author: Van Syckel, J.

text:
    Rebecca C. Morgan, complainant and appellant, v. Evan Dalrymple, defendant and respondent.
    [Filed June 18th, 1900.]
    1. Strictly speaking, a vendor’s lien on lands attaches only after conveyance of ’the premises by the vendor to the vendee, although a lien may attach, as a trust, equally, whether it be actually convej'ed or only be contracted to be conveyed.
    2. In the latter case the vendor must do or offer to do what his contract of sale requires him to do before he can invoke equitable interference.
    On appeal from a decree advised by Vice-Chancellor Reed, whose opinion, is reported in Dick. Gh. Rep. J/.2.

      Mr. Allen 8. Morgan, Jr., and Mr. John J. Crandall, for the appellant.

      Mr. Robert 8. Glymer, for the respondent.
   The opinion of the court was delivered by

Van Syckel, J.

On the 29th day of November, 1888, Dalrymple gave to Mrs. Morgan his bond and warrant of attorney for the sum of $855.

At the same time Mrs. Morgan entered into a written agreement with Dalrymple reciting the execution of said bond and warrant and agreeing, whenever he had paid to her one-half the amount due on said bond and warrant, to convey to him a certain tract of land in said agreement particularly described, containing two and eighty-five hundredths acres of land.

The title to said land remained in Mrs.Morgan, and Dalrymple paid the interest on said bond and warrant until .April 1st, 1890. On the 16th of August, 1890, he paid to Mrs. Morgan the sum of $204, and she thereupon conveyed to him without any reservation or further agreement or condition a portion of said lands containing sixty-eight hundredths of an acre, on which he subsequently built a dwelling-house.

The said sum of $204 was endorsed as a payment of principal upon said bond and warrant, and was in the same proportion to the size of the lot conveyed as the said sum of $855 is to the entire tract of two and eighty-five hundredths acres described in said agreement.

Thereafter Dalrymple continued to pay interest on the balance of the debt up to October 1st, 1897.

In 1899 Mrs. Morgan filed her bill against Dalrymple, setting up the aforesaid agreement, stating that there was still due her the sum of $719.03, and praying for relief as follows:

“Wherefore your oratrix prays that said Evan Dalrymple may, without oath, full, true and perfect answers make to all and singular the allegations of fact herein to the best of his information, knowledge and belief, and as fully as if the allegations had been herein repeated, and be interrogated thereto paragraph by paragraph; and further, that said Evan Dalrymple may by decree of this court be commanded to pay oratrix the aforesaid balance of purchase-money, with interest and costs, and that this court may adjudge and decree that the said balance of purchase-money is a lien on the above-described lands; and further, that this court adjudge and decree that said lands be sold to satisfy and make full compensation to your oratrix for her lands aforesaid, and that your oratrix have such other and further relief in the premises as justice may require.”

On the 2d of June, 1899, Mrs. Morgan caused judgment to he entered against Dalrymple on said bond and warrant of attorney in the Gloucester county circuit court, and on the 28th day of June, 1899, her attorney entered satisfaction of the judgment, and she proceeded to obtain relief through her said suit in equity.

It is clear that she cannot claim a vendor’s lien upon the part of said lands conveyed to Dalrymple unconditionally, and for which he paid the full amount of the purchase-price of that part so conveyed.

Nor is Mrs. Morgan in a position to establish by a decree in equity a vendor’s lien upon the balance of the property for the unpaid purchase-money.

The claim of a 'vendor’s lien for purchase-money is one of peculiar equitable cognizance, and is only maintainable in a court of equity. There is a constructive trust, when lands are conveyed and no security is taken for the purchase-money, that the purchaser shall be a trustee of the land for the vendor until the purchase-money is paid. An equitable lien is given on the land for this unpaid purchase-money, not only against the vendee, but against all subsequent purchasers who take mala fide, or with notice that the purchase-money remains unpaid. Graves v. Coutant, 4. Stew. Eq. 777.

Strictly speaking, a vendor’s lien can attach only after conveyance of the premises by vendor to vendee, although a lien may attach to the estate, as a trust, equally, whether it be actually conveyed, or only be contracted to be conveyed. 2 Story Eq. § 1218.

In the latter case, which is the position now occupied by Mrs. Morgan, the vendor must do or offer to do what his contract of sale requires him to do before he can invoke equitable interference.

In this case Dalrymple has an equitable interest under the agreement in the balance of the land, the title to which still is in Mrs. Morgan.

If she desires to foreclose the equitable title of Dalrymple and re-establish title in herself free from any equity, she must first tender a conveyance to him. This she has hitherto failed to do, and is therefore without an equitable standing.

It may also be that the cancellation of the judgment, if made voluntarily by her, had the effect to discharge the debt as fully as if the holder of a promissory note, which is the only evidence of his claim, purposely destroys it, but upon this question it is not necessary to express an opinion.

The decree below is affirmed.

. For affirmance — The Chancellor, Chiee-Justice, Yan Syckel, Dixon, Garrison, Lippincott, Gummere, Ludlow, ,Bogert, Hendrickson, Adams, Yredenburgh, Yoorhees — 13.

For reversal — Hone.


source: Caselaw Access Project

author: Gummere, J.

license: Public Domain

text:
    Virginia C. S. Hall, complainant and appellant, v. Thomas H. Hall, defendant and respondent.
    [Filed July 17th, 1900.]
    Where a husband has by his conduct toward his wife contributed to her desertion of him, such desertion, ordinarily, will not be considered obstinate unless persisted in by the wife against the effort of the husband to terminate it by making such advances and concessions as might reasonably be expected to bring about that result. But where it is manifest from the facts in the case that honest effort by the husband to bring the separation to an end would be unavailing, or only temporarily successful, the duty of making it ceases to exist.
    On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 14 Dick. Ch. Rep. 402.

      Mr. Alexander G. Young, for the petitioner.

      Messrs. Queen & Tennant, for the defendant.
   The opinion of the court was delivered by

Gummere, J.

This is an appeal by a wife from a decree dismissing a petition of divorce filed by her against her husband; and a cross-appeal by the latter from that part of the decree which dismisses a cross-petition filed by him against her seeking similar relief. Each seeks a divorce from the other upon the ground of desertion.

The fact is undisputed that in less than two years after her marriage to him, the wife left her husband’s home, and never afterward returned to it. She bases her right to a decree upon the ground that her husband’s treatment of her was such as not only to justify, but to compel her to leave him. The vice-chancellor who heard the case concluded, from the testimony that although the husband was often unkind and overbearing to his wife, his conduct afforded her no sufficient justification for leaving him.

In this conclusion of the vice-chancellor we concur.

He further concluded that, notwithstanding the wife had no sufficient cause for leaving her husband, and therefore was guilty of willfully deserting him, he was not entitled to a divorce from her, for the reason that her desertion, although willful and continued for the statutory period, was not an obstinate one because not persisted in by her against effort or influence on his part to bring it to an end.

That a desertion, in order to be obstinate, must be persisted in against the willingness of the injured party to have it concluded is declared by all our cases; and, ordinarily, when the husband has, by his conduct toward his wife, contributed in any degree to her original desertion, the law requires that he should evidence that willingness by making such advances or concessions to his wife as might be reasonably expected to induce her to return to him. Cornish v. Cornish, 8 C. E. Gr. 218; Bowlby v. Bowlby, 10 C. E. Gr. 406; S. S. on error, 10 C. E. Gr. 570; Rittenhouse v. Rittenhouse, 2 Stew. Eq. 274; Herold v. Herold, 2 Dick. Ch. Rep. 210.

But the law does not impose this duty upon the husband in every case arbitrarily and without regard to the facts and circumstances by which it is surrounded. The husband is bound to make such advances and concessions only where there is reasonable ground to suppose that such action on his part will terminate the wife’s desertion. Where it is manifest from the circumstances under which the desertion took place, or from her temper and disposition, or from any other fact in the case, that honest effort on the husband’s .part to terminate the separation would be unavailing; or, if successful in bringing the desertion to an end, would be so only temporarily, the duty of- making it does not exist. Trall v. Trall, 6 Stew. Eq. 231; Lammertz v. Lammertz, 45 Atl. Rep. 271.

The burden rests upon the husband of showing the futility of making the effort which the law ordinarily requires of him; for it will not be presumed, in the absence of proof, that the wife will persist in continuing her desertion against the honest attempt of the husband to bring it to a conclusion.

Whether or not the defendant in the present case is entitled to a decree, upon Ms cross-petition depends therefore upon whether it can fairly be inferred from the proofs that advances or concessions made by him with an honest purpose to put an end to their separation would have been unsuccessful.

The testimony in the case is very voluminous; a full analysis of it cannot be made within the proper limits of an opinion, and a partial one would be valueless. . Our examination of it has led us to the conclusion that when the petitioner left her husband she did so with a fixed determination not to return to him, and that any effort on his part to induce her to do so would have been unavailing. This being so, her desertion was obstinate, notwithstanding her husband’s failure to take steps looking to its termination.

That portion of the decree which dismisses the petition of the wife should be affirmed. The dismissal of the cross-petition of the husband should be reversed, and the record remitted to the court of chancery in order that a decree of divorce may be there entered in favor of the husband.

For affirmance — The Chancellor, Van Syckel, Garrison, Lippincott, Gummere, Ludlow, Collins, Bogert, Hendrickson, Adams, Yredenburgh, Yoori-iees — 12.

For reversal — Hone.


author: Collins, J.

text:
    The Rutherford Land and Improvement Company, complainant and respondent, v. Frederick Sanntrock, defendant and appellant.
    [Filed June 18th, 1900.]
    1. A testator, after ordering debts paid and .bequeathing his household furniture, gave the income of his estate to his wife during widowhood, and in case of her remarriage, devoted such income above her dower right to the maintenance and education of his children, who were also made his residuary beneficiaries. He appointed executors and then provided as follows, viz.: “My real estate, wherever found, I give to my executor and executrix in trust for my estate, giving them full power and authority to dispose of the same at any time, if deemed for the benefit of my estate.”- — ■ Held, that the will gave no power to the executors to mortgage the lands of the testator.
    2. Otherwise the rulings of the court of chancery in 1¡1¡. Atl. Rep. 938, are approved.
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in A4 Atl. Rep. 988.

      Mr. John I. Weller, for the appellant.

      Mr. Albert I. Drayton and Mr. Joseph F. Randolph, for the respondent.
   The opinion of the court was delivered by

Collins, J.

In affirming this decree we must disclaim concurrence in the opinion of the learned vice-chancellor that if the mortgage to the Mutual Life Insurance Company, on which respondent’s title rests, had been given directly by Mrs. Mohn, the surviving executrix and trustee of Arnold Mohn, instead of by her grantee, the infirmity of whose title was unknown to the company, it would have been perfectly good. This dictum of an experienced judge should not be passed sub sileniio. It is based upon the idea that a general power to “dispose of” lands includes a power to mortgage. I find no decision to that effect. ■ In the United States supreme court a majority -of the judges were of opinion that in the phrase “sold or disposed of,” the disjunctive words ought not be considered as merely superfluous, and, therefore, that lands mortgaged had been “disposed of;” but Mr. Justice Bradley, for himself and other judges, vigorously dissented, and the very ground of decision excludes the idea of the vice-chancellor, if the words stand alone. A dictum in a Pennsylvania case has a like basis (Gordon v. Preston, 1 Watts 385), but in that state there still obtained the early English rule, long since modified, that a general power of sale includes a power to mortgage. Lancaster v. Dolan, 1 Rawle 231. If there are other adjudged cases on the subject they will be found to be peculiar in their circumstances and dependent on the context of the words construed. To “dispose of,” imports finality, and only where a power to sell would include a power to mortgage would those words, unmodified or undefined, imply such a power. In this state a general power of sale does not authorize a mortgage. Ferry v. Laible, 3 Stew. Fq. 566. The modification by this court of the decree advised by Vice-Chancellor Van Fleet in that case was not upon that point. Laible v. Ferry, 5 Stew. Eq. 791. A power to sell .may include a power to mortgage, but only because of some exceptional reason, generally where there is a particular charge to which the devise is subject and it is proper to raise money to meet it. Ferry v. Laible, ubi supra. An illustrative case is Loebenthal v. Raleigh, 9 Stew. Eq. 169, where Chancellor Runyon authorized a mortgage. The power construed was in these words:

“If it should seem necessary at any time to dispose of a portion of my real estate for the payment of my debts, I hereby give my executors power so to do at either public or private sale.”

The rule controlling the subject has been well stated as follows:

“A power for trustees to sell will authorize a mortgage by them, which is a conditional sale, wherever the objects of the trust will be answered by a mortgage; as for instance, where the trust is to pay debts or raise portions. But where the trusts declared of the purchase-money show that the settler contemplates an absolute conversion of the estate, a mortgage will be an' improper execution of the power.” Hill Trust. Jft5.

The scheme of the will of Arnold Mohn is very simple. The testator, after ordering paid his debts and funeral expenses and bequeathing to his wife his household furniture, devises to his wife, during widowhood, in lieu of dower, the net income of all his estate, with remainder to his children. Should his widow remarry she is to receive only her dower right and the rest of the income is to be used for the maintenance and education of his children, who are also made his residuary beneficiaries. He appoints his wife and a friend his executors, and then provides as follows:

“My real estate, wheresoever found, X give to my executor and executrix in trust for my estate, giving them full power and authority to dispose of the same at any time, if deemed by them for the benefit of my estate.”

Under such a will there is no reason and therefore no power for the trustees to give a mortgage.

For affirmance — The Chancellor, Chief-Justice, Van Sycicel, Dixon, Garrison, Lippincott, Gummbre, Ludlow, Collins, Bogert, Hendrickson, Adams, Yredenburgi-i, Voori-iees — 14.

For reversal — None.


text:
    Mary Ann Wyckoff, complainant and respondent, v. Lindsay D. Norton, defendant and appellant.
    [Filed June 18th, 1900.]
    The holder of a bond and mortgage surrendered them, canceled, upon the promise of the obligor to give his note for the debt. The performance of the promise was prevented by the death of the obligor. — Held, on appeal from a decree made in a suit in chancery to re-establish the lien of the mortgage, that the complainant’s remedy was the legal one for recovery of damages for breach of the new promise.
    On appeal from a decree advised by Yice-Chancellor Reed, who delivered the following opinion:
    The purpose of this suit is to restore the lien of a mortgage. Mary Ann Wyckoff,. the complainant, was the sister of John Horton, deceased. Their father had left them each a one-half interest in a certain farm, and the complainant, with her husband, had conveyed her one-half interest to her brother John for $6,000, for part of which sum she had taken from John a mortgage, dated May 6th, 1882, for $4,000.
    John Horton died unmarried on December 13th, 1896. By his will, dated December 10th, 1896, he gave to his sister, Mary Ann Wyckoff, several items of personal property, the exclusive use of a room in the mansion-house for three years/ and provided that his nephew, Lindsay Horton, should conduct the farm for one year, and thereafter have the proceeds of the farm for ten years, upon paying to the complainant $200 a year, during the' ten years, and upon paying to Frank Horton, his brother, $500 a year during the same period. He devised the farm at the end of ten years in fee-simple to Lindsay and Frank Horton. This farm is still owned by Lindsay and Frank Horton, and is the property which had been covered by the $4,000 mortgage to Mrs. Wyckoff.
    On the day the will of John Horton was executed, upon the mortgage of Mrs. Wyckoff was written a satisfaction of that instrument, signed by her, and at the same time the bond accompanying the mortgage was destroyed. The complainant seeks to have this mortgage restored as an encumbrance upon this property. Her insistence is that she consented to the destruction of the bond, and satisfaction of the mortgage, in consideration of the promise of the testator that he would make her a promissory note for the sum of $4,000, to stand in the place of the bond and mortgage. The complainant, who is seventy-four years old, had kept house for her brother John up to the year 1892; she then moved away, but had occasionally visited him when needed, and shortly before his death returned to the homestead where he lived. On the Thursday before his death, Mr. Schanck, an attorney since deceased, drew his will. Mrs. Wyckoff’s account is that John told her before the execution of the will that he would give her a note in place of the mortgage; that his estate was sufficient to pay his debts. She says that on the night he made his will, he said: “Fix it now, Mary Ann;” and I said: “I could not do it then.” She says: “We were busy then — a good many waiting for dinner — and she had work to do in the kitchen.” She says that on Saturday he said again: “I will fix our business all up to-morrow morning.” On the next morning John died. The only other testimony as to what occurred at the time of the execution of the will, is that of Mr. Niverson, who was one of the witnesses to the will. Mr. Niverson says that after the will was signed John said to the complainant: “Mary Ann, let us fix up your business,” and she replied: “I cannot well to-night; we will fix it in the morning.” “All right,” said John, “we will fix it in the morning, but you can get the papers and sign satisfaction on it,” and Mrs. Wyckofi: went into another room and brought it out and handed it to Mr. Schanck, and he looked at it and said: “This is the mortgage and this is the bond.” He came over to where John and I was, and said: “John are you sure that this is the bond, and he said “Yes.” Well, then I will destroy it,” and so Mr. Schanck threw it in the stove.
    The evidence satisfies me that the account given by the complainant of John’s promise to give her his promissory note, in place of the mortgage, is true. There seems to be no room for mistake, and either a promise was made by John, or the complainant is guilty of downright perjury. The theory that the provisions made for her benefit in the will were to be accepted in satisfaction of the mortgage, is entirely repugnant to her testimony. She says, not only that the agreement for the promissory note was made before the will was executed, but that he again promised to do so on the evening before he died. The purport of Mr. Niverson’s testimony is that there was a business transaction between John and his sister remaining to bo executed after the satisfaction of the mortgage, which transaction John and she agreed should be postponed until the next morning.
    It is, however, objected that if it be proved that the deceased made this promise, yet the complainant has a remedy at law by an action for its breach. This right of action, however, I do not think excludes the right of this court to take cognizance of the matter. John did not complete the consideration for which the complainant consented to the cancellation. If he had done so she would have had evidence of the existence of the debts aside from her own testimony. From the facts now appearing, upon such an action, being deprived 'of that evidence, her incompetency against the objection of the personal representatives of the deceased would result in the entire failure of her suit. The accident of the death of John prevented the consummation of his promise, and she, therefore, never received the full consideration which she had bargained for, and she is therefore entitled to. be placed in status quo.

    It is also objected that in this suit the complainant is incompetent to testify against the devisees of John. In support of this position the ease of Joss v. Mohn, 26 Vr. 407, is vouched. Joss v. Mohn was an action brought against the heirs of a deceased debtor, under the statute, and it was held that for.the purpose of that act the heir or devisee represented the deceased debtor, in respect to the real property, just as the personal representative represented him in respect to the personalty.
    In actions of this character the defendant must be described as “heir,” and he appears as such upon the record. In this suit, while the defendant is a devisee, yet he is not made the defendant as devisee, but because he happens to own the land upon which it is sought to re-establish the mortgage. The suit concerns property in whosoever hands it is, and the fact that the defendant happens to own it now, by force of his father’s will, and so is a necessary party to the suit, does not disqualify the complainant. Hodge v. Coriell, 15 Vr. 456; S. C., 17 Vr. 354; Palmatier v. Tilton, 13 Stew. Eq. 555; Crimmins v. Crimmins, 16 Stew. Eq. 86; Smith v. Smith, 23 Vr. 207, 210; Vreeland v. Vreeland, 8 Dick. Ch. Rep. 387.

    I therefore think that the testimony -of the complainant should stand.
    I at first thought that there was á difficulty in re-establishing the mortgage without bringing in the personal representatives of John, in which event the complainant would be disqualified under objection. The thought which gave rise to this doubt was this: The evidence of á debt having been destroyed, with the consent of the complainant, the mortgage went with it and could not be rehabilitated until the debt had been re-established, and this could not be done without the presence of the personal representatives of the obligor.
    Then again, in case the mortgage should be re-established, the defendant would have recourse over against the assets of John’s estate for payment of the mortgage debt. So upon that ground it seemed equitable to re-establish the debt in this suit. And if, instead of dealing with the mortgage, it should be thought best to restore the vendor’s lien, the same difficulty would be presented, for the evidence of the debt for which the lien is claimed having been admittedly destroyed, it would have to be revived by the testimony of the complainant.
    I have, however, concluded that the debt can be re-established in respect to the defendants, so far as is necessary to support the mortgage. The decree will not have' any force against the estate of John, but the defendants can have their action against the personal representatives, by proving the existence of this debt, which is a lien upon the devised property, they having been compelled to pay it.
    I will advise a decree establishing as against the defendants a debt for $4,000, with interest from December 6th, 1896, and re-establishing the lien of the destroyed mortgage to that amount.

      Mr. James Buchanan, for the appellant.

      Mr. William M. Banning, for the respondent.
   The opinion of the court was delivered by

Collins, J.

Prom the pleadings and proofs may be gathered the following facts: Joshua Norton devised his homestead farm in Monmouth- county to his son John and his daughter Mary Ann, who married Charles I. Wyckoff. In 1882, soon after the father’s death, Mrs. Wyckoff, with her husband, conveyed to John Norton her interest in the farm,'and, for part of the purchase-money, accepted his bond, secured by mortgage on the farm which was thereafter his homestead. John Norton never married. Until 1892 Ms sister kept house for him at the homestead, her husband living there also as a boarder. The Wyckoffs then removed to Hightstown, but Mrs. Wyckoff would go to her brother’s when sent for. In 1896 John Horton was struck with a lingering but mortal illness and about December 1st sent for his sister, who remained with him till his death. He told her that he proposed to make a will, and to some extent discussed with her its contemplated provisions, and asked her to cancel her mortgage on the homestead farm on which there was then due $4,000 of principal and she agreed so to do; but for what consideration is the gist of the present dispute. On December 10th, 1896, John Horton’s will was drawn by Samuel M; Schanck (sometimes called Schenek in the papers), a lawyer practicing in Hightstown, and was executed in the:presence of Mr. Schanck and Edward T. Hiverson, a neighboringdarmer. By this will was bequeathed to Mrs. Wyckoff personal property inventoried by the executors at $2,943.25; the dividends for life on stock in a Hightstown bank of the par value of $1,000, and in a Princeton bank of the par value of $500 and a life annuity of $200 charged on the homestead farm. She was also given a room in the mansion-house for her life. The Hightstown bank stock was given to the testator’s nephew, Lindsay Horton, and the Princeton bank stock to his namesake, a son of his nephew, Frank Horton. The homestead farm and appurtenances were devised to the nephews Lindsay and Frank Horton, with some temporary limitations as between the two. An undivided interest in certain other lands was devised to Lindsay Horton. There was no residuary devise or bequest. Mrs. Wyckoff and Lindsay Horton were appointed executors. It does not appear who, beyond the sister and nephews, were the testator’s heirs-at-law and next of kin, hut there are indications in the testimony that there are other nephews or nieces, At the time of the execution of the will the bond of Mrs. Wyckoff was destroyed in her presence and with her tacit assent by Mr. Schanck, before whom she then signed and he witnessed a writing endorsed on the mortgage acknowledging its satisfaction and ordering its cancellation of record. She delivered to Mr. Schanck the mortgage so canceled, and on December 12th, 1896, he caused it to be canceled of record. On December 13th, 1896, John Norton died. His will was duly proved and’ the executors both qualified. On January 6th, 1897, the executors joined in an inventory showing personalty of $11,547.25, inclusive of that bequeathed to Mrs. Wycltofli, and on January 18th, 1899, they joined in an account showing a balance in hand of $5,150.52 above the testator’s debts, and the articles bequeathed to Mrs. Wyckoff reported as having been delivered to her.

On December 30th, 1899, Mrs. Wyckoff exhibited her bill against Lindsay and Frank Norton and their wives wherein she sets up the existence and origin of her bond and mortgage, and then avers as follows:

“6. That said John Norton was an unmarried man, and died on or about the thirteenth day of December, in the year eighteen hundred and ninety-six, having first made, published and declared, in due form of law, his last will and testament, bearing date the tenth day of December, in the year eighteen hundred and ninety-six, which will, after his decease, was duly admitted to probate by the Surrogate of the County of Monmouth, and duly recorded in his office; that at the time of the execution of his will John Norton was sick and confined to his house; that he was a single man and that your oratrix had for many years then last past been his housekeeper; that a few days prior to the date when he executed his last will, your oratrix being unable to give the exact time, the said John Norton informed your oratrix that he was contemplating the making of a will, and asked your oratrix whether she would consent to the cancellation of the mortgage which she then held upon his farm, and which is herein-above described, and accept in lieu thereof the promissory note of the said John Norton, and that your oratrix, knowing that the estate of the said John Norton was abundantly sufficient to pay all his obligations, and being unwilling on account of his severe and critical sickness to discuss the matter with him, assented to his proposition, and agreed to accept his promissory note for the sum of four thousand dollars in lieu of the said bond and mortgage and to surrender the said bond and mortgage, to the end that the said mortgage might be canceled of record; that on the date of the execution of said will, to wit, on the tenth day of December, in the year eighteen hundred and ninety-six, one Samuel M. Schenck, a practicing lawyer of the borough of Hightstown, in the county of Mercer, and State of New Jersey, visited the house of the said John Norton and engaged himself, at the request of said John Norton, in drafting his will, which after being drafted, was executed by said John Norton; that immediately after the execution of said will, and while the said Samuel M. Schenck was still in the house of said John. Norton, the said John Norton requested your oratrix, in the presence of said Samuel M. Schenck, to get the bond and mortgage which your oratrix then held, being the same bond and mortgage in this bill of complaint above described, and deliver them to the said Samuel- M. Schenck, that he might have the said mortgage canceled of record; that your oratrix thereupon immediately complied with said request, and that said John Norton again promised your oratrix that he would give her his promissory note for the bond and mortgage so surrendered, but that the said John Norton was then so weak and exhausted from the work and excitement incident to the making and execution of his will that your oratrix did not then request the execution of said promissory note, and that, before the execution of said promissory note, the said John Norton died.
“7. That neither the principal of said bond and mortgage nor any part of said principal was ever paid to your oratrix by the said John Norton, or by anyone for him during his lifetime, nor by his representatives since his death, and that there is due to your oratrix the full amount of the said principal sum of four thousand dollars, together with interest thereon from the said tenth day of December, in the year eighteen hundred and ninety-six, being the date when the said bond and mortgage were surrendered by your oratrix as aforesaid.”

The hill then sets forth the tenor of John Norton’s will as to the devise of the homestead farm, and prays that the complainant’s mortgage may be decreed to be a valid and subsisting lien upon the lands therein described, and that the cancellation of the record thereof may be annulled and made void; or that she may be decreed to have a vendor’s lien on the said lands for $4,000, and interest from December 10th, 1896, and that such lands may be ordered sold to satisfy the sum due, with costs, and for other relief. To this bill Lindsay (by the name of Lindsay D.) Norton alone answers. He denies the alleged promise to give a note .and asserts that the mortgage was paid and satisfied by John Norton.

Samuel M. Schanck died in January, 1899. Mr. Niverson knows nothing of the transaction in question and the only proof of a promise by John Norton to give his note to complainant was by her own testimony.

Erom a decree in complainant’s favor Lindsay D. Norton has appealed.

The suggestion of a vendor’s lien was very properly disregarded by the learned vice-chancellor. The acceptance of John Norton’s bond and his mortgage on the whole estate irrevocably merged the lien that might have been asserted on the interest conveyed. Brown v. Gilman, 4 Wheat. 255; Dudley v. Dickson, 1 McCart. 252.

I will therefore -consider only the other phase of the case. With some misgiving the vice-chancellor, on the testimony of the complainant alone, advised a decree re-establishing the lien of her mortgage and annulling the cancellation of the record, but ignoring the bond. To rehabilitate the bond the executors of the decedent’s wi[l must have been considered as in court in their representative capacity, and the complainant could not have testified to the alleged promise of decedent. Gen. Stat. p. 1407 pl. 58. Whether she was a competent witness for that purpose in the suit as framed it is not propér now to decide. It may be that the parties, being in court, were necessarily there in every capacity. Objection was taken to the complainant’s testifying to the decedent’s promise, and we pass that point without deciding it. Nor do we find it necessary to decide that the mortgage could not be re-established alone. The vice-chancellor’s idea was that the devisees could secure indemnity for their loss under his decree by a separate suit against the executors, but that would .subject them to a needless risk. The executors, in the interest •of the distributees, would be bound to contest, and the result of the suit might not comport with the vice-chancellor’s finding of fact in this cause. Furthermore the mortgage was but a security for the bond and there is much in appellant’s argument that the executors as such were necessary parties to any suit even indirectly involving its enforceability. Such would seem to be the logical result of the recent decision of this court in Kempton v. Bartine, 44 Atl. Rep. 461; affirmed, 45 Atl. Rep. 966.

But waiving all this and assuming that the finding of the vice-chancellor, that the alleged promise of John Norton to give to complainant his note was in fact made, is sufficiently supported by the complainant’s testimony, the decree advised by him was nevertheless unwarranted. The complainant voluntarily surrendered her lien and agreed to rely solely on her brother’s personal engagement. To restore the lien would disarrange the brother’s testamentary scheme with which she was acquainted. The will is even more favorable to her than were his declarations to her as she gave them in her testimony. There was no fraud or mistake in the cancellation of the mortgage. Death overtook John Norton before he could keep the promise, on the faith of which it was effected — that is all. The complainant’s remedy is to sue upon her unpaid debt or for damages for the breach of promise to give an evidential note, which is but another form for the same substantial thing. That remedy is legal. Of course where a claim against an estate is made by one who legally represents that estate, as does the complainant as executrix, there can be no direct action at law, except against heirs or devisees; but the remedy is nevertheless purely legal. If the claimant is sole representative or has exclusive possession of assets, the claim may be determined upon the accounting; if there is a colleague who disputes the claim, the action may be brought in the court of chancery which in such cases exercises a legal jurisdiction. In the case in hand the complainant’s legal remedy is adequate and to that she must be remitted. If she shall fail in proof that will be due to the policy of the law and her own remissness in performing her part of the agreement without exacting contemporaneous performance on his part from her brother.

The decree should be reversed and the bill be dismissed, with costs.

For reversal — The Chancellor, Chiee-Justioe, Van Syokel, Dixon, Collins, Adams, Voorhees — -7.

For affirmance — Lippincott, Gummere, Ludlow, Bogert, Hendrickson, Vredenburgh — 6.


author: Per Curiam.

text:
    H. B. Claflin Company, complainant and appellant, v. Julius Freudenthal et al., defendants and respondents.
    [Filed June 18th, 1900.]
    On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in 13 Dick. Ch. Rep. 298.

      Mr. Beuben M. Hart and Mr. Charles J. Roe, fox the appellant.

      Mr. Eugene Stevenson, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons given by Vice-Chancellor Emery in the opinion below.

For affirmance — The Chancellor, Chiee-Justice, Van Syckel, Dixon, Garrison, Gummere, Ludlow, Collins, Bogert, Hendrickson, Adams, Vredenburgh, Voorhees — 13.

For reversal — Hone.


text:
    Nathaniel Shipman et al., complainants and appellants, v. George R. Lord et al., defendants and respondents. Nathaniel Shipman et al., complainants and respondents, v. George R. Lord et al., defendants and appellants.
    [Filed June 18th, 1900.]
    On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in Shipman v. Lord, 13 Dick. Ch. Rep. 380.

      Messrs. F. A. & W. T. Bay, for Shipman et al.

      Mr. Wesley B. Stout, for Lord et al.
   Per Curiam.

These were cross-appeals from a decree advised by Vice-Chancellor Stevens. We think the decree right, and it is affirmed, for the reasons given by the vice-chancellor in his opinion in the court below.

For affirmance — The Chancellor, Chief-Justice, Van Syckel, Dixon, Garrison, Gummere, Ludlow, Collins, Bogert, Hendrickson, Adams, Vredenburgh, Voorhees — 13.

For reversal — -Hone.


text:
    Robert Fair et al., complainants and respondents, v. The First Methodist Episcopal Church of Bloomingdale et al., defendants and appellants.
    [Filed June 18th, 1900.]
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 12 Dick. Ch. Rep. 496.

      Mr. Ralph Shaw, for the appellants.

      Mr: George Biller, for the respondents.
   Per Curiam.

V?he decree appealed from was made upon the advice of Vice-Chancellor Pitney, and will be affirmed, for the reasons given,, by him in his opinion below.

For affirmance — The Chancellor, Chief-Justice, Depue, Van Syckel, Dixon, Garrison, Lippincott, ' Ludlow, Collins, Bogert, Hendrickson, Adams, Vredenburgh, V'oorhees — 14.

For reversal — None.


text:
    Anna Gates, defendant and appellant, v. Herman B. Gates, complainant and respondent.
    [Filed June 18th, 1900.]
    On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 14. Dick. Ch. Rep. 100.

      Mr. Alexander Simpson and Mr. John P. Stockton, for the appellant.

      Mr. Henry B. Twombley, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons given by Vice-Chancellor Stevens in his opinion in the court of chancery.

For affirmance — The Chancellor, Van Syckel, Lippincott, Gummere, Ludlow, Bogert, Adams, Voorhees — 8.

For reversal — The Chief-Justice, Dixon, Garrison, Collins, Hendrickson — 5.


text:
    The First National Bank of Asbury Park, complainant and appellant, v. Evlena White, defendant and respondent.
    [Filed June 18th, 1900.]
    On appeal from an order advised by Vice-Chancellor Reed, who filed the following conclusions:
    The amount of a policy upon the life of a deceased husband written in favor of his wife, was paid to her, and by her deposited in bank. A creditor of the husband, claiming that the husband paid the premiums on said policy in fraud of his creditors, seeks to enjoin the payment by the bank of the money to the wife. Defendant insists that payment should not be restrained; or, if restrained, the restraint should only cover an amount equal to the premiums paid by the husband and not the amount realized upon the policy.
    I think the order should be made absolute, and the injunction prayed for in the bill should be issued.
    The substantial facts upon which the order issued are not refuted in the sworn answer, but are left for ascertainment upon final hearing.
    Nor can I modify the injunction so as to impound only such part of the moneys in the banks as is equal to the sum total of the premiums paid. The question discussed upon the argument in respect to the liability of the entire sum to answer for the debts of the deceased is too important to be decided upon this preliminary application, and will be reserved until final hearing, which can be speedily reached, as the answer has been already filed.

      Messrs. Hawkins & Durand, for the appellant.

      Mr. John E. Lanning, for the respondent.
   Per Curiam.

The order appealed from will be affirmed, for the reasons given by Vice-Chancellor Reed, upon whose advice the order was made.

For affirmance — The Chancellor, Chibe-Justice, Van Syckel, Dixon, Garrison, Lippinoott, Gummere, Ludlow, Bogert, Hendrickson, Adams, Vredbnburgh, Voorhees — 13.

For reversal — None.


text:
    Florence G. Collins, complainant and respondent, v. Edwin A. S. Lewis, defendant and appellant.
    [Filed June 18th, 1900.]
    The assignment in question held to be a declaration of trust which became operative from the time of its execution.
    On appeal from a decree advised by Vice-Chancellor Stevens, who delivered the following opinion:
    On July 5th, 1883, the complainant, Florence G. Collins, was married to Walter S. Collins. She was then possessed of property consisting of bonds and other securities held for her by her mother, Mrs. Gaston. On March 7th, 1884, Mrs. Gaston handed to Walter S. Collins securities to the amount of $16,600 and took from him an acknowledgment that he received them for his wife. Among them were seven bonds of the Chicago, Milwaukee and St. Paul Railroad Company, six of which, on March 7th, 1888, he deposited with the First National Bank of Staten Island, to secure his note for $5,500. On March 13th, 1889, he borrowed an additional sum from the same bank, gave a new note for $6,500, and deposited the remaining bond as further security therefor. He continued to pay interest on the loan up to the time of his death, which occurred on December 5th, 1893.
    On March 14th, 1889 — that is, one day after he had pledged the last bond — he executed a paper, in form, an assignment of certain stocks which he then owned, in the presence of John W. Loveland, his wife’s cousin. This assignment, after stating that in consideration of the loan to him by his wife, Florence, of the bonds in question (a statement not true in point of fact), which bonds he had pledged as security for his note, proceeds as follows:
    “I hereby assign and set over to the said Florence G. Collins, her-.heirs and assigns, the following property now standing in my name, to secure her from loss in case said bonds should be forfeited by the non-payment of my said note, as therein provided, viz. [mentioning certain stocks of industrial companies], the certificates for same being hereto attached, and I authorize the proper persons to make the transfer of said shares on the happening of the contingency herein stated. Witness my hand and seal this 14th day of March, a. d. 1889.
    “Witness: John W. Loveland. W. S. Collins. [Seal.]”
    . This paper was found at his death in a tin box, in which were contained securities, some of which belonged to Mr. Collins, and some of which belonged to his'wife. It was not in the condition in which it was when executed. Collins had, between the time of its execution and the time of his death, drawn lines through the names and amounts of some of the stock specified, and written in, in red ink, the names and amounts of others. On the left-hand side of the paper he had written as follows: “Amended in red ink, 22 Sept. |92 W. S. C.” The par value of the stocks in the paper as amended was $10,600. Mr. Loveland, who took the paper out of the tin box a few days after his death, thinks that the stocks enumerated in it, as it then stood, were, with a single exception, attached to it. Collins’ estate is insolvent, and the question is whether the above paper has legal force, either as an assignment or as a declaration of trust. I have come to the conclusion, after some hesitation, that it is capable of being sustained as a declaration of trust.
    The question of what amounts to such a declaration has been recently before the court of appeals in Janes v. Falk, 5 Dick. Ch. Rep. 468. It was said in that case that it is not essential that the memorandum relied upon should have been delivered to anyone as a declaration of trust or that the ceslui que trust should have been informed of the trust. It has often been held in other cases that it is not necessary that the word “trust” should be used, by the declarant. Such being the law, it seems to me that there is enough here to show that Collins declared a trust at the time the paper was first executed. What he did was this: Pie, in terms, assigned and set over, using words de praesenii, certain stock standing in his name. This, assuming that the paper took effect immediately, vested in his wife, not a legal title, but only an equitable interest. Passing by the objection that he could not directly convey to his wife, numerous cases show that the legal title to shares of capital stock does not pass by formal assignment merely. The legal title, therefore, in any event, remained in Collins himself. But did Collins so intend? If he did, then we have what amounts to a declaration of trust —that is, a declaration showing that the declarant holds the legal title to the benefit of another person to whom he thereby transfers the equitable interest; and the case is distinguishable from such precedents as Milroy v. Lord, 4 De G., F. & J. 264, and Richards v. Delbridge, L. R. 8 Eq. 12.

    I think Collins did so intend, for in the paper itself he further provides that the proper persons are to make the transfer “on the happening of the contingency herein stated.” This contingency is the forfeiture of the bonds by non-pajanent of the note. So he is to hold the legal title until such forfeiture. As the forfeiture did not occur in his lifetime, he, up to the time of his death, held the legal title in strict accordance with the terms of the instrument.
    If, however, complainant’s case rested on the paper alone, I should doubt very much whether it would be maintainable for another reason. There would be an entire failure of proof that be intended the paper to become operative. It would be a dangerous thing to give effect to a deed or other instrument found in the possession of the man who had signed and sealed it or had even acknowledged it before a commissioner, without proof of delivery or of something equivalent to delivery. The evidence of Loveland appears to supply the needed proof. He says that at the time he witnessed the paper, Collins said to him: “I am about to use some securities of Mrs. Collins’ for the purpose of obtaining money, and in order to save her from possible loss in case of forfeiture for non-payment I am here setting over to her certain securities of her own and I wish you to witness this paper as a pledge of those securities.” The securities were at the time, according to Loveland's recollection, attached to the paper. This evidence shows that Collins intended the declaration to be operative from the time of its execution. The following cases are illustrations of how this subject has been dealt with under a somewhat similar state of facts: Ex parte Pye, 18 Ves. 140, 150; Richardson v. Richardson, L. R. 3 Eq. 686; Morgan v. Malleson, L. R. 10 Eq. 475; Baddely v. Baddely, 9 Ch. D. 114; Fox v. Hawks, 13 Ch. D. 822; In re Smith's Estate, 114 Pa. St. 428.

    The question then arises, how far is this declaration now operative? Some, but not all of the stock, was taken from the trust, and other stock substituted in its place. I think the trust attaches to the substituted stock. As the paper was to become immediately operative in the first instance, we may reasonably accept as true Collins' written declaration, made subsequently, that he intended to “amend” it only- — -not to nullify it — bj' substituting other stocks for those taken. If he intended it to become operative in the first instance, it may be safely presumed that he likewise intended it to continue operative as changed, and this presumption will be the more readily made as we are dealing with a transaction based on valuable consideration and not with a case of gift.
    It is contended that the whole estate is liable to make good any loss complainant may suffer, if the collateral should prove to be insufficient, before it can be applied to pay the claims of general creditors. There is nothing to show that the money which Collins obtained from the discount of his notes went into his estate, or that it now, in a changed form, constitutes part of the estate. He may have paid his debts with it, lost it or used it to maintain his family. Ho attempt was made to trace the money, into the property of the deceased. Hnder these circumstances the complainant has no prior right to payment. Matter of Cavin v. Gleason, 105 N. Y. 263.

      Mr. William R. Barricklo, for the appellant.

      Mr. Washington B. Williams, for the respondent.
   Per Curiam.

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

For affirmance — The Chancellor, Chief-Justice, Yan Syckel, Garrison, Gummere, Ludlow, Collins, Bogert, Hendrickson, Adams, Yredenburgh, Yoorhees — 12.

For reversal — Hone.


author: Depue, Chief-Justice.

text:
    Herman Walker et al., complainants, respondents, v. Samuel E. Renner, defendant, appellant.
    [Filed June 19th, 1900.]
    Complainants, owners of a tract of land situate at the top of the Palisades, in the county of Hudson, desiring to establish an attractive neighborhood for residences, caused a map of the property to be made, entitled “Map of El Dorado, Weehawken, Hudson County, N. J.,” which was filed in the office of the register of Hudson county. This map showed that the tract of land was laid out in streets, with lots designated thereon. Among the lots so designated more than one hundred were marked as lots twenty-five feet front and rear, and one hundred and five feet in depth. With a view to sales, complainants had a deed prepared and printed in blank, which contained certain building restrictions, among which is the following: “And the party of the second part doth hereby further covenant and agree to and with the parties of the first part, their heirs and assigns, for and in behalf of himself, his heirs and assigns, that the lot [with a blank left for the letter s] hereby to be conveyed is not to be subdivided, and that no more than one residence is to be erected upon the same." By deed dated September 12th, 1895, complainants conveyed to one G. lots 13 and 14. They are described as lots 13 and 14 on the map, without any further description. The deed contained the restriction above quoted, with the letter s after lot. G. conveyed to the defendant, Renner, who commenced to erect a dwelling on each of said lots. This bill was filed to enjoin the erection of more than one building on the two lots. — Held, (1) that the division of the tract of land into lots twenty-five by one hundred feet, made by the complainants in their original scheme of improvement, contemplated the use of each lot twenty-five by one hundred feet for a single dwelling. Taking the restriction in the deed now in question in connection with the plan of improvement adopted by the complainants, the restrictive clause in the deed should be applied only where the purpose of the grantee is to subdivide the lots conveyed into lots less in size than designated on the map, and the words “no more than one residence is to be erected upon the same” apply to each one of the lots conveyed by this deed, and not to both the lots as one tract; (2) all restrictions upon the use of land conveyed in fee which restrain the grantee from exercising the rights of an owner are strictly construed.
    On appeal from an order granting an injunction advised by Vice-Chancellor Pitney, who delivered the following opinion:
    I think the question raised here is of considerable importance and should be disposed of promptly, and if I take the case home it may be some time before I can take it up for consideration. I have had an opportunity to think of it while the counsel were proceeding with the argument, and I will therefore dispose of it at once.
    The bill is filed by Mr. Walker as the owner of several lots — ■ over one hundred lots — on the Palisades, overlooking the Hudson river, comprising a suburb called El Dorado. The property was bought by Mr. Walker at master’s sale, and either then or afterwards he procured it to be laid out in lots. And for the purpose of selling them at retail he had a deed prepared and printed in blank, which contained certain building restrictions, and among others, one important for present purposes is this:
    “And the party of the second part doth hereby further covenant and agree to and with the parties of the first part, their heirs and assigns, for and in behalf of himself, his heirs and assigns, that the lot [there is a blank left for the letter “s”] hereby conveyed is not to be subdivided, and that no more than one residence is to be erected upon the same.”

      There are four lots in El Dorado adjoining each other, facing on Hudson Place, namely, lots 13, 14, 15 and 16. Lots 15 and 16 were conveyed by Mr. Walker, the complainant, to one Frederick Gamm, by deed dated September 12th, 1895, which described lots' 15 and 16 by numbers, referring to the map. In this deed, in the clause which I have already read, the word "lot” is left standing without any sign of plurality inserted— the letter “s” was not inserted. I have the original deed before me. And under that deed Mr. Gamm erected a single dwelling on lots 15 and 16, treating them as one lot. Subsequently, on March 27th, 1896 — six months later — the complainant conveyed to the same Frederick Gamm lots 13 and 14, adjoining lots 15 and 16 on the east, and fronting on the same street They are described as lots 13 and 14 on the map, without any further description. Then the deed, which is the same blank precisely— printed blank — contains the same language as the previous one to Gamm did, except that the letter "s” is put in after “lot.” The language is that
    “the party of the second part [that is, Gamm] hereby further covenants and agrees to and with the said parties of the first part for and in behalf of himself, that the lots hereby conveyed is not to he subdivided, and that no more than one residence is to be erected upon the same.”

    Mr. Gamm subsequently, in September of this year, conveyed these lots to the defendant in this cause, Mr. Renner. Mr. Renner commenced to erect two dwellings on the two lots, one on each; each lot being twenty-five feet front and a hundred and odd feet deep. As soon as it appeared from the work on the ground that he intended to erect two houses, Mr. Walker interposed his bill of complaint, and obtained a restraining order. There is no charge that Mr. Walker has been in laches at all, that he did not promptly proceed to interfere by notice and by bill. The defendant comes in with affidavits in answer, and sets up a variety of matters about Mr. Walker’s dealing with other lots, which, I think, have nothing to do with the ease.
    The hill is here filed by Mr. Walker, the original owner and grantor, and the proof shows that he still is the owner of a large number of these lots; and the case is within the authority of
      Coudert v. Sayre, 1 Dick. Ch. Rep. 386. The cases that have given rise to difficulty of solution are those which arose between subsequent purchasers from the original covenantee and involved the question of abandonment or waiver of rights. That question has occupied the attention of the courts of England and of this country, especially in this state in the case of De Gray v. Monmouth Beach, decided by Vice-Chancellor Green, 6 Dick. Ch. Rep. 329, and Trout v. Lucas, 9 Dick. Ch. Rep. 361. This case differs from those in that the bill is here filed by the original grantor, and the considerations influencing the court in the cases just referred to do not apply, certainly not in the same-degree. But I find as a matter of fact, after listening to the affidavits and examining the documents which have been presented, that there is nothing that Mr. Walker has done, in my judgment, that at all detracts from his right to insert this clause in the deed to Mr. Gamm, and to insist upon it as against this defendant.
    I come down, then, precisely to the point where Mr. Corbin put it — that is, what is the meaning of this clause, and that depends on what is the meaning of the words “the same,” the last words that I quoted from the covenant. There were two lots conveyed that are spoken of here in the plural, and it says, “lots hereby conveyed is not to be subdivided, and that no more than one residence is to be erected upon the same.” Now these blanks were prepared for the conveyance of a single lot, and the difficulty arises out of the fact that two lots were conveyed by numbers. If the language had been a lot fifty feet front and one hundred feet deep, which comprises lots 13 and 14,1 think there would have been no difficulty of construction, but the trouble arises out of the fact that they are spoken of in this very clause as “lots,” and then it is covenanted that no more than one residence is to be erected upon the same. Now, I am not ready to say that the question is not without difficulty, but my opinion is that the construction claimed by the complainant is the true one, and that the restriction prevents the erection of more than one dwelling. The words “the same” refer to the two lots, not to each of the lots. I think that is the better construction.

      I therefore pronounce in favor of the complainant, and grant the injunction. I do this thus promptly so that if either party wishes to appeal he will not have any trouble.

      Messrs. Smith & Mahon, for the appellant.

      Messrs. Corbin & Corbin, for the respondents.
   The opinion of the court was delivered by

Depue, Chief-Justice.

The bill in this case sets out that the complainants were owners of a tract of land situated at the top of the Palisades, in the county of Hudson; that the complainants, desiring to establish an attractive neighborhood for residences, caused a map of said property to be made, entitled “Map of El Dorado, Weehawken, Hudson County, N. J.,” which was filed in the office of the register of Hudson county October 27th, 1895. This map shows that the tract of land was laid out in streets, with lots designated thereon. Among the' lots so designated more than one hundred were marked as lots twenty-five feet front and rear and one hundred and five feet in depth. With'a view to sales, the complainants had a deed prepared and printed in blank, which contained certain building restrictions, among which is the following:

“And the party of the second part doth hereby further covenant and agree to and with the parties of the first part, their heirs and assigns, for and in behalf of himself, his heirs and assigns, that the lot [with a blank left for the letter s] hereby to be conveyed is not to be subdivided, and that no more than one residence is to be erected upon the same.”

By a deed dated September 12th, 1895, the complainants conveyed to one Frederick Gamm lots 15 and 16 by numbers, referring to the map. In the deeds for these two lots, in the clause of restriction, the word “lot” is left without any sign of plurality inserted. Hnder that deed Gamm erected a single dwelling on lots Nos. 15 and 16, treating them as one lot. Subsequently, on March 27th, 1896, the complainants conveyed to the said Gamm lots 13 and 14, adjoining 15 and 16 on the east, and fronting on the same street. They are described as lots 13 and 14 on the map, without any further. description. In the latter deed the language of the restriction is that

“the party of the second part hereby further covenants and agrees to and with the said parties of the first part for and in behalf of himself that the lots hereby conveyed is not to be subdivided, and that no more than one residence is to be erected upon the same.”

Gamm subsequently conveyed to the defendant, Renner, who commenced to erect a dwelling on each of the said lots. This bill was filed to enjoin the erection of more than one building on the two lots. The court of chancery, on the construction of this deed, granted the injunction prayed for. Hence this appeal.

The controversy in this case arises upon the construction to be given to the clause restricting the use of these lots. Restrictions of this character are valid, and are regarded as for the benefit of the owners of the tract to be improved and made profitable by sales of lots, and also for the advantage of persons who have become purchasers on the faith of the scheme of improvement adopted. Nevertheless, all restrictions upon the use of land conveyed in fee which restrain the grantee from exercising the rights of an owner are strictly construed. The vice-chancellor construes the restriction in the deed now in question for lots numbers 13 and 14 as restraining Gamm and his grantees from erecting more than one building on the two lots. This construction is based on the word “lots” and “upon the same” in the restrictive clause. This construction of the restriction, we think, is not justified.

The scheme of improvement adopted by the complainants, contemplated the sale of lots twenty-five by one hundred feet each, with no restriction on the use for building purposes, except that no more than one residence was to be erected upon each of such lots. This was the scheme of improvement on the faith of which others became purchasers of the lots in this tract of land. Purchasers who bought two lots were at liberty to erect a single dwelling on both lots, but a purchaser taking title for any number of lots was at liberty to erect upon each lot a residence, unless the restriction in the deed clearly restrained him from doing so. The language of this restriction is: “The lots hereby conveyed”- — that is, the two lots mentioned in the deed- — -“is not to be subdivided.” The division of the tract of land into lots twenty-five by one hundred feet was made by the complainants in their original scheme of improvement, which contemplated the use of each lot twenty-five by one hundred feet for a single dwelling. The language of the restriction in the deed now in question was not to the effect that no more than one building should be built upon these two lots, but it provides that the two lots “is not to be subdivided,” &c. In the use of the lots conveyed, the defendant, in proposing to erect a building on each lot as the lots were divided in the scheme of improvement, does not subdivide any lot. His purpose is to appropriate the two lots he had bought in compliance with the general plan of improvement adopted by the complainants.

Taking the restriction in the deed now in question in connection with the plan of improvement adopted by the complainants, we think that the restrictive clause in this deed should apply only where the purpose of the grantee is to subdivide the lots conveyed into lots less in size than designated on the map, and that the words that “no more than one residence is to be erected upon the. same” applied to each one of the lots conveyed by this deed, and not to both the lots as one tract, subject to the same restriction.

The order appealed from should be reversed.

For reversal — The Chancellor, Chief-Justice, Yan Syckel, Dixon, Garrison, Lippincott, Gummere, Collins, Bogert, Hendrickson, Adams, Yredenburgi-i, Yoorhees — 13.

For affirmance — Ludlow—-1.


author: Dixon, J.

text:
    Trenton Street Railway Company, petitioner and respondent, v. United New Jersey Railroad and Canal Company et al., appellants.
    [Filed June 18th, 1900.]
    1. Under the act of March 22d, 1895 {Gen. 8tat. p. 2717), which authorizes the chancellor to define the mode in which one railroad may cross another, it is essential to the jurisdiction of the chancellor that the lawful route of the petitioning company should cross the line of railroad belonging to the other company.
    2. The powers delegated by the eighth and eleventh sections of the act of April 6th, 1886 {Gen. 8tat. p. 3216 ¶ 55, 59), are confined to companies incorporated under that act, and companies having special charters, whose tracks have been located, their lessees and assigns.
    On appeal from a decree advised by Vice-Chancellor Reed, who delivered the following conclusions:
    This is not the first time this matter has been before this court, but it is the first time the specific grounds for challenging the right of the petitioners to cross have been presented to this court. The Trenton Street Railway Company is a corporation composed of several original companies. The first is the Trenton Horse Railway Company, incorporated by special charter in 1859. P. L. of 1859 p. 266. The next is the City Railway Company, formed under articles of incorporation filed December 9th, 1875, under the general railroad law. The next is the Hamilton Township Street Railway Company, formed under articles filed September 12th, 1890, under the act of April 6th, 1886. And the next is the South Clinton Avenue and Broad Street Railway Company, formed under articles filed October 28th, 1890, under the same act. All these companies were consolidated under the terms of an agreement dated September 21st, 1891, and filed September 30tli, 1891, under the name of tlie Trenton Passenger Eailway Company, Consolidated, under acts of February 21st, 1888, and April 16th, 1891. After this the Pennington Avenue Passenger Eailway Company was formed under articles filed September 14th, 1897; the Mulberry Street Eailway, under articles filed on the same dajr, and the Ewing Passenger Eailway Company, under articles filed February 2’5th, 1898, all under the act of April 6th, 1886. The consolidated company, viz., the Trenton Passenger Eailway Company, Consolidated, formed a new consolidation with the three last-named corporations, by a new consolidated agreement, dated January 28th, and filed on the 29th, 1898, under the name of the Trenton Street Eailway Company, which is the present petitioner. It appears that at the time of the first consolidation agreement the tracks of the companies so consolidated, other than the City Eailway Company, ran from the easterly side of Trenton, through Clinton street to Stanton street, and through Stanton street to South Broad street. The line of the City Eailway Company ran down Broad street and stopped at Division street, four blocks north of the point where Stanton street enters Broad street. Ordinances were passed and accepted authorizing the laying of tracks and the use of electricity as motive power by each of the said roads. The first consolidated company built its road down Broad street to the line dividing the city of Trenton from Hamilton township, and seems also to have connected by a short track the terminus of the old city road at Division street with the continuation of the roads from Stanton street. Then, under an ordinance of the township committee of Hamilton township, passed May 12th, 1893, the consolidated company extended its line to the toll-house at Broad Street Park, on Broad street. Then, under an ordinance of the same township committee, passed March 8th, 1894, the same company extended its road from the toll-house to the White Horse hotel. Then the same committee, on December 8th, 1898, passed an ordinance authorizing the last-named consolidated company to extend its road from White Horse to Yardville. This ordinance was accepted December 23d, 1898, and the acceptance filed January 3d, 1899.

      If the consolidated road was a corporation made up by the merger of the preceding existing roads, then the consolidation road possessed all the privileges of each eompan}r consolidated. Gen. Stat. p. 8226 ¶ 79. Nor. does it matter whether the corporation was de jure or de facto. A de facto corporation may exercise the power of eminent domain. 2 Wood Railw. L. 819. In National Docks Railroad Co. v. Central Railroad Co., 5 Stew. Eq. 755, the court of appeals held that this court could not inquire into the de jure existence of a corporation, and enjoin it from crossing land or tracks of another road because of its want of power as a de jure corporation, if it were a corporation in fact. The test to be applied in ascertaining whether a corporation has a de facto existence is — first; the existence of a law under which a corporation might be formed; second, an effort in good faith to organize a corporation under the law, and third, the assumption and exercise of corporate functions as a result of such effort. Vanneman v. Young, 23 Vr. 403. This test is applicable to corporations formed by consolidations. 7 Jones Corp. ¶ 8251.

    It is insisted that one of the parties to the first consolidation agreement was neither a corporation de jure nor de facto, and therefore the attempted consolidation was null. It is admitted that the City Railroad Company was incorporated under the general railway act. It is insisted that a street railroad cannot be incorporated under that act, and therefore the city railway is not a de facto street railway, because there was no statute then under which a street railway could be incorporated. It is also insisted that if it can be regarded as a de facto incorporation, it must be as a steam road, and that a steam road is not within the class covered by the consolidation acts of 1888 {Gen. Stat. p. 8225), and of 1891 {Gen. Stat. p. 8229). It is contended that the city railway was incapable of becoming a party to the first consolidation agreement, and therefore that that agreement is void and vulnerable to collateral attack. It is further contended that if the first consolidation was ineffectual to create a new corporation, it follows that the second consolidation, to which the pretended new corporation is a party, must, upon the same reasoning, be regarded as a nullity. It is true that it was decided in Railway Co. v. Flanagan, 28 Vr. 236; S. C., 28 Vr. 696, that a supplement to the general railroad and canal act limiting the time in which actions for injuries could be brought did not apply to street railways. The street railways in question in that case were, as I understand it, organized as such, and the question is whether the legislation applied to a class of corporations not organized under the general railroad law. The question now presented seems to me to be quite different from that. The query here is whether a corporation formed under the general railroad act, to do most of the things which a railroad does, but some that it does not, can be regarded as a corporation at al-1. The functions of the two railroads are so similar that it has been held in the State of 'Hew York that a street railroad could be formed under their general railroad act. In re Washington St., A. & P. R. Co., 115 N. Y. 442. Where the purposes of a corporation are partly within and partly without the law, it may have a cle facto or de jure existence, as the case may be, and it will simply be incapable of exercising the unauthorized powers. Heck v. McEwen, 12 Lea 97. Many street railroads in this state have been organized under the general railroad act. These, in my judgment, after years of use as such must be regarded as corporations in fact. But, if so, are they included within the consolidation acts which the petitioner invokes? I am inclined ' to think they are. The city railway was in fact a street railroad. It operated its cars in the streets with the usual motive power, and in the manner which distinguishes a street railroad from a steam railroad. It will be observable, also, that the supplement of Í893 to the act of 1891, includes “any company owning or operating a railroad operated as a street railway.” Without deciding this point, but assuming the City Eailway Company was incapable of consolidating with another street railway, it does not follow that a new corporation did not spring from the first consolidation agreement. Two of the parties to the agreement, namely, the Hamilton Township Street Eailway Company and the South Clinton Avenue and Broad Street Eailway Company, both organized under the act of April 6th, 1886, were admittedly empowered to consolidate with each other. Suppose that they were not empowered to treat for the property of the City Railroad Company, and so far their contract was ultra vires, yet I do not see how this fact would impair the effort by the two companies to consolidate under a valid general law, and form a new corporation, the franchise of which they have since used. It may well be that the stockholders of either company could have stopped the execution of the contract for consolidation, but I am unable to see how a third party can question the existence of the new corporation. It follows that if the new corporation had even a de facto existence, the second consolidation agreement was valid, and from it sprung another corporation, having the power of each of the constituent members of both consolidations, including the power to extend tracks.
    In regard to the point that the consolidation acts do not provide for the creation of a new and distinct corporation, it is admitted that the act of 1888 (P. L. of 1888 p.-71¡.) in express terms so provides. But it is insisted that this act empowers horse, but not electric roads, to consolidate; and it is further insisted that the act of 1891, which applies to street railroads generally, contains no provision for the creation of a new corporation. The act of 1891 authorizes a street railway company to merge and consolidate its corporate franchises and other property with that of any other horse or street railway company. It provides that the merger may be effected in the same manner provided by statute for the merger and consolidation of horse railway companies. The last provision is attacked upon the ground that it makes an already existing law • a part of it by reference. The reference to the method of procedure in effecting a consolidation was not objectionable. Campbell v. Board, 18 Vr. 347; De Camp v. Railroad Co., 18 Vr. 43, 49. The method of procedure prescribed by the act of 18S8 implies the erection of a new corporation. The agreement which is to be submitted to the stockholders of each of the companies contains the name of the new corporation, the number of shares of the new company, and the manner of converting the stock of the old into stock of the new corporation. Without stopping to consider whether the act of 1888 applied to all street railways,' I am of the opinion that the act of 1891 was a perfect act. It put all street railroads within the class of roads included within the general railroad act of 1888, and the reference to the provisions of the last act was sufficient without re-enactment of nearly the whole body of that statute. I will advise a decree in the same form as the one last advised.

      Mr. Alan H. Strong and Mr. Charles E. Gummere. for the appellants.

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

Dixon, J.

The Trenton Street Bailway Company presented to the chancellor a petition, asking him to define the mode in which the company might cross the railroad of the United New Jersey Eailroad and Canal Company, near the village of Yardville, in the county of Mercer, pursuant to the act of March 22d, 1895. , Gen. Stat. ¶. 2717. At the hearing before Vice-Chancellor Eeed, counsel for the latter company required proof of the right of the petitioner to cross its tracks, and it appearing that the proposed crossing was part of an extension of the petitioner’s railroad beyond its original route, counsel denied the power of the company thus to extend its road. Notwithstanding this objection, the chancellor made a decree defining the mode of crossing, and thereupon the United New Jersey Eailroad and Canal Company appeals.

By the language of the act of March 22d, 1895, it is made essential to the jurisdiction of the chancellor that the route of the petitioning company should cross the line of railroad of the other company; and by the route here mentioned is certainty intended the lawful route. It was therefore incumbent on the petitioner to show that it had legally laid its route over the appellant’s railroad, and, as one of the steps to that end, that it had lawful power to lay out and construct its proposed extension.

In answer to the same objection made in this court by the appellant, the respondent bases its right on the eighth and eleventh sections (amended ) of “An act to provide for the incorporation of street railway companies, and to regulate the same,” approved April 6th, 1886. Gen. Stat. p. 3216 ¶¶ 55, 59.

The power delegated by the eighth section is ponfined to companies incorporated under that act, and the power delegated by the eleventh section is confined to street railway companies whose tracks have been located and whose charters have been duly accepted, their lessees and assigns.

It does not appear that either the petitioner or any of the companies, by consolidation of which it was formed, was incorporated under the act of April 6th, 1886, and therefore the eighth section is not applicable.

The phrase employed to describe the class of corporations embraced in the eleventh section, “whose charter has been duly accepted,” is not entirely unambiguous, but we think it denotes with sufficient clearness those that exist under special charters.

The expressions used in our street railway statutes to indicate the document by which a corporation is formed under the general laws are, “articles of association,” “articles of incorporation,” “certificate of incorporation,” “certificate of organization.” Such an instrument would not be called, in the ordinary use of words, "a charter accepted.” These terms, in their usual meaning, signify, under our system of government, a special act of the legislature offering corporate existence and franchises to designated individuals, -who thereupon accept the offer. This is the sense that we think it bears in the eleventh section of this statute.

The petitioning company did not show that either itself or any -of its constituent corporations had thus received and accepted a charter. Hence we cannot regard it as being within the purview of the eleventh section.

The petitioner’s claim of right to extend its route seems, therefore, to be unsupported, and for that reason the decree appealed from must be reversed.

For reversal — The Chancellor, Ci-iiee-J ustioe, Van Syckel, Dixon, Garrison, Lippincott, Gummere, Ludlow, Hendrickson, Adams, Vredenburgi-i, Voorhbes. — 12.

For affirmance — None.


text:
    Meribah Todd et al., complainants and appellants, v. William S. Staats, defendant and respondent.
    [Filed June 18th, 1900.]
    1. When the fundamental right, on which the complainant prays equitable relief, is the legal title to an easement in lands of the defendant, and that right is in substantial dispute, the establishment of the right at law is necessary to justify the interference of a court of equity.
    2. If the complainant’s bill prays affirmative relief, based on the existence of such a right, and the right is denied by the answer, it is proper for the court of chancery to retain the cause until the complainant has had reasonable opportunity to establish his title at law.
    On appeal from an order advised by Vice-Chancellor Stevens, who delivered the following opinion:
    The complainants ask that defendant be enjoined from erecting the wall of his new building in what they claim to be an alley appurtenant to their property.
    In the year 1835, Andre1" Ten Eyck, being the owner of an unimproved lot of land in Somerville, having a frontage of sixty feet on the New Jersey turnpike, conveyed the westerly half of it to one Todd. In doing so he covenanted to leave open six feet of land on the east of the division line of the lots as divided; and Todd covenanted to leave open four feet on the west side of the division line “for the purpose of a road to the rear' of said lots.” Mercy Toms became the owner of one of these lots in 1839 and of the other in 1843, and by this unity of seizin the way became extinct. In the last-mentioned year the situation appears to have been this: Houses had been erected on each part, but no barns. Fences had been put up near the lines of the way as defined by the deed from Ten Eyck to Todd, but not corresponding with them. The northeast corner of the house on the Todd lot (now the defendant’s) was considerably within the line of the way.
    By her will made in March and probated in August, 1854, Mercy Toms gave and devised to her daughter, Meribah, “the dwelling-house, lot of land and premises whereon I now live, to hold, use, occupy, possess and enjoy the same” for her life, with remainder to, her children. The land devised is admitted to have been the easterly part of the original lot. The testatrix authorized her executors to sell the rest of her real estate. Acting on the power, they sold the westerly part of the original lot to one Conklin, who conveyed to Merz, who conveyed to the defendant, but instead of subjecting four feet of it to the easement of a way, as had been done by Ten Eyck, they conveyed it unreservedly by metes and bounds, and then added the following clause: “with the right and use of the lane between this and the lot of the said Mrs. Augustus F. Todd.” This was not a reservation of a right by the grantors in the land conveyed, but an added grant of the use of a lane to the grantee. The Mrs. Augustus F. Todd referred to was the Meribah to whom Mercy Toms had devised it. The same clause in reference to the use of the lane appears in the subsequent deeds, including that under which defendant holds title.
    On this state of facts the complainants contend—

      First. That the words “the dwelling-house, lot of land, and premises whereon I now live,” created by implication a right of way in the lane as it was, then bounded by the houses and fences.

      Second. That if it did not, the complainants have become entitled to the enjoyment of such right by adverse user for over twenty years.
    I think both contentions are untenable.

      The first is clearly so under the case of Fetters v. Humphreys, 4 C. E. Gr. 472. That ease presented much stronger grounds for relief than this, for there it was shown that the way had been used by testator in his lifetime, and that the user was necessary for the comfortable enjoyment of the property in the condition in which he had left it. Here it is not shown that Mercy Toms used the way for any purpose whatever.
    As to the second contention. The evidence fails to satisfy me that a right of way has been acquired by adverse user. There is considerable evidence going to show that the lane was used by the grantor of the defendant for the purposes of a passageway to his stable after he had built it. But use by the defendant or his grantor cannot help the complainants. It would indeed be extraordinary if A could claim a right of way over land of B because B had himself made use of it as a way. The user, which gives a title, must be that of A and not of B. Now we find, on examining the evidence, that it refers almost altogether to user by defendant’s grantor. The complainants themselves did not use it all. Their successive tenants, not parties to this suit, did indeed use some undefined part- of it for the purpose of carting ashes and coal, but only occasionally and in succession. There is no evidence whatever that the locus in quo, which is a narrow strip, at its widest point only three feet two inches wide, was essential to this particular use, and there is no evidence of any value going to show that even a succession of tenants used it for any purpose whatever for a continuous and uninterrupted period extending back twenty years.
    Without reference, therefore, to the inequitable attitude of the life tenant, Meribah, who, as one of the executors of Mercy Toms, in her deed to the defendant’s predecessor in the title, declared that the alleyway or lane was between the lot which she was conveying and the lot devised to her, I think that complainants have failed to show a title to relief. I ought to add, perhaps, that I have discussed the case as it appears on the proofs. The bill rests principally upon the idea that the original way created by Ten Eyck in 1835 is still, in legal contemplation, existent, an idea plainly erroneous by reason of the subsequent union of the title to both lots in the same owner.

      Dixon, J. This bill of complaint was filed to restrain the defendant from erecting a building upon the westerly portion of a strip of land ten feet wide which, the complainants contend, is a lane between their lot on the east and the defendant’s lot on the west, for the common use of both properties, and to compel the defendant to fill up an excavation which he had made thereon. The defendant by his answer denies that the complainants have any right of way over the land where he is building, and also denies that what he is doing will cause any irreparable injury to the complainants. On these pleadings the parties took proofs and went to final hearing before Vice-Chancellor Stevens, who concluded that the complainants had failed to establish their claim to the right of way, and thereupon the bill was dismissed.
    The evidence produced at the hearing tends to prove that before the year 1835 Andrew A. Ten Eyck owned the property now belonging to both parties, which consisted of a tract about sixty-six feet wide and two hundred and fifty-three feet deep; that by deed dated July 31st, 1835, he conveyed to James W. Todd the westerly part, having a width of about thirty feet, which deed contained the following clause:
    “And the said Andrew A. Ten Eyck binds himself, his heirs, executors • and administrators to leave open six feet of land on the east side of the said line of the said Todd and Ten Eyck, for the purpose of a road to the rear of said lots forever,, and the said Todd binds himself, his heirs, executors and administrators to leave open four feet on the west side of the said line of the said Todd and Ten Eyck for the said purpose of a road to the rear of said lots
    that in execution of the obligation thus expressed, fences were erected along the sides of the ten-feet strip thus opened; that by deed dated March 17th, 1836, Todd conveyed his lot to Stephen H. Eowen, which deed contained the following clause:
    “Together with the right and privilege of a lane ten feet, that is, six feet to be given by Andrew A. Ten Eyck, and four feet by said Todd, in the line between the lot of said Ten Eyck and the one hereby conveyed to be used in common as a lane or way to the rear of said lots by the owners thereof, their and each of their heirs and assigns forever that by deed dated May 9th, 1837, Rowen conveyed his lot to Andrew A. Ten Eyck, which deed contained the following clause: “Together with the right of a lane of ten feet between this and the lot of Andrew A. Ten Eyck, Esq.;” that Ten Eyck being thus again the owner of the entire property, conveyed to Runyon Toms, by deed dated March 9th, 1839, the same property that he had on July 21st, 1835, conveyed to Todd, which deed contained the following clause: “With the right and use of the lane between this and lot of said A. A. Ten Eyck;” that by'deed dated April 1st, 1839, Ten Eyck conveyed to Mercy Toms all the property except that which he had conveyed to Todd in 1835, and had again conveyed to Runyon Toms in 1839, which deed contained the following clause:
    “And also excepting and reserving to the said Runyon Toms, his heirs and assigns forever, the use and privilege of six feet off the west side of this lot, in common with four feet of the east side of his lot from front to rear of land
    that by deed dated April 15th, 1843, Runyon Toms conveyed his lot to Mercy Toms, which deed contained the following clause: “With the right and the use of the lane between this and the lot of the said Mercy Toms;” that Mercy Toms thus being seized of the entire property, resided on the part conveyed to her by Ten Eyck, until she died in 1854; that by her will she devised to her daughter, Meribah, one of the complainants,
    “the dwelling-house, lot of land and premises whereupon I now live, to have and to hold, use, occupy, possess and enjoy the same, for and during the term and period of her natural life,”
    with remainder in fee to her children, who are the other complainants, and the residue of her real estate she authorized her executors to sell, naming her daughter, Meribah, and her friend Abram Runyon as executors; that by deed dated April 2d, 1855, the executors, in pursuance of the power and authority given by the will, conveyed to William Conklin the westerly lot, thirty feet wide, above mentioned, which deed contained the following clause:

      “AVitli the right and use of the lane between this and the lot of the said Mercy Toms, being the same premises conveyed to the said Runyon Toms by Andrew A. Ten Eyck, by deed dated March ninth, eighteen hundred and thirty-nine, and recorded in Somerset county clerk’s office in Book V of Deeds, page 296, and by Runyon Toms and wife, conveyed to the said Mercy Toms, in her lifetime, by deed dated April fifteenth, eighteen hundred and forty-three
    that by deed dated March 8th, 1861, Conklin, conveyed his lot to John H. Merz, which deed contained the following clause: “With the right and use of the lane between this and the lot of the said Mrs. Augustus F. Todd;" that by deed dated May 1st, 1894, Merz conveyed his lot to the defendant, which deed contained the same clause as the last; that since the fences were first erected on the sides of the ten-feet strip in 1835, its' lines have usually been defined either by fences or by buildings, and that at least since 1861, when Merz purchased, the strip has been used to some extent as a passageway by the owners and occupants of both lots.

      Mr. John A. Freeh and Mr. Richard V. Lindabury, for the complainants, appellants.

      Mr. Alvah A. Ciarle, for the defendant, respondent.
   The opinion of the court was delivered by

Dixon, J.

The deed made in 1835 by Ten Eyck to Todd created an easement against each party in favor of the other, with regard to so much of the ten-feet strip as was owned by each. By the subsequent union of title to both the lots in Ten Eyck, that easement became legally merged in his absolute ownership. But, on his conveyance of the westerly lot to Runyon Toms in 1839, the question is presented whether the proper construction of the deed did not create the easement anew by the reference to the Todd deed of 1835, or did not revive the former easement, according to the suggestion made in Thomson v. Waterlow, L. R. 6 Eq. 36, that there is a substantial distinction in this respect between a pre-existing right of way which has become legally merged by passing to the owner of the servient tenement, and a way which an owner has opened over his own property for his own use.

If by either means the easement came into being, it was merged by the union of both titles in Mercy Toms. But at her death the titles were again separated, and questions like those above stated arise again. The form of her devise of the easterly lot and premises to the complainants also justifies an inquiry whether they did not thereby obtain a right to use and enjoy the ten-feet strip as a way, on the principle applied in Stanford v. Lyon, 8 Vr. 426, and it may likewise be questionable whether the deed made by the executors of Mercy Toms for the westerly lot, and the subsequent deeds down to the defendant, did not convey so much of that lot as lay within the ten-feet strip, subject to its use as part of the lane between the lots.

Even if none of the muniments of title supports the complainants’ claim, the further question is raised, whether the evidence does not establish a right of way in their favor by adverse user.

Every question thus suggested lacks any element of an equitable nature, and is proper to be determined by the courts of law. The right which the determination of any of these questions in favor of the complainants will establish, is fundamental to the relief which they pray from the court of equity, and until that right is settled at law, the aid of the court of equity cannot properly be invoked. For this reason we think the court of chancery erred in attempting to decide whether the complainants really possessed the right of way which they claimed in their bill. In view of the fact that the answer did not deny the jurisdiction of the court, and that one object of the bill is to secure affirmative relief in the form of a mandatory injunction for the restoration of the way to a passable condition, the proper course for the chancellor was, not to dismiss the bill, but to retain it until the complainants had had reasonable opportunity to establish their title at law. Outcalt v. George W. Helme Co., 15 Stew. Eq. 665, 676.

The complainants do not show that, if even they have the right claimed, the defendant’s interference with it will cause them irreparable injury, and therefore no injunction should issue pending the necessary litigation. The defendant being fully apprised of the situation, will proceed with his building at his peril.

The decree dismissing the bill should be reversed, on the ground and for the purpose above indicated.

For reversal — The Chancellor, Chiee-Justice, Dixon, Garrison, Gummere, Ludlow, Collins, Bogert, Hendrickson, Adams, Vredenburgh, Voorhees — -12.

For affirmance■ — Van Syckel, Lippincott — 2.