Amzi Berla. -These notes aTe secured by- a mortgage given by the A. H. Eiviere Company. The negotiation proceeded upon the assumption that a report made by an auditor as to the assets of the concern and the profit during the year 1915 was correct. There is no question but that this report -was incorrect in two particulars, with respect to merchandise on hand and as to the profit for the year 1915. The inventory ,was made by the complainant A. H. Eiviere. He personally compiled his figures on an adding machine, and in so doing made a mistake of $10,000. Instead of there being on hand merchandise to the extent of $14,783.04, there was really on hand, according to his inventory, but $4,783.04. The figures of Eiviere were taken as correct by the auditor, with the result that the profit shown for the year 1915 was $12,670.48; whereas, in fact, if the inventory prices were correct, there was but a profit of $2,670.48.
    I have found as a fact that in the negotiations both sides labored under a mutual mistake. If there was any negligence, it was the negligence of the complainant Eiviere, for he took the inventory and compiled- the figures. There is not sufficient- evidence for me to find that the defendant, Beria, knew of the existence of the mistake.. ,The testimony is to the effect that he,was surprised at the amount of the inventory and drew the attention of Eiviere to that fact and that Eiviere said that the explanation was that they had been stocking up. I would have -no hesitancy, if the contract had not been executed, in setting it aside on the ground of mutual mistake, or, if executed, and the parties could be put in status quo in directing a restoration of the status quo ante. The difficulty is that the contract has been executed. There is not sufficient evidence for me to hold that, if this mutual mistake had not been made, and the real condition of the company disclosed, Berla would have sold his interest for $5,000 less than he did. Rather than take $12,000 he might have considered it advisable to retain his stock. Even if his real purpose was to sell his interest for an amount representing one-half the value of the assets of the concern, if the inventory had disclosed only the existence of merchandise worth $4,783.04, he might have insisted upon a new inventory by an impartial person and it might have appeared that the merchandise was worth considerably more than $4,783.04. To now deprive the defendant of the $5,000 that the complainant seeks to deprive him of would be to make a contract between the parties which one of the parties may never have had in contemplation. This the court, under well-settled principles, cannot do.
    I reach this, conclusion with regret. The defendant is, unquestionably, unconscionably enriched at the expense of the complainant, but to what extent it is impossible for me to determine. I have examined the cases cited by counsel for the complainant and find that in each of. them there is some feature distinguishing it from the case at bar.
    The result is that the bill of complaint will have to be dismissed but without costs.

      Messrs. McCarter & English, for the appellants.

      Mr. William Harris, for the respondent.
   Per Curiam.

The decree- appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor-Lane.

For affirmance — The Chief-Justice, Swayze, Trenchard, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 11.

For reversal — None.


text:
    Andrew J. Cartan et al., respondents, v. Ernest L. Phelps et al., appellants.
    [Decided November 18th, 1918.]
    On appeal of the defendant Wayland O. Badgley from a decree in chancery advised by Vice-Chancellor Poster, who filed the following opinion:
    This action is brought to set aside a deed of conveyance made by the defendant Phelps to the defendant Badgley for lands near Matawan, in Monmouth county, because the same was made to defraud complainant and other judgment creditors of Phelps.
    The proofs in this case satisfy me — particularly the testimony of Mr. Geran, who prepared the deed, and of Mr. Bentley, the attorney of Phelps in the Conover Case — that Phelps, in executing the deed in question, made it to secure to Badgley the payment of an indebtedness of $1,000 or $1,200, and that Phelps also intended by this conveyance to prevent his property being reached, in case of an adverse verdict in the Conover Case, which was then about to come to trial, and the trial of which resulted in a verdict of $7,000 against him, which was subsequently set aside. I am further satisfied that the conveyance from Phelps to Badgley was a voluntary one on Phelps’ part, unsolicited at the time by Badgley; and that the conveyance was in the nature of a security or mortgage, further appears from the facts that the deed was not delivered until some months after its execution; that it was not recorded until some months after its delivery; that Phelps continued, after the delivery of the deed, to exercise acts of ownership over the property and rented the same and collected the rents thereof for some time; and that, subsequently, he made a further arrangement with Badgley, according to Badgley’s testimony, whereby the deed was to be regarded as an absolute, rather than a conditional, conveyance of the property, upon Badgley paying to Plielps the further consideration of a thousand dollars. Assuming that Badgley did pay seven or eight hundred dollars of this amount, as he claims, to Phelps, he also states that he has not paid the balance of this additional consideration, and never intends to do so. He thereby puts himself in the position of refusing to perform and complete the contract of purchase of the property, if such a contract were ever made. Por the reasons stated, I am' satisfied that the principal purpose of the conveyance of this property from Phelps to Badgley, as far as Badgley was concerned, was merely to secure him for the money owing by Phelps to him, and not to convey the property to him, except in a conditional way. Badgley, while he claims the amount of the indebtedness is nearer $3,000 than $1,200, as Phelps stated to Geran and Bentley, is unable to produce any vouchers to substantiate his statements, and I am, therefore, obliged to rely upon the only tangible proof in the case regarding the amount of this indebtedness, viz., that given by Mr. Geran and Mr. Bentley, based upon statements made to them by Phelps at the time when he had the deed prepared, and shortly thereafter; and while Phelps’ statements would not be conclusive as to the amount of the indebtedness owing by him to Badgley, in the absence of any proof to the contrary, they must bo accepted, as stating the facts.
    I think the interests of all parties in this cause can be conserved and protected by a decree that the conveyance in question is, in effect, a mortgage between Phelps and Badgley, and that the property should be sold under the direction of a special master, and from the proceeds of the sale the amount due Mr. Badgley of $1,200, with interest, should be first paid, the balance of the proceeds, if any, can then be applied to the payment of the several judgments, in their order of their priority; and the surplus money, if any, can be paid into this court to await such further order as the court may make on the application of either Phelps or Badgley, or any other party interested in the surplus fund; and a decree will be advised accordingly.

      Messrs. Fort, Hunt & Shipman, for the appellants.

      Messrs. Durand, Ivins & Carton, Mr. Peter Bentley and Messrs. McCarter cO English, for the respondents.
   Pee Curiam.

The hill in this case was filed to set aside a deed of conveyance made by the defendant Phelps to the defendant Badgley for lands located near Matawan, in this state; the ground of the relief sought being that the conveyance was made for 'the purpose of defrauding the complainants and other judgment creditors of Phelps. The learned vice-chancellor reached the conclusion upon the proofs submitted at the hearing that the deed was made primarily to secure to Badgley the payment of an indebtedness of $1,000 to $1,200 due him from Phelps; and further, that the purpose of the latter was, not only to secure this debt, but also to put his property out of the reach of other creditors. The vice-chancellor was not entirely satisfied that Badgley was a party to the scheme to defraud the creditors of Phelps, and, for this reason, advised as follows, viz., that he be permitted to hold the conveyance as a security for his debt, which was adjudged to he $1,200; that the property be sold for the payment of that debt; and that what remained of the proceeds of the sale after such payment should be applied to the payment of the several judgment creditors of Phelps. A decree was entered in accordance with these conclusions.

We concur with the vice-chancellor in his conclusion upon the facts of the case. The legal rules applicable to such facts were laid down by this court in the case of Demarest v. Terhune, 18 N. J. Eq. 532, and were properly applied by him.

We are not satisfied, however, with his finding of the amount of Phelps’ debt to Badgley. It was based entirely upon the testimony of two witnesses who had no personal knowledge upon the subject except as it was admitted to them by Phelps. But Phelps’ admissions were not evidential against Badgley, and we consider, therefore, that there should have been a reference to a master to take proofs as to the actual amount of this indebtedness, or that the matter should have been more fully investigated by the vice-chancellor himself.

We observe that the decree directs that the moneys remaining from the proceeds of the sale of the lands involved in this controversy, after the pajunent of the Badgley debt, be applied to the payment of the several judgment creditors in the order of their priority. As the propriety of this method of distribution is not questioned upon the present appeal we express no opinion upon it.

The portions of the decree appealed from will be affirmed, for the reasons stated in the opinion of the vice-chancellor, with the modification above mentioned.

For affirmance — The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner-13.

For reversal — None.


text:
    Walter H. Rickey, respondent, v. Moon Clay and Kaolin Company et al., appellants.
    [Decided October 11th, 1918.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, who filed the following opinion:
    In 1913 the complainant, Bickey, obtained from the defendant Moon what has been termed an option agreement, whereby Moon agreed to sell to Bickey his clay lands in Hamilton township, at any time within two years, for $6,000 per acre for the best clay lands, and $1,000 per acre for the balance. In February of the following year, Moon extended the option for a further term of two years, or “until the deal now pending is closed.” The deal was Bickey’s negotiations with the Pennsylvania railroad for a strip of land for its new freight line across New Jersey, between Philadelphia and New York. Bickey then interested the defendant Muschert and persuaded him to secure a loan of $3,000 from his friend Watson upon a promise to pay Muschert one-tenth part of the profits on the option agreement. Bickey assigned the option to Watson as collateral security and reduced to writing the ten per cent, agreement with Muschert. He then got from Moon a commission agreement, wherein Moon agreed to pay ten per cent, commission upon all sales of his lands and twenty per cent, upon all receipts from condemnation proceedings. Thereupon the complainant and Muschert and J. Lefferts Conard, the latter then an attorney-at-law of this state, entered into what has been called the three-party agreement, wherein it was stipulated that Muschert was to hold the Moon-Bickey agreements (1 do not recall whether the commission agreement was specially mentioned) for the benefit of the three, subject to the lien of the Watson loan, and that to promote “the operation” Muschert was to advance to Conard $5,000 to cover expenditures to date, and a further sum not exceeding $2,000 for future promotion. The complainant and Conard were to give their attention and efforts, Conard his professional skill, in advancing the enterprise, which was understood to be defending condemnation proceedings of the railroad company. Out of the profits Muschert was first to retain $10,000, made up of the $3,000 borrowed from Watson, the $5,-000 paid to Conard, and the $2,000 to be then later advanced. The agreement then provided that all of the profits should be divided among the three, share and share alike, “after the deduction of the said sum of $10,000 hereinbefore mentioned, which said sum shall be regarded as expenses and first deducted out of said profits.” The condemnation proceedings failed of realization, and then Muschert, Conard and Moon formed the Moon •Clay and Kaolin Company, and took over the clay lands for $206,000 of the capital stock of the company, under arrangement with Moon that he was to sell his holdings to Muschert and Conard for some $50,000. The clay company is now owned by Muschert and Conard and is operating the clay pits. The complainant was not permitted to participate. He was practically frozen out. He then filed this bill to impress the trust of the three-party agreement and for an accounting. In their answer the defendants Muschert and Conard set up Rickey’s ten per cent, commission agreement, and claimed that they were operating under it in connection with the three-party agreement, and on the witness-stand they both expressed themselves as willing to assume Moon’s obligation to pay the commission on a sales price of $206,000, to be divided according to the terms of the three-party agreement. Upon the court’s suggestion, the complainant asked leave to amend, which was granted.
    The vice-chancellor (after argument).
    When the pleadings are amended as directed, this will be a bill for an accounting for profits in a joint venture. The admitted profits are ten per cent, on $206,000, viz., $20,600, and these are to be divided equally between the complainant and Conard and Muschert, after Mr. Muschert deducts $8,000, viz., the $3,000 due to Watson, and the $5,000 he advanced to Conard. The terms of the agreement were that he was to deduct $10,000, but this included the $2,000 which he was to later advance but did not. The three-party agreement shows clearly the final arrangement of the parties, and this was that all over and above $10,000 (now $8,000) was to be divided, share and share alike. It was urged-during the course of the trial and on the argument that the loan from Watson to Rickey should be taken from Rickey’s share, but this manifestly was not the bargain. The $3,000 loaned to Rickey, which Muschert secured, and the $5,000 paid to Conard, and the other $2,000 which Muschert promised, are treated by the three-party agreement as expenses of the enterprise, to be paid out of the profits. In ascertaining what is Rickey’s due the total of these sums ($8,000) is to be deducted and the balance divided. And so with Muschert’s ten per cent, agreement for securing the loan from Watson. That is also ' merged in the three-party agreement and controlled by the terms of the division.
    The claim made by Conard against Rickey that he loaned him $1,750 upon the understanding that it was an advance on account of Bickey’s prospective profits and to he deducted upon final settlement, is not sustained by the proofs. The money was paid by Conard to Bickey shortly after the making of the three-party agreement, and at a time when Bickey was known to be insolvent, and when the prospects of making a profit were none too bright, and when Conard could have little hope of repayment if he -were lending. The payment to Bickey is shown by two checks of Conard, one for $1,000 'and theothe(r ior $750, 'but Conard took nothing from Bickey to show that they were loans. The presumption is that the checks were given in payment of an obligation, and Bickey says that that is why they were given. His testimony is that Conard and he agreed to divide equally the $5,-000 Muschert -was to advance under the three-party agreement, and I believe him as against the denial and explanation of Conard, and his story is borne out, in a measure, by the fact that the first payment made by Muschert to Conard on the day after the three-party agreement was made was for $3,000, and on the following day Conard gave Bickey his cheek for $1,000. On April 30th Muschert gave to Conard another $1,500, and twenty days later Conard gave Bickey his second check for $750. There is still $750 due Bickey from Conard, one-half of the balance collected from Muschert.
    The decree will read that Muschert pay to Watson $3,000; that the established gross profits are $30,600, from which $8,-000 is to be deducted; and the balance divided into three parts. One-third will be adjudged to Bickey.
    Mr. Dawes — Is there any interest?
    The Vice-Chancellor — As I interpret the three-party agreement, the profit to be divided was all in excess of $10,000 net' ($8,000, as it has turned out). That was the stipulation of the parties. The language is plain and explicit. If the written document does not correctly disclose the agreement of the parties, a bill to reform should have been filed.
    As to the interest on the Watson loan, Muschert was not to pay more of the loan than the $3,000 principal. Whatever interest has accrued is Bickey’s debt, and the decree may provide that this interest be paid out of Bickey’s share.

      Mr. Linton Satterthwaite, for the respondent.

      Mr. Aaron V. Dawes, for the appellants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Baches.

For affirmance — The Chief-Justice, Swayze, Trenchard, Bergen, Minturn, Black, White, Heprenheimer, Williams, Taylor — 10.

For reversal — None.


author: The Chancellor.

text:
    Benjamin Williamson, Esq., Chancellor.
    Matthias Brakely v. Elizabeth Maria Sharp, Henry Sharp, et al.
    The owner of a large farm lying on both sides of a highway, and through which flowed a stream rising on the part lying above the highway, diverted the water by means of an aqueduct, for the use of his two dwellings, one above and the other below the road, and so arranged it that at the upper dwelling the whole water could be controlled and prevented from running to the lower one, and,used the water in this manner for twenty-three yev is before his death, ij Alter his death, commissioners were appointed by tlio Orphans’ Court to make partition of his land and assign dower, who assigned the land above the road partly to his widow, and partly to one of the heirs, and afterwards, by order of the court, sold and conveyed the land below the road, under which conveyance the complainant hold, claiming the right to use the aqueduct to the same extent as Used by its first owner, upon the ground of adverse possession, and of the conveyance by the commissioners. Held—
    1. That no adverse possession could begin till the severance of the title by the commissioners.
    2. That until such severance no easement could exist in the aqueduct.
    3. That by a grant of land, easements necessary for its enjoyment are created ex necessitate, and pass by the grant, although not expressly named.

      ‘ 4. That by the setting oil' of the land above tire road before the sale of that ^ below, there was a severance of the unity of title, and those to whom it was oil’ took it free from any enhumbranoe’of the easement, to the .same extent as if the original owner had conveyed it to them without reserving the easement.

      5. That by the commissioners’ deed no title to the easement passed, there being no express grant of it, and it not being necessary for the enjoyment of the property ; but had it been necessary, and in actual use at the time of the conveyance, then it would have passed, had there been no prior severance of the unity of title.
    ‘6. That if a former owner of the complainant’s land, holding under the commissioners’ deed, had made such expenditures in repairing the aqueduct as would create an equitable right in him to the enjoyment of his expenditures, the right was only personal, and could not be claimed by his grantee.
    This was an injunction bill filed October 31st, 1851, upon which an injunction issued, and the defendants having answered, a motion to dissolve the injunction was argued at Eebruary Term, 1852. The facts, so far as necessary to a clear understanding of the case, appear in the opinion of the Chancellor.

      Sherrerd and S. R. Hamilton, for complainant.

      Kennedy and P. D. Vroom, for defendants.
   The Chancellor.

Upon the complainant filing his bill, on the 31st day of October last, an injunction was issued, by order of the Chancellor, restraining the defendants from' interrupting the flow of water upon the complainant’s land, through an artificial channel constructed for the purpose.

The defendants have answered, and ask for a dissolution of the injunction.

The case is, as briefly as it can well be stated, this : Christian Sharp was the owner of a valuable farm of about four hundred acres, situate and lying on the northwest and southeast side of the public road leading from Belvidere to Easton. On the southeast side of the road was his dwelling-house, and on the same side a distillery, which he carried on\ for many years. Running through the northwest part of the farm was a stream of water, taking its rise about three hun-/ dred yards above the public road, and losing itself in a farirj below Mr. Sharp’s. ;

In the year 1810, he placed bored, logs or wooden pipes| from the head of the stream, and by them conveyed theft water, for its more convenient use, to his dwelling-hous® and distillery. In 1813, he erected on the north side oi\ the road, a new dwelling-house, and so arranged the aqueduct as to supply the new dwelling with water. Year this new dwelling, and on the northwest side of the road, he placed in the pipes a fixture called an upright, with a metallic cook, by which he turned, at his pleasure, all the water running through the aqueduct, or let it pass down to the distillery and dwelling-house. By turning the cock, all the water would be discharged through it at the upright, thence to the public road referred to, thence down the road until it emptied into the natural water-course where it crossed the highway.

On the 3d of April, 1826, Sharp conveyed to the complainant one hundred and forty-three acres of land, lying on the southeast side of the farm, on which this stream of water, in its natural channel, flowed ; and in the deed of conveyance was a covenant that the grantee might enter upon the lands of the grantor, and clear out the watercourse, so as to remove any obstructions to its natural flow to the lands conveyed. This covenant has no reference whatever to the artificial water-course.

About the year 1835 Christian Sharp died intestate, leaving him surviving his widow, Elizabeth Maria Sharp, one of the defendants, and Henry Sharp, and some others of the defendants in the suit, his heirs-at-law.

Such proceedings were had in the Orphans Court of the county of Warren, that the portion of the land lying on the northwest side of the road, and on which was situate the new dwelling-house, the aqueduct and spring of water was assigned, part to the widow for her dower, and the residue to Henry Sharp. Subsequently, by order of the same court, the commissioners, on the 16th day of Yovember, 1837, sold to John Strader and William M’Kinney that portion of the land lying on the southeast side of the public road.

Through several mesne conveyances, the title to this land sold to Strader and M’Kinney became vested in the complainant. The date of the deed is not given in the pleadings. It must, however, have been subsequent to the third of March, 1842, the date of the deed to his Immediate grantor. I think Cainrel agreed it was dated the first of April, 1851.

The several deeds through which the land passed from the commissioners to the complainant are in the usual form, and, with the exception of that of the commissioners, are deeds with full covenants.

The distillery was abandoned some time before Sharp’s death.

The bill alleges that the water had been used on the premises now the complainant’s, through the log aqueduct, from the year 1810, by Christian Sharp, and by all who have held under him, up to the time it was interfered with by the defendants, on the first day of April, 1851, and that the aqueduct had been repaired during that time by the owners and tenants of the complainant’s land.

The complainant insists that the deeds of conveyance under which he holds conveyed to the several grantees all the rights,- liberties, privileges, hereditaments and appurtenances that the said Christian Sharp was seized and possessed of at the time of his death, and that the flow of water through the aqueduct was a necessary appurtenance to the said farm.

He claims the right to the use of the water when it is not needed on the land above the road, and not exhausted there through the upright for that purpose, and that he has a right to go upon the land of Elizabeth M. Sharp and Henry Sharp to repair the aqueduct. He also claims these privileges by virtue of the possession and enjoyment of those under whom he holds, for more than twenty years.

Can the complainant maintain these rights as an easement upon the lands of Elizabeth and Henry Sharp ? If so, he must claim this easement by one of two ways, or both : by grant, or adverse possession for twenty years, which implies a grant. To these two modes of acquiring an easement there has been, by some jurists, added that by necessity. As, where a man grants land in the middle of his field, by necessity a right of way to the land granted exists over the grantor’s land. But this mode of acquisition may properly ■be classed under the head of title, or right by grant. It flows by necessity from the grant — it is incident to the thing granted. It is the construction put by legal tribunals upon the grant, in conformity to the well-established principle of law that, where a man grants a thing, he grants with it everything necessary to its enjoyment. See note in 1 1 Saund. Rep. 323.

In this case, there can be no pretence of an uninterrupted adverse possession and enjoyment by the complainant or of those under whom he holds, for a period of twenty years. The titles of the farm now owned and occupied by the complainant, and of that on which the aqueduct is constructed, were united in Christian Sharp. His title descended to his heirs-at-law, and there was no severance of the title until the commissioners set off the laud above the road to the widow and Henry Sharp in 1835. Of course no adverse possession or enjoyment could have commenced until then.

Did the right to this easement pass by the deed from the commissioners to Strader and M’Kirmey ? If it did, it now vests in the complainant by the subsequent conveyances, under which he holds his title.

The deed is in the usual form. It is a deed without covenants of warranty ; and it conveys all the right, title and interest in the land of which Christian Sharp died seized, together with all the privileges, hereditaments and appurtenances thereunto belonging.

It was insisted, on behalf of the defendants that, when the title was united in the heirs of Christian Sharp, there could bo no such thing as an easement existing as applicable to this aqueduct. This, from the very definition of the term, must be so. An easement is a service or convenience which one neighbor has of another, without profit: as a right of way, water-course, or washing-place on another’s ground. Jacob’s Law Dic., title “Easement.”

But, although a man can have no easement on his own land, yet, by the very severance of the title, and by his conveying a part of the land to another, he may create, by necessity, an easement in that part, the title to which remains in him. The familiar case of the man who sells land in the middle of his field, so that there can be no access to it except through the grantor’s land, illustrates this :' ex necessitate, an easement exists the moment he makes the grant, and the grantee has the advantage and convenience of a right of way over his grantor’s land. It matters not by what word or words in the grant it is created, or whether we call it an easement by grant, by necessity, or by the operation of law, a court will declare it to exist.

If, while there was a unity of title in the heirs of Christian Sharp, they, or the commissioners appointed by law to divide the estate, (which, as to the principle involved, is the same thing,) had granted the land now owned by the complainant, with the water through this conduit in use at the time, the conduit would have passed by the grant, if necessary for the enjoyment of the property. And it matters not under what particular words in the grant it would have passed — whether under the word appurtenances, or quasi appurtenant, or not. Although it did not exist before, yet it would have been created by the grant, ex necessitate. The principle is the same as that which governs in reference to the right-of way, referred to. As to what this necessity may be, I would adopt the views of Lord Mansfield, in the case of Morris v. Edgington, 3 Taunton’s Rep. 31, in which case it was decided a right of way was created by the grant, though not in express terms. He remarks: “ I say nothing as to what is a way of necessity — I know not how it has been expounded — but it would not be a great stretch to call that a necessary way, without which the most convenient and reasonable mode of enjoying the premises could not be had.” In this case of Morris v. Edgington, the court say that no way or other easement can subsist in land of which there is a unity of possession. Yet their decision in the case was this: A lease demised a messuage consisting of two parts, separated by intervening reserved lands, subjected only to a specific right of way for the lessee to a third building for a specific purpose; which reservation, strictly interpreted, would preclude him from all access to the one part, which was accessible only by crossing the reserved land in one of two directions — the one, by entering it from the residue of the demised premises; the other, and far the more convenient, by entering it from a public street. Held, that the lessee was entitled to a way across the reserved land from the public street to that part.

In the case of Blaines, lessee, v. Chambers, 1 S. R. 169, the court decided that, by a devise of a mill, with the appurtenances, the right to the use of the water, and the right to the piece of land which was used with the mill, passed.

In 5 S. & R., Pickering v. Staples, a water right passed by the word “ appurtenances,” which was considered as comprehensive of the water right, as if the privilege of using the water had been expressly inserted in the conveyance, even though the vendor declared, when ho executed the conveyance, that he neither bought nor sold the water right.

In the case of the New Ipswich Woolen Factory v. Batcheldor, 3 N. H. Rep. 190, a grantor conveyed by deed a tract of land, described by metes and bounds, with a mill upon the same; and, at the time of the conveyance, there was a race-way, to conduct the water from the mill, running along the side of the natural stream, beyond the land granted, into other land of the grantor, and then discharging the water into the natural stream, and which race-way had been used with the mill several years, and was necessary to the convenience of the mill. It was held that the right to have the water flow off through the whole extent of the raceway passed as appurtenant to the mill. It was put on the ground of necessity. The judge says, “The case finds that the race-way was necessary for the convenient working of the mill.”

See these cases, cited in Angell on Water Courses 44; Leonard v. White, 7 Mass. 8; 3 Kent 420; U. S. v. Appleton, 1 Sum. 492; Story v. Ollin, 12 Mass. 157; Swamburgh, 9 Bug. 305; Compton, 1 Price 27 ; Robins v. Barnes, Hob. 131; 1 B. & P. 374 (note); Grant, 17 Mass. 443 ; 1 Sum. 503; Hewlin, 7 Dowl. & Ryl. 783; S. C., 5 B. & C. 221; Bulst. 339.

In the case of Johnson v. Jordan, 2 Metcalf 234, where a similar question arose, Chief Justice Shaw says it is a matter of contract, and must depend entirely upon the construction of the conveyance; and then the question recurs, what construction the court will put upon a conveyance, when the intention of the parties in this respect, is not expressed in terms. He concludes it must be governed by the well-settled rule of construction, that the grant of any principal thing shall be taken to carry with it all that is necessary to the beneficial enjoyment of the thing granted, and which it is in the power of the grantor .to convey.

10 S. & R. 63, Strickler v. Todd. By conveyance of a mill, the. whole right of water enjoyed by the grantor as necessary to its use, passes along with it as a necessary incident.

Shepherd’s Touchstone 89, says, by the grant of mills the waters, flood-gates, and. the like, that are of necessary use to the mill, do pass.

Now, in these cases cited, no easements existed prior to the grants. None were expressly created by the grants, but they were necessary to the beneficial enjoyment of the thing granted, and the law created them. They were within the intent of the parties, and passed as incident to the thing granted.

Comyn’s Dig., vol. IV., under title “Grant," E 11, what as incident? So by the grant of any thing conceditur, et id sine quo res ipsa haberi non debet; as, if one grants his trees, the grantee may enter upon his lands for the cutting down and carrying them away, E 9. By a grant cum pertinentiis. By the grant of a messuage, cum pertinentiis, a conduit, with water pipes to it, enjoyed any time, passes. So in Bacon’s Ab., title “Grant," 4. Both Bacon and Comyn refer to the case of Nicholas v. Chamberlain, 2 Croke’s Rep. 121, where it was held by all the court upon demurrer, that if one erect a house and build a conduit thereto, in another part of his land, and convey water by pipes to the house, and after-wards sell the house with the appurtenances, excepting the land, or all the land to another, reserving to himself the house, the conduit and pipes pass with the house; because it is necessary, et quasi appendant thereto; and he shall have liberty by law to dig in the land for amending the pipes or making them new, as the case may require. So it is if a lessee for years of a house and land erect a conduit upon the land, and after the term determines, the lessor occupies them together for a time, and afterwards sells the house with the appurtenances to one and the land to another, the vendee shall have the conduit and pipes, and liberty to amend them. See, also, case of Archer v. Bennett, 1 Levinz’s Rep. 131.

Whether, therefore, by the grant the easement passes, will, I think, depend upon the question whether it is necessary for the enjoyment of the thing granted, unless by express terms it is embraced in the grant, or unless, according to the technical definition of the term appurtenances, it is appurtenant to the land.

Let us apply the principle to the case in hand. It appears by the bill itself, that the main object of the conduit was for the convenience of the dwelling-house on the land of Maria and Henry Sharp, and that Christian Sharp himself, and those who have since held under him and occupied that dwelling, always used the water, in part, or the whole of it, at their pleasure, and without any reference to the buildings on the complainant’s land. It is true, the use of the water thus conveyed is shown to be of convenience to the complainant, but by no means to approach that necessity referred to in the cases cited. The natural water-course, from the head of which the pipes are laid, runs through the complainant’s land, and not far distant from his dwelling and other buildings; and it does not appear but that he may have the same benefit of the water for all the purposes for which it is required, without receiving it through the artificial channel in question.

But again. Although there was a unity of title to both tracts of land in the heirs of Christian Sharp, it was severed when the commissioners set apart that portion of it on the northwest side of the road to the widow and Henry Sharp. Their rights and the encumbrances upon the land assigned them were the same precisely as if Christian Sharp had conveyed the land to them in his lifetime. Now, if Christian Sharp, in his lifetime, had conveyed to the defendants the lands they now hold, would he have had the easement now contended for, unless he had expressly, in his deed to them, reserved it? None of the cases referred to go this far, unless the one in.2 Crohe. But I think in such case, Christian Shaip could not have claimed the easement ; and for the reason that no man shall derogate from his own grant. And in the case of Swansborough v. Coventry, 9 Bing. 305, the C. J. remarks that upon this principle it is well established by the decided cases, that where the same person possesses a house having the actual use and enjoyment of certain lights, and also possesses the adjoining land, and sells the house to another person,-although the lights be new, he cannot, nor can any one who claims under him, build upon the adjoining land, so as to obstruct or intercept the enjoyment of those lights. When, therefore, the commissioners assigned this land to the widow and Henry, they took it free from any such encumbrance as that now claimed; and the other heirs, in whom remained the title to the land on the southeast side of the road, or their grantees, could not claim the easement now set up by the complainant.

Independent of this view of the case, there is nothing in any of the matters set up by the complainant, which, gives him any equitable claim to the interference of this court.

Admitting the fact that Hopeful Hepburn, while he owned the land now of the complainant, repaired the conduit; at best, it was but a license which was revocable at pleasure; or if the expenditures made by him were of such a character as would create an equity entitling him to the enjoyment and benefit of his expenditures, it attached only to him personally, and cannot be claimed by his assigns. See cases cited in 2 vol. Am. Lead. Cas. 736.

But the bill itself alleges that Hopeful Hepburn re-laid the pipes with the consent of Elizabeth Maria Sharp and Henry Sharp. If it was with their consent, surely he or his grantees cannot take advantage and make use of that consent as an evidence of an existing legal right.

The complainant can claim nothing under the idea that a valuable consideration was paid for the right now claimed by Strader and M’Kinney when they purchased of the commissioners. It is not alleged that they supposed they were purchasing any such right; and the answer states that in order that no misapprehension might exist, one of the commissioners, on the day of sale, requested that the water might be shut off from the pipes leading to the complainant’s land; that it was in fact shut off, and was not running there on that day.

It is incidently mentioned in the bill, that by drawing off the water at the fixture called the upright, by which its flow through the pipes to the complainant’s land is prevented, it commingles with the drippings from the barnyard, runs down the public road, and emptying into the main channel, so corrupts the water as to render it unfit for use on the complainant’s land. The complainant has a right to the flow of the water through the natural channel, subject to such use of it by the defendants, Elizabeth and Henry Sharp, as not to deprive the complainant of its benefits. But the bill is not framed for protection in such a case.

It appears that Butler Thomas and William S. Creveling, two of the defendants, have no interest in the land on which the easement is claimed; that they were the active individuals in taking up the logs and interrupting the flow of the water. They admit they were volunteers and acted without authority from any one, and the other defendants deny ever having authorized them to commit the acts complained of.

The injunction as to Thomas and Creveling is retained, and as to the other defendants, let an order be made dissolving the injunction.

Cited in Brakely v. Sharp, 2 Stock. 209; Fetters v. Humphreys, 8 C. E. Gr. 263.

       A way of necessity, when the nature of it is considered, will he found to bo nothing else but a way by grant. It derives Us origin from a gram; for there seems to he no difference when a thing is granted by express words, or wiien, by operation of km, it passes as incident to the grant. In the latter ease it would he a superfluous and inoperative clause in the deed to convey the incident by express words of grant, being only expressio corum qua; tacitas insunt; therefore, in both cases, the grant is the foundation of the title.