text:
    Archibald S. Lambert v. Ida M. Vare.
    [Submitted July 7th, 1917.
    Determined July 18th, 1917.]
    1. The owner of land between a street running parallel with the sea coast laid the tract out in streets, blocks, and lots, the streets running from the existing street to the shore. Her conveyance of part thereof described the tract sold as beginning at the line of the original street, running thence southerly 275 feet; thence easterly, parallel with the original street, 105 feet to the east line of another street; thence northerly in the line of such street 275 feet to the original street; thence to place of beginning. The map referred to showed fractional lots not numbered lying between the tract so described and the ocean. — Held, that the tract conveyed did not extend to the ocean.
    2. The owner of land lying between the ocean and a street when she conveyed a tract running from the parallel street 275 feet toward the water and bounded on two sides by mapped streets laid out by her, covenanted that all lands which should thereafter be made by accretions from the ocean or should accrue to her by reason-of a boardwalk being moved oceanward, &c., should' be subdivided into lots of the size of those shown on the map, that the streets shown on the map should be continued to the high-water line of the ocean, and that all of the restrictive building covenants should be binding on such additional lots. — Held, that the' covenant was not limited to accretions to that part of the owner’s tract which did not lie to seaward of the land so sold; the description thereof not purporting to extend to the ocean.
    3. In suits to quiet title, complainant, who. must be adjudged to be in peaceable possession before jurisdiction over the issue of title can be assumed, is given the benefit of his peaceable possession, and defendant assumes the burden of the affirmative on the issue of title, and carries the burden of establishing a title in conformity with the specification of title which the statute requires him to set forth in his answer.

      ■ 4. When a deed calls for the ocean as a boundary, the land conveyed extends to the ocean for all time, whether 'high-water mark recedes or encroaches by natural accretions or erosions.
    5. In a suit to quiet title to a tract of land forming part of a beach, evidence held not to justify finding that the line of ordinary high tide of the ocean when title passed from the common source of title to defendant’s predecessor was shoreward of a line two hundred and .seventy'five feet southerly of a street running parallel with the shore, or coincident with such line.
    On final hearing on bill to quiet title.

      Mr. Clarence L. Cole, for the complainant.

      Mr. Lewis Starr and Mr. Charles C. Babcock, for the defendant.
   Leaming, V. C.

This suit has been brought by complainant to quiet title to a tract of land which forms a part of the beach front at Atlantic City. At the hearing complainant’s peaceable possession was established; no issue at law having been demanded this court then proceeded to final hearing on the issue of title.

All, or nearly all, of the'Zooms in quo appears to have been below or oceanward of the line of ordinary high tide of the ocean at some time prior to this date. Both complainant and defendant have acquired from the state riparian leases covering the disputed territory; but both riparian leases contain the usual provision that the lease shall be void and of no effect if the person to whom the'lease is made is not the owner in fee of the fast land adjoining the land in which the right of the state is conveyed. The riparian lease to defendant contains a further clause that it is made subject to any rights which were acquired by Jesse R. Turner .under a former riparian lease made to Turner 'by the state covering the same territory. Complainant now enjoys any rights acquired by Turner under that riparian lease.

Part of the controverted territory, though covered by the descriptions contained in these two riparian leases, has now become “fast land” by reason of accretions from the ocean; the title to that part of the locus in quo accordingly requires no riparian grant for its support, unless such accretions are to be deemed artificial; the outer or oceanward part of the locus in quo is still probably below the line of ordinary high-water mark, and title to that portion apparently can only be claimed under the state.

It is conceded that August 3d, 1901, Hannah E. Kelley was the owner of a large tract of land extending from Atlantic avenue to the ocean, and as such owner was then owner of the ripa. No title or rights had at that time ever existed in any of the territory oceanward of the Kelley tract except the rights of the state therein. Atlantic avenue runs parallel to the ocean and the Kelley tract embraced the territory lying between the ocean and Atlantic avenue from Columbia avenue on the east to Tallahassee avenue on the west.

The primary dispute at the foundation of the present controversy arises from a deed of conveyance made by Mrs. Kelley to John M. Hilton for a large portion of the Kelley tract. That deed described the land conveyed as commencing at Atlantic avenue and extending toward the ocean to a line parallel to Atlantic avenue and two hundred and seventy-five feet distant therefrom. As will hereinafter be more fully pointed out, that deed was obviously made upon the assumption on the part of the parties thereto that the tract 'conveyed did not extend to the ocean, but left land owned by Mrs. Kelley between the ocean and the extreme southerly boundary of the tract thus conveyed. Upon that assumption Mrs. Kelley subsequently (in 1903) conveyed to Jesse R. Turner and Harry R. Young the land lying between the southerly boundary line described in the Hilton deed and the ocean, that deed, calling for the ocean as the southerly boundary of the tract conveyed. It is under the rights conferred by that deed that complainant now holds.

Defendant claims that although the deed from Mrs. Kelley to Hilton did not purport to extend to the ocean, it in fact did so extend, because, as it is now alleged by defendant, the ordinary high-water mark of the ocean was at that time within two hundred and seventy-five feet of Atlantic avenue, and Hilton accordingly became riparian owner by operation of that grant. Hnder that assumption defendant has acquired the benefits of a quitclaim deed from Hilton extending from a point two hundred and thirty-six feet south from Atlantic avenue to the ocean.

It thus will be observed that complainant claims the ownership of the ripa under the deed from Mrs. Kelley to Young and Turner, which claim assumes that her earlier deed to Hilton did not constitute Hilton riparian owner, and defendant claims the ripa under- a deed from Hilton, which claim assumes that the deed from Mrs. Kelley to Hilton did convey the ripa.

Accordingly, the major portion of the testimony has been directed to the ascertainment of the line of ordinary high tide of the ocean at the date of the deed from Mrs. Kelley to Hilton with a view of ascertaining whether that deed constituted Hilton the riparian owner. If it did, the subsequent deed from Mrs. Kelley to Turner and Young for the territory extending from the southerly boundary named in the Hilton deed to the ocean, under which deed complainant claims to have acquired the ripa, would obviously convey nothing.

A proper examination of this issue necessitates a more detailed statement of the Kelley-Hilton conveyance, its terms, and the map with reference to which it was made.

As already stated, it is conceded that Hannah E. Kelley, prior to August 3d, 1901, owned the tract of land extending northerly and southerly from Atlantic avenue to the ocean and extending easterly and westerly from Columbia avenue to Tallahassee avenue. The legal title to a portion of the tract was in one Henderson Synnamon, but that circumstance is conceded to be immaterial.

Prior to August 3d, 1901, Mrs. Kelley had caused the tract to be laid out in streets, blocks and lots, and had filed in Atlantic county clerk’s office a map- of the tract which delineated those physical features. That map discloses streets extending-north and south from Atlantic avenue to the ocean and numbered lots between the streets. These several streets, in order, beginning with the most easterly street, are Columbia avenue, Bar-tram Place, Millidgeville avenue (now called Kingston avenue), Berkley Square and Tallahassee avenue. As the land now in controversy lies oceanward of the tier of lots easterly of and adjacent to Berkley Square, only that portion of the map between Millidgeville avenue and Berkley Square need be specifically shown. The following is a copy of that portion of the map:

[Copy of map omitted.]

August 3d, 1901, an agreement was executed by Mrs. Kelley and John M. Hilton, by the terms of which Mrs. Kelley agreed to sell to Hilton on terms specifically named certain specified portions of her tract. That part of the tract lying between Millidgeville avenue and Berkley Square is described in that agreement as follows:

“Also beginning at the southwest corner of Atlantic and Millidgeville avenues and runs thence (1) southwardly in the west line of Millidgeville avenue two hundred and seventy-five feet; thence (2) eastwardly parallel with Atlantic avenue one hundred and sixty-five feet to the east line of a fifty-feet-wide street called Berkley Square; thence (3) northwardly in the east line of said Berkley Square, parallel with Millidgeville avenue two hundred and seventy-five feet to the southerly line of Atlantic avenue; thence (4) eastwardly in the southerly line of Atlantic avenue one hundred and sixty-five feet to the place of beginning. Being lots numbered * * * 1 to 14, inclusive, in block 26 of lands belonging to Hannah E. Kelley situate between Atlantic avenue and the Atlantic ocean from Columbia avenue to Tallahassee avenue, in Atlantic City aforesaid, and duly laid out in blocks and lots by the said Hannah E. Kelley, a map or plan of which is filed in the clerk’s office of the county of Atlantic, at May’s Landing, New Jersey! and a copy of which is attached hereto and made a part hereof.”

It will be observed that this description of t-lie land between Millidgeville avenue and Berkley Square embraces fourteen specific lots, and is a rectangular tract, the southerly boundary of which is described as parallel to Atlantic avenue and two hundred and seventy-five feet distant therefrom; and further that the map, a copy of which is attached to the agreement, discloses fractional lots, not numbered, lying between the two hundred and seventy-five feet boundary line and the ocean, as delineated on the map. It should also be here added that the agreement of sale embraced all the lots lying between Bartram Place and Millidgeville avenue, and also those lying between Columbia avenue and Bartram Place, designated as lots 1 to 21, inclusive, in block 24, and that the description of these lots was in like manner to a line two hundred and sevent3-five feet south of and parallel with Atlantic avenue; and also that the map discloses fractional lots between the ocean and the said lots numbered from 1 to 21.

From the manner in which the land to be conveyed is described in this agreement by reference to the map attached to it, it is entirely obvious that the parties to the agreement did not undertake to extend the land on which the agreement operated to the ocean, but, on the contrarjq attempted to stipulate for the sale of a tract of land to a definite straight line distant two hundred and seventy-five feet southerly from and parallel with Atlantic avenue without including land which the map disclosed as lying between the ocean and the two hundred and seventy-five feet line. It is this boundary line, two hundred and seventy-five feet southerly from Atlantic avenue, which defendant now claims was, at the date of this agreement, in fact in the ocean, and hence, it is claimed, the conveyance made pursuant to the agreement in fact included the ripa,, -even though the parties to the agreement may have intended and believed to the contrary.

The conclusion that the parties to this agreement, and the conveyance which followed it, did not intend to convey to the ocean, is not only apparent from the manner in which the land is described and the delineations of tire map annexed to the agreement, but is also reasonably apparent from certain covenants contained in the agreement, and in the conveyance subsequently made pursuant to the agreement, which covenants related to the unsold portion of the Kelley tract. The agreement contains a series of restrictive building covenants subject to the operation of which the contemplated conveyance was to be made, and also provides that the same restrictive covenants should be inserted in all deeds of land thereafter made by Mrs. Kelley of the remaining portion of her tract, and then provides as follows:

“That all lands which shall hereafter be made by accretions from the Atlantic ocean, or which shall accrue to her to the northward of the present boardwalk by reason of the same being- moved oceanward or by reason of the lines of the present Ocean Front Park being moved ocean-ward, shall be subdivided into lots of the same size as those shown on the map aforesaid; that the streets shown on the map aforesaid shall be continued to the high-water line of the Atlantic ocean; and that all of the following covenants and restrictions shall be binding and enforceable upon such additional lots which shall accrue to her by reason thereof.”

It is claimed by defendant that this covenant has reference only to accretions to that part of the Kelley tract which is not southerly of the land described in the agreement; but it seems impossible to attribute to it that restricted application. When it is considered that the-description of the land to he sold does not purport to extend to the ocean, and that the general description of her entire tract refers to the ocean as its southerly boundary, and that the description is made with reference to a map which shows land between the land to be sold and the ocean, and that the primary interest of the purchaser would necessarily be in the preservation of the restrictive covenant's in land to be sold in front or oceanward of the tract purchased, it seems impossible to conclude that the stipulation above quoted was not intended to bind Mrs. Kelley to observe those restrictive covenants as to land thereafter acquired by her through accretions in front of the tract to be conveyed pursuant to the agreement.

The deed from- Mrs. Kelley to Hilton, pursuant to the agreement, already considered, was made December 31st, 1901. That deed contains a description of the land in the same language as the agreement and contains the same covenants as the agreement. Whether that part of the covenants contained in the agreement and deed of conveyance which confirmed all subsequent accretions to Mrs. Kelley was operative to vest in her an equitable title to the accretions thereafter forming, as against a person claiming the accretions under Hilton, if the two hundred and seventy-five feet boundary line should now be found to have then been in fact oceanward of high-water mark, I think it unnecessary here to consider.

In suits to quiet title the complainant, who must be adjudged to be in peaceable possession before jurisdiction over the issue of title can be assumed, is given the benefit of his peaceable possession and defendant then assumes the burden of the affirmative of the issue of title and carries the burden of establishing a title in conformity with the specification of title which the statute requires such defendant to set forth in his answer. Accordingly, at the hearing defendant assumed the burden of establishing that the line of ordinary high tide of the Atlantic ocean was shoreward of two hundred and seventy-five feet from Atlantic avenue at the point shown as lot 14 on the Kelley map when the title passed from Mrs. Kelley to Hilton.

The difficulty in establishing a fact of that nature more than sixteen years after the date under investigation is apparent from the nature of the testimony adduced at the hearing. Conflicting testimony, due to the frailty of memory of witnesses after so long an interval of time, is inevitable in almost any case; but the ascertainment of the location of the line of ordinary high tide of the Atlantic-ocean on a nearly level sand beach upon which the uninterrupted waves of tire ocean wash, introduces many elements of uncertainty not incident to ordinary issues. When a deed calls for the ocean as a.boundary, the'boundary is certain for all time, for it extends to the ocean whether high-water mark of the ocean recedes or encroaches by natural accretions or erosions. But the accurate ascertainment of the location of the line of ordinary high tide on our South Jersey ocean front at a given date sixteen or seventeen years prior to the period of investigation approaches the impossible. An inch of elevation may represent many feet of distance in the shoreward point to which the waves of the ocean extend, and each successive wave varies in force and height; and to this must be added the circumstance that the influence of the moon and sun causes every tide — even the two tides of each day — to vary in height, and there must also be recognized the additional circumstance that winds and storms, whether present or recent, and whether near or far removed, also render the tides abnormal, and even barometie pressure materially affects their height. These and divers other circumstances disclose the imperative necessity for accurate data, if certainty is to be attained, where the issue involved is whether ordinary high tide of the ocean was a few feet shoreward or oceanward of a given point at a given time. On a fresh-water river the line of vegetation may form a reasonably accurate guide, and on inland salt waters, especially where steep banks exist, the water stains on the coarse salt grasses afford an aid; but on an almost level ocean-washed sand beach, where no vegetation exists either below or above the line of-high tide, the difficulties presented in the absence of scientific data are almost unsunnountable. The mark impressed upon the sands by the preceding high tide signifies little unless the conditions surrounding that high-water mark are taken into account, and the debris deposited on the beach, if any, by preceding high waters, signifies little unless it is known whether such deposit has been the result of a storm tide.

In my judgment, the evidence in this suit does not justify a finding that the line of ordinary high tide of the ocean was shoreward of the line two hundred and seventy-five feet southerly of Atlantic avenue or even reached that line at the time title passed from Mrs. Kelley to Hilton.

A detailed review of the testimony seems unnecessary. Some witnesses have testified that at what they called ordinary high tide the water did extend shoreward of at least some parts of the line in question; others have testified to the reverse. The witness for defendant whose testimony most impressed me was John Leeds. His work on the premises was of a nature to appropriately impress upon his memory the tidal conditions there existing at the time his work was performed, and his statement is that the line of ordinary high tide was fifteen or twenty feet inside the two hundred and seventy-five feet boundary line. ■ Others in like position to observe have testified to substantially the same. On the contrarj, witnesses for complainant whose testimony seems entitled to equal weight have testified that the line of ordinary high tide was outside or oceanward of the .two hundred and seventy-five .feet line. These witnesses include members of the life guard who patroled the beach daily, or twice daily, for a period .of time from long before to after the time of inquiry..

Most of the testimony has been directed to conditions existing in March, 1902, and subsequent thereto. This arises from the fact that in March, 1902, the erection of a bulkhead was begun on the two hundred and seventy-five feet boundary line. This was some two or three months after the deed from Mrs. Kelley to Hilton was made, and over six months after the agreement of sale which Conferred the equitable title on Hilton. That bulkhead was begun at a point easterly of the locality now in question and was being constructed in a westerly direction on the line here in■ controversy. The testimony of several of.the witnesses of defendant who worked on that structure is to the effect that when that bulkhead had been built about one-half of its proposed length — probably to about Millidgeville avenue — a severe storm occurred which washed away the engine which was used in connection with the work and thus interrupted the work for a time. Mr. Bowen, who' was inspector on that work, testified that that storm washed away the beach about two feet in depth -at the vicinity of Berkley Square, and that prior to that storm the tides had not interfered with their work, but that after the storm the tide came fifteen or twenty feet inside the line of their proposed work at Berkley Square. The testimony of other witnesses -of defendant who were employed on that work is consistent with the view that prior to that storm the tides did not reach the line of their work, but after the storm it did extend beyond that line in the vicinity of Berkley Square, owing to the washout caused by that storm. The single fact that the stationary engine which supplied power for the work on the bulkhead was located fifteen or twenty feet outside or oceanward of the line of the bulkhead up to the time of the storm strongly indicates that ordinary tides did not reach the line in question. The circumstance that in March or April, 1902, a storm washed away that part of the beach in such manner as to cause ordinary tides to extend landward of the two hundred and seventy-five' feet line in question is obviously immaterial if, in the year 1901, when the Hilton title was acquired by him, the exterior line of his grant extended only to a point shoreward of high-water mark. Ocean City Association v. Shriver, 64 N. J. Law 550.

I am convinced that the deed from Mrs. Kelley to Hilton was not only designed to extend to a line above the line of ordinary high tide and to leave in Mrs. Kelley the title to the land lying between that line and the ocean, but also that the line thus established was in fact above the line of ordinary high water.

Another claim of defendant yet remains to be examined.

March' 30th, 1903, Mrs. Kelley conveyed to Turner and Young the land lying between the two hundred and seventy-five feet boundary line and the ocean, and by mesne conveyances Turner became the sole owner under that conveyance. The final deed to Turner in severalty was dated April 10th, 1908. In the mean-. time (January 20th, 1908), Hilton conveyed to Yocum lot 14 on the Kelley map. This conveyance was made by describing that lot by metes and bounds and did not call for the ocean as a boundary. By mesne conveyances one Aiken became owner of lot 14 on the Kelley inap September 1st, 1908. All these deeds in the Aiken title contain the same description as that in the deed from Hilton to Yocum. Defendant, Mrs. Vare, now owns lot 14 under the Aiken title, but the deed from Aiken to defendant, Mrs. Vare, contains a description calling for the ocean as a boundary. November 19th, 1908, Turner, as grantee of Mrs. Kelley of the land outside of lot 14 extending to the ocean, executed a deed to one Keichner for a lot adjacent to and ocean-ward of lot 14, and of the same size as lot 14. That deed describes the lot by metes and bounds and does not call for the ocean as'a boundary, and contains the following covenant:

' “Provided, however, and it is hereby expressly agreed and understood that this conveyance is for a definite tract of land and that the said party of the second part, his heirs or assigns, derive no title to lands oceanward of the tract hereby conveyed by reason of the said Atlantic ocean at any time in the future encroaching upon said land hereby conveyed, and upon .said ocean receding from lands hereby conveyed the title to said lands oceanward of said lands hereby conveyed remains in said Jesse R. Turner, his heirs and assigns, it is also understood and agreed that in no case shall the said party of the second part, his heirs or assigns, have the right to apply for a riparian grant in front of the lands hereby conveyed, such a right being expressly reserved to the said Jesse R. Turner, his heirs and assigns, it is hereby agreed that the present high-water line is oceanward of the lands hereby conveyed, which lands do not border on the Atlantic ocean, but that land now owned by Jesse R. Turner in front of lands hereby conveyed, do border on Atlantic ocean, and that he, the said Jesse R. Turner, his heirs and assigns, have the exclusive right of applying for said riparian grant under all circumstances.”

Notwithstanding the above covenant, Keichner, by quitclaim deed dated August 31st, 1909, conveyed to Aiken territory embracing lot 14 on the Kelley map and all land outside thereof extending to the ocean. The deed from Aiken tlo defendant, Mrs. Vare, accordingly includes whatever rights Aiken may have acquired by the quitclaim deed which he received from Keichner.

Defendant has accordingly made claim that the deed from Turner to Keichner of November 19th, 1908, although purporting’to extend only thirty-nine feet south from lot 14 of the Kelley map, i. e., from the two hundred and seventy-five feet boundary line heretofore described, and although containing the covenant" above quoted, in fact extended to the ocean because the ocean was at that time less than thirty-nine feet southerly of the southerly line of lot 14. In consequence of that claim testimony of witnesses has been heard touching the location of ordinary high tide November 19th, 1908. It should also be noted that Aiken, prior to his conveyance to defendant, also procured quitclaim deeds from both Hilton and Yocum covering the territory between the northerly line of lot 14 and the ocean.

The same; or even greater, difficulties have been encountered in defendant’s effort to establish that in the fall of 1908 the line of ordinary high tide was landward of twenty-nine feet south of the southerly boundary of lot 14, as shown on the Kelley map. All witnesses appear to agree that the beach front has gradually made out or oceanward from 1901 or prior thereto to the present time, but do not agree as to the line of high tide in 1908, and I am convinced that upon the whole evidence no finding can be adequately supported to the effect that in 1908 the line of ordinary high water was not oceanward of the exterior boundary described in the deed from Turner to Reichner — that is, a line distant three hundred and fourteen feet southerly from- and parallel to Atlantic avenue. But should it be adequately established that at the date of the Turner-Reichner deed ordinary high tides expended shoreward of that line, it .is difficult to see how Reichner, or defendant claiming under him, could acquire title to the accretions as against Turner contrary to the covenants of Reichner’s deed above quoted.

My conclusions are that the deed of December 30th, 1901, from Mrs. Kelley to Hilton, which deed embraced lot 14 on the Kelley map, did not constitute Hilton a riparian owner, but that, on the contrary, Mrs. Kelley at that time remained the owner of “fast land” outside or oceanward of lot 14 which land so owned by her extended from lot 14 Po tire ocean; that Turner, as grantee of Mrs. Kelley by mesne conveyances became the riparian owner and that his riparian ownership was not divested by the deed of November 19th, 1908; and that on May 11th, 1914, as such riparian owner, Turner was entitled to receive from the state the riparian lease of that date. It follows that complainant, as grantee of Turner, became the owner of so much of th&'locus in quo as may now be above the ordinary line of high tide, and lessee, under the Turner riparian lease, of so much of the locus in quo as may at this time be outside or oceanward of the ordinary line of high tide.

I will advise a decree pursuant to the prayer of the bill.


source: Caselaw Access Project

author: Leaming, V. C.

license: Public Domain

text:
    Albert D. Cuskaden et al., trustees, v. Millard F. Steelman et al.
    [Submitted July 19th, 1917.
    Determined September 12th, 1917.]
    1. Under the testamentary -provisions in this case — Held, that the wife’s one-fourth share of income should be divided, one-third to the children of the daughter, one-third, to the children of the son, and one-third to the son.
    2. Under a bill for the construction of a will — Held, that instructions touching future contingencies which may never arise will not be given.
    On final hearing on bill for construction of will, of Derestus B. Steelman, deceased.

      Bourgeois & Coulomb, for the complainants.

      Mr. Clarence L. Cole, for Millard E. Steelman, the defendant.

      Mr. Lewis Starr, for the defendant, Edna Eeyl, individually and as guardian ad litem of Marion Steelman.

      Mr. Joseph A. Cono, for Millard E. Cuskaden and Frederick E. Cuskaden.
   Leaming, V. C.

In this suit the executors and trustees under the last will and testament of Derestus 'B. Steelman, deceased, seek a construction. of Ms will to the end that they, as executors and trustees may receive the aid of this court in performing the duties arising from their trust.

Testator died November 29th, 1914, leaving a will bearing date May 24th, 1912, and a codicil to that will bearing date February 18th, 1914.

At the dates of both the will and the codicil and also at the date of the death of testator, his next of kin were his three children,.John D. Steelman, Annie M. Cuskaden and Millard F. Steelman. Marietta Steelman, testator’s wife and mother of his children, also survived him. At the dates of the will and codicil and at the date of testator’s death' he had two grandchildren,' children of his son John D. Steelman, named respectively Edna Feyl and Marion Steelm&n, both of whom are still living, and also two grandchildren, the children of his daughter Annie M. Cuskaden, named respectively Millard E. Cuskaden and Frederick E. Cuskaden, both of whom are still living. Testator’s son Millard F. Steelman is still alive and has never married.

The provisions of the will material for present consideration are as follows:

“Second. It is my will and I do direct that my beloved wife, Marietta Steelman, be permitted to occupy my home, known as No. 19 South Ohio Avenue, in said 'Atlantic City, during her lifetime, and I hereby make a charge upon my estate the cost of the upkeep, carrying charges and all municipal assessments which may be imposed upon my said home during the lifetime of my said wife.”
“Third. I give and devise unto Albert D. Cus"kaden and Albert J. Feyl all my property real, personal and mixed, subject to item two hereof, in trust as' follows:
“A. To manage, ‘sell, invest and re-invest the same and to pay the rents, issues and profits thereof to my said beloved wife, Marietta Steel-man, and my children, John D. Steelman, Annie M. Cuskaden and Millard F. Steelman, during their respective lifetimes, share and share alike, hereby directing my trustees and executors to pay to each, his or her respective share monthly six months after my decease.
“B. Upon the death of my beloved wife, I direct that the share theretofore paid to her shall be equally divided among and paid to my said children,, or the survivor or survivors of them during their lifetime.
“C. Upon the death of any or either of my. said children, leaving issue him or her surviving, then and in such event I direct that such share of my estate upon which he or she shall have been receiving the rents, issues and profits, 'shall become the absolute property of the issue of such deceased child, should either of my said children die without issue,, him or her surviving, then in such event I direct my executors and trustees to pay the share theretofore paid to said deceased child to the survivor or-survivors of my said children, share and share alike during the life or lives of said survivor or survivors.
“D. Should any or either of my said children die without issue leaving him or her surviving a wife or husband and in such event I direct that one-half of said share of my estate upon which he or she shall have been receiving rents, issues and profits, shall become the absolute property of such wife or husband and that the rents, issues and profits arising from the other one-half of said share theretofore paid to said deceased child be paid to the survivor or survivors of my said children, share and share alike, during the lifetime of said Survivor or survivors.”

Tlie codicil provides as follows:

“First. I do hereby ratify and confirm my said last will and testament in all respects, save so far as any part thereof shall be revoked or altered by this present codicil, and in particular, save so far as the same relates to the giving and devising of any part or portion of my estate in trust for my son John D. Steelman during his lifetime, as to which particular I do hereby revoke and alter my said will as follows: It is my will and I do direct that the part or share of my estate in and by my said will given and devised in trust to my said son, John D. Steelman, shall be held in trust for Edna Feyl and Marion Steelman (children of my said son, John D. Steelman) and the rents, issues and profits thereof paid to them during the lives of my beloved wife, Marietta Steelman and my children, Annie M. Ouskaden and Millard F. Steelman, or the survivor of them, and upon the happening of the last mentioned .event the said Edna Feyl and Marion Steelman shall be entitled to receive the principal so held in trust for them share and share alike.”
“Second. Should either the said Edna Feyl or Marion Steelman die without issue.-before receiving her share of said principal then and in such event the share of said decedent, both principal and interest, shall be paid to the survivor in accordance with the terms of my said will and of this codicil thereto.”

The stipulated facts disclose that John D. Steelman had become financially involved between the date of testator’s will and the date of the codicil to that will.

It also now appears that Annie M. Cuskaden, testator’s daughter, died March 30th, 1916, and Marietta Steelman, testator’s widow, died December 5th, 1916. These two deaths have occasioned the necessity for the present bill.

I-Iad testator’s widow died before his daughter Annie M. Cuskaden, as testator probably contemplated, no controversy would exist at this time, for in such case the widow’s one-fourth share of the income would have then become payable one-third to testator’s son, Millard, one-third to his daughter, Annie M. Cuskaden, and the other third to the two children of testatoris son, John D. Steelman, John having been in effect disinherited by the codicil and his'children substituted in his place to receive the income that would have been payable to John under the will. That would have made the'share on which testator’s daughter Annie M. Cuskaden would have been receiving income' at the time of her death one-third of the entire estate, and by the terms of subdivision C of the third item of the will that share would have become the absolute property of the two children of Annie.

But Annie M. Cuskaden died before the widow and the share on which Annie was receiving income at the time of her death, was but one-fourth of the estate. It is therefore contended at this time that subdivision C of the third item of the will limits the interest of the children of Annie to one-fourth of the estate and that that interest is not enhanced by the death of the widow after the death of Annie. It is accordingly urged that the remaining three-fourths of the income is now payable under the provisions of subdivision B of the third item of the will, either wholly to testator’s son, Millard, who is the only surviving son entitled to take in view of the provisions of the codicil, or paid one-half to Millard and one-half to the two children of the disinherited son, John-D. Steelman.

The present inquiry therefore necessarily involves the ascertainment whether some of the language of the will was intended by testator to be used and understood in its ordinary and natural sense, or whether it was used by testator with a different purpose and intent.

It is reasonably certain that testator intended that his widow should receive one-fourth of the income of the estate during her lifetime. Even though it should be thought that at .the death of testator’s daughter, Annie, one-fourth of the corpus should have been then set off to Annie’s children in severalty pursuant to the strict letter of subdivision C of the third item of the will, that procedure would not have been operative to reduce the widow’s share of the income, for one-third of the income of the remaining three-fourths of the corpiCs would theoretically have been the same as one-fourth of the income of the whole corpus.

The mooted question therefore is what disposition is now to be made of the widow’s share which represents one-fourth of the income of the estate.

.Subdivision B of the third item of the will says it “shall be equally divided among’ and paid to my [testator’s] said children, or the survivor or survivors of them during their lifetime.” This provision of the will must, of course, be read in connection with the modification embodied in the codicil. By that instrument testator’s-son John Dv Steelman is clearly disinherited and his two children are substituted to receive tire income which the will bestows upon him for his life.. In view of these provisions of the codicil it is impossible to regard John Dl Steelman as a surviving son to whom any part of the widow’s share of the income becomes payable under subdivision B of item three of the will or to regard Millard E. Steelman as a sole surviving son of testator who is entitled to receive the widow’s share of the income to the' exclusion of the children of John D. Steelman who have been substituted in his place to receive the share of the income otherwise payable to him. It therefore seems clear that the children of John D. Steelman share equally with Millard E. Steelman in the one-fourth of the income which was payable to the widow at her decease.

It remains to consider, however, whether the one-fourth of the income which was payable to 'the widow at the time of her decease has now become payable one-half to Millard and one-half to the two children of John D. to the exclusion 'of the children of testator’s deceased daughter, Annie, thus denying to Annie’s. children an equal share of the income of the estate with the son, Millard, and the two children of John D. because of the fortuitous circumstance of the death .of Annie before the death of the widow, or whether the widow’s share' of the income is to be enjoyed equally bj the three several stocks of testator, as it would have been had the widow predeceased Annie.

I am unable to escape the latter view. It is true that subdivision IB of the will b3 its terms directs the distribution of the widow’s share of the income to surviving children, and subdivision C by its terms gives to the issue of testator’s children the share on which the parent was receiving the income at the time of the parent’s death, but it seems to me that these two provisions of the will when read together, and when considered-in connection with the provisions of the codicil, adequately disclose the intent of testator that the widow’s share of the income shall fall into the estate for the benefit of the children of testator, John being excluded and his children substituted in his' place, and that the share contemplated to pass to the issue of testator’s children under subdivision C at the death of their parent is the children’s share as enhanced by the death of the widow. In reading the will without contemplating the possibility of the death of the widow before the death of a child of testator, and especially when considering the provisions of the will in the order in which testator has arranged them the view above expressed as to testator’s intent is at once impressed; it is only when the circumstance of the death of Annie prior to the death of the widow is considered and applied to the strict letter of the will that any doubt as to testator’s intent in that respect can be indulged.

I am accordingly unable to escape the conclusion that the intention of- testator is sufficient^ obvious and unmistakable from an examination of the entire will and codicil to impress upon the language thus used a meaning consistent with that obvious purpose.

Considering the provisions of the- will, without the codicil, it seems entirely clear that its general scheme and obvious purpose was to preserve equality to .testator’s three children and to their respective stocks. The exclusion of the children of a deceased child of testator from the augmented income arising by the widow’s death is wholly inconsistent with that scheme of equality and introduces a discrimination which testator could not have intended. In such circumstances the word “survivor” should be understood in the sense of surviving stirpes. This view is adequately. sustained by the authorities reviewed by Vice-Chancellor Howell in Stout v. Cook, 77 N. J. Eq. 153, to which may be added In re Fox Estate (Penna.), 70 Atl. Rep. 954. The decree in Stout v. Cook was reversed by our court of errors and appeals in 79 N. J. Eq. 573, but for the primary reason that the absolute gifts to the children male was inconsistent with any general intent of equality.

I am also unable to conclude that the provisions of the codicil in any material way modify that general intent of equality found in the will. One son is there wholly disinherited and the children of that son are substituted in his place. That circumstance tends to accentuate rather than repel the intention of preserving for the issue of children the shares of their parents. It cannot, however, be overlooked that the provisions made in the codicil for the children of the disinherited son are not precisely the same as those made for the issue of the other children of testator, for the enjoyment of a share of the corpus by the issue of the disinherited son is not conditioned on the death of their father, but on the death of others, and a survivorship right is also introduced by the codicil as between these two children of the disinherited son. But it seems to me that this difference as to time or event of taking' a share of the corpus cannot be properly regarded as a discrimination which relates to or in any way modifies the general intent- disclosed by the will and codicil to secure equality in amount to the stock of each child of testator.

I am measurably impelled to these conclusions by the fact that if the, language of the will should' be enforced in its literal significance results will be necessarily reached which are obviously contrary to any natural or reasonable purpose of testator, and inconsistent with the purpose which I think the whole will and codicil, considered together, disclose. Such literal interpretation would have required the trustees to set off to the children of Annie M. Cuskaden one-fourth of the corpus of the estate at her death and would deny them any further benefits thereafter. The widow’s share of the income would have then been one-third of the remaining three-fourths, and at her death that share of the income would have fallen to Millard F. Steelman to the exclusion of all others, or, if not wholly to him then, assuming one-fourth of the corpus to be set off ' to the children of Annie as of a date prior to the widow’s death, one-half to Millard F. Steelman and one-half to the two children of John D. Steelman, thus giving to Millard or to Millard and tire children of John D. an income far in excess of that of the children of Annie M. Cuskaden, deceased; and at the death of Millard F., without issue, three-fourths of the corpus would fall to the children of John D. Steelman.-

My conclusion is that at the death of the widow the children of Annie became entitled to one-third of the estate, and from that date one-half of the income of the remaining two-thirds became payable to Millard F. Steelman and the other half to the two children of John D. Steelman.

The bill also seeks instructions touching various future contingencies which may arise, and the arguments of counsel have also been directed to those possible contingencies. That is not the ju’ovince of a bill of this nature. The contingencies suggested may never arise, and if they arise other interests may have then intervened which a court might desire represented and heard. It is accordingly inappropriate to here determine what may .be the effect of the death of Millard without issue at some future time. The present controversy only involves the ascertainment whether the children of Annie take to the same extent they would have taken had the widow predeceased Annie, and whether the children of John D. share with Millard in the distribution of income at this time.


text:
    Leo T. Sbarbaro v. Margaret E. Sbarbaro.
    [Submitted September 10th, 1917.
    Determined September 22d, 1917.]
    1. Where a husband and wife holding an estate by the entireties are divorced, the divorce works a severance of their interests and they become either joint tenants or tenants in common, according to the law of the state where the land is located.
    2. By virtue of 2 Comp. Stat. p. 1588 § 15, they become tenants in common when divorced.
    On bill for partition. On hearing on motion to strike out answer.

      Mr. Albert E. Hcheflin, for the motion.

      Mr. Joseph B. Tyler, contra.

   Leaming, V. C.

In this suit complainant has filed a bill for partition of certain real estate, the title to which was acquired by complainant and defendant, .as tenants by the entirety. Since complainant and defendant thus acquired the property their marriage relation has been dissolved b3 decree of divorce a vinculo matrimomi.

Defendant, the former wife, has answered, setting up> as a bar to the partition suit the claim that a tenancy by the entirety cannot be partitioned.

A motion has been made b3 complainant against the answer by which motion it is sought to have this court determine whether under the circumstances stated the property can be partitioned.

This precise question has been before the courts of many of our states and the conclusions reached have been almost uniformly to the effect that the severance of the marital relation by divorce also severs the estate, and that, in consequence, the parties thereafter must hold by such new estate as the laws of the state permit; that as they cannot longer be tenants by the entirety, and as tire interests of neither can vest exclusively in the other, they become either joint tenants or tenants in common, according to the policy of the law of the particular state touching those two tenancies. Decisions to the effect above stated are numerous and will be found collected in a foot-note to 14 Cyc. (at p. 728); the decisions subsequent to that note will be found in Cyc. Perm. Vol. Anno., 1901-1913 (at p. 1699). The statute of this state provides that no estate shall be construed and adjudged to be an estate in joint tenancy, except it be expressly set forth in the grant or devise creating such estate that it was or is the intention of the parties to create an estate in joint tenancy and not an estate of tenancy in common. 2 Comp. Stat. p. 1538 § 15. Where legislation of that nature has existed the authorities above referred to have determined the severed estate to have become a tenancy in common.

Only two authorities are to be found to the contrary of the rule' of severance as above stated. These are In re Lewis, 85 Mich. 340, and Alles v. Lyon, 216 Pa. 604. These cases hold that the fight of survivorship incident to an estate by the entirety is a vested right and cannot be divested by divorce in the absence of express statutory provisions existing at the time of the inception of the tenancy. The preponderance of authority is overwhelmingly opposed to that view.

But I do not think the question here presented can be said to be appropriately open for further consideration by this court. In Buttlar v. Buttlar, 67 N. J. Eq. 136, the bill was filed by a divorced husband for partition of land which was held by him and his wife as tenants by the entirety at the time of their divorce. The defence interposed related'to matters other than the question here involved. Touching the right to maintain a bill for partition in the circumstances here present, the learned vice-chancellor (at p. 188 of the reported case), said: “That the effect of the divorce was to destroy the estate by the entirety was admitted not only in the answer of the defendant, but in the argument, and seems to be the result not only of the authorities but of sound reasoning.” The decree which was entered in the case was a decree for partition. On appeal this decree was affirmed by the court of errors and appeals, for the reason stated by the vice-chancellor. 67 N. J. Eq. 729. While it does not appear in the reported case how extensive consideration the learned vice-chancellor may have given the question here involved, or the extent to which that question may have been considered by the appellate court, the opinions as filed and the decree entered and affirmed can only be properly regarded by this court as giving sanction to the view that absolute divorce severs an estate by the entirety in such manner as to destroy the right of survivorship, and. thus render it subject to partition as a tenancy in common.

I will, accordingly, advise an order sustaining -the motion. In view of the amendment made to the motion at the hearing by consent of the parties no costs of this motion should be" taxed by either party against the other.


text:
    Sadie Luderitz, petitioner, v. William Luderitz.
    [Heard September 4th, 1917.
    Determined October 27th, 1917.]
    1. In a divorce suit for the cause of adultery, the. charge must be established by evidence that will satisfy the human mind and leave the careful and guarded judgment of the court free from conscientious and perplexing doubts.
    2. Culver v. Culver, 38 N. J. Eq. 163, approved and followed.
    On final hearing on petition for divorce.

      Mr. Clarence L. Cole, for the petitioner.

      Mr. Oliver T. Rogers, for the defendant.
   Leaming, V. C.

The testimony in this case was first concluded June 7th, 1917. I then stated to counsel that my views were that while petitioner had clearly sustained the burden of proof, I was unable to reach the conclusion that defendant’s guilt could be said to have been established beyond a reasonable doubt. In these circumstances I thought it my duty to call for additional evidence; counsel then agreed to submit such additional proofs as could be procured and the case was subsequently reopened and additional evidence offered in.behalf of the respective parties. I have since ordered a transcript of all of the testimony and given it careful study.

The difficulty which confronted me was the fact that adultery is a crime; from that circumstance the view has long been entertained, that to justify a decree of divorce for adultery the evidence must establish the charge with practically that degree of certainty which is required to justify conviction in a criminal case. That view was given expression by Justice Yan Dyke, in behalf of our court of errors and appeals, in the following language :

“The charge made by the complainant, if true, is known to our law as a crime; consequently this prosecution partakes strongly of the nature of a criminal proceeding, so much so as to place the complainant under the necessity, not only of placing a decided preponderance of testimony in favor of the charge, but of proving it to the satisfaction of this court beyond a reasonable doubt. .1 do not mean to say that it must be done by such an amount of overwhelming and unmistakable evidence as to render it impossible to be otherwise, but the evidence must be such as to satisfy the human mind, and leave the careful and guarded judgment of the court, free from any conscientious and perplexing doubts as to whether the charge be proved or not. If, after a careful examination of all thp competent testimony, such doubts remain immovable, it is clearly our duty to give the defendant the benefit of such doubts, and to refuse the prayer of the complainant.” Berckmans v. Berckmans, 17 N. J. Eq. 453.

The test, as phrased in Culver v. Culver, 38 N. J. Eq. 163, 165, is: “The circumstances must be such as will'lead the guarded discretion of a reasonable and just mind to the conviction that the crime has been committed.” That requirement, expressed in almost the exact words.last above quoted, -.appears to have been first adopted by the English ecclesiastical courts— Loveden v. Loveden, 2 Hagg. Cons. 1 (at p. 3) — and 'to have since received sanction in repeated decisions in this and other states.

The present inquiry must therefore be whether the evidence of defendant’s guilt is such “as to satisfy the human mind, and leave the careful and guarded judgment of the court free from conscientious and perplexing doubts as to whether the charge has been proved or not.”

The petitioner charges defendant with adultery with Sarah Freed. For the four years preceding the hearing Mrs. Freed, a divorced woman, has lived in Atlantic City in small apartments rented by her; first at No. 7 North Congress avenue, then at No. 1 Woodbine terrace and then at No. 41 Bartlett avenue. In each of these .apartments she has rented rooms to lodgers. The maximum number of bedrooms in either apartment has been three. Defendant has resided with her continuously during all of that time; when she has moved he has accompanied her. The defense is that during all of that period defendant has been a “roomer” in Mrs. Freed’s apartments, and nothing more; they both deny criminal or otlier improper intimacy. No. 41 Bartlett avenue, the third apartment occupied by Mrs. Freed and defendant, consisted of two bedrooms, a dining-room, a kitchen, and a bathroom. One bedroom was occupied by defendant, the other was occupied a part of the time by Mr. and Mrs. Magee; in the dining-room was a cot,. on which it is claimed Mrs. Freed always slept except when the bedroom not occupied by defendant was vacant; when that room was vacant, it is claimed that she slept there. In order to procure evidence against defendant a detective, employed by petitioner, rented that-l\edroom and occupied it for one week. At the time the detective rented the room defendant and Mrs. Freed were, admittedly, the sole occupants of the apartment. That room had been formerly occupied by Mr. and Mrs. Magee but had been vacant'for a considerable time and was vacant for a considerable time after it was vacated bj the detective.

The detective has testified with positiveness and impressive detail that while he was there Mrs. Freed frequently slept with defendant in defendant’s bedroom. His testimony to that effect is detailed in a manner that wholly excludes possibility of mistake on his part. If he has-told the truth no further inquiry need be made. But the testimony of a hired detective must always be accepted with great caution; it is uniformly classed as the testimony of one in interest and, like the testimony of both Mrs. Freed and defendant, who have each denied sharing the same bed, carries much less weight than that of a disinterested witness, unless corroborated.

But much of the testimony of the detective is undisputed. Accepting as true that part of his testimony which is undisputed, or has found conclusive corroboration, it discloses with clearness much of the manner in which Mrs. Freed and defendant were living together in the apartments. Their extreme intimacy cannot be' doubted. He had lived with her over four years. She addressed him as “Bill.” While he professed to merely rent his room and get his meals elsewhere he with frequency ate his meals with her in her kitchen and partook of her food. Often when he would return from his work late at night she would prepare food for him. He engaged her Bartlett avenue apartments for her. Assuming that these and other circumstances which showed their close friendship and intimacy may be said to be reasonably consistent with purity of purpose and conduct, notwithstanding the fact that she knew that he was a married man separated from his wife, it should also be noted that the detective found that she kept her clothing, including underclothes, night-gowns, shoes, &c., in the closet of the room occupied by defendant and in which defendant also .kept like clothing. This Mrs. Freed and defendant .admitted as to much of her clothing, hut explained the fact by giving as a reason the absence of a closet in the dining-room occupied by Mrs. Freed as a bedroom. The testimony of Mr. and Mrs. Magee was to the effect that during the time they had roomed in Mrs. Freed’s apartments they had observed no ‘ conduct between her and defendant which had suggested to them improper intimacy. Mrs. Magee also testified that she knew that Mrs. Freed slept in the dining-room; but when asked where Mrs. Freed kept her clothes which were not in usé she stated that they were kept in a large closet in the hall where she and Mrs. Freed both kept their clothing. If that statement was true the explanation of Mrs. Freed and defendant as to the extraordinary use made by her of defendant’s bedroom closet signally failed. This circumstance of ample closet room. in. the hall was not disclosed until the last hearing. -At that time Mrs. Freed was also recalled to testify further and testified that she had been divorced from her former husband on her application and that the ground of divorce was his desertion. A copy of that divorce record- was later received in evidence and disclosed that she was divorced by her husband on the ground of adultery. It was thus disclosed that to shield herself from the court’s knowledge that she had been divorced on a charge of adultery Mrs. Freed deliberately testified falsely; accordingly it is impossible to assume that her devotion to truth in other material matters would overpower her impulse to shield herself and defendant! from a like charge in this suit; to give her testimony anything like substantial force at this time seems impossible. It should be observed also that the testimony of the detective throughout was of a nature to carry conviction of its truth. So far as consistency of narrative and impressive demeanor upon the witness stand can be accepted as indicia of truth those elements go to fortify the detective’s testimony.

We are thus brought to the concrete inquiry whether .there can properly remain in the careful, guarded and unbiased judgment of a court a reasonable doubt touching defendant’s guilt. As is stated in Berckmans v. Berckmans, supra, it is not necessary that the charge be established “by such an amount of overwhelming and unmistakable evidence as to render it impossible, to be otherwise.”

In my judgment no reasonable doubt of defendant’s guilt can be said to exist. I believe him guilty. I believe the testimony of the detective and do not believe that of -defendant and Mrs. Freed.

I am" also impelled to add that I do not believe that a married man, in estrangement with his wife, can thus transfer his home to that of a divorced woman for so long a - continuous period of time and become to her the favored companion that defendant has become to Mrs. Freed and enjoy with her such obvious mutual attachments of -affection and endless opportunities for wrongdoing afforded by their sole occupancy of apartments for considerable periods of time, and reasonably hope to escape conviction of guilt upon the flimsy and threadbare claim that he has at all times been a mere “roomer.” When a defendant has entered a house of ill-fame in company with the object of his affections the possibility of innocent purpose and conduct is practically excluded; the “roomer” theory of defense has the advantage of possibility of innocence of purpose and conduct, and has become a favorite shield of defense in cases of this nature. But the presumptions of innocence afforded by the “roomer” theory are not without appropriate limitations. Where, as in this ease, tire defendant and the object of his affections have by their surroundings and demeanor so far excluded the appearance of- innocence of purpose as to render the conclusion of innocence of' conduct inconsistent with human actions under the circumstances and conditions disclosed by the evidence, the “roomer” theory must fail in its force and efficiency. No more accurate or forceful statement of my views upon that subject can be made than that found in an early case in an English ecclesiastical court: “Courts of justice must not be duped. They will judge the facts, as other men of discernment, exercising a sound and sober judgment, on circumstances that are duly proved before them. That a young woman, estranged from her husband, and a young officer, could be living together for months, and at different places, though under the flimsy disguise of separate beds, and that courts of justice should not put, upon such intimacy, a construction which eveiybody else would put upon it would be monstrous.” Chambers v. Chambers, 1 Hagg. Cons. 439 (at p. 445).

I will advise a decree of divorce nisi.


text:
    County Engineering Company v. Martha West et al.
    [Submitted October 18th, 1917.
    Determined October 31st, 1917.]
    1. AVliere a contract for the sale of real estate expressly stated that it should not be binding until ratified by a certain person, and that person ratified it on Sunday, it cannot be enforced.
    2. AVhere a contract for the sale of real estate provided that it should not be binding until ratified by a certain person in writing, it cannot be enforced if ratified on Sunday, even if such ratification, endorsed on the contract, was not delivered until Monday,
    3.. A contract consummated on Sunday is unenforceable, even though defendant, when refusing to act, did not raise that objection.
    On final hearing on bill for specific performance.

      Messrs. Bourgeois & Coulomb, for the complainant.

      Mr. ZGysses G. Styron. for the defendants.
   Leaming, V. C.

This is a suit for the specific performance of a contract for the sale of real estate. At the termination of the hearing I reached the conclusion that the contract was fair and reasonable in all its parts, and that complainant was entitled to a decree unless our Sunday laws rendered the contract unenforceable. That question was reserved for further consideration.

I have since given careful consideration to that question and reached the conclusion that this court cannot properly decree the enforcement, of the contract.

The negotiations of the parties were completed and their engagements reduced to writing in contract form and executed in duplicate Thursday, March 29th, 1917, each party, retaining a duplicate original.

Our statute forbidding vforldly emplojment or business on Sunday (4 Comp. Stat. p. 5712 § 1) becomes material in this suit by reason of the following clause embodied in the written contract:

“This contract is not binding upon the party- of the first part [complainant herein]' until the same shall have been ratified and confirmed in writing, either in a separate memorandum or by endorsement upon this contract, by Walter G. Clarke, of No. 224 West 72d street, New York City, the treasurer of the party of the first part, which option to ratify must be exercised on or before the fourth day of April, 1917, in default of which the party of the second part shall, at her election be released from this contract, and the. same shall be deemed canceled.”

On the following Sunday (April 1st, 1917) Clarke inspected the properties of defendant in Atlantic City which were to be conveyed to complainant in part payment for complainant’s property, and on that day ratified and confirmed the contract of March 29th, and then and there in writing endorsed his ratification and confirmation on the duplicate original contract held by complainant. No other or further written confirmation" or. ratification of the contract has at any time been executed by Clarke.

It seems obvious that by reason of the clause of the contract above quoted the contract was without binding force upon either party unless apd until ratified and confirmed in writing by Clarke; the office of that ratification and confirmation, if performed in the manner and within the time specified, was to impart vitality and binding force to the contract. Prior to the ratification the parties had done no more than to agree to terms of a- contract -which should become binding upon them respectively if a ratification and confirmation followed in accordance with the clause above quoted; when that ratification and confirmation occurred the written contract, until that time wholly conditional and without an atom of force as a contract until the condition' should be discharged, became an absolute and unconditional contract binding upon the parties from that moment. In such, circumstances it seems idle to say that the act of ratification and confirmation, if wholly performed on Sunday, was affected by the operation of our Sunday laws to a lesser degree than would have been the original contract had it been wholly executed on that day.

The effect of our statute on contracts made on Sunday has been before the courts of this state so frequently that little doubt touching tire law of this state in that respect can be said to exist. The cases, in the order of their dates, are: Reeves v. Butcher, 31 N. J. Law 224; Ryno v. Darby, 20 N. J. Eq. 231; Steffens v. Earl, 40 N. J. Law 128; Cannon v. Ryan, 49 N. J. Law 314; Rush v. Rush (Court of Chancery), 18 Atl. Rep. 221; Delaware and Lackawanna Railway Co. v. Trautwein, 52 N. J. Law 169; Nibert v. Baghurst, 47 N. J. Eq. 201; Gennert v. Wuestner, 53 N. J. Eq. 302; Brewster v. Banta, 66 N. J. Law 367; Newbury v. Luke, 68 N. J. Law 189; Diamond Glass Co. v. Gould (Court of Chancery), 61 Atl. Rep. 12; Burr v. Nivison, 75 N. J. Eq. 241 In these several decisions the view-is consistently maintained that where the contract is concluded on Sunday our courts will not enforce it. I find nothing.in Burr v. Nivison, supra, which departs from that view; in that case the contract was net concluded on Sunday.

Complainant maintains that the ratification by Clarke was not effective as such until its physical delivery to defendant. My recollection of .the testimony is that it was delivered to complainant on Sunday and by complainant tendered to defendant on the following day with a demand that defendant perform. But irrespective of whether the ratified contract came to the physical possession of complainant on Sunday or the following day, I am unable to regard the executed ratification as an instrument in the nature of a conveyance or a promissory note or a bond, the first of which requires delivery to render it effective as a. conveyance and the others to render them effective as contracts; accordingly such authorities as hold that a conveyance or obligation which requires delivery as an essential element to render it effective is not to be deemed executed on Sunday if delivered on a secular day are without application. See Love v. Wells, 25 Ind. 508; Diamond Glass Co. v. Gould, supra. The contractual requirement above quoted was that the ratification and confirmation by Clarke should be in writing, either in a separate memorandum or by endorsement upon the contract; Clarke ratified and confirmed the contract on Sunday, and on that' day endorsed his ratification and confirmation on the contract. By that act the conditional contract became the absolute contract of the parties. It was the act of written ratification and confirmation that gave vitality to the prior contractual stipulations of the respective parties, and that vitality was imparted on Sunday; the contract was thus consummated oh that day in contravention of the commands of our Sunday laws. The demand of complainant, made on tire following da}', that defendant recognize or accept the ratified contract- and make payments according to its terms added nothing to the forcé or effect of the ratification by Clarke.

It is also urged by complainant that defendant is estopped from this defence because she did not disclose to complainant that her reason for her failure to perform was because the ratification had been executed on Sunday. This view cannot be maintained. It is not for defendant’s sake that courts refuse to enforce Sunday contracts. A contract, the making of which is illegal, cannot be the subject-matter of action. Pattee v. Greely, 13 Met. 284, 286. The ground of defence in cases of this class is also stated to be the principle that one who participates in the violation of the law cannot be permitted to assert a right founded on the illegal transaction. This view is forcefully stated in Gibbs v. Brucker, 111 U. S. 597. By the original contract Clarke was made the mutual, agent of the parties'to ratify and confirm the contract; As such agent he acted, and upon his'acts complainant must base the rights now asserted.

1 am compelled to advise a decree dismissing the bill.


author: Lewis, V. C.

text:
    Summit Silk Company v. Fidelity Trust Company of Baltimore, a corporation of the State of Maryland, guardian of the estate of Emily E. de Forest, a lunatic, and Emily de Forest.
    [Decided July 27th, 1917.]
    A contract made in the name of a corporation by its president in the usual course of business, which its directors can authorize and make or ratify, is presumed to be binding on it until it is clearly shown that it was not authorized or ratified, especially where acquiesced in until the other party has become insane.
    On pleadings and proofs.

      Messrs. McDermott & Enright, for the complainant.

      Messrs. Vredenburgh, Wall & Carey, associated with Charles L. Kingsley (of the New York bar), for the defendants.
   Lewis, V. C.

' This suit is brought to restrain the defendants from prosecuting an action at law, in ejectment, against the Summit Silk Company regarding certain premises at Summit, New Jersey, in which Emily’de Forest has the legal title; the complainant claiming to be the equitable owner, alleging that Emily is a mere trustee.

Emily and Harriet de Forest, sisters, were married to two brothers, one of whom was named Othneil de Forest, and the other was named William H. cíe Forest, Jr. In. August, 1892, the Summit Silk Manufacturing Company was organized as a corporation of this state. It was a close corporation, and the objects stated in the certificate of incorporation were the. manufacture and sale of silk and silken goods, to buy lands and to erect thereon buildings, machinery, ,&c. The incorporators were Othneil de Forest, John Nightingale and William H. de Forest, Jr., and shortly after the organization Othneil de Forest, William H. de Forest, Jr.,-and Harriet de Forest became the directors; Othneil de Forest was elected president and William H: de Forest, Jr., the secretary and treasurer. Mrs. Emily E. de Forest was the principal owner of the stock. The factory was built on a plot of land consisting of about eight acres, the factory taking up about two acres and leaving a little over six acres vacant.

In 1895 the Summit Silk Manufacturing Company wished to have some houses erected on this plot for its employes, but as it did not have the funds with which to erect them, the president applied to the Summit Building and Loan Association for a loan. Fie found out from that association that a corporation could not become a member of the association, and he was, therefore, unable to borrow any money from that association. Thereupon, in March, 1895, Emily E. de Forest became a shareholder to the extent of thirty-five shares in the. aforementioned association. Her clues for March, April,;and May, 1895, were paid on June 13 th of that ye ar and-were charged to her account on the books of the silk company.

On July 23d, 1895, the silk company duly made, executed and delivered to her the deed dated July 10th, 1895. The deed recites the payment of the consideration of $2,000. This deed is Emily E. de Forest’s muniment of title, and her bond of $14,000 was given to the Summit Building and Loan Association together with the security of this title, and the association then made her a loan of $7,000 with which to erect five double tenement houses on the piece of ground which the silk company had conveyed to her.

On the land conveyed to Emily the' five double houses were erected, and the payments to the contractors were made by checks of the 'Summit Building and Loan Association, drawn at the order of said Emily de Forest; fire insurance on the houses was placed in the name of Emily E. de Forest; the houses were rented to the employes in the factory of the silk company, and the rents were collected by the superintendent or a clerk in the employ of the silk company.

As the rents were collected they were put in‘the bank to the credit of the silk company, and its check was drawn to the order of th'e Summit Building and Loan Association at the rate of $75.25 per month. Taxes, insurance and repairs were also paid out of the rents.

In the course of about twelve years the thirty-five shares of the Summit Building and Loan Association matured, and in the first part of February, 1907, the building and loan association sent its check for $7,000 to Emily E. de Forest and the mortgage was canceled, being discharged of record July 18th, 1908.

From the time of the maturity of the shares in the building and loan association until May, 1910, the rents from these houses were collected by clerks and officers of both the Summit Silk Manufacturing Company and its successor, the Summit Silk Company, the present complainant, and were paid over to Emily E. de Forest. During this period taxes, insurance and repairs on these houses were paid by Emily E. de Forest, either personally or through others acting in her behalf.

In January, 1907, Elvero Godone, P. J. Ferrara and Emily E. de Forest were elected directors, and Mr. Godone was made president, and Mr. Ferrara, secretary and treasurer. The silk company became embarrassed and arrangements were made to organize a new company and give extensions to the new company, which was taking over all the liabilities and assets of the old company on two jours’ time. The result was the organization of the Summit Silk Company as a corporation to take over the entire property and assets of the old company with proper deeds and other instruments of conveyance thereof, and the new company to assume the payment of all indebtedness. The meeting at which the transfer was organized was held on February 20th, 1908. The proceedings are recorded in the minutes on several pages. Emily E. de Forest was present by proxy; she also signed a waiver of notice of the time, place and objects of the meeting. Following the meeting of February 20th, 1908, and in pursuance thereof, deeds and a bill of sale were executed to transfer all the property of the Summit Silk Manufacturing Company to the Summit Silk Company. The principal deed is dated February 20th, 1908, and includes, the lands in dispute, that is to. say, it included the property conveyed to the Summit Silk Manufacturing Company by Harriet de Forest and husband, excepting therefrom only the six lots which were previously conveyed to Harriet de Forest and which are not in dispute. On February 20th, 1908, the Summit Silk Manufacturing Company executed a bill of sale by which it sold and transferred to the Summit Silk Company

“all its property wheresoever situate, including its machinery, tools and fixtures located in its factory in the city of Summit, New Jersey, and elsewhere, including office furnishings, patent rights, patents, good-will, merchandise, accounts, bills, notes, money and all other assets.”

These instruments establish that the purpose of the Summit •Silk Manufacturing Company was to transfer to the Summit Silk Company all its property of every kind and character.

It becomes important, therefore, to ascertain whether the lands and houses in dispute were, in equity, the property of the Summit Silk Manufacturing Company, which made a deed of all its property to the Summit Silk Company.

On October 14th, 1895, the old company duly made, executed and delivered to Harriet de Forest, its deed for certain of its property adjacent to that convened to. Emily by the deed of July 23d, 1895, and upon which were erected three double tenement houses similar to those erected by Emily upon her land.

On October 18th, 1910, Emily was judicially adjudged a lunatic by the circuit court of the city of Baltimore, Maryland, and the Fidelity Trust Company of Baltimore was appointed her guardian, while she was then located at Baltimore; and has also been appointed guardian of her property and estate in New Jersey by the chancellor.

On December 12th, 1912, an action was commenced in the New Jersey supreme court by the guardian to eject the new company from the houses and premises at Summit, and on October 20th, 1913, the present bill to restrain the ejectment suit was filed for the purpose of obtaining the benefit of certain equitable defences. Those defences in brief are as follows:

First. That there was no consideration for the deed made by the Summit Silk Manufacturing Company to Emily de Forest under which she claimed a right to the possession of the land.

Second. That the deed tras executed without the authority of the company.

Third. That she had assented to a sale of the same property to the Summit Silk Company by the Summit Silk Manufacturing Company after her deed had been recorded, and was estopped to question the title of the Summit Silk Company.

Fourth. That she held the title only in trust for the silk company, which, is alleged, had furnished the money for the purchase of the land and the construction of the buildings thereon.

Mrs. de Forest contends that all these defences are available at law except the one which seeks to establish a trust.

The minutes of the stockholders and directors are very meagre and do not disclose that there was any authority given by the stockholders or directors to convey the property in question to Mrs. Emily de Forest, or, for that matter, to Mrs. Harriet de Forest — Harriet de Forest’s situation in regard to the land which has been deeded to her by the old company being precisely the same as Emily’s, with the exception that when the old company turned over its'property to the-new company the land heretofore deeded to Harriet was excepted; no mention being made of the deed to Emily. This is a peculiar fact and may or may not be significant as to whether she was the true owner of the lands in question.

It is undoubtedly true, however, that when a contract is made in the name of the corporation by the president in the -usual course of business, which the directors have the power to authorize and to make, or to ratify after it is made, the presumption is that the contract is binding on the corporation until it is shown that the same was not authorized or ratified.

Paul G-erli, who had been the chief creditor of the old company, and who had stepped in as the controlling factor of the new company, knew that these rents were being collected by the clerks or other employes of the new company, and he knew that they were being transmitted to Mrs. Emily de Forest; in fact, the evidence shows that he directed it to be done, and upon the closing of the account of Mrs. Emily de Forest and of her sister, Mrs. Harriet de Forest, he drew and signed the cheeks to those two ladies for the proportionate amounts due them', respectively.

About the year 1910, when Mrs. Emily de Forest had become mentally incompetent and was no longer able to take care of herself and her affairs, Paul Gerli suddenly ceased remitting the rents from these houses to Mrs. Emily de Forest. His explanation of this action on the witness stand was, that he had felt sorry for the de Forests in their financial reverses, and that after the death of Mrs. Emily de Forest’s husband he had contributed these rents to her support as a matter of charity, but that when his own silk company had difficulty in meeting expenses he felt obliged to cut off his philanthropic contribution. If this were true it would certainly stamp Mr. Gerli as an extraordinarily generous man, considering that Mrs. Emily de Forest, was nothing to him. It is very difficult to get at the facts in the case, as both Mr. Othneil de Forest and. his brother, William H. de Forest, Jr., are dead, and the lips of Mrs. Emily •de Forest are sealed through insanity. We cannot get her story, but I am satisfied that the transfer of the land to Mrs. Emily de Forest by the old company was for an adequate monetary consideration.

Second. That the deed to her was in due form of law and unassailable in this proceeding, with no' sufficient testimony to undermine its at least prima facie validity.

Third. That the credit of Emily de Forest was pledged to obtain the monej's that were used in the construction of the houses and that her obligation was paid off bjr the rents from those houses, and that no money of the silk company went into those houses. It is apparent that neither Mrs. Emily de Forest nor Mrs. Harriet de Forest desired the burden of handling the rents, &e., when they had husbands to do it for them. Women, very frequently, do not care to assume these burdens. I think this fully accounts for the facts already mentioned. I am quite satisfied that the whole business was done in a perfectly natural manner under all the circumstances of the case; and it must be remembered that the burden of establishing the various contentions of the complainant is upon the complainant and must be sustained by the clearest and most convincing proof,- more particularly because one of the circumstances attendant upon the claim of the silk company is that it was asserted only after a blight had fallen upon the mind of Mrs. Emily de Forest, and after it had acquiesced in her apparent right for about two years; and also, because of the fact that Mrs. Emily de Forest is unable to give her testimony in this proceeding. If there be any doubt whatever, it must be resolved in favor o.f the incompetent woman.

The real question before the court is whether Emily is a trustee for the silk company, and as I hud that there is no resulting trust, but that Emily is the owner of both the legal and equitable title in the premises in question, that disposes of the case.

I shall advise a decree in accordance with these views.


text:
    Augusta N. Ahrens v. Mary Kelly et al.
    [Decided July 31st, 1917.]
    1. Where a son executed a second mortgage and his mother signed the bond accompanying it, and the property was conveyed to her, on foreclosure of the first mortgage the mother can set up the defence of usury.
    2. Although the illegal bonus was paid to another, if paid pursuant to the contract of loan, with the knowledge of the mortgagee, the mortgage is usurious.
    3. The evidence in this case shows that the mortgagee knew that the loan was usurious.
    On bill, &c.

      Messrs. Roe, Runyon & Aidenreith (by Mr. Henry IF. Runyon), for the complainant.

      Mr. Randolph Perkins, for the defendants.
   Lewis, V. C.

The bill in this case is filed to foreclose a mortgage made by the defendant Patrick J. Kano, and Esther Kane, his wife, to William G. Ahrens. The instrument bears date the 7th day of March, 1913, and covers property at the corner of Bergen and Bramhall avenues, Jersey.City. The mortgage was for the sum of $10,000, and was second to one. held by the New Jersey Title Guarantee and Trust, Company for $23,000. Kane used the money (i. e., the $8,000 of the $10,000 paid on-the mortgage) in erecting an apartment-house, and also secured other sums from his mother, Mary Kelly, who executed the bond accompanying the mortgage. On May 21st, 1913, he conveyed the property to his mother and they both testify that at the time of this conveyance there was an agreement between them that the mother would 'turn back the property to her son upon being reimbursed.

An answer and counter-claim were filed alleging that the transaction was usurious, but it was urged by the complainant that even if this were the case, under the rule laid down in Lee v. Stiger, 30 N. J. Eq. 610; Scull v. Idler, 79 N. J. Eq. 466, and other cases, Mary Kelly, the defendant, could'not be allowed to set up usury against such mortgage. I am not inclined to this view of the matter under consideration. This is not the case of affording to a "mere adventurer who may happen to slip into the seat of the borrower, a right to speculate on a violation of law which has done him no harm,” as was said in Lee v. Stiger. That Mrs. Kelly took the conveyance expressly subject to the mortgage is a mere technical defence. Mrs. Kelly signed the bond and is liable for deficiency judgment thereon. She really took the deed as security for her loan, and under the view expressed in Truesdell v. Bowden, 47 N. J. Eq. 396, is entitled to defend. Kane, the son and mortgagor, is also a party to this suit, and he certainly has, under Andrews v. Stelle, 22 N. J. Eq. 478, this right.

It was further contended that in case the transaction was tainted with usury, Albanesius, who negotiated the loan, was the agent of Kane, and not of Ahrens, the complainant, and that he (Ahrens) knew nothing about the arrangement between Kane and Albanesius, and that if the former had any remedy it was by suit against the latter for illegal brokerage. The facts developed at the hearing satisfied me that the complainant, Ahrens, knew all about the Kane transaction with Albanes,ius, and that lie must be held accountable within the rule laid down by Vice Chancellor Van Fleet in Borcherling v. Trefz, 40 N. J. Eq. 502, “that to taint a contract with usury it is not necessary that the' illegal interest or bonus shall have been taken by the lender himself, but if it be shown that the illegal consideration was paid to some other person than the lender, pursuant to the terms of the contract of loan, with the knowledge of the lender, the contract must be declared usurious.” This view has been, numerously followed. Kane says that Ahrens was present at the time of the first -payment; that he saw the two checks that were left lying on the desk and the one check that was taken. Ahrens did not go on the stand and deny this. The testimony relative to his exaction of a bonus from the owner for an extension of the mortgage and his demand for another that he did not get, gives us some idea as to his disposition regarding transactions of this kind. Moreover, it does not seem probable that he would have loaned this considerable sum of money on second mortgage to a person of Kane’s financial standing, merely to secure interest, without a thorough understanding. He is too shrewd a business man to do this.

The division of the first payment of $4,000 into three parts— $2,000, $1,500 and $500 — and the giving of the three checks is 'suggestive. Kane’s story is that Ahrens produced the three checks. He says that Ahrens had already told him he would have to pay a bonus of $2,000 to get the $10,000. His story is that the checks were laid upon the table in Albanesius’s office; that he endorsed them there and left the $1,500 check and the $500 check lying on the desk in the presence of Albanesius and Ahrens. The $2,000 check he took and deposited in the New Jersey Title Guarantee and Trust Company, as is shown by his pass-book. This story appears to me to be a truthful narration of events at the outset' of the transaction. Can it be doubted that Ahrens saw the endorsement of Albanesius on the two checks, one for $500 and the other for $1,500 ? Albanesius denies Kane’s story. But, as I said before, Ahrens did not do this. Albanesius says that the arrangements with Kane were all made before Ahrens was brought in. Albanesius says that he had many financial transactions with Kane; that Kane gave him a note of $1,500 which he held at the time'of the first payment on the Ahrens mortgage; that the check of $1,500 was taken by him in payment of this note, and that the $500 .check was for securing the loan for Kane, which, of course, is $350 beyond what the law allows for brokerage. Albanesius also says that Kane’s indebtedness arose by cash-money loan transactions. He was subpoenaed to produce all his books, papers and checks of every description pertaining to the transaction, but he did not produce any. Subsequently, while on the witness stand, upon his attention being directed to .the matter, Albanesius produced a note of $1,500, signed by Kane, which he says he has held since the time of the first payment, although he alleges it was paid by Kane with the $1,500 check he received on the first payment. Kane says that at the time of the first payment Albanesius asked him to sign the $1,500 note so as to cover up the transaction, and that he owed no money whatever to him; that he never borrowed a cent from-him and never had any dealings with respect to money. From the evidence before me it is quite apparent that it would be hard for Albanesius to prove the consideration of this note for $1,500.

It is difficult for me to disconnect Albanesius and Ahrens in this transaction. They were neighbors and friends, and had been for years; and the testimony is that they called each other “Dick” and “Bill,” and that they had several financial transactions together, and at the time of the hearing Ahrens was renting and living in a house belonging to Albanesius, and Ahrens had a mortgage on Albanesius’s property for an amount in the neighborhood of $40,000. It is inconceivable that he did not discuss with his friend the nature of the transaction that he had on -hand with Kane. It is also observable from the testimony of Ahrens, Éita Smith and the complainant, that Ahrens had every intention of exacting from Mrs. Kelly all he could get in the way of bonuses for extensions. He admits that he got $400 of the $500 check which was paid for the renewal of the mortgage, and there is no denial that when the mortgage fell due another bonus of $500 was demanded. We have a similar situation throughout the entire life of the mortgage. Miss Smith was a mere dummy in the transaction. On September 8th, 1914, when a half year’s interest was paid, Ahrens told Mrs. Kelly that he wanted the principal. She urged him to let the mortgage stand, and he said that he had a friend who might take it, providing the bonus of $500 was paid. On September 14th, Mrs. Kelly paid the bonus. As before stated, Ahrens admits that he got $400 of it. On that day Ahrens executed an assignment of the mortgage to Bita B. Smith, which was recorded. Bita B. Smith immediately executed an assignment to Ahrens’ sister, Augusta N. Ahrens, although this assignment has never been recorded. Ahrens’ testimony is that his sister had $2,000 interest in the mortgage from its inception. Mrs. Kelly paid interest on March 7th, 1915, and September 7th, 1915, to Miss Smith. When the last interest was paid, the mortgage became due, and Mrs. Kelly asked Miss Smith to grant her a further extension, but Miss Smith refused. On October 30th, 1915, she sent the following.letter to Mrs. Kelly:

“Dear Madam:
“I had to have some money and have sold the mortgage I held on your Bergen avenue and Bramhall avenue property to Miss A. N. Ahrens.
“Respectfully,
“Rita B. Smith.”

Miss Smith’s evidence, and her attitude while on the witness stand, satisfactorily shows that she had absolutely no interest whatever in the mortgage, but was merely acting for Ahrens. She was in ignorance of the entire matter and did what she was told to do.

On the brief it is urged by the complainant that the answer is defective. The counter-claim charges usury, and the particulars of the transaction are set out in the answer. My recollection is that the solicitor of the defendants made application to amend the answer, so that it might conform with the proofs and meet the views expressed by Vice-Chancellor Emery in Kase v. Bennett, 54 N. J. Eq. 97, and that leave to do this was granted.

In this case the usury charged appears by the facts as well as by the conclusions of law from the facts. Durant v. Banta, 27 N. J. Law 624. The usury is proven, not left to conjecture. New Jersey Patent Tanning Company v. Turner, 14 N. J. Eq. 326. I cannot fairly and reasonably infer that this was not a usurious transaction. Gillette v. Ballard, 25 N. J. Eq. 491; affirmed, 27 N. J. Eq. 489.

The complainant in this case is entitled to a decree for the amount of the principal of this mortgage less the usurious charges at the time of its inception. The bonuses paid on the renewal September 14th, 1914, must be applied to the principal.