author: Dixon, J.

text:
    Alice C. Strong et al. v. Bernard Smith et al.
    [Submitted April 7th, 1905.
    Decided July 7th, 1905.]
    A purchaser under a decree in chancery for the foreclosure of a mortgage may, by proper proceedings, obtain a writ- of assistance against a person who was not a party in the foreclosure suit, but who claims possession of the mortgaged premises under such a party and whose right of possession is clearly subordinate to that of the purchaser, even though the rights of the possessor have not been foreclosed under the decree.
    On appeal of David Lamar, the person in possession, against Albert G. Spalding-, petitioner, for writ of assistance. From an order of the court of chancery advised by Vice-Chancellor Stevenson, who filed the following opinion:
    The petition for the order for possession is, as usual, filed by the purchaser at the foreclosure sale. This pure] laser, Mr. Albert G. Spalding, in fact was a defendant in the foreclosure suit as the holder of a mortgage upon the premises in question. He stands now, however, in this court with his petition asserting his rights by virtue of his purchase.
    The party to this present proceeding, Mr. David Lamar, who resists the effort of Mr. Spalding to obtain possession, was not a party to the suit, although he is now, and has been continuously from a time prior to the commencement of. the suit, occupying the mortgaged premises’ to an extent which will appear later.
    The petition is in the ordinary form, and prays that “an order may be made by this honorable court directing and commanding the said Bernard Smith and his confederates, or anyone holding under him, forthwith to quit said premises and to deliver the possession thereof” to the petitioner. Bernard Smith was made defendant in the suit as the owner of the equity of redemption and also as the party in possession. As is alleged in the petition and proved by affidavit, the sheriffs deed to Spalding was duly exhibited to Smith and the usual demand for possession was at the same time served on him (Smith). After some delay, owing to difficulty in effecting service of the notice of the application for an order for 'possession upon Bernard Smith, a special order prescribing the mode of service was made on November 7th, 1904, and the notice was thereupon served in accordance with the requirement of the order. On the return day of the notice no one appeared for Bernard Smith. Counsel, however, desired to be heard on behalf 'of Mr. David Lamar, who, he alleged, was in possession of the premises. The court thereupon declined to hear counsel on behalf of Mr. Lamar unless he (Mr. Lamar) was made a party to the proceeding, and thereupon Mr. Lamar’s appearance was entered and the proceeding was adjourned. Although no amendment of the petition was made, if one was necessary under the circumstances, the whole defence against the petitioner’s application for an order for possession has been conducted by Mr. Lamar’s solicitor and counsel in his name and for his benefit. Both parties to the controversy have had an abundant opportunity to take testimony. Depositions, some of which were taken in open court, .and all of which were taken with opportunity for cross-examination, amounting to' over two hundred typewritten pages, constitute the proofs upon which this application must be decided. I do not think that there is any.technical or other rule which prevents this court from disposing of the controversy, which has been fully litigated between these parties.
    My conclusions are as follows:
    1. The case of Beatty v. Be Forest, $7 N. -7. Eq. (12 C. E. Gr.) 482 (Court of Errors and Appeals, 1875), established the principle that a writ of assistance will go ex debito justitice to put a purchaser at a foreclosure sale in possession. Of course, the same principle applies on behalf of all parties Lo suits in equity who by the decree become entitled to the possession, of land which is the specific subject of the suit. Chief-Justice Beasley, in delivering the opinion of the court in the above-stated cause, says (at p. 488) : “In my opinion, a purchaser under a decree having a sheriff’s deed has as much right to the assistance of the court to be put in possession as a plaintiff in a court of law has to an execution after judgment.” He further says: “This remedy [the writ of assistance] is founded on tire general principle that a court of equity will, when it can do so justly, carry its own decrees into full execution, without relying on the co-operation of any other tribunal. The consequence is that it cannot refuse its aid to one of its suitors in this respect except on some reasonable ground of equity.”
    2. The writ of assistance as indicated in the opinion above quoted bears substantially the same relation to a decree of the court of chancery that the writ of habere facias possessionem bears to a judgment of a law court in an action of ejectment. Of course, there are certain accidental differences arising from the difference in nature of the two proceedings at law and in equity, respectively, but the object of the writ in each case is the same, viz., to render tire judgment or decree of the court effectual so far as such judgment or decree relates to the possession of the land which is the subject-matter of the suit. In the law court the writ goes to put the plaintiff in ejectment in possession. In equity the writ may go- to put the complainant in possession if the decree gives him such possession, or to put the purchaser who has not been a party to the suit at all in possession of the land which has been sold to him pursuant to the decree.
    When we come to inquire what classes of persons may be ousted from possession bjr virtue of these writs at law or in equity, respectively, we find that in each case strangers to the equitable or legal proceedings are liable to be so evicted.
    For illustration of the methods and principles followed in courts of law in controlling the effect of the writs of habere facias possessionem and restitution in their operation, both upon the defendant in the ejectment suit and persons found in possession after judgment for the plaintiff, who had not been made parties to the action, see the following cases: Den v. Johnson, M N. J. Law (7 Halst.) 275 {1881); Den v. O’Hanlin, 18 N. J. Law {8 Harr.) 127 {18^0); White v. Den, '21¡. N. J. Law

      (1/. Zab.) 758 (1858); Township of Union v. Bayliss, DO N. J. Law (11 Vr.) 60 (1878); Hall v. Dexter, 8 Saivy. ). (1875); S. G., 11 Fed. Gas. &£0.

    3. Ordinarily, possession is given by the power of a court of law or equity only against parties to the actions or suits, who as such are bound by the judgment or decree. There is no difficulty in dealing with the writs of either court so far as they affect the possession of parties to the proceedings who are estopped by the decree or judgment. But courts of law cannot take possession of real estate while an action of ejectment is pending, nor would it be advisable for courts of equity, in all cases where the right of possession of land may be determined by their decrees, to put the land in custodia legis by the appointment of a receiver. Both courts must meet the requirements of the situation as to the possession of land, which may greatly change while the legal proceedings are pending. If the process of the courts could only go for the dispossession of persons who have been parties to the suit, the judgments and decrees of our courts could be easily nullified. The general policy, therefore, both at law and in equity, is to require the actor who originates the proceeding which will affect possession to make certain inquiries with a view to make all persons parties to the suit whose claim to possession may be affected by the judgment or decree. But it is plain that even where this rule is strictly followed the practical administration of justice requires that the courts should often, after the decree has passed —indeed, after a sale has been made and a deed has been given to a purchaser — conduct a summary investigation and issue summary process in order to prevent some person not a party to the suit from holding possession practically in fraud of the proceedings which have awarded possession to another. The origin, and I think the limitation, of this summary power is necessity. The well-settled rule that all persons who take possession of real estate during the pendency of a suit under any of the defendants take subject to the suit and are liable to bo dispossessed by process issuing in the suit, is, I think, an illustration of this principle.

      4. We now come to the consideration of the different- instances in which a writ of assistance will go against persons in possession who have not been made parties to the suit in which the writ is issued. Without undertaking to make an exhaustive enumeration, because such enumerations which purport to be complete are generally dangerous, I think I may mention the following eases:
    (1) Where the person in possession has entered pending the suit under any of the parties.

      (2) In some eases, at least, I think where such person has entered pending the suit as a mere trespasser.
    (3) Where such person has subjected his title and right of possession to the operation of section 58 of the Chancery act. p. l. ims p. ss&.

    (4) Where the person in possession, whether he entered into possession prior to the suit or- during its pendency, in fact has in his. own right a title under which he is holding possession, but conceals that title and by his conduct represents to the parties interested in the prosecution of the suit that his possession is subject to the suit and may be terminated in the same way in which the possession of the parties to the suit may be terminated. If the party has entered pending the suit, the conduct to- be considered ordinarily would amount to a representation that such entry was made under one of the defendants, the fact of the existence of the independent title being concealed. If the party was in possession at the time when the suit was commenced, such conduct, ordinarily, would amount to a representation that such possession was that of a party to the suit, the independent title in like manner being concealed. Where the foreclosure suit is prosecuted to a decree and sale, without having this party in possession brought into the suit as a party defendant in reliance upon his representations, which, if true, would make it unnecessary to malee him a defendant, I think an estoppel arises which will prevent him from asserting his title after the sheriff’s sale to defeat the right of the purchaser to a writ of assistance. Whether such an estoppel will affect the title of the party in possession any farther than to prevent him from asserting that title in the suit in order to maintain bis possession against the purchaser, is a question which will be considered hereafter. There is a plain difference between an estoppel which prevents a party in possession from maintaining such possession by virtue of his title in ihe suit, ■and an estoppel which prevents such party after he lias gone out of possession — after he has submitted to the result of the .suit — from obtaining possession again through his title by a subsequent action at law or suit in equity, or by a subsequent entry.
    I make this rough enumeration because the novel situation presented in this case, it seems to me, can only be dealt with by determining in some way the general principles which are Applied in all eases where this drastic and summary remedy under a writ of assistance is applied for.
    5. Before undertaking to deal with the particular ease in band, I think another question in regard to the nature of these .summary proceedings resulting in a writ of assistance against persons who have not been parties to the suit must be considered. This question relates to the effect of the order for possession and the order for the writ of assistance as an estoppel, as making something res adjudicata between the parties who are heard on the motion for these orders. Here we have ns the actor in this present summary proceeding a man who is brought into the suit as a purchaser at the sheriff’s sale, and .as the defendant a man who has never in any way been a party to the suit. Such reflection as I have been able to give to this .subject (without the aid of any authorities, for none have been produced) has led me to the conclusion that nothing can be settled in a proceeding like this — nothing can be made res .adjudicata between the litigant parties excepting the right to take possession of the real estate in question as a result of the suit. It may be said, with substantial correctness, I think, that the sole question to be determined on a motion for a writ of .assistance is whether the applicant has a right, as against the party in possession, to use the suit to obtain possession. The -question of the maintenance of the possession which has been obtained by the writ after the whole function of the suit has been accomplished, in my opinion, is left open, entirely unaffected by the adjudication of the court, on the motion for the writ.
    If during the pendency of a foreclosure suit a stranger enters into possession and subsequently resists the application for a writ of assistance, on the ground that while he entered pending the suit, still he entered under a title paramount to the mortgage in the exercise of the right of possession which such title gave him, the court would be obliged to try summarily the question of fact whether this stranger to the suit entered under a defendant or entered under a paramount title. In this trial the existence of "the paramount title might be subjected to an investigation which of itself would in its extent cover the field of a complicated suit in equity or an action of ejectment at law. If the court decided upon the evidence that it was a perfectly clear case — that the stranger had entered under a defendant and his alleged paramount title had no existence — tire writ of assistance would go and the stranger would be dispossessed. But, is it possible that the validity of the alleged paramount title could be absolutely determined in such a summary proceeding ? In my opinion, this stranger could immediately bring an action of ejectment upon his legal title, if it were such, or bring a suit in equity to establish his -title if it were equitable, and in neither suit could the adjudication upon the application for the writ of assistance be set up- as a bar to his claim. If this result is not correct, tiren a man’s legal title, for the defence of which he has a right to claim tire verdict of a jury in a court of law, could be destroyed by the finding of an equity judge on affidavits in a summary proceeding in a suit of which he had never had notice until as the result of such suit he was called upon to surrender possession. The holder of a disputed title paramount to tire mortgage, if valid, would be in a worse position if he peaceably took possession pending a suit of which he had no notice whatever, than if he remained out of possession.
    Courts of equity, as well as courts of law, are obliged to determine this question of possession by outside parties at the end of a suit in order to maintain the efficiency of suits for the accomplishment of the remedial purposes for which suits are provided. But it seems to nre quite plain that the effect of these summary determinations should be strictly limited to the necessity which compels the courts to make them. Where the purchaser at a foreclosure sale is put in possession by means of a writ of assistance, it seems to me he has no right to a title which is more effectual for the maintenance of his possession than that which the decree of the court gives him. He occupies the same position as if he had peaceably taken possession without the aid of tire court. He must defend his title against all claimants. Whether hostile titles held by persons not parties to the suit have been cut off by the decree or barred by estoppels in pais, ought not to be determined in a summary proceeding on a motion for a writ of assistance, perhaps on ex parte affidavits only, with any greater degree of finality than is required for the accomplishment of the purpose of the writ of assistance. Any other rule, it seems to me, would frequently result in subjecting legal and equitable titles to summary extinguishment in a manner utterly inconsistent with rules and principles which we regard as an essential part of our constitutional and legal system. In many respects an order for possession or for a writ of assistance in favor of a purchaser in a foreclosure suit seems to be analogous to a prior order in the same cause placing the mortgaged premises in the temporary possession of a receiver, or to a prior order in the cause temporarily changing the custody of books and papers. No question of title or permanent right of possession after the suit has accomplished its purpose is settled by such orders, however important they may be for securing the objects of the suit.
    In the ease of Ben v. Johnson, supra, the sheriff, under a writ of habere facias possessionem, had put the plaintiff in possession of more land than his title covered. On the return of the writ the defendant obtained an order to. show cause why a writ of restitution should not be awarded to restore him to the possession of the land thus unjustly taken from him. Affidavits were thereupon taken. A rule was entered, which is set forth at length on p. <g!8$, restoring possession to the defendant. Although at that time (1831) a judgment in ejectment was not conclusive, this special order for restoration recites that it was made “according to the evidence now produced before the court,” and it expressly provides that it “is not to conclude or in any way prejudice either party in any future action of ejectment, or in any lawful investigation of their respective rights in regard to the premises in question in the above-stated action of ejectment or the lines and boundaries thereof.”
    In Heilman v. Frey, 5k N. J. Law (26 Vr.) 28k (1892), the-supreme court, after its judgment for the plaintiff in ejectment had been reversed by the court of errors and appeals, awarded, a writ of restitution to the defendant and refused, on motion for the writ, to consider the claim which the plaintiff endeavored to present — that he had acquired an outstanding tax title which vested him with the right of possession and which had not been affected by the suit. The opinion of the court by Mr. Justice Dixon expressly holds that the dispossession of the plaintiff by the writ of restitution would have no effect upon his alleged tax title in any subsequent litigation. Here is another situation in which a person by reason of-his- relation to a suit is barred from setting up- a legal title and right of possession thereunder in that suit, while such bar is effective-only in that suit and does- not in any way interfere with tire assertion of the title so barred in any subsequent litigation between the same parties. There is nothing in the decision to-suggest that a stranger to the suit who had acquired this same tax title and taken possession under it, excluding the plaintiff, would be liable to have his possession disturbed by a writ of restitution or any other writ or order in the suit.
    6. The rule seems to be settled that “ordinarily the writ of assistance is only granted against parties clearly bound by the decree, and where on the application for the writ of assistance-there is no substantial question that they are so bound.” National Building and Loan Association v. Stroms, k'9 Ail. Rep. 187 (Vice-Chancellor Emery, 1901). It follows that where it is not clear that the party in possession has been brought into the suit according to law as- a defendant, or where though confessedly not made a defendant it is not clear whether such party is bound by the decree by virtue of section 58 of the Chancery act or otherwise, the writ of assistance will not be-issued. Where it is doubtful whether the purchaser has obtained a lawful title, such a question will not he determined on these summary proceedings for possession. Van Meter v. Borden, 25 N. J. Eq. (10 C. E. Gr.) 4U (1874).

    I shall apply the rule indicated above to this present case. A writ of assistance will not be issued to dispossess Mr. Lamar unless upon the evidence now before this court the right of the purchaser, Mr. Spalding, is found to be clear. I do not think, however, that the case made out by the applicant for the writ is required to be equivalent to a demonstration beyond reasonable doubt, or to have such characteristics of certainty as might be required if an adjudication against Mr. Lamar on this motion would make tire relation of his title to that of Mr. Spalding res adjudicaia in all future litigations between them at law or in equity.
    A In my opinion, the lease under which Mr. Lamar claims the right of possession is not within the operation of section 58 of the Chancery act of 1902. P. L. p. ¡581; P. L. 11)08 p. 885. The question is whether this lease, which was neither acknowledged or proved, was an “instrument which by any prevision of law could be recorded.” If it was, then by the express .terms of the statute Mr. Lamar is bound precisely as if he had been made a partjr and the decree had gone against him. The lease was for five years. The matter to be determined is whether the statute 'relates (1) to instruments of the general nature and effect described therein, which may be, when proper conditions are performed, recorded in pursuance of a statute; or (2) particular instruments of the character above mentioned which are in the actual condition in all respects required by law in order that they may be recorded; or (3) instruments of. the general character above mentioned, either actually prepared for record or which it is within the power of the holder or some other person to have prepared for record.
    I do not think that this statute means to penalize a person who has obtained a deed or lease, or mortgage valuable to him, but incapable in its then condition of being placed on record. Nor do I think that the statute means that the court of chancery should try the question whether, for instance, a man in Mr. Lamar’s * situation had it in his power to procure an acknowledgment or proof from the subscribing witness so as to put his lease in condition to be recorded. In my judgment, the statute applies only to a case where a person holds an instrument which in its then condition he can lawfully place on record, but which he neglects or refuses to record. Many instances of hardship from any other construction, which are extremely liable to occur, can readily be stated. Certainly, it cannot be said that the bona fide purchaser without notice is not quite fully protected by our laws.
    8. The foregoing notes relate to cases many of which differ radically from each other in most important respects. The case of a person taking possession pending a suit under a concealed title, which, if good, is paramount to the mortgage under foreclosure, is certainly very different from the case of a person either in possession at the time of the commencement of the suit or who has taken possession subsequently, but whose concealed title is subject to tire mortgage. It is the latter case which is now before this court.
    The leading facts are as follows:
    Smith, who had no wife, was the owner of the equity of redemption by virtue of a deed duly recorded. Smith took title subject to the mortgage of the complainant, and gave a purchase-money mortgage to Spalding. Smith took possession of the mortgaged premises, which consisted of a large country residence, with extensive grounds. Smith owned the furniture in this residence. In fact, Lamar and his wife also occupied this property with Smith. If the solicitor of the complainant, before commencing the foreclosure suit, made diligent inquiry in order to ascertain who was in possession of the mortgaged premises, he no doubt learned that the owner of record (Smith) was in possession, and that with him were residing his sister, Mrs. Lamar, and her husband, the three persons constituting practically one family. Such inquiry might have disclosed Smith’s ownership of the furniture. Lamar knew that all the ascertainable facts in regard to the real estate and furniture which this family were occupying and using would indicate that Smith was the owner in possession, while he (Lamar) had no more of an independent possession than had Mrs. Lamar, his wife. I do not think that this sort of use of the property by Lamar gave notice to the solicitor for the complainant that Lamar had any right of possession independently' of Smith’s right of possession, or, in other words, that the possession of Lamar was not, or might not, be equivalent in. law to the possession of Smith. But the disposition of this case does nof depend upon the correctness of this proposition, in view of the subsequent conduct of Mr. Lamar, which, in my judgment, amounted to a most emphatic representation on. his part that he had no right of possession which would not be terminated by the suit when Smith’s right of possession should be terminated thereby. In fact, Mr. Lamar had in his possession a written lease which Smith had given to him, letting the mortgaged premises, as well as the furniture therein, for the term of five years. This lease was subject to the complainant’s mortgage, and also subject to the mortgage to Spalding, but it was in existence, prior to the commencement of the foreclosure suit, and if the complainant received notice, by Lamar’s possession or otherwise, of the existence of this lease, he would have been bound to inquire of Lamar, in regard to his interest in the mortgaged premises, and to make Lamar a party defendant in the foreclosure suit. Lamar, however, kept the lease concealed during the whole course of the foreclosure suit, of which he (Lamar) had full notice, and of which he practically took charge, ostensibly on behalf of his brother-in-law, Smith. He actively engaged in various efforts to thwart or delay the proceedings of the complainant to bring his suit to a sale. He applied for and obtained adjournments, of which he, as lessee in possession, enjoyed the full benefit. He was present at the sheriff’s sale and gave no notice of his lease. He is charged with knowledge of the fact that the complainant and his solicitor were proceeding with their foreclosure suit to a sale without bringing him (Lamar) in as a party defendant, in reliance upon the representation which Lamar was making by .his entire conduct, including his concealment of his lease, that his physical possession was merely the possession of Smith, and that he was interested in the foreclosure suit only as Smith’s agent. In my opinion, this is a case where Mr.- Lamar must be deemed estopped, for the purposes of this foreclosure suit, from denying now, on the motion for a writ of assistance, that his possession is in fact what he has represented it to he, viz., the possession of Smith. If this is not a correct conclusion, it seems-to me that every mortgagee, who finds, upon examination of the-mortgaged premises, that the owner of the equity of redemption according to the record is in personal possession thereof, but 'that other persons are residing with him, apparently as members of his famity, must make all such other persons parties defendant to his bill. To be safe, it might be necessary to make a dozen boarders or lodgers defendants in a suit to foreclose a mortgage on a boarding-house which the mortgagor was conducting and of which he had personal possession. In case a mortgagor had residing with him, apparently as members of his family, several adult children, unless all of the children were made defendants there might be a scries of leases or subleases-distributed among the family which would indefinitely prolong their possession as against the mortgagor or the purchaser at his foreclosure sale. Can it be possible that it is the duty of the complainant to make personal inquiry of all the members of the mortgagor’s family with a view to discover whether there is a concealed lease from the mortgagor held by some one of them which establishes the fact of possession contrary to the inference to be drawn from the recorded title, together with the personal physical occupation by the mortgagor ? If it is the duty of the complainant to prosecute such an inquiry, and each of the members of the mortgagor’s family should deny that he had any right of possession as against the mortgagor, and thereupon the mortgagor alone was made defendant in the suit, the right of the purchaser to a writ of assistance, which would dispossess a son who-held a concealed lease, might depend upon a. mass of contradictory testimony in regard to what was said by the holder of the lease when the complainant’s solicitor was prosecuting his inquiries. Mr. Lamar, I think, is charged with knowledge that his possession, while his lease was concealed, would mislead the solicitor for the complainant. It was his duty, therefore, when he became aware of the foreclosure suit, as he did at once, and began to take an active part in it, representing that he was acting as agent for his brother-in-law, Smith, when he was in fact acting for himself as well, to give notice of his lease, if he intended to have his lease recognized in any part of the foreclosure proceedings, including tire putting of the purchaser into possession by means of a writ of assistance.
    It is true that the evidence in this ease shows that, for the most part at least, the supplies for the Smith-Lamar summer residence were bought in the name of Mr. and Mrs. Lamar, and were paid for with Mr. Lamar’s money. In view of the fact that Mrs. Lamar, Mr. Smith’s sister, presumably occupied the position of mistress of the establishment, and as such controlled the purchases from grocers, bakers, &c., for use in the family, it is not at all surprising that these supplies were furnished in that way. I do not think that this course of dealing can affect the equities of this case. With Smith, the owner of the equity of redemption, apparently in full possession, a rule requiring the complainant or his solicitor, before filing the foreclosure bill, to institute inquiries among the tradespeople near the mortgaged premises in order to discover in whose name the household business was being conducted, in my judgment, would be harsh.
    Counsel for Mr. Lamar insists that no estoppel can be raised against Mr. Lamar because he (Mr. Lamar) swears that he did not know until after the sale that his rights as tenant were not cut off. But Mr. Lamar knew all the facts. No fraud is charged against him in concealing his lease, if he saw fit to do-so; the fraud would be perpetrated if he now were permitted to claim under his lease that his right of possessioh was different from what he thought it was and allowed all the parties to the suit to think it was. The great force of an estoppel in pais, in the majority of cases, is to prevent a fraud from being accomplished. Even if Mr. Lamar had no intent to deceive or defraud anyone by concealing his lease, the effect of his conduct was precisely the same as if he had such intent. The principle is now generally recognized that an actual evil intent is not a necessary characteristic of conduct which constitutes an estoppel in pais. It is with the effect of a man’s conduct, ■knowingly pursued, with which the law deals.

      It is further insisted, on behalf of Mr. Lamar, that Mr. Spalding has sustained no material injury from his purchase, inasmuch as he was liable for the amount of the complainant’s mortgage, for which he has now given a new mortgage, while the balance of his bid was applicable to the payment of his own mortgage. This argument, I think, is based upon a misconception of the nature of the estoppel which is raised in a case of this kind. Mr. Lamar, by standing by in silence at the sheriff’s sale while some person purchased the premises upon which he held a concealed title, ma}'- in some subsequent litigation be adjudged estopped to set up title under the lease- which he thus concealed. Mr. Lamar also, in such a suit, may find his lease practically void under the operation of the recording acts. These are matters now only incidentally on trial. The estoppel raised against Mr. Lamar is not for Mr. Spalding’s benefit only; it is for the benefit of every party to this suit, including the purchaser, who is interested in having the suit accomplish all its objects, among which is the placing of the purchaser in possession. The estoppel, primarily, stands for the complainant’s protection. He is the party who has been misled by Mr. Lamar’s conduct, and who has in reliance on that conduct proceeded with his suit to a sale upon the theory that Lamar’s possession was in fact Smith’s possession. If Mr. Lamar, at the sheriff’s sale, had produced his lease, in my judgment, the complainant could have ordered the sale to proceed with the assurance that Mr. Lamar had spoken too late — that the estoppel against him was complete, and that the court would dispossess him by a writ of assistance in favor of the purchaser. The purchaser, of course, now stands subrogated to all the complainant’s rights in respect of this estoppel.
    At every point in our inquiry I.think it should be borne in mind that the estoppel which we are considering is not an estoppel operating simply between Lamar and Spalding in favor of Spalding’s title. No such estoppel, in my judgment, can loe tried in this summary proceeding in a suit to which Lamar is not made a -party. If Lamar, being notoriously in sole possession at the commencement of the suit, had first heard of the suit on the day of the sheriff’s sale, and had attended the.sale, he might by his conduct have estopped himself to set up any title which he had as against a purchaser at such sale; but certainly this court would have no power to try finally such an estoppel on proceedings for a writ of assistance and dispossess Lamar, however clear the estoppel might seem to be. The estoppel against Lamar may be said to be in favor of the suit. The gist of the estoppel is not in the representation that Lamar had no title, but in the representation that Lamar’s possession was Smith’s possession, and hence subject to the process which might be issued in the suit. Lamar, by his conduct, the effect of which, without regard to his actual intention, he must be presumed to have understood, misled the complainant into the belief that his (Lamar’s) possession was Smith’s possession, and upon this belief the complainant conducted his suit without bringing in Lamar as a party defendant. Lamar, therefore, is estopped now, after the sale; to set up in this suit that his former representation was not true. This, it seems to me, is the precise estoppel against Lamar — an estoppel which is strictly confined to this foreclosure suit, and has no operation after the suit has been concluded.
    Apart from all theories, the fact appears distinctly in this ease that Mr. Lamar has no right of possession against Mr. Spalding. The case is very different from what it would have been if Mr. Lamar even made a claim to a title or right of possession valid against the mortgagees. Mr. Spalding 'is the holder of the second mortgage and has succeeded to all the rights of the first mortgagee. Mr. Lamar’s lease is subject to both these mortgages. Counsel for Mr. Lamar frankly admits that Mr. Spalding had his action of ejectment against Mr. Lamar and makes no suggestion that in such action Mr. Lamar would have any defence. In all the mass of testimony which has been taken in this proceeding no foundation for any defence is pointed out. Mr. Lamar stands here in this- court objecting to being dispossessed by the writ of assistance in this cause, but not claiming that lie has any right at law to maintain his possession for one moment against the demand of this purchaser and mortgagee. Even if I am in error in regard to the degree of finality which characterizes an order for possession, or for a writ of assistance in this case, there is no suggestion of any legal right of possession in Mr. Lamar for the protection of which he is entitled to a trial by jury in a court of laAV. Certainly Mr. Lamar has had abundant opportunity in this pro-needing to establish any equities to which he anight lay claiaaa. Oaa the whole case, I think that the right of Mr. Spalding to Lave the aid of this court to put him in possession as against Mr. Lamar must be deemed a clear right.
    9. While an order for possession will be advised, the order for the writ of assistaaace will not be made until Mr. Lamar has laad an opportunity to have the order for possession reviewed by the court of errors and appeals at the aaext term of that court.
    Although I have fooaiad that the case against Mr. Lamar is '“clear,” the principles which have beerr applied to the discovery and definition of that case are far from being clear — ira -fact, are involved in doubt and uncertainty — and may AArell be passed on by our court of last resort before Mr. Lanrar is summarily ejected. It appears, also, that an appeal is rroAV pending from the order made in this cause coarfirming the sale to Mr. Spalding, which appeal may be decided before or during the next term of tire court of errors and appeals. Upon consideration of all the circumstances, including the season of the year -during which the delay caused by the appeal will occur, I think that Mr. Lamar’s possession should not be disturbed at present, ■provided he promptly takes and diligently prosecutes an appeal. 'This stay is made without attempting to discuss the force of the •peculiar views in regard to the essential nature and-effect of an appeal from this court, expressed in the opinion of the late Chief-Justice Beasley in the case of Pennsylvania Railroad Go. v. National Bodes, &c., Railway Go., 5L N. J. Eq. (9 Bide.) Gift (1896).

    I understand that that opinion in fact expressed merely the views of the learned judge who ovrote it.1 See Stale Mutual JBuilding and Loan Association v. O’Callaghan, 67 N. J. Eq. 108; Belaivare, Ladeaivanna and Western Railroad Go. v. Bredeenridge, 55 N. J. Eq. (10 Bide.) 159; Morion v. Beach, 56 N. J. Eq. (11 Bide.) 791. The force of the National Bodes Railway Case as a precedeaat in the future will, I .think, be eon flared to cases presenting parallel facts. There seems to be still room to argue in New Jersey that appellate proceedings for the review of a judgment, decree or order at law or in equity oftentimes are in effect procedings for restitution, for compensation on account of erroneous action of the inferior court, for restitution of a. status which has been, in fact changed, rather than for the prevention of such change of status. I think that a stay by order of this court is necessary to arrest the dispossession proceedings under the writ of assistance until the court of errors and appeals can take action upon the case, and therefore such stay will be granted.

      Mr. Edmund Wilson, for Spalding, the petitioner.

      Mr. Alan H. Strong, for Lamar, the appellant.
   The opinion of the court was delivered by

Dixon, J.

On June 12th, 1900, Albert G-. Spalding executed to Alice C. Strong a mortgage for $50,000, on land in Monmouth county, and the mortgage was duly recorded June 20th, 1900. On April 25th, 1901, Spalding conveyed the property to Bernard Smith, by deed, duly recorded April 29th, 1901, and Smith gave back to Spalding a purchase-money mortgage of the same date, which was also duly recorded on April 29th, 1901. On July 15th, 1903, Alice C. Strong filed a bill in chancery to foreclose her mortgage, making Spalding and Smith parties defendant, and in pursuance thereof the property was, on May 13th, 1904, sold to Spalding by virtue of an execution to satisfy the Strong and Spalding mortgages. On July 21st, 1904, Spalding received a deed for the property, and on October 12th, 1904, presented to the chancellor a petition for a writ of assistance commanding Smith and anyone claiming under him to deliver possession of the property to the petitioner. This petition having come to the knowledge of David Lamar, he appeared at the time set for the'hearing to oppose the issuance of the writ, and was thereupon formally admitted as a party to the proceeding. By the testimony subsequently presented on his behalf, it was disclosed that he claimed to be in possession and entitled to possession of the mortgaged premises under an unrecorded lease made to him by Smith on May 22d, 1901, for the term of five years from that date, and that his possession had been open and continuous since the date of the lease. After full hearing an order was made that the writ should issue notwithstanding his claim, and thereupon he has appealed to this court.

The appellant does not question the superiority of the petitioner’s right of possession; his only contention is that it cannot be enforced by writ of assistance. His position is that such a writ can lawfully issue against those only who are barred by the decree in the cause, and that as his rights were acquired before the commencement of the suit, and he was not made a party defendant, although in open occupation of the property, the decree did not affect him. To maintain his position 'respecting the limited scope of the writ, he refers to the expressions of various text-writers and to the opinion of Chancellor Zabriskie, in Blauvelt v. Smith, 22 N.J. Eq. (7 C. E. Gr.) 31.

The utterances thus cited may be regarded as declaring the general rule, but they cannot be deemed accurate statements of the law on this subject. The function of the writ is to put into actual possession of property the person who, under decree of the court, becomes entitled thereto, and, as was said by Chief-Justice Beasley, speaking for this court, in Beatty v. De Forest, 27 N. J. Eq. (12 C. E. Gr.) 482, “the remedy is founded on the general principle that a court of equity will, when it can do so justly, carry its own decrees into full execution without relying on the co-operation of any other tribunal. The consequence is that it cannot refuse its aid to one of its suitors in this respect, except on some reasonable ground of equity.” In pointing out the origin of the writ and the proper practice relating to it, Chancellor Green, in Schenck v. Conover, 13 N. J. Eq. (2 Beas.) 220, 227, stated these rules: The writ may issue “not only as against the defendant, but against any party in possession under him, or by title not superior to his. * * * The exercise of the power rests in the sound discretion of the court. It will never be exercised in a case of doubt, nor under color of its exercise will a question of legal title be tried or decided.

The words of these eminent jurists mark the true sphere of the writ.

Of course, it is necessary that the rights of the person from whom possession is sought should in some lawful mode be subjected to the jurisdiction of the court. Ordinarily this is done bjr making him a party to the suit in which the decree to be enforced is rendered. But it may be done by giving him notice of the possessory proceeding instituted on the basis of the decree, or by his appearance in such proceeding. If, when he is thus brought in, it is clearly shown that he claims under one who was a party to the suit, and that his right of possession is undoubtedly subordinate to the right for the enforcement of which the writ of assistance is prayed, then it may be issued against him, even though technically he is not bound by the decree.

Such is the situation of the present appellant, and there is’ no reasonable ground of equity on which the court can refuse its aid to the petitioner against him.

This view renders it unnecessary for us to consider whether under section 58 of the Chancery act of 1902, amended in 1903, or by force of any estoppel in pais, the decree in foreclosure bars the appellant from his equity of redemption.

The order appealed from is affirmed.

For affirmance—The Chief-Justice, Dixon, Garrison, Fort, Garretson, Pitney, Swayze, Bogert, Vredenburgh, Vroom, Green—11.

For reversal—None.


source: Caselaw Access Project

author: Garrison, J.

license: Public Domain

text:
    The Medlar & Holmes Shoe Company (Limited), respondents, v. The Delsarte Manufacturing Company et al., appellants.
    [Argued March 7th, 1905.
    Decided June 19th, 1905.]
    1. The complainants’ use of “Delsarte,” as the name of a shoe manufactured by it, having imparted to the word a distinct element of value as a trade mark, the defendant was enjoined by the court of chancery from using the mark to designate shoes put on the market by it, notwithstanding its use of the word for another purpose antedated the complainants’ adoption of it as a trade mark; such prior use by the defendant consisted in stamping “Delsarte” upon shoes after they had been purchased by the defendant for a customer.
    2. A mark that is not affixed to an article until after it has been purchased for a consumer lacks the essentials of a trade mark.
    On appeal from a decree of the court of chancer}'' advised by Vice-Chancellor Emery, who filed the following opinion:
    The substantial dispute between the parties to this cause relates to the use .of the name or word “Delsarte” as a trade mark upon shoes.
    Complainants are manufacturers and sellers of shoes, with a manufacturing plant in Philadelphia, and sell their product in most of the larger Eastern cities, including Boston and New York. In the latter part of 1896 they began the use of the name “Delsarte” as a trade mark for one variety of their shoes, and in 1896 about $5,000 of the total $60,000 sales were of their “Delsarte” shoes. In 1897, of $90,000 sales, one-half or more were of “Delsarte” shoes, and in 1898 almost the entire amount of the $110,000 total sales were of the “Delsarte” shoes, and their product is about two thousand pairs per week.
    The name used by complainants is a fancy name or word, not descriptive in itself of any characteristics or qualities of the shoe, but is used to designate the special quality or line of shoes made by them as their best quality of shoes, for sale everywhere .at a retail price fixed by complainants ($3.50), and in quality and in finish is superior to their other grades of shoes. The ■evidence of complainants shows satisfactorily that in general trade the name “Delsarte,” as applied- to shoes, has come to be recognized as indicating shoes manufactured by complainants, .and, as against all the world, except the defendant, the right •of the complainants to the exclusive use of the word as a trade mark is sufficiently established. Defendant company used the •name “Delsarte” and applied it upon shoes at least seven years before the complainants adopted it, and the principal question in the cause is whether the defendant’s use of the name was of .such a character and under such circumstances as gave it the right to claim tire exclusive use of it as a trade mark. On the part of the complainants, it is claimed that this use of the name by defendant was not of this character.
    In relation to this use of the name by the defendant company .as a trade mark for shoes, the evidence discloses the following substantial facts:
    In August, 1888, the defendant Emma J. Swarwout registered the word “Delsarte” as a trade mark for corsets and attachments ■for supporting underwear, under the United States statutes, .and the statement attached to the application for the trade mark declares that the class of merchandise to which the trade mark is appropriated is underclothing, and that the particular ■description of goods in said class is corsets and attachments for supporting underwear. The word “Delsarte” was registered, .apparently, as a fancy or arbitrary word. In October, 1888, the defendant company was incorporated in New Jersey as “The Delsarte Corset Company,” for the purpose, as declared in their certificate, “of manufacturing and dealing in corsets and all kinds of clothing and underwear, * * * and to do all acts .and business incidental thereto.” The defendant Emma J. Swarwout was one of the incorporators and officers, and she has since continued to be an officer and manager of the company.
    The Delsarte Corset Company established its factory in Newark, with a branch office in New York, and has built up an extensive business in this manufacture of corsets and underwear.
    In February, 1893, the name of the company was changed to its present name, “The Delsarte Manufacturing Company,” but no change was made in the certificate as to the character of its business. Previous to the formation of the company, in 1888, the defendant Swarwout seems to have herself used the name “Delsarte” as a trade mark for corsets, but not for shoes, and since the formation of the company it has continued to use the name as a trade mark for corsets and underclothing, by the permission or consent of Emma J. Swarwout, but without, so far as appears, any formal assignment of the trade mark or written license. “Delsarte” was the name of a French artist (1811 to 1871) who became celebrated for his theory of the method of exercise for developing bodily grace and strength, and the power of dramatic expression. The general system or theory has become so well known that the word “Delsartian,” as denoting the system, has since become a recognized generic or descriptive word of the English language. See Standard Dictionary and Century Dictionary. Generic or descriptive- words, which denote quality of articles sold, cannot be appropriated as exclusive trade marks. This is a fundamental principle relating to trade marks. Canal Company v. Ciarle, IS Wall. $11, 823 {1871): Browne Tr. § 2-3-4; Jaros Hygienic Co. v. Fleece Hygienic Co., 63 Fed. Rep. J2J. The name of a famous person used merely as a fancy name may become an exclusive trade mark {Browne Tr. § 216), but a name of this character may also become generic and descriptive of quality, and therefore invalid as a trade mark. Browne Tr. §§ 1'78, 180, 203, citing, inter alia, Thomson v. Winchester, 19 Fide. 21J (1837). The defendant company, from the time of its organization, manufactured and sold corsets and other underwear, using on all these goods the trade mark “Delsarte,” but it never manufactured shoes, and its business in this line was confined to the sale of shoes manufactured by others. These sales were not extensive and the business consisted altogether of the selection, on special order of a customer, of shoes which have a special set or fit. The company’s circulars describe the shoes as constructed on a special theory, and so as to bring the weight of the body on the inside of the centre line — or, in the language of one of the witnesses, the essential feature of a “Delsarte” shoe selected by defendant company, was that it could be trodden upon so that the line of support through the middle of the foot did not fall outside of the second toe. The shoes thus selected are further described as broad-toed, low-heeled and with a high, arched instep, and were advertised as the “Delsarte” shoe in lectures delivered by a teacher of the Delsarte system of physical culture and dramatic art, who also recommended the other “Delsarte” clothing manufactured by the company. The shoes, when ordered by a purchaser, were selected by the company from the stock of any manufacturer or vendor who had on hand a shoe of the form desired, and were stamped “Delsarte” and delivered to the purchaser. Sometimes, but not always, the mark of the manufacturer was removed. These occasional sales of “Delsarte” shoes, as incidéntal to their main business in corsets and underwear, seem to have been made at the New York office or store only, and at this place began at least as early as 1889. The 3rearly sales, from 1890 to 1896 (omitting 1895), ran from thirteen pairs to twenty-six pairs, and were altogether to the retail purchaser, and mainly to purchasers of their other goods. After 1896 the business of the New York office was by an exclusive agency, given to a Mrs. Reu-Bond, who had previously been connected with the Compaq, and this agent sold other st_yles of shoes — few sales, if anyr, being made after 1896 at the New York store of any “Delsarte” shoes. In February, 1897, the defendant company opened an office in Boston, where complainants had an extensive agency for their “Delsarte” shoe, to which they furnished several thousand pairs of shoes annually. The Delsarte company advertised shoes among their other goods, and from February, 1897, to January, 1899, the sales of the “Delsarte” shoes (at retail) proved, numbered twenty-seven pairs. Other sales are said to have been made by the Boston house, but the number is not shown. In August, 1898, as Swarwout says, complainants’ use of the name “Delsarte” on shoes was first brought to her attention, and the defendant company, on August 29th, wrote a circular letter to a large number of complainants5’ customers in the different cities, notifying them that it, the Delsarte Manufacturing Company, had a trade mark registered on. the word “Delsarte55 which covered shoes, and notifying them not to sell any of that name unless coming from them. It also, at the same time, notified complainants that they were infringing its trade mark and threatened action at law. The complainants, in reply, invited legal proceedings to test their right, and on their part also threatened legal proceedings if defendant failed to take them. Defendants did not commence any suit and complainants subsequently commenced an action for damages against defendant company by reason of the circular letters, which resulted, as is alleged, in countermands of orders by the complainants5 customers and loss of sales, and that action is pending in the supreme court of this state. After-establishing their store in Boston, and in the spring of 1898 and previous to the notice -to complainants and their customers, defendant company gave orders to a manufacturer of shoes at Lynn for the manufacture of shoes for them, and the first shipment to them of'these shoes came about November, 1898. These shoes, sold since the dispute between the parties arose, are-stamped “Delsarte Mfg. Co.,55 19 Temple Place, Boston, and are-shoes of the same general character as those manufactured by complainants. The general appearance of the shoes sold by the complainants and the defendant company is so similar that the ordinary purchaser at retail would not be likely to distinguish between them except by the trade marks, and experts, or persons skilled in the trade, have equally failed on the witness stand, to distinguish them in some instances.
    The present claim of defendant company is to the exclusive use of the word “Delsarte,55 not in connection with its own name, but as a separate word by way of trade mark, and the claim is not limited to the right to use the word, as it was originally used, to indicate to the purchaser, or, generally, the selection of a shoe claimed by it to be constructed in accordance with the “Delsartian55 theory, but is a general claim to the-use of the word “Delsarte55 as belonging to it exclusively, for any shoe sold by it, and the answer and cross-bill are based on a claim of this general character. This general claim, if valid. must arise wholly from the previous limited use of the word as indicating their very limited selection of a particular kind of shoe for special orders and purposes. If the name as originally used by defendant had been intended as a mere fancy name, not descriptive of the qualities of the shoe, the prior use of the name, however limited it may have been, would, I think, be sufficient to- entitle defendant to- continue its use. Use of a word under such circumstances as to show an intention to adopt it as a trade mark is the test of exclusive title to a trade mark, rather than the extent or duration of the use. Browne Fr. §§ 52, 806; Kohler Manufacturing Go. v. Beeshore, ■59 Feci. Rep. 572 (Circuit Court of Appeals, 1898).

    In this case the use of the word by defendant company, though limited and occasional and for special purposes, has been continuous from 1888 up to the time of filing the bill, and as to extent and duration this would be sufficient to establish its right if the word, as used by the defendant, can be considered as the use of a fancy word or name in which it could acquire a trade mark. This raises the vital questions in the case, viz., (1) whether defendant’s prior use of the name was with the intention of using “Delsarte” as a fancy name or with the intention of using it to indicate a particular quality or character of the shoes, to which quality it gave its guaranty of selection by the use of this name; and (2) whether a special use of the word, in a generic or descriptive sense only, prevents defendant from asserting an.exclusive use of the word as a fancy word or trade mark by complainants, who have used it solely for that purpose, and whose use of it was begun - (so far as appears) in good faith and without any knowledge that the word had been previously used by defendant company as a trade mark upon shoes.
    Upon the first question, which is one of fact purely, I reach the conclusion, upon the entire evidence, that defendant’s prior use of the name was for the special purpose of indicating the. quality or character of the shoe, and its selection of shoes as having a special quality, and that the word “Delsarte,” as used by it for this purpose ■ of indicating quality and its selection, was used as meaning the same as “Delsartian,” a generic and descriptive word. On the decision of the second question, I have greater difficulty in reaching a conclusion. It is a novel question and the authorities to which counsel on both sides have referred me (and they have been very diligent) do not aid directly in this solution. My judgment is that this special intentional use of the word “Delsarte,” not as a mere fancy word, but as a word applied and intended by them as descriptive and generic, had the effect of preventing defendant from acquiring the exclusive right to the word as a trade mark. Defendants had no exclusive right to manufacture shoes constructed on the Delsarte theory, as applied to shoes, and it was open to any person to adopt and apply the Delsarte method, if there was one, to the manufacture of shoes, and call them “Delsarte” shoes. “Delsarte,” in such- use, would be merely the generic term or term indicating the quality or character of the article. In Thomson v, Winchester, 19 Pick. 211/., Chief-Justice Shaw held that “Thomsonian medicines,” having acquired a generic meaning descriptive of a general kind or class of medicines, could not be appropriated exclusively by the plaintiff, Thomson, although he had discovered the system and originally introduced the name “'Thomsonian” as applied to them. Such exclusive right to sell can only be obtained by patents. In the present case, “Delsartian” had become a generic or descriptive term before defendant company applied to shoes the term “Delsarte” as descriptive, meaning “Delsartian.” Defendant’s special use of the name on shoes as descriptive only, up to the time when it was informed that complainants had built up an extensive trade in shoes called “Delsarte” shoes, purely as a fancy name, was not such a use» of the word as a trade mark as to entitle defendant now to claim the exclusive right to use the word as a fancy word trade mark, and not descriptive. To allow such change of use, and base defendant’s right to a trade mark on it, excluding complainants from the continuance of its use of the word, might and probably would result in giving defendant company the benefit of the trade in “Delsarte” shoes, which the complainants have built up in good faith and at large expense. The letters to complainants’ customers falsely claiming a registered trade mark as covering shoes, and defendant company’s orders for the general manufacture of shoes, justify the conclusion that this is the present intention. The defendant company having apparently abandoned its prior use of the word “Delsarte” as descriptive only, and claiming now, by its course of business and its answer and cross-bill, the exclusive right to use the word as a fancy word and applicable to all shoes sold by it, I conclude that it has no such right, and that the complainants have, as against the defendants, the exclusive right to the word “Delsarte” as a trade mark. This right to the trade mark “Delsarte” for shoes does not, however, give complainants the right to prevent the defendant company from using the word “Delsarte” as part of its present corporate name, “The Delsarte Manufacturing Company,” or from stamping any articles sold by it with its corporate name, as indicating the origin of the goods. The general rule in relation to this matter is that every person or corporation has the right to -the use of his or its own name as a trade mark, subject to the qualification that the use of the name is not accompanied by circumstances indicating an intention to mislead the public. Browne Tr. §§ 187, Jt-27.

    Complainants, in the selection of the name of another person as the trade mark for their goods, took the risk of the previous proper use of the word as part of the corporate name of an existing corporation, and they took, also, the risk of the proper use of this corporate name as a trade mark. They are therefore not entitled to restrain the defendant company from the use of its name as a trade mark upon shoes. Defendant is now using its name and its place of business in Boston, “19 Temple Place,” as its trade mark stamped on shoes, and this continuation of the entire name and place of business as a trade mark so distinguishes defendant’s goods from the complainants’ that I think nobody could mistake the one for the other. Complainants, therefore, are entitled to an injunction restraining defendant from any use of the word “Delsarte” as a trade mark for shoes except in connection with and as a part of its corporate name, and in such manner as to indicate that the corporate name, and not merely the word “Delsarte,” is its trade mark.- Complainants are entitled to- costs on defendant’s cross-bill.
    The original bill in this case was filed by “Medlar & Holmes Shoe Company, Limited,” as an association under the laws of the State of Pennsylvania, authorized by its laws to sue and be sued by this name. The associations under these laws are not corporations with full corporate power, and pending the suit an application was made to allow the individual complainants composing the association to be also made parties. This application was allowed, after hearing counsel, and an order allowing the amendment was made, and the cause subsequently proceeded to hearing. Defendant’s counsel have at final hearing-renewed the objection to the suit proceeding, but this matter was disposed of by the order and the objections now raised were passed upon at that time. I do not, therefore, consider them again.

      Mr. Jerome D. Gedney, for the appellants.

      Mr. Edward M. Colie, for the respondents.
   The opinion of the court was delivered by

Garrison, J.

The decree of the court of chancery is affirmed, 'for the reasons given in the opinion of the learned vice-chancellor who heard the cause. The distinction that -he draws between the use- by the complainants of the word “Delsarte” as a fancy name and the use made of it by the defendant as a descriptive term is a valid one and fully warranted by the testimonjq but added stress should, we think, be given to the consideration that the complainants’ use of the word directly tended to impart to it that essential element of value in a trade mark by which prospective purchasers are attracted, and upon which customers learn to.rely; whereas, in the defendant’s use of it, the purchase was made on behalf of the customer before file word was stamped upon or in any way affixed to the article purchased, the customer relying not upon any significance the mark bad to him,, but solely upon the selective skill of the defendant in filling his order. A mark that is not affixed to an article of barter until after it had been purchased for a customer lacks the essential elements that entitle a trade mark to equitable protection.

Whether the appellant may, in the future, make the same use of the word “Delsarte” that it did prior to the respondents’ use of it as a trade mark, viz., by stamping it on shoes furnished to-its customers, is a question that has not been argued before us,, and hence upon this point no opinion is expressed.

For affirmance—The Chief-Justice, Garrison, Fort, Garretson, Pitney, Bogert, Vredenburgh, Vroom, Green, Gray—10.

For reversal—Dixon—1.


text:
    Mercer County Traction Company, respondent, v. The United New Jersey Railroad and Canal Company, appellant.
    [Argued March '8th, 1905.
    Decided June 19th, 1905.]
    1. Upon an application to the court of chancery under the act of March-22d, 1S95 (Q-en. Stat. p. 2717), to define the mode in which one railroad may cross another, it was incumbent upon the petitioner to show it had lawful power to construct its road.
    2. One of the steps to that end, being an ordinance of the township-committee granting permission to the petitioner to construct its road under the Railroad act of 1896 (P. L. p. $29), it was incumbent upon the petitioner to show the jurisdiction of the township committee to pass such an ordinance.

      3. The written consent of frontage property owners required by the Street Railroad act of 1896, in order to confer jurisdiction upon the township committee to pass such an ordinance, must be a consent that municipal permission may be granted for the construction of the line of street railway for which application was made to the township committee.
    4. Upon an application to define the mode of crossing, under the act of March 22d, 1895, it was shown to the court of chancery that the petitioning corporation had resolved upon the construction of its line on May 20th, 1903; that on May 21st, 1903, it had petitioned the township committee for permission to construct its said line, and that the ordinance granting said permission was on the same day introduced and passed upon its first reading. It further appeared that the signatures to the consent of the frontage property owners, filed with the township clerk, were all acknowledged prior to May 20th, 1903. — Held, that these facts failed to show that the property owners had consented to the granting of permission to construct the line of railroad for which application ■was made to the township committee.
    On appeal from a decree of the court of chancery advised by Yice-Chancellor Reed, whose opinion is reported in 66 N. J. Bq. {20 Dick.) 51%:

      Mr. Charles B. Oummere and Mr. Alan E. Strong, for the appellant.

      Mr. John E. Baches and Mr. Robert S. Woodruff, for the respondent.
   The opinion of the court was delivered by

Garrison, J.

This appeal brings up' a decree of the court of chancery defining the mode in which the electric railroad of the respondent should cross the line of the steam railroad of the appellant. The contention of the appellant is that upon the facts shown to the court of chancery the right of the respondent to construct its line of electric road ivas not complete, and hence that it was not in a position to invoke the jurisdiction of that court to regulate its mode of crossing the line of appellant’s road. This same contention, in several of its aspects, is considered in the opinion of the learned vice-chancellor who heard the case, to which reference is made for a statement of the facts necessary to an understanding of the questions involved.

Two points are chiefly relied upon by the appellant. First, that the ordinance of the township of Hamilton was inefficacious to support the grant to the petitioner of permission to construct its line, because the filing of the route in the office of the secretary of state was void, for the reason that said route was already covered by routes previously filed by the respondent.

As to this point we concur in the conclusion reached by the vice-chancellor denying its force, and desire to add nothing to that part of the opinion that deals with this subject.

The other point made by the appellant is that the consents of frontage property owners, upon which the jurisdiction of the township committee to pass the ordinance in question was based, were insufficient for the purpose, not only because the requisite quantity of frontage was not represented, but also because such consents were not given with reference to the line of railroad, to construct which municipal permission was asked of the township committee, and hence did not comply with the statutory provision touching such municipal action. In dealing with this last contention, the learned vice-chancellor held that, although the consent was given before the route of the petitioner’s road was filed in the office of the secretary of state, it was a sufficient compliance with the statute to invest the township committee with jurisdiction to, pass the ordinance granting to the petitioner the right to construct its road upon such route. “In my judgment,” concludes the vice-chancellor, “the consents were a sufficient authorization to the township committee to pass an ordinance giving permission to the petitioner to construct and maintain a road upon any route thereafter filed, if the township committee in its judgment thought it wise to do so.”

I am not convinced of the soundness of this conclusion; but, on the other hand, I am quite sure that, even if sound, it does not dispose of the contention of the appellant, based upon facts that were in uncontroverted form before the court below. As some of these facts are not stated in the opinion of the vice-chancellor, a brief statement will disclose the situation in, this .respect, and indicate the point upon which the opinion delivered in the court below is inconclusive.

On May 20th, 1903, the directors of the traction company, the respondent here and the petitioner in the court below, resolved to build the line of electric road that is the present subject ■of controversy. On the following day, to wit, May 21st, 1903, the route of the line so resolved upon was filed in the office of the secretary of state, and on the same day a petition by the respondent to the township committee of the township' of Hamilton for permission to construct and operate a street -railway ■on the aforesaid route, described in the precise language and figures that afterwards appear in the controverted ordinance, was filed with the clerk of the said township; and on the same •day a resolution was passed by the township committee directing the posting and publication of notices of a public hearing; and on the same day the consents of certain frontage property holders were filed with the township clerk, and later, on the same day, the ordinance in question granting the prayer of the respondent’s petition was introduced and passed upon its first reading. The significance of the facts and dates thus rehearsed appears when the further fact is stated, namely, that ail of the signatures to the said consent were acknowledged prior to May 20th, 1903 — that is to say, prior not only to- the filing of the route in the office of the secretary of state, but also prior to the initial action by which the respondent resolved to construct the line of street railway for which, upon May 21st, it applied for municipal permission. It is obvious, therefore, that the conclusion of the vice-chancellor that the consent of the property owners was valid, notwithstanding it was given before the filing •of the route in the secretary of state’s office, leaves entirely untouched the more fundamental question whether such consent was valid, notwithstanding it was given before the construction of the said line of road had been resolved by the petitioner. To this latter point, therefore, our attention has mainly been directed.

The procedure touching the obtaining of municipal permission in cases such as this being entirely statutory; the question .at issu'e is, primarily, one of interpretation, in order to ascertain what consent the abutting property owners must give; and secondarily, one oí construction, in order to ascertain the legislative object in requiring such consent and the practical purpose intended to be subserved thereby.

The pertinent legislation is as follows: The Traction act (P. L. 1893 p. 302; 3 Gen. Stat. p. 3235), under which the petitioning company was incorporated, requires that corporations created and desiring to construct under its terms should file in the office of the secretary of state a description of tire route of any proposed line, showing its termini, together with a map exhibiting courses and distances; thereupon such corporation was authorized to petition the legislative body of any municipality for a location of the tracks of its said line, conformably to such route, map and description. Under this act the consent of abutting property owners was not required, that provision not appearing in our legislation until the following year, when it was enacted as a proviso to the Street Railroad act of 1894. This statute enacted by its first section, “that in addition to the provisions or restrictions now required by law,” no street railroad shall be constructed upon any street in any municipality except upon the consent of the governing body of such municipality, which consent shall be granted only upon a petition, and not until public notice thereof shall be given by publication and posting, specifying, inter alia, the character of the proposed road intended to be constructed, the motive power to be used thereon and the street or streets through which the same shall extend; and in addition thereto, and by way of proviso, appears for the first time the requirement that such petition shall not be granted until there be filed with the clerk of such municipality the consent in writing of the owner or owners of at least one-half in amount of lineal feet of property fronting on such street or streets through which permission to construct and operate a street railroad is asked. As the result of this legislation, the provision of the Traction act for the filing of the route, and the provision of the Street Railroad act for the specification of the streets intended to be occupied, were both conditions precedent to municipal action in the premises.

By an independent act upon the same subject, approved April 21st, 1896, which may be called the Street Railroad act of 1896 (P. L. p. 329), from which the clause providing that its provisions should be in addition to existing provisions and restrictions was omitted, the requirements of the Street Railroad act of 1894 were substantially re-enacted — that is to say, the consent of the municipality to the construction of any street railroad was required, such consent was to be granted only when applied for by a petition praying for permission to construct and operate such street railroad, and before such permission was granted public notice of tire application therefor must be given, which notice must specify the street or streets through which such street railroad extended; and it was further provided

“that such permission shall in no case be granted until there be filed * * « the consent of a majority of the owners of property fronting-on the street or streets * * * through or upon which permission to construct * * * a street railway is asked.”

Regarding this statute as a legislative scheme covering the entire subject and complete in itself, which is the view most favorable to the respondent (Mercer County Traction Co. v. United New Jersey Railroad and Canal Co., 64 N. J. Eq. (19 Dick.) 588), it is clear that the consent of the property owners that municipal permission may be granted to the petitioner for the construction of a street railroad must not only be a consent to a specific proposition of that nature, but also that such proposition and the proposition for which municipal permission was asked must be identical.

In the first place, this is the natural purport of the language employed, by which the force of the proviso- as an additional jurisdictional factor is tied to the preceding jurisdictional requirements by th'e expression “such permission shall in no case be granted until there be filed the consent,” &c. “Such permission,” by reference to what immediately precedes the proviso, is seen to- be a permission to- construct and operate a street railroad upon specified streets, the proviso itself declaring that such streets are those that are named in the petition, namely, those upon which “permission to construct, operate and maintain a street railway is asked.” Furthermore, it is essential to the scheme of the statute that such interpretation be given to its language. The plain purpose of the act is the safeguarding of the public and private interests involved, to which end the statute contemplates the meeting upon a common project of three classes of minds, to wit, the municipal legislature, the public and the abutting property owners; hence the statute consistently provides that the projected occupation of the streets, which must originate with the petitioning corporation, shall ultimately be acted upon by the municipal legislature, but that before this shall be done the project shall be exhibited for public criticism, and that in addition to this it must have the special consent of a more limited class, to wit, the owners of a majority of the property fronting on the projected line. In this legislative scheme neither the municipality, the public nor the property owners could perform its part unless the project was disclosed to each of them, and unless the same .project was disclosed to all the scheme would be obviously futile, not to say farcical. A reading of the act that would require precise information as to the streets to be occupied by the projected road to be given to the general public, which, at most, could only criticise the project, and yet not require such information to be even available to the property owners, whose consent is a jurisdictional necessity, would be, in the strictest sense of the word, preposterous. The language of the statute, as we have seen, does not require or even lend itself to such an untoward interpretation.

A further consideration to the same, effect, based upon earlier judicial expositions of this statute, is that whether the frontage property owners be regarded as a special class of voters, as was suggested in Currie v. Atlantic City, 66 N. J. Law (37 Vr.) 140, or whether, as was said in Montclair Military Academy v. North Jersey Street Railway Co., 70 N. J. Law (41 Vr.) 229, such owners are to be regarded as a class having common interests, “upon whom the legislature had reposed a confidence properly to meet which it was incumbent on each member td bear in mind and be influenced by these common considerations only,” equally and in either case the signer of the consent, be he voter or be he trustee, must have before him something more than the bare proposition that a street railroad is to be constructed in front of his properly — something upon which he can either vote intelligently or rationally decide, not only as to the property interests of himself and his fellow-signers, but also as to those of the minority property owners whose interests are involved in and affected by his statutory action. •

Properly interpreted, the statute meets all of' these requirements and answers all of these objections, so that it is only by misconceiving its purport or by failing to observe its provisions that embarrassments result or are imported into the transaction.

In the present case it is, from the testimony, highly probable that the consent of property owners was obtained for a projected line not identical with that described in the petition to the township committee. It is not, however, necessary to decide this as a question of fact or to base any conclusion upon it. It is certain,that the signatures to the consent were obtained before the construction of the line for which municipal petition was filed had been resolved by the petitioners, and nothing more appearing it is equally certain that a consent so obtained does not even tend to show a compliance with the statute, and did not confer upon the township committee jurisdiction to pass the ordinance granting the prayer of the respondent’s petition.

Whether the respondent would have been permitted to prove, had it offered to do so, that the consent of the property owners, .although given before the resolution to construct had been .adopted, was given for a line which was in point of fact identical with that afterward resolved on by the projectors, or whether, if the consent of the property owners had been obtained after the passage of the respondent’s resolution, knowledge of the purport thereof by the signers of the consent would have to be shown, are questions that are not now before us. No such offer was made, nor is there any pretence that such was the fact. The case does not even show for what line of road the consent of the property owners was given, or whether it was given for any specified line, although the indications are that it was given for a line of road that extended further' to the south than that for which municipal permission was asked, and that it probably did not extend so far to. the north. The information thus lacking is, however, of no special moment, in view of the affirmative requirement of the statute and the undisputed facts of the case. The question of presumption that would arise in a case where the consent of the property owners was given after the resolution to construct had been adopted is not before us, neither this question nor the question of the form of the consent being at .all involved in the decision of the present case.

For the purposes of the present case it is sufficient that upon its application to the court of chancery the respondent failed -to show that its right to construct its line was complete, in that it failed to show a consent of frontage property owners under -the statute of 1896 sufficient to clothe the township committee with jurisdiction to pass the ordinance granting its permission to the construction of such line. Under these circumstances the court of chancery was without authority to entertain respondents application, which should therefore have been dismissed. Trenton Street Railway Co. v. United New Jersey Railroad and Canal Co., 60 N. J. Eq. (15 Dick.) 500; Trenton Street Railway Co. v. Pennsylvania Railroad Co., 63 N. J. Eq. (18 Dick.) 276.

To this end, the decree brought up by this appeal is reversed.

For affirmance—Pitney, Swayze—2.

For reversal— The Chief-Justice, Dixon, Garrison, Fort, Bogert, Vredenburgh, Gray—7.


author: Fort, J.

text:
    Amelia M. Carroll, appellant, v. De Alton W. Carroll, respondent.
    [Submitted March 17th, 1905.
    Decided June 19th, 1905.]
    Open and notorious support of and cohabitation with another woman, while absent from the wife, without her knowledge of the cause of the continued absence, or of the place where her husband is residing, or of the business in which he is engaged, or of his ability or lack of ability to support her, when persisted in for the period required by the statute, is evidence from which a finding may be made of willful, continued and obstinate desertion on the part of the husband.
    On. appeal from a decree in chancery.

      Ex parte.

      Messrs. Biker & Riker, for the appellant.
   The opinion of the court was delivered by

Fort, J.

In this case there is no question of jurisdiction. The defendant resides at Elizabeth, in this state, and has, undoubtedly, for upwards of three years, and probably for five years.

The petitioner has resided in Newark, in this state, since June, 1902. Her petition was filed in May, 1903. P. L. 1902 p. 503 § 4 p 2.

The bill is filed for a divorce on the ground of. desertion.

The parties were married February 4th, 1S79, at Méadville, Pennsylvania. They resided for short periods at other places until, in the year 1888, when they went to Buffalo to live. The defendant was there employed by the Wells-Fargo Company.

The issue of their marriage has been two children.

In the year 1893 the defendant left his home in Buffalo, without stating that he intended to do so, and his wife subsequently learned that he was short in his accounts with the company. He was absent for about a year, during which time he corresponded with his wife, and kept her advised of his whereabouts. In May or June, 1894, he was ill and returned to Buffalo to the home of his wife, she having moved, in the meantime, from the house which they occupied when he left, to another place. He remained at the home of his wife, upon this occasion, for about two months, and left in July, 1894, stating to his wife that the detectives were hunting for him. During those two jnonths he was supported by his wife in her home.

When he left the second time he went to several places, among them Rochester, New York; Pittsburg, Pennsylvania, and Cleveland, Ohio, and, finally, Williamsport, Pennsylvania. At each of these places he corresponded with his wife. He wrote his last letter from Williamsport, which letter his wife answered, but her letter was returned, and since that time she has not received any communication from him of any character. Nor has she received anything by w'ay of contribution, in money or otherwise, toward her support, or the support of her children. It is about ten years since she heard from the defendant at Williamsport. During all that time she has supported herself and her children by dressmaking.

The proofs show that about five years before the filing of the petition the defendant was living in Elizabeth, in this state, and running a restaurant there. The fact that he was at Elizabeth was discovered accidentally by his daughter, after the mother and son and daughter removed to- Newark. The daughter discovered the name of her father in examining a telephone book, and thereupon went to Elizabeth to ascertain if it was her father. At first he pretended not to recognize her, but subsequently he admitted his identity, and after this sent for the son and employed him for a time in the Elizabeth restaurant. While thus employed the son discovered that the father was holding out that he was married, and was maintaining a house and living with another woman in Elizabeth. After learning of these conditions the son, in a short time, refused to remain with, the father if they were continued.

The petitioner, of course, soon learned the true situation.

The defendant, after being advised of the place of residence-of the petitioner and her children, failed to- make any provision for their support, or to come to visit them, or to request them to come to live at Elizabeth.

In January, 1903, the husband began a suit for divorce-against the petitioner in this state, on the ground of desertion. He was notified that the suit would be contested, and discontinued the suit.

Then, upon the advice of counsel, the petitioner began this-suit.

The petitioner testifies that her husband has never communicated with her, either by letter or messenger, or in any other way, since the letter which she received from him from Williams-port, Pennsylvania. The testimony of the petitioner in this-respect is corroborated by George W. Carroll, the son, and Vern B. Carroll, the daughter, one, at the time of giving his testimony, being of full age, and the other nineteen years of age. They both say that the defendant has not in any- way contributed toward their support or visited the mother during all this period.

Frank B. Hetzmann, a witness produced on the part of the petitioner, testifies that he has known the defendant for more than three years prior to January, 1904, and that during all that time he has been in business in Elizabeth, conducting a restaurant. He also says that the defendant has lived in Union street, corner of West Grand street, in that city, all the time that he has known him.

Tire son, George W. Carroll, testifies to the residence of his-father at the same place, and that he lived there with a woman known as Mrs. Carroll, and that the father requested the son, when he came to work in his restaurant, to work there under an assumed name, so that this woman would not know that he was his son. He says he did this for two weeks under the name of George Mason, and then refused to continue it, and thereupon he was introduced to the woman as the defendant’s son, and that he left because the relations between him and the defendant became strained on account of the woman. He testifies that his father told him that he had been living with this woman in Elizabeth for about five years, and that he was married to her five years ago-. Afterwards the father told him that he was not married to her, and that the woman had no claim upon him. The son also testifies that he asked the defendant why he left his mother, the petitioner, and whether it was for anything that she had done, and the defendant said “No.”

The court of chancery, upon this evidence, refused to grant the divorce, on the ground that the desertion was not established. It intimated that if the petition had been filed for adultery the divorce might have been granted.

We think that this refusal was error.

It is not necessary to begin a desertion that the deserter intend to desert at the time he leaves his home. If the proof establishes that he at any time while absent from his home determined that from thenceforth he would desert his wife, and that determination is persisted in willfully, continuously and obstinately for the statutory period, that will constitute desertion within the statute.

When the petitioner in this case discovered the relations existing between the defendant and the woman at Elizabeth, and that he was maintaining her in a house which he provided for her, she was under no obligation to seek his return, and she would have been justified in refusing to- permit him to return to her.

In the ease of Lister v. Lister, 65 N. J. Eq. (20 Dick.) 109, Vice-Chaneellor Emery said, in a case where the husband had offered to return: “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.”

This case was affirmed in the court of errors and appeals, in 66 N. J. Eq. (21 Dick.) 434, for the reasons given by the vice-chancellor.

We think that open and notorious support of and cohabitation with another woman, while absent from the wife, without her knowledge of the cause of the continued absence, or of the place where her husband is residing, or of the business in which he is engaged, or of his ability or lack of ability to support her, when persisted in for the period required by the statute to constitute the offence, is evidence from which a finding may be made of willful, continued and obstinate desertion on the part of the husband.

The proof in this case is uncontroverted, and upon it we think the decree of the court of chancery should be reversed and the record remitted to the court of chancery with the direction to that court to enter a decree granting the divorce as prayed.

For affirmance—None.

. For reversal — The Chief-Justice, Dixon, Garrison, Fort, Garretson, Pitney, Swayze, Bogert, Vredenburgj-i, Vroom, Green, Gray — 12.