author: Dixon, J.

text:
    Jacob L. Blue, appellant, v. John B. Everett et al., respondents.
    [Filed February 28th, 1898.]
    When the legal right of action upon a bond is barred by the statute of limitations, and the legal right of entry upon lands mortgaged to secure the bond is likewise barred, the holder of the bond and mortgage cannot maintain a bill in chancery to collect the debt by sale of the mortgaged premises unless he can show some pertinent equitable right beyond the ownership of the bond and mortgage.
    On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in Blue v. Everett, 10 Dick. Ch. Rep. 329.

      Mr. Harry E. Richards, for the appellant.

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

Dixon, J.

The bill in this case was filed October 25th, 1894, to foreclose a mortgage dated June 19th, 1872, securing payment of a bond of the same date for the sum of $1,500, payable in one year from its date. The answer alleged that the mortgage debt had not in any way been recognized by the obligor or anyone claiming under him for over twenty years before the filing of the bill, and set up the bar of the statute of limitations. On the hearing the complainant endeavored to prove that interest had been paid on the bond on August 9th, 1875, but, in the opinion of the vice-chancellor, this effort was not successful, and the delay of over twenty years in filing the bill not being satisfactorily explained, he advised the dismissal of the bill. From the decree accordingly made the complainant appeals.

Without considering the questions decided below, we think the decree should be affirmed on broader grounds.

By his bond the complainant acquired only a legal remedy. It gave him no standing whatever in a court of equity.

By his mortgage, according to the ancient common law of England, he acquired an immediate legal estate, defeasible by the payment of money in exact accordance with the condition of the bond. On breach of the condition that law fixed the estate absolutely in the mortgagee, the mortgagor being a mere tenant at will. This legal situation was deemed by the court of chancery unjust, and therefore that court established the rule that, at the instance of the mortgagor, it would compel the mortgagee to accept payment of the debt after the 'due-day, and on payment to reconvey the estate. This was clearly equitable. But the rule went further. In case the mortgagee had entered into possession of the land, the court of chancery regarded him as a mere trustee, holding him to account for the rents and profits, and, as soon as his debt was thereby satisfied, requiring him to surrender possession and reconvey the title to the mortgagor. The equity of this branch of the rule is questionable, in that it imposed on the mortgagee duties which he had never intended to assume, and it practically precluded him from exercising his legal right to possession. In order to alleviate its harshness, the court then permitted the mortgagee to come in and have the chancellor set another day instead of that named by the parties themselves, so that, in case the debt was not paid by that day, the legal estate conveyed to the mortgagee might become absolute. Such a proceeding was properly called a foreclosure of the equity of redemption. It contained, however, not much more of equity than did the doctrine of the common law, and soon a really equitable practice obtained, by which the mortgagee, instead of subjecting himself to the risk and inconvenience of a trusteeship, and instead of asserting his legal right to the land, as modified by the chancellor’s discretion respecting the time when he might exercise it, brought his estate into the court of chancery and asked that it should be sold free from the mortgágor’s equity, and out of the proceeds his debt should be paid and the residue turned over to the mortgagor.

On reflection it will be observed that all of these equitable remedies naturally grow out of and depend upon the legal situation. Their primary aim was to relieve the mortgagor from the hardness of his own contract; their secondary aim, to relieve the mortgagee from the difficulties into which the court’s attempt to do justice to the mortgagor had thrown him.

But, according to the doctrine firmly established in New Jersey, no such legal situation exists. Here the mortgage vests in the mortgagee no estate whatever in the land. It merely gives him a right of entry on breach of the condition mentioned in the instrument. Sanderson v. Price, 1 Zab. 646, note a. Until such entry the mortgagor continues to be the legal owner of the land for all purposes. Montgomery v. Bruere, 1 South. 260; S. C., 2 South. 865; Wade v. Miller, 3 Vr. 296; Shields v. Lozear, 5 Vr. 496, 503; Kircher v. Schalk, 10 Vr. 335; Devlin v. Collier, 24 Vr. 422. Under the sixteenth section of our statute of limitations, the mortgagee’s right of entry would be barred unless exercised within twenty years next after the breach of the condition upon which it accrued, and that right being barred, the estate of the mortgagor would be freed from any imperfection created by the mortgage. At law, the bar of the statute could not be obviated by payments made on account of the debt, for the mortgagor does not hold the land under the mortgagee, and the payments could not be deemed rent or in any sense the price of possession, but would be referred solely to the personal obligation held by the mortgagee.

From these considerations it would seem that, when the mortgagee’s right of entry upon the land was legally extinguished, the real basis for the jurisdiction of a court of equity had gone, for there would be no longer any legal right by the exercise of which an inequitable condition could arise, and both parties might justly be left to their legal remedies.

Such was the situation when the present bill was filed. Under the mortgage the complainant’s right to enter upon the land accrued on the due-day of the bond, June 19th, 1873, and, as nothing occurred to keep it alive, it expired by lapse of time on June 19th, 1893, fifteen months before the filing of the bill.

But there is another view to be taken of the matter.

In the contemplation of courts of equity, the mortgage is a mere incident of the debt, and can be used by the mortgagee only as a means for obtaining satisfaction thereof. So completely is the mortgagee’s interest in the land annexed to the debt that, in equity, whatever transfers the debt transfers that interest (Stevenson v. Black, Sax. 338; Morris Canal and Banking Co. v. Fisher, 1 Stock. 667, 700), and an attempt to transfer the interest without the debt is futile, both at law and in equity (Devlin v. Collier, 24 Vr. 422). Because of this close union between the debt and the security, courts of equity have held that, so long as the debt remains, the right of the creditor to resort to the land for payment of the debt also continues, even though by. the statute of limitations the legal right of entry is barred. This doctrine arises naturally out of the proposition that the mortgaged interest is only incidental to the debt, for while the principal exists its incidents should also be kept alive.

But this doctrine will not suffice to maintain the present suit.

As already stated, the bond vested in the obligee only legal rights to be enforced by legal remedies. Of itself it gives the complainant no standing in a court of equity. The debt is a mere legal entity, involving no obligation outside of its legal character, and having intrinsically no quality of which a court of equity can take cognizance. It would seem, therefore, that when, because of such a debt as the principal thing, a court of equity is called upon to give equitable effect to that which is only incidental thereto, the first inquiry should be, does the principal exist? is there any legal obligation? and when for any cause the answer is found to be negative, the court should refuse to act. In the present case the legal obligation had expired, by the lapse of sixteen years since the last payment on the bond (Gen. Stat. p. 1975 § 6), and with the principal the incident also naturally perished.

But notwithstanding the logical coherence of these propositious, the court of chancery in this state (in accord with some tribunals elsewhere) has, with respect to debts secured by real estate mortgages, generally ignored the statute of limitations and the usual equitable rule that, in dealing with legal rights, courts of equity will follow the law, and has held that, unless actual payment of the debt be shown, it would apply presumptions of its own, when there had been long delay in taking steps to collect the debt. Had these presumptions been clearly established and long maintained, that might of itself be sufficient reason for declining to disturb them; but an examination of the eases will show that they are not even yet well defined. Thus, in Executors of Wanmaker v. Van Buskirk, Sax. 685, Chancellor Vroom said that it had not been clearly settled what length of time would be sufficient to give rise to any presumption against a bond and mortgage, but he expressed himself as willing to adopt a mile that a lapse of twenty years, without payment or demand of principal or interest, would raise'a presumption, subject to be rebutted by circumstances which showed the conduct of the creditor to be a reasonable indulgence to the debtor. In Evans v. Hoffman, 1 Halst. Ch. 354, the insolvency of the debtor was thought not sufficient to rebut the presumption, and in Magee v. Bradley, 9 Dick. Ch. Rep. 326, the close relationship of the parties was held inadequate. In Murphy v. Coates, 6 Stew. Eq. 424, the fact that the creditor was the employer of the debtor was mentioned as significant, although the controlling fact was a written acknowledgment of the debt, with full proof that it had not been paid. In Moore v. Clark, 13 Stew. Eq. 152, and in Miller v. Teeter, 8 Dick. Ch. Rep. 262, a mere acknowledgment of the debt as a. subsisting lien was held sufficient to rebut the presumption. In Rockhill v. Rockhill, 14 Atl. Rep. 760, the presumption was repelled by an arrangement which seems strongly suggestive of a purpose to defraud creditors.

These are, I think, all the reported cases in New Jersey where the court of chancery has sustained a bill for the collection of a debt by foreclosure of a mortgage, after the legal remedy on both the debt and the mortgage had been barred by the statute, and when no independent equity appeared. In Barned v. Barned, 6 C. E. Gr. 245, the legal right of entry under the mortgage still subsisted when the bill was filed, and in Stimis v. Stimis, 9 Dick. Ch. Rep. 17, the fact that very soon after giving the bond and mortgage the mortgagor had come into possession of the instruments as executor of the mortgagee, gave rise to new duties.

In the present case, on a very careful examination of these decisions and others elsewhere, the learned vice-chancellor reached the conclusion that, under the equity rule, proof in fact of the non-payment of the debt would not defeat the presumption, but the creditor must go further and show that, admitting the continued existence of the debt, his conduct in refraining from collecting it has been reasonable.

Certainly such a rule has but scant justice and a minimum of precision to recommend it. It inflicts upon a creditor a penalty extending to the whole amount due him, however large, and no more, however small, because, on consideration of the provable circumstances, the chancellor thinks his conduct was either too indulgent towards his debtor or too considerate of his own convenience. It also lets in the evils so strongly denounced by Mr. Justice Ford in Ludlow v. Camp, 2 Halst. 113, 118.

On the other hand, there are many cases in equity supporting the declaration of Mr. Justice Carpenter, speaking for this court in Conover v. Wright, 2 Halst. Ch. 612: “Whether courts of equity act in obedience or in mere analogy to the statutes of limitations, it has become a settled rule that they will apply them, in similar cases within the sphere of their jurisdiction, equally with courts of law. They have always felt themselves bound by the spirit and meaning of these statutes, and ordinarily act in conformity to them. In cases concurrent with a remedy at law, they always allow them to be pleaded, and a party is not permitted to evade their effect by resorting to another forum.” Similarly, Chancellor Vroom, in Executors of Wanmaker v. Van Buskirk, Sax. 691, said: “ The statute of limitations does not apply in terms to courts of equity, but it is well known that they have always felt themselves bound by the principles of the statute, and, except in cases of strict trust and matters purely equitable in their nature, have acted in conformity with them.” See, also, Executors of Conover v. Conover, Sax. 403, 410; Marsh’s Executors v. Oliver’s Executors, 1 McCart. 259; Cowart v. Perrine, 3 C. E. Gr. 454, 457; Carlisle v. Cooper, 4 C. E. Gr. 256; Ruckman v. Decker, 8 C. E. Gr. 283; Arnett v. Finney, 14 Stew. Eq. 147; Smith’s Administrators v. Wood, 15 Stew. Eq. 563; S. C. on appeal, 17 Stew. Eq. 603; Agens v. Agens, 5 Dick. Ch. Rep. 566; Alling v. Alling, 7 Dick. Ch. Rep. 92.

The principle thus supported should be applied to the case in hand. The claim of the complainant is not, in its nature, equitable at all. It is brought into the court of chancery, not to enforce any equity belonging to him, but that the court may dispose of the equity of the defendant. The complainant’s rights, under both his bond and his mortgage, are purely legal in their nature, and as they have been barred, that under the bond by the lapse of sixteen years since the last payment was made and that under the mortgage by the lapse of twenty years since the breach of the condition, they should be denied in equity as well as at law.

For these reasons the decree below should be affirmed.

For affirmance — Collins, Depue, Dixon, Garrison, Gummere, Lippincott, Ludlow, Van Syckel, Adams, Bogert, Hendrickson, Krueger, Nixon, Vredenburgh — 14.

For reversal — None.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Samuel H. Grey, Attorney-General, et al. v. New York and Philadelphia Traction Company.
    [Filed March 29th, 1898.]
    1. A street railway company failed to comply with an ordinance requiring that its plans for overhead wires be submitted to the township committee for approval, and that it complete its road within a year. It applied for a new franchise, and the committee assured the company that its consent would be granted upon certain terms, to which, the company agreed. Construction of the road progressed without objection, and poles were located with the consent of the majority of the committee acting individually. The company, fearing that a rival company would interfere, hurried its road to completion between Saturday night and Monday morning.- — -Held, that further construction and operation of the road would be enjoined until the consent of the committee could be obtained.
    2. Where a street railway company, without authority, seized a highway for the construction of its road, a remedy by indictment did not furnish such an adequate remedy at law as prevented the court from enjoining further construction and operation of the road until consent of the township committee could be obtained.
    On order to show cause why an injunction shall not issue to restrain the construction and operation of an electric street railway.

      Mr. Willard P. Voorhees and Mr. Samuel H. Grey, attorney-general, for the application.

      Mr. Garret D. W. Vroom, Mr. Alvah A. Clark and Mr. Richard V. Lindabury, contra.

   The Chancellor.

The defendant company is incorporated under the act entitled “An act to authorize the formation of traction companies for the construction of street railways or railroads operated as street railways, and to regulate the same,” approved March 14th, 1893. It designed to construct and operate by electric power a single-track railway in the township of Bridgewater, in Somerset county, over the turnpike between Somerville and Bound Brook, and, in November, 1894, secured the passage of an ordinance by the township committee of the township named, assenting to the construction of the railway upon terms prescribed by the ordinance, among which were these: that the location of poles for overhead wires should be under the supervision of the township committee; that before the commencement of the overhead plant of the railway or of any part thereof, plans therefor should be submitted to the township committee for its approval; and that the railway should be constructed and put in operation within one year, or that “all rights, permits, franchises and privileges granted by the ordinance should be null and void.” The traction company did not submit to the township committee plans of the overhead construction, and did not, within a year, complete and put in operation its railway. On the contrary, after delaying the completion of its railway from 1894 until late in 1897, when it had been notified that by the terms of the ordinance the conditional assent to the construction of the railway had, by the terms of the ordinance, become null and void, it first applied for a new consent, and then, experiencing some delay in obtaining that new consent, without waiting for it to be granted, commenced one Saturday, near midnight, with a large force of men, and, working through the following Sunday, night and day, sufficiently constructed its railway to put it completely in operation. The present application seeks the restraint of further construction and operation of the railway, and, through mandatory injunction, the removal of its rails, ties, poles, wires, &c., from the public road, and the restoration of the highway to its former condition. The application followed the hasty work of construction as rapidly as it was possible to prepare the bill and affidavits thereto.

By the defendant’s answer it is claimed that the poles were located with the assent of a majority of the members of the township committee acting individually, and that termination of the consent because of non-completion of the railway within the time prescribed by the ordinance was insisted upon by the township authorities merely to secure the township more advantageous terms under a new consent than the ordinance of 1894 afforded. It makes it appear that immediately after the passage of the ordinance some work was done in the construction of the road, and that in 1897, pending negotiations for the additional advantage of the township, other work was done in the same direction which was permitted to proceed without hindrance from the township authorities upon the assurance of both sides that satisfactory terms, then stipulated for, would be agreed upon and a new consent would be given. It excuses the precipitancy with which the road was constructed and put in operation by claiming that it was frightened by apprehension that a rival railway company would greatly delay or defeat the anticipated consent.

I do not think that the situation made by the answer justifies the seizure of the highway. That seizure was timed and executed in a manner indicative of a purpose to disregard the law, and a disposition to render an appeal to the courts, prior to the completion of the work, impossible. It betrayed a design to obtain possession of a completed operating railway which would yield profits to be enjoyed while vindication of the law might progress subject to the impediments the defendant company might deem proper to use in retarding it, or, while under the advantage possession would give, an adjustment of difficulties might be made.

It is now urged for the defendant that the remedy by indictment will afford adequate relief in the premises, and that, therefore, this court should not interfere even so far as to prevent the permanent completion and the continued operation of the railway. The insistence is that the ruling in Township of Raritan v. Port Reading Railroad Co., 4 Dick. Ch. Rep. 11, and the cases there cited, should be followed.

I cannot agree to this proposition. To do so would put a premium upon a method of procedure which is defiant of the plain requirement of the law and the exercise of the powers of the courts, the bare statement of which fills the law-abiding and respecting mind with an indignation which commands a complete and instant remedy. The situation is one in which I deem the power of this court, through its writ of injunction, to be justly called into requisition. The defendant corporation is a creature of the statute, empowered to use a public highway only upon performance of the condition precedent that it shall obtain the consent of the governing body of the municipality in which the highway to be used is located. Gen. Stat. p. 3247. When control of the use of its highways through such consent is given to a municipality, its authorities may affix to the consent it gives lawful and reasonable conditions beneficial to the public. Township of Franklin v. Nutley Water Co., 8 Dick. Ch. Rep. 607.

It can scarcely be questioned that the condition that the railway shall be constructed and put in operation in a year is lawful and reasonable and beneficial to the public. Its utility is emphasized when the possibility of an indefinite tying up of highways by consent against a convenient use of them by the public, in the manner suggested in the opinion of the supreme court in West Jersey Traction Co. v. Camden Board of Works, 27 Vr. 431, is contemplated.

The effect of such a condition is to limit the consent in duration to one year unless within that year the railway shall be .constructed and operated. This was the practical construction put upon the consent by the defendant company, when, in 1897, it applied for a renewal thereof.

The case, then, is one in which the defendant has proceeded .and proposes to proceed in the construction and operation of its railway upon the highway named, without having complied with the requirement of the statute that it shall not do so except under consent of the governing body of the township of Bridgewater. It is clearly within the doctrine of the cases of Inhabitants of the Township of Franklin v. Nutley Water Co., supra, and Stockton v. Atlantic Highlands, &c., Railway Co., 8 Dick. Ch. Rep. 418. In the former of these cases, Vice-Chancellor Emery stated the principle applied in this language: For the full protection of the statutory rights of municipalities, a preliminary injunction is necessary, and in this respect the case rests upon •the same basis as the right of the court of equity to interfere by preliminary injunction where a public company, under cover of •statutory authority, attempts to appropriate the lands of another without complying with the legal conditions precedent, either constitutional or statutory. * * * Where the statutory right is clear’, it seems to me it would imperil the public control of highways and deprive municipalities of the powers and advantages intended to be given by statutes, if, on the mere claim of right to occupy the streets without consent, this court should decline to interfere pending the final determination upon the-claim.”

When the bill in this case was presented to me I restrained the completion and further operation of the railway in Bridge-water township, pending the determination upon the order to show cause now made. I will continue that restraint to the final hearing. An injunction may issue accordingly. If consent of the township committee shall be had before final hearing, application may be made to dissolve the injunction.


text:
    Joseph S. Plum, executor of the will of Joseph Plum, deceased, v. John B. Smith, administrator of the estate of Hannah Plum, deceased, and Joseph S. Plum et ux.
    [Filed April 1st, 1898.]
    1. A general clause in an answer in equity, reserving exceptions, will be-stricken out as in contravention of rule 208.
    2. A will devised §2,000 in trust to the executor (one of testator’s sons), the interest to be paid to testator’s widow until her marriage or death, when the principal was to be divided among his children. The §2,000 was invested in a mortgage, and subsequently the executor, individually, bought the land and assumed the mortgage. Afterwards he became insolvent, and, on the death of his mother, brought suit to foreclose the mortgage, making only the executor of his mother, himself individually and his wife defendants. — Held, that there was a lack of necessary parties defendant, since all the beneficiaries in the fund should have been made parties.
    3. The objection of lack of necessary parties defendant should precede the-filing of a cross-bill.
    4. A cross-bill seekiug the distribution of a trust fund created by will and to subject complainant’s share of the trust fund to the payment of a judgment obtained against him by one of defendants, is multifarious.
    5. The share of complainant in a trust fund created by will, and for the recovery of which entire fund he sues, cannot be subjected by a cross-bill to-the payment of a judgment obtained against him by one of defendants.

      On motion to strike out the general clause of an answer reserving exceptions, in contravention of the prohibition of rule 208, and to dismiss all of the answer which is filed by way of cross-bill.
    The original bill was filed to foreclose a $2,000 mortgage made on the 22d of March, 1892, by one Israel Bateman to the complainant and Hannah Plum, his co-executrix, upon land in Hunterdon county, conditioned for the payment of $2,000 upon the death or marriage of Hannah Plum, with lawful interest, payable annually from the 1st of April, 1892. The bill alleges the conveyance of the mortgaged premises by Israel Bateman to Joseph S. Plum, individually, on the 28th day of March, 1892, six days after the making of the mortgage, the recovery of a judgment by Hannah Plum against Joseph S. Plum on the 4th of December, 1894, the death of Hannah Plum, intestate, upon the 20th of July, 1895, and the appointment of John B. Smith as the administrator of her estate on the 27th of August, 1895. It prays process against Joseph S. Plum, individually, and his wife and Smith as the defendants in the suit.
    The defendant Smith answered the bill, claiming the validity and lien of the judgment against Joseph S. Plum, and by way of cross-bill against Joseph S. Plum, set forth that the mortgaged premises were the property of Joseph Plum in his lifetime; that Joseph Plum was the father of Joseph S. Plum and the husband of Hannah Plum; that Joseph Plum died testate on the 15th of December, 1890; that by his will he gave to his son, Joseph S., a pecuniary legacy, and gave his household furniture except a wardrobe to his wife and the wardrobe to his daughter, Mary; that the will made this provision :
    “I give and bequeath to my beloved wife, Hannah, the interest of two thousand dollars as long as she lives and remains unmarried and my widow, to be left secured on my real estate, but on her decease or marriage to be equally divided among my children ; ”

    that after the payment of the testator’s debts and funeral expenses the residue of the estate is given to the téstalo)’s three children in equal shares.

      The cross-bill further represents that after the death of Joseph Plum, the executor and executrix of the will sold the mortgaged premises to Mr. Bateman, taking back from him the mortgage in question; that Joseph S. Plum did not pay Hannah Plum the interest on the $2,000, and has not since her death paid it to her administrator, Smith; that after the payment of the debts of Joseph Plum and the legacies bequeathed by his will, nothing of his estate remains but the mortgage sought to be foreclosed by the original bill; that Joseph S. Plum has no property out of which the judgment against him in favor of Hannah Plum' can be made by execution; that the mortgaged premises will not sell for sufficient to pay the $2,000 mortgage and the interest in arrears thereon in full, and that as son of Joseph Plum, Joseph S. Plum will be entitled to some portion of the recovery had upon that mortgage. Upon this allegation of facts the de- ■ fendant Smith insists, first, that the interest of the $2,000 during the life of Hannah Plum, by the will of Joseph Plum is made a first charge or lien upon the recovery to be had from the mortgaged premises, before the principal sum of $2,000, and that it is to be first paid to him in full and not to abate proportionately with the corpus if the proceeds of sale of the mortgaged land shall not be sufficient to pay both corpus and interest in full, and second, that he should in this suit have recourse to the share of Joseph S. Plum in the corpus recovered in the foreclosure, for the payment of the judgment of Hannah Plum.
    The complainant moves to strike out a clause of the answer, reserving exceptions, and to dismiss the cross-bill, on two grounds, because (1) it “ is multifarious, seeking a construction of the will of Joseph Plum, deceased, the settlement of his estate in this court, and is a creditor’s bill exhibited against a co-defendant,” and (2) it “ seeks to litigate matters between the defendant and complainant, and between the said defendant and his co-defendant Joseph S. Plum, which are not the subject of the original suit.”

      Mr. John A. Bullock, for the motion.

      Mr. John T. Bird and Mr. John B. Huffman, contra.

   The Chancellor.

The motion to strike out the clause of the answer which reserves exceptions must prevail. The two hundred and eighth rule forbids the incorporation of that clause in an answer.

The questions which the cross-bill seeks to present are, first, whether in case enough shall not be realized to pay the whole $2,000 with the interest in arrears, the full interest should not, under a proper construction of the will of Joseph Plum, be paid to the administrator of the widow out of whatever may be realized for both principal and interest, and second, whether the distributive share of Joseph S. Plum, in the fund to be divided among the children of his father, should not be subjected to the payment of the judgment that Hannah Plum recovered against him.

According to the allegations of the cross-bill, the complainant is really a trustee seeking the recovery of the trust fund which he has invested. With the recovery and immediate distribution the trust will terminate. The trustee is irresponsible. He is the owner of the property which is held as security for the fund. I think that his cestuis que trustent are necessary parties to his suit, and that the court should not suffer him to proceed to sale and have the possession of the money realized, before the cestuis que trustent shall be, as parties, heard. And, under the circumstances, I also think that a cross-bill which seeks a direct distribution of the whole trust fund by the court, when it shall be recovered, will justly and with eminent appropriateness lie.

The difficulty at present is that upon the face of the original bill the special trust character of the $2,000 investment does not distinctly appear. The terms of the will under which the executor acts are not stated, and, although the allegation that the mortgage was to continue till the death or marriage of Hannah Plum, indicated that the investment was to answer a particular purpose, yet, from the will, that purpose and the cestuis que trustent concerned in it are not ascertainable.

A plea would properly have shown a lack of parties.

The making of the objection of lack of parties and its determination should have preceded the cross-bill, in order that all parties necessary to the final decision of the question raised by the cross-bill should be before the court.

I do not mean to say that the answer might not have been so framed as to cause the court to arrest the suit until the necessary parties should be brought in, so that they could be served with the answer by way of cross-bill, but that course is objectionable because it creates a delay and the confusion and annoyance of a double hearing, for proofs will be taken before the arrest of the cause will come, and new parties will have the right to review the proofs taken.

I think that the objection is well taken that the cross-bill is multifarious in that while it seeks a construction of the will and distribution of the trust fund (a matter common to all the parties at present in the suits, and the remaining children of Joseph Plum or the holders of their interest), it at the same time seeks to apply the share in the $2,000 to which Joseph S. Plum, as a cestui que trust, may be entitled, to the payment of a judgment against him held by a single defendant. Such joining of claims presents issues which are independent of each other, and which concern different parties, and in which all the parties necessary to the suit are not concerned, and issues which those parties should not all be obliged to follow or be burdened with. Story Eq. Pl. 270.

Besides, the judgment matter does not appear to be the proper subject of cross-bill. It is an independent effort to subject a debtor’s property to the payment of a judgment at law. It has no connection with or relation to the matter of the original suit. Its object can and should be accomplished by an independent bill, and through the instrumentality of injunction and receiver.

I will make this disposition of the motions: I will deny the motion to dismiss the cross-bill, but will strike out that part of the cross-bill which seeks relief with reference to the judgment. The complainant may amend his bill by reference to.the second paragraph of the will of Joseph Plum, and the investment of the $2,000 in pursuance of the direction of that paragraph, and by making the other children of his father, or the holders of their interests, parties defendant to the bill. And he may by due process bring them into court. When the original bill shall be thus amended and the new parties shall be brought into court, I will permit the cross-bill to be amended so as to include those new parties, in order that it may be served upon them, and they may answer it. If the original bill shall not be amended as above suggested, I will give the defendant Smith leave to withdraw his answer and cross-bill and file a plea, so as to present lack of parties.

Costs will be allowed to the complainant upon the motion to strike out the clause of the answer which reserves exceptions, but they will not be allowed to either party on the motion to dismiss the cross-bill.

I have felt constrained to go somewhat beyond the motions in dealing with this case, in order to expedite its proper presentation on the merits, because it concerns a trust in which the trustee occupies an anomalous position, which awakens the court’s serious and jealous attention.


text:
    Joseph S. Plum, executor of the will of Joseph Plum, deceased, v. John B. Smith, administrator of the estate of Hannah Plum, deceased, Joseph S. Plum and Martha, his wife, George F. Plum and Emma Plum.
    [Filed April 21st, 1898.]
    A bill for the foreclosure of a mortgage alleged that complainant, as executor of his father, had been devised §>2,000 in trust, the interest to be paid to testator’s widow for life, and at her death (which had occurred) the principal to be divided among his children; that the §>2,000 was invested in a mortgage ; that subsequently the executor individually bought the land and assumed the mortgage, and that he had assigned his share in the trust fund to another. The cross-bill set up a judgment against him, obtained by his mother, because of failure to pay the interest to her before the assignment of his share, and claimed that it was a prior lien thereon, and that all the interest of complainant in said fund represented' by the mortgage was merged in his title by virtue of his deed to the land, which became subject to the lien of said judgment. — Held, that the question of merger was properly a part of the case, and hence not liable to be stricken from the cross-bill.
    On motion to strike out parts of cross-bill.

      Mr. John A. Bullock, for the motion.

      Mr. John T. Bird and Mr. John B. Huffman, contra.

   The Chancellor.

In the previous application to strike out parts of the answer and cross-bill, the first part of the present motion, to wit, to strike from the cross-bill that part of it which refers to the judgment recovered by Hannah Plum, was passed upon. No further order will be made in reference to it.

The defendánt Joseph S. Plum now asks that the following parts of the answer to the amended bill be stricken out, to wit:

“And this defendant claims that the judgment of said Hannah Plum is a. prior lien on Joseph S. Plum’s share, part or interest in the said lands and! premises to any interest which he, the said Joseph S. Plum, assigned to the said Oliver I. Blackwell aforesaid. * * .* And further says that all the right, title and interest of the said Joseph S. Plum in the said mortgage became and was merged in his title by virtue of the said deed of conveyance in the said land, and became and was and is subject to the lien of the judgment of the said Hannah Plum, deceased.”

In the first application to strike out, it appeared that the-defendant Smith proceeded upon the theory that a portion of the $2,000. mortgage money would become the property of Joseph S. Plum, against whom his intestate had recovered a judgment, and that by his cross-bill he could secure that share of the $2,000 to be applied to the payment of the judgment, and at the same time urge that the interest on the $2,000, as between all the parties to the suit, under the will of Joseph Plum, deceased, should be first paid in full before any part of the principal moneys, so that in case there should be a deficiency in the proceeds of the sale of the mortgaged premises to pay both principal and interest, the interest would be fully paid. It appeared to me that the effort to charge the judgment upon the interest of Joseph S. Plum in the mortgage money was a matter foreign to the object of the suit, and mixed with claims that the interest, within the intent of the will, was to be first paid, made the cross-bill multifarious, and I therefore struck it out, leaving the cross-bill to set out the will and urge that the claim that the interest was intended to be first, paid. I also directed that the others interested, in the corpws of the money secured to be paid by the mortgage, as cestuis que trustent of the complainant, should be made parties defendant and brought into court, because, under the allegation that the complainant was insolvent, and under the claim for priority in payment of the interest, they seemed to be necessary parties. This determination led to the amendment of the bill. In that amendment, among other things, it was alleged that the interest of Joseph S. Plum in the estate of Joseph Plum had been assigned to Oliver I, Blackwell. The defendant Smith then answered the bill as-amended, and met the allegation of the assignnent to Blackwell with the parts of the answer now asked to be stricken out.

It is apparent, if his interest under'the mortgage merged in his estate in fee in the mortgaged lands at the time the mortgaged premises were, conveyed to him, and he remained owner of the fee until the recovery of the judgment, that the judgment became a lien upon his whole equity of redemption, made up of both the estate conveyed to him by Bateman and the equitable estate under the mortgage which merged in it. It appears to me that the question of merger is properly in the case. Whether or not there was a merger can only be determined at the final hearing upon the proofs establishing intention and equities. The allegations now objected to charge merger in general terms. I think that they must stand.

The motion will be denied, with costs.


text:
    William S. Van Horn v. William H. Clark, Michael C. Clark and David Ryman.
    [Filed April 29th, 1898.]
    1. B. purchased land from W. and erected thereon a dwelling, and after-wards, under parol agreement with W., entered upon remaining lands of W. and laid therein iron pipes from a spring of water thereon to his own land and a hotel property of W. The parol agreement was to the effect that the aqueduct thus made should be the joint property of B. and W. and their heirs and assigns, and that the spring of water should be and remain for the use and under the control of B. and W. and their heirs and assigns forever.- — Held, that B„ having expended his time and money in the construction of the aqueduct for the benefit of W. and himself upon faith in the parol agreement, took a license to use the spring and lands of W. in accordance with the agreement, which equity will not permit W. or his heirs or assigns to revoke, and in the enjoyment of which equity will .protect B.
    2. The obvious design of the sealed agreement recited at length below is, in consideration of mutual obligations, to thereafter, by that instrument, subject the land and spring to Moore’s use permanently. It created an easement.
    3. A court of equity will regulate the enjoyment of mutual rights in a common easement.
    On demurrers to bill.

      Mr. George M. Shipman and Mr. Flavel McGee, for the complainant.

      Mr. Henry S. Harris, for the defendants Clark.

      Mr. William H. Morrow, for the defendant Ryman.
   The Chancellor.

The object of the bill is to define the relative rights of the complainant and defendants in a designated spring and the water therefrom, and to secure to the complainant the enjoyment of his right. The case presented by the bill is this : The complainant, Van Horn, in January, 1871, became the-owner in fee, by deed from John Moore, of a dwelling-house property on the northwest side of the public road in the village of Marksboro, in Warren county, adjoining a tavern or hotel property, which now belongs to the defendant William H. Clark, and is controlled and managed by his father, Michael C. Clark. Prior to the ownership by Moore, the complainant’s property belonged to one James Blair, who had purchased it from Abram and Isaac Wild-rick. In January, 1866, while Blair was the owner of the property, the Wildricks were the owners of the tavern property and also of other land, upon which, about a mile away, there existed, and yet exists, a spring of running water. At that date Blair entered into a verbal agreement with the Wildricks, under which he was permitted to go upon the lands of the Wildricks, “ and,” in the language of the bill,

“lay under the ground of the lands of the said Abram and Isaac Wildrick an aqueduct of iron pipes, from a spring of water on the lands of the said Abram and Isaac Wildrick and over and across and through their lands, for the purpose of bringing water to the said village of Marksboro, immediately in front of and into and upon the lands of the said James Blair and into his dwelling-house and other buildings upon the lot of land above described, for the use and convenience of the said property, and into and upon certain lands of the said Abram and Isaac Wildrick in the said village of Marksboro, upon which there was an hotel and other buildings, for the use and convenience of said hotel property, and that the said aqueduct should be the joint property of the said James Blair and Abram and Isaac Wildrick and their several heirs and assigns, and that the said spring of water should be and remain for the use of and under the control of both parties and their heirs and assigns forever, and that each party and their heirs and assigns should have the privilege of entering upon the lands of the other along the line of said aqueduct of iron j pipe for the purpose of repairing the same, and that they should be joint owners thereof and also of said spring, and should have the privilege of entering upon the lands of each other for the purpose of repairing said aqueduct, when repairs should be necessary, doing no unnecessary damage to the lands."

Blair conveyed to Moore, with privilege and right of use of the water of the spring. In October, 1866, Moore entered into a written agreement, under seal, acknowledged and recorded, with the Wildricks, in which it was expressed,” again using the lauguage of the bill,

“that whereas, some years before the date thereof, the party of the first part, Abram and Isaac "Wildrick, by verbal agreement with James Blair, who resided and owned a lot of land in the village of Marksboro, on which there was a dwelling-house, storehouse, barn, wagon-house and other outbuildings, situate in the northwest side of the public road leading from the Marksboro hotel to the village of Paulina, which lot of land was purchased by the said James Blair of the said party of the first part — they, the parties of the first part, also owned lands in the village of Marksboro, on which there was a large tavern-house and shed and other outbuildings, and are adjoining the Blair lot — and that by said agreement the said Wildricks and James Blair proceeded to lay an aqueduct of iron pipes, from a spring of water on lands of the parties of the first part through lands of said parties of the first part, for the purpose of bringing the water from the spring to the village of Marksboro, immediately in front of and into the buildings belonging to the parties, the parties of the first part being at half the expense and the said James Blair the half, the said aqueduct to remain the joint property of the said parties and their several heirs and assigns; each party, their heirs or assigns to have the privilege of entering on said lands for the purpose of repairing said aqueduct, when repairs are necessary, doing no unnecessary damage to the lands; each party or their assigns to be at half the expense of all necessary repairs to the spring and main pipes ; also, each party, their heirs and assigns shall have the right and privilege to insert a pipe or pipes into the main pipe, of not mox-e than tlxree-fourths of an inch bore, for the purpose of supplying their own lands axxd buildings with water.
“And whereas the said John Moore, party of the second part, was then the owner of the Blair lot refei'red to in the said agreement, the said James Blair having conveyed the same to the said John Moore by deed bearing date the 22d day of Max’ch, 1866, also all the said Blair’s rights, title and interest in the said aqueduct and water works, it was agreed by and between the parties to the said agreement that the said spring, aqueduct and water works should remain under the control of the said parties, with the same rights and privileges as the said James Blair had at the time he conveyed the said property to the said John Moore.”

When Moore sold to Van Horn, in 1871, he, by writing under seal, assigned to Van Horn all his right, title and interest under the agreement just mentioned. Prior to 1889 the main pipe from the spring was two inches in diameter, and was tapped by a pipe three-quarters of an inch in diameter through which water continually ran into a large receptacle in front of the hotel, and also by a pipe of similar size which carried water to the property of the complainant. In-1889 new pipes were laid by the complainant, the then owner of the spring and hotel property, George B. Swain, and one Nelson Budd, at their joint expense, and the tap to the tavern property was then increased to a pipe one inch in diameter. Before such renewal of pipes the complainant and the owner of the spring and tavern properties joined in selling a right to Nelson Budd to tap the main pipe and take water for his house.- After the renewal of the pipes the complainant increased his use of the water by carrying it into his house to bath-tubs and a steam-heating apparatus, and also by taking it to his barn and sprinkling his lawn. In April, 1894, William H. Clark became the owner of the spring and hotel properties by deed, which provided that the conveyance was “subject to the rights to the use of the spring and the pipe leading therefrom, now owned by William Van Horn.” Knowing the relation of Van Horn to the aqueduct and the spring, Clark rebuilt the old tavern into a three-story hotel and put water in it, also built a large barn capable of accommodating fifty horses, and, without Van Horn’s consent, replaced the water tap from the main aqueduct-pipe to his house with a pipe ■one and one-half inches in diameter, and tapped the main aqueduct with another pipe to his barn half an inch in diameter, and about the same time gave the defendant David Ryman, for a pecuniary consideration paid to him alone, permission to tap the main aqueduct for a supply of water to Ryman’s house. The defendant William H. Clark threatens to tap again for a water-supply to still another house. The complainant’s water-supply has been greatly diminished in consequence of the large draughts -upon the aqueduct and spring.

The defendants contend that the written agreement of 1866 was not intended to confer upon Moore other right than Blair had when he conveyed to Moore, and that such right was a mere revokable license. If the first part of this proposition be true, which I do not agree as will presently be again stated, was the right of Blair a mere revokable license ?

Blair acted under a verbal agreement with the Wildricks, which did not contemplate any further grants or assurance of title, and could not at law operate as a grant of the easement. Such a grant could be expressly had by instrument under seal only. Lawrence v. Springer, 4 Dick. Ch. Rep. 289. The parol agreement did not confer an estate in lands. It was a license, so far as the use of the spring and lands of the Wildricks was concerned. Chief-Justice Vaughan said, in Thomas v. Sorrell, Vaugh. 351: “A license properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful which without it had been unlawful.” But, upon the faith of the license, Blair entered upon the land of the Wild-ricks and there gave his attention and expended his money in the construction of the aqueduct for the benefit of the Wildricks and himself. The license was, in terms, perpetual and explicit. It contemplated its continuance so long as the water of the spring should be needed by the properties of the parties to it. It tendered a continued supply of water and thereby induced the expenditure of Blair’s money and time. After the aqueduct was built, I think that the revocation of the license prior to the termination of its use to the lands of the licensee would work a fraud upon the licensee, and therefore that equity will, by injunction, prevent a revocation and restrain interference with the enjoyment of the license. Pom. Spec. Perf. § 132; Raritan Water Power Co. v. Veghte, 4 C. E. Gr. 152; S. C. on appeal, 6 C. E. Gr. 463; Morton Brewing Co. v. Morton, 2 Dick. Ch. Rep. 158; Jones Easem. § 861; Cronkhite v. Cronkhite, 94 N. Y. 323.

I do not find that the views expressed by Chief-Justice Beasley, in Lawrence v. Springer, supra, militate against the correctness of this conclusion. There the proposition disapproved was that a parol license without any consideration moving to the licensor, operating as part of an easement, is irrevocable in equity where the licensee has gone to expenditures in the erection of structures on his own land in pursuance of such authority. The chief-justice deprecated that which he deems to be a relaxation of the statutes of frauds beyond the “ ancient decisions in the English chancery.” Within relaxation admissible, however, he places a parol agreement for the purchase of lands or some interest in them, which has been performed to the extent of possession having been taken in part execution of it, and he illustrates, as being within the principle of that relaxation, this formula: When A permits B to build! a house upon his land, the situation almost necessarily implies the existence of some contract, which is thus partly performed between them. To some extent, therefore, such a matter does not rest absolutely in parol, and the ,area of possibie fraud or perjury is therefore circumscribed and hindered. But when B, from his own land, turns his water into the drains on the land of A, the situation does not imply a contract.”

He expressly approves of Raritan Water Power Co. v. Veghte as having been rightly decided, and he passes without disapproval the case of Duke of Devonshire v. Elgin, 14 Beav. 530, 20 L. J. (N. S.) 495, where the answer admitted that there-was a parol agreement to allow a water-course to be made through the defendant’s land in consideration of the payment of a reasonable sum, and as the only disagreement was as to the terms of the contract with respect to the consideration, the master of the rolls decreed that the complainants were entitled to the free use and enjoyment of the water-course in Elgin’s lands, and, by injunction, restrained interference with it, making reference to a master to ascertain the compensation to be paid Elgin.

The case considered is stronger than the Elgin case, for, upon demurrer, the fact of the parol agreement and its terms, and that the stipulated consideration was given, are all admitted as stated in the bill.

I think that, in equity, Blair had not only the right of property in the aqueduct which he had joined in constructing, but also had permission or license to take from the spring a supply of water for his dwelling through the aqueduct, which permission or license equity would not permit to be revoked, and which, in consequence of that protection in equity, gave an interest quite as beneficial as an easement.

But, as I have said, I do not agree that the written and sealed agreement of October, 1866, between Moore and the Wildricks, was not intended to confer upon Moore other claim or right than Blair actually had when he conveyed to Moore. The agreement was evidently intended to both permanently regulate the maintenance and use of the aqueduct and spring and to confirm, by solemn covenant under seal, the right contemplated as Blair’s in the recitals of the covenant. The agreement first recited, the situation, use and ownership of the properties of Blair and the Wildricks — the fact that Blair had purchased his property from the Wildricks, the fact that Blair and the Wildricks had constructed the aqueduct at their joint expense, under verbal agreement (1) that the “aqueduct” should remain in the joint property of them and their heirs and assigns; (2) that each and their heirs and assigns might enter upon the lands upon which it was constructed to make necessary repairs to it; (3) that each and their assigns should bear half the expense of repairs to the “ spring and main pipes,” and (4) that each and their heirs and assigns should have the right and privilege to insert a pipe or pipes into the main pipe of not more than three-fourths inch bore, for the purpose of supplying their own lands and buildings with water — then, that Moore had become the owner of the Blair lot and of Blair’s right, title and interest in the aqueduct and water works, and terminated with an agreement that the spring,-aqueduct and water works should remain under the control of Moore and the Wildricks, with the same rights and privileges as Blair had when he conveyed to Moore.

The obvious design was, in consideration of mutual obligations, to thereafter by that instrument subject the spring and lands to Moore’s use as the parol agreement recited designed that they should be subjected to the use of Blair, and as the design of the parol agreement was to make that use permanent, the sealed covenant or deed did the same. Such a covenant appears to be all that is necessary to create an easement in the land. 2 Washb. Real Prop. 317.

It would seem, then, that both at equity and in law Moore had a right to be recognized and protected which was appurtenant to-his land at least as long as the necessity for its use remained, which passed to the complainant, "Van Horn, if not by the deed of conveyance of his land, by the express assignment thereof which was given at the time of the delivery of the deed.

The.complaint is that William H. Clark has tapped the aqueduct with two pipes, one of which is double the three-quarters of .an inch in diameter which the covenant allows; that he threatens ¡to tap it with an additional pipe; that he has permitted the defendant Ryman to tap the aqueduct and to give away water, and that Ryman, availing himself of that permission, has tapped the aqueduct and is giving away water. All of which use, causing constant diminution and sometimes stoppage of the water-supply to the complainant, does him irreparable injury.

It appears to me to be plain that the only adequate remedy is the regulation of the use of the aqueduct and spring between the complainant and the defendants. Regulation of the enjoyment of mutual rights in a common easement is within the cognizance of a court of [equity. Delaware, Lackawanna and Western Railroad Co. v. Erie Railroad Co., 6 C. E. Gr. 298; Lehigh Valley Railroad Co. v. Society, &c., 3 Stew. Eq. 145, 161; National Docks Railway Co. v. Central Railroad Company of New Jersey, 5 Stew. Eq. 767; National Docks, &c., Railway Co. v. United Companies, 24 Vr. 217; Same v. Pennsylvania Railroad Co., 9 Dick. Ch. Rep. 13. In the first of these cases the late Chief-Justice Beasley, sitting for the chancellor as master, said : “ They are tenants in common of an easement, and if this court cannot protect the one against the injustice of the other, the party whose rights are invaded is clearly without any adequate remedy, for it is certain that either of these companies, thus situated, can so act with respect to the common easement as to render it worthless to the other, and thus bring upon the latter incalculable mischief. The general cognizance of equity in cases of this kind, where property is enjoyed in common, will not, it is presumed, be disputed by anyone, and I can perceive no reason why this power should not exist where two railroads are such tenants in common as well as in other cases.”

Neither the admitted allegations of the bill nor the provisions-of the covenant and agreement on this subject are involved in obscurity. I perceive no reason why the agreement may not beat once enforced by this court.

The defendant Ryman is taking water in virtue of the right of Clark so far as that right may extend. It does not appear' that he takes more water than Clark was entitled to take from the aqueduct, and hence it is not shown that he evicts the complainant from his right so that the complainant may maintain-an action at law against him.

I think that, because of his right had from Clark, he is a proper party to this suit. In regulating the use of the water,, his claim of right, whatever it may be, may be taken into consideration, and dealt with in the regulation of enjoyment of the' common right.

I will overrule the demurrers, with costs.


text:
    Garetta T. Bishop v. Maria F. Waldron et al.
    [Filed May 16th, 1898.]
    1. Under rule 209 of the court of chancery, requiring a demurrer to specify the grounds upon which it rests, a demurrer to the bill in this case, on the ground that the bill does not present a case sufficient for answer or relief, is insufficient.
    2. Under the statute (Gen. Stat. p. 3486) it is not the duty of the complainant to set out the claims of the defendants in the bill. The statement of the-defendants’ claims is a matter for the answer.
    On demurrer to bill to quiet title under the statute.

      Mr. Willard P. Voorhees, for the complainant.

      Mr. John S. Voorhees, for the demurrant.
   The Chancellor.

This suit is brought under the act entitled “An act to compel the determination of claims to real estate in certain cases and to quiet the title to the same ” and its supplements. Gen. Stat. p. 3486. The bill, among other things, alleges that in 1879 the complainant purchased a large tract of land in the city of New Brunswick which, in 1886, she caused to be mapped into twenty-eight building plots, delineating on the map a street through the tract called Bishop Place; that thereafter she proceeded to sell the plots and, between October, 1886, and March, 1892, conveyed away nine of them to seven different purchasers, all except the first sold being conveyed under covenant on the part of the grantee that the use of the land purchased should be permanently restricted by specified limitations as to the character and location of buildings to be erected thereon and by the prohibition of nuisances and specified businesses thereon ; that several of the grantees of the plots have since conveyed their holdings; that the present owners of the plots, who are made the defendants, deny and dispute the complainant’s title and claim to have some title, interest or easement in or encumbrance upon the plots remaining unsold, which are described, and dispute the complainant’s right to convey the title to the said residue free and clear from all liens, encumbrances, easements, restrictions and conditions therein; that the complainant has an opportunity to sell the plots remaining unsold but cannot do so because of the claim indicated; that she is in peaceable possession of the remaining plots, claiming to own the same, and that no suit is pending to enforce or test the defendants’ title, claim, encumbrance, easement, restriction or condition, the same being utterly without foundation.

The facts recited go to show a connection of the defendants with the tract of land mapped and partially sold by the complainant, but the bill does not specify the title, interest or encumbrance claimed by the defendants. On the contrary, it calls-upon the defendants to answer and set forth the same, that the validity thereof may be determined.

The defendant Maria F. Waldron, who is the owner of one of the plots sold subject to the restrictive covenant, demurs to the bill as not presenting a case sufficient for answer or relief. The demurrer fails to specify the particular grounds upon which-it rests.

• Upon the argument the grounds relied upon by the demurrant were — -first, that the bill does not allege that the complainant cannot attack the claim of the defendants by suit at law, and second, that its allegations show that the defendants have a valid and enforceable interest in the unsold plots owned by the complainant.

The demurrer is objectionable under the two hundred and ninth rule, which requires that the particular grounds upon which it rests shall be specified. Essex Paper Co. v. Greacen, 18 Stew. Eq. 504; Van Houten v. Van Winkle, 1 Dick. Ch. Rep. 385. If motion had been made to strike it out, the motion would have prevailed, for, as has been seen, the grounds taken at the argument could have been distinctly stated in the demurrer in intelligible propositions.

Passing to the grounds relied upon at the argument to sustain the demurrer, I think that an examination of the statute shows them to be not well taken. In the case of Ludington v. City of Elizabeth, 5 Stew. Eq. 159, Chancellor Runyon ruled that it is not necessary, in a bill under the statute considered, to-set out the defendant’s claim. He said í The complainant is not required to state the claim made by the defendant which is the object of the suit to silence or extinguish. It might be impossible to do so.”

The statute’s requirement is that the bill shall describe the land, name the claimant or person reputed to have title, interest or encumbrance, and call upon him to set forth and specify his title, claim or encumbrance, and how and by what instrument' the same is derived or created. The object is to make available a proceeding to one in peaceable possession of land, without ordinary remedy against those who cloud his title thereto by reputed or actual denial of that title, or by assertion of hostile interest in or encumbrance upon the land, there being no suit pending to test the adverse claim whereby, in the language of the statute, he may “ settle the title of said lands and * * * clear up all doubts and disputes concerning the same.” It is commenced by bill which alleges jurisdictional facts to bring the case within the statute, and demands that the defendant set forth and specify his title, claim or encumbrance, if any he has. If the defendant shall answer making claim, it is required that he shall take the affirmative, and in his answer specify and set forth the estate, interest or encumbrance he claims, and the sources through which the same is claimed to be derived. In short, it is intended, to set doubt and uncertainty at rest, that the bill shall challenge the assertion of a definite claim or definite claims which may become subject-matter for the court’s action, upon penalty, if the challenge be not accepted by the assertion of the claim by answer, of a decree, without proof, that the defendant has no estate or interest in or encumbrance upon the lands described in the bill or any part of them.

But more than this, the proceeding is not restricted to the settlement of a single possible claim that may be suggested by the bill. It extends to the complete settlement of every claim that the defendants called upon to answer may have. Southmayd v. City of Elizabeth, 2 Stew. Eq. 203.

The scheme of the statute is predicated in a degree upon the complainant’s possible lack of knowledge of the defendants’ claims, and therefore it cannot be construed to require any allegation which cannot be made without such knowledge, to wit, an allegation that the defendants’ unknown or imperfectly-known claim cannot be attacked at law.

That the bill need not make such an allegation is clearly distinguishable from the construction put upon the statute that the proceeding is not available when, after answer, it shall appear that it was not or is not beyond the complainant’s power to put the hostile claim to rest by one of the ordinary processes of the law. Jersey City v. Lembeck, 4 Stew. Eq. 255, 272; Albro v. Dayton, 5 Dick. Ch. Rep. 574.

To the second ground of demurrer it is sufficient to answer that the complainant’s indication of a single claim, even if it should be in terms that may show it to be valid, where the relief he asks, as in this case, is not against that claim, according to his statement of it, or against it alone, does not dispense with the necessity for answer. The complainant is entitled to have the defendant declare if he has such a claim or any other claim or claims, and to draw the defendant’s own statement of the claim or claims he may have. The suit may be used, as in this case, to clear up not one only, but all doubts and disputes concerning the title to the lands between the parties to the suit. Under the frame of the present bill the matter of the validity of claims is not drawn in question until the answer shall state the claims.

The demurrer will, be overruled, with costs.


author: Pitney, V. C.

text:
    William Stevens v. Kate Stevens, otherwise Kate Watt.
    Where it appears that the parties lived together as man and wife for several years, were known as such, acknowledged the relation by their daily actions and by express declarations to all persons with whom they came in contact ; that both were competent to contract marriage; that the cohabitation was connubial from the start, and that the result of it was a child, yet living, the marriage contract will be presumed, though there is a denial of a ceremonial marriage, it appearing that both parties are financially interested in avoiding the contract.
    Heard on pleadings and proofs.

      Mr. William P. Douglass, for the complainant.

      Mr. Godfrey B. Mattheus, for the defendant.
   Pitney, V. C.

The object of the bill is to obtain a decree of nullity of a marriage ceremony performed between the parties on the 10th of February, 1889. The ground relied upon for such decree is that at the time of the marriage, the defendant, Kate Stevens, was the wife of one James Watt, and that he was and is still living

The undisputed facts in the case are that James Watt and the defendant lived together as man and wife for several years in Jersey City, were known as such, and acknowledged the relation by their daily actions, and by express declarations to all persons with whom they came in contact; that the result of such cohabitation was one child, born May 13th, 1881, named Harvey Watt, still living, and acknowledged by James Watt to be his son.

The physician who attended the defendant on the occasion of the birth of this child, made a report to the board of health and vital statistics of Hudson county that the child was born on the 13th of May, 1881, that its mother was Kate Watt, whose maiden name was Evans, and the father was James Watt. Some time about the year 1886 they quarreled and separated, the defendant still going by the name of Mrs. Watt, and James Watt taking the son and providing for him.

Some time in the year 1888, the complainant, then a young widower, met the defendant. She was introduced to him as Mrs. Watt. According' to his story — and .1 think that in this respect he is reliable — she told him that she had been married to James Watt, but that she had been divorced from him, and that her divorce papers were in her sister’s custody, and, believing that, he went through a ceremony of marriage with her on the 10th of February, 1889, before Joseph Wilkinson, a justice of the peace of the county of Hudson, since deceased. The complainant swears that Wilkinson asked each of them the usual questions, and that the defendant stated that she was the divorced wife of one Watt. The original marriage certificate signed by the justice was produced before the master from the files at Trenton, and on the back of it was a certificate, signed by the complainant and the defendant in their own handwriting, to the effect that,

We, the parties named in the within certificate, hereby certify that the information herein given by each of us is correct to the best of our knowledge and belief.”

The certificate itself is in the usual printed form for marriage returns, furnished by the state bureau of vital statistics, with blanks to be filled in by the officer who performed the ceremony. I give so much as relates to the bride in full, as follows, the written parts being in italics :

“ 1. Pull maiden name of wife, Kate Evans, country of birth, Pennsylvania.
“2. Place of residence 151 Van Horn St., Jersey City, H. J.
“3. Age, nearest birthday 30.
“4. Last name if a widow [a pen line through the printed words “a widow”] Divorced Watt. Number of bride’s marriage second.
“5. Name of father Harvey Phans. Country of birth Pa.
6. Maiden name of mother Elenor Sineox. Country of birth, Pa.”

Defendant hardly denies that she gave this information to the justice. She does not deny that it is accurate in all respects-except as to her being divorced and the marriage being a second one, and the evidence discloses no means by which the justice-could have obtained the information as to her pedigree except from her in person.

One of the witnesses to the marriage swears that she heard the justice ask the defendant whether she was a widow or divorced, and that she said she was neitherand the defendant swears to the same thing, but .she is unable to account for the details of information contained in the certificate being given to-the justice except by herself. And the witness is shown by her cross-examination not to be reliable.

It is suggested that this assertion of a prior marriage and divorce was a mere ruse, resorted to for the purpose of satisfying the curiosity of the justice, who had heard the defendant called “Mrs. Watt.”- I think this explanation unsatisfactory. In fact, it does not appear clearly that the justice had observed that she had been called “Mrs. Watt.” He had no previous acquaintance with her; was simply called in to perform this ceremony; and if it did happen that he heard her called “Mrs. Watt,” I think that circumstance could have been explained more easily than to have resorted to the cumbrous fiction of a prior marriage and divorce.

Complainant swears that after they had lived together for about six years they quarreled and separated, and that he entered into an agreement to pay her $15 a month for her support; that shortly before filing the bill, he ascertained that she. had never been divorced from Mr. Watt, and declined to pay anv further alimony.

The defendant and James Watt both swear that they never were divorced, but they further swear that there never was any marriage ceremony between them. His language on direct examination is this: “I was never married to her; never signed any contract that she and I should live together as wife and husband.” He further swears:

“She was known as Mrs. Watt all the time we lived in Jersey City. They always took her for such. She was addressed as Mrs Watt by people in my presence. I never objected against it. I know people took her for my wife and me for her husband. Neither of us objected as I know of. When I say I was never married to her I mean that no marriage ceremony was ever celebrated between us.”

The defendant, called in her own behalf, denies the marriage in these words: “I was never married to Mr. Watt.” She does not deny that there was a contract of marriage between them unaccompanied by the sanction of a magistrate or clergyman.

With regard to the state of the law in New Jersey in respect to what are called common-law or non-ceremonióus marriages, I refer to the following cases:

Pearson v. Howey, 6 Halst. 12, a common-law action of dower, in which the question was whether the demandant was lawfully married to the decedent. The marriage ceremony was actually performed by a justice of the peace outside of the county for which he was commissioned, and the question was as to the legality of such a marriage. The three judges — Chief-Justice Ewing, Justice Ford and Justice Drake — concurred in holding that the justice might perform the ceremony in any county. Justice Ford went farther and said: “The parties joined together were not related within any prohibited degree, nor under any disability for want of age or understanding; they were free, able and willing as it respected themselves, and they contracted marriage before him [the justice of the peace] in words of the present tense, taking each other as husband and wife. I consider it to have been long and fully settled at law that such is a valid marriage, even if William Harrison, Esq., had not been a justice of the peace. It is a maxim in the common law, as ancient as the law itself, that consensus, ■non concubitus, facit nuptias. It is the contract that makes the marriage. Such also has ever been the law or maxim of the church, in all ages, as well as the common law.” He then cites various old English authorities in support of his position and says: “ The common law requires nothing more of parties who are under no legal disability than proof of a contract, made in words of the present time, as, we take each other now ; not that we will, at a future time, take each other, for this amounts to no more than an engagement which may never be fulfilled.” He then holds that the statute which authorizes certain persons to perform the marriage ceremony is not restrictive and does not alter the common law in this respect.

In Voorhees v. Voorhees, 1 Dick. Ch. Rep. 411 (at p. 413), Vice-Chancellor Van Fleet says: “Two essentials of a valid marriage are capacity and consent.” And on p. 414 he says: “ Marriage is a civil contract and no ceremonial is indispensably requisite to its creation. A contract of marriage made per verba de prcesenti amounts to an actual marriage and is valid,” quoting O’Gara v. Eisenlohr, 38 N. Y. 296.

The same rule prevails in Pennsylvania. Richard v. Brehm, 73 Pa. St. 140.

Smith v. Smith, 23 Vr. 207, was also an action of dower, and the question was whether the demandant was lawfully married to the decedent. The demandant became acquainted with the decedent in Vermont, and when they proposed to get married suddenly in Vermont they met with some statutory difficulties, and decided to go to Massachusetts to be married, and for that purpose proceeded to a hotel in Charlestown. From there the demandant was conducted by the decedent to a house and introduced to a- gentleman whom the decedent said was a minister, and the ceremony was there performed. There was no proof whatever that he was a clergyman, but the demandant believed him to be such. The statute of Massachusetts validated such a marriage, even though the man was not a clergyman. Justice Scudder, speaking for the court of errors and appeals, said: “ There is nothing in our law or in any statute of this state which would make such a marriage as this invalid if performed here, and there is no reason why it should not be here recognized as entitling the demandant to dower in her deceased husband’s land.” There was in that case, as is well known, a second marriage by Smith, the husband, while his first wife, the demandant, was living.

Upon the probative value of cohabitation with what is called matrimonial habit and repute, I cite as follows:

The case of East Windsor v. Montgomery, 4 Halst. 39, was a contest between two townships under the Poor laws, and the question was whether a certain pauper had gained a settlement by marriage. There was an actual marriage proven, but the allegation was that the husband, John Robeson, had a wife living in Ireland when he married the pauper. There was no direct proof of the previous marriage, but it was proven by the daughter of Robeson that he lived with her mother in Ireland as husband and wife; that they were esteemed, reputed and believed by their neighbors, acquaintances, relations and friends as lawful husband and wife, and as such visited and received by them,” and that her father did always and upon all occasions acknowledge and declare her mother to be his wife, and that they must have lived together eight or nine years before her father left Ireland. It was held by the supreme court that the evidence of cohabitation with matrimonial habit and repute was sufficient to establish a prior marriage. This result was reversed on appeal by the old court of errors and appeals, but on what ground does not appear.

In Wilson v. Hill, 2 Beas. 143, there was one husband and two wives, Frances and Catharine. Frances claimed to have been married to the husband in 1839 in Massachusetts. Catharine was married to him many years later in New Jersey. The fact of the marriage with Frances was not proven, either by any record or by the testimony of any witness present at the ceremony, but it was proven by numerous and unimpeached witnesses that the parties — Frances and thq husband — lived together, cohabiting as, and were reputed to be, man and wife for many years previous to the date of this transaction; that during such cohabitation she had two children, which were recognized by the husband as his; that in the year 1847, while the husband and Frauces were so living together, a deed was executed to her of a tract of land, which contained this clause: “ Which tract or parcel of land is conveyed to the said Frances Hill, wife of Josiah, and to her heirs and assigns forever,” &c. The husband frequently joined with Frances in deeds of conveyance of property, and united with her in the acknowledgment of these instruments as husband and wife. When her husband, however, was arrested for bigamy, and complaint was made before the grand jury, Frances went before the grand jury and swore that she had never been married to him; that she was not his wife; that the connection between them was a partnership, and she then had abandoned the use of his name. Nevertheless, Chancellor Green held that she was his lawful wife, with all its consequences.

In Fenton v. Reed, 4 Johns. 52, the question was as to whether or not a certain Mrs. Reed was the widow of William Reed. She was the wife of one Guest, who abandoned her in 1785, and seven years afterwards, she believing Guest to be dead, married Reed. Guest returned to New York after this second marriage, but never interfered with the relations between his wife and Reed, aud died in' 1800. After that she continued to live with Reed until his death in 1806. The supreme court held that the court below was justified on the evidence in inferring a common-law marriage with Reed after the death of Guest in 1800.

The same principle was conceded in Wallace’s Case, 4 Dick. Ch. Rep. 534, 535, but it was shown there that the commencement of the sexual intercourse was meretricious, and the subsequent cohabitation as man and wife was very slight and supported by insufficient evidence, and so'a marriage was not presumed.

This same principle was applied in Chamberlain v. Chamberlain, 71 N. Y. 423, where the presumption of marriage, from cohabitation as man and wife, was overcome by the circumstances of the particular case.

Clayton v. Wardell, 4 Comst. 230, was this: A man was arrested, under the Bastardy act, as the putative father of a child with which a woman was pregnant, and entered into recognizances to answer the charge, and no further proceedings were had. There had been no previous matrimonial habit and repute. He then at once went to live with the female as her husband, and continued to do so until some time after the child was born and died, when he separated from her, and they entered into the usual articles of separation between husband and wife, in which they spoke of each other as husband and wife, and in which a third person indemnified the husband against any claim of the wife. Shortly after this the woman went through the ceremony of marriage and lived for years with another man as his wife, and had one child, and the question was as to the legitimacy of this child, the offspring of the first connection being dead. The surrogate before whom, as judge, the question first came, held that the first marriage was established. His decision was reversed by the supreme court, and such reversal was sustained, on appeal, by the opinions of Justices Harris, Ruggles, Hurl-but, Taylor and Pratt, against Chief-Justice Bronson and Justices Jewett and Gardiner. There was no proof of any formal marriage between the man and the alleged first wife, and the decision of the majority of the court was arrived at upon the ground that the intercourse between the parties was in its'commencement meretricious, and there was perhaps as much reason to believe that their subsequent connection was of the same character as that a marriage had, in fact, taken place ; and for that they cite the opinion of Lord Eldon, in Cunningham v. Cunningham, 2 Dowl. Pr. C. 482. On the other hand, the opinions of Justice Gardiner, Chief-Justice Bronson and Justice Jewett were that the cohabitation and holding themselves out to everybody as. man and wife, and the entering into the articles of separation as such, were sufficient proof of an actual marriage.

A perusal of the opinions on either side in this case convinces me that the minority were in the right, and I think it probable that their views would have prevailed but for the fact that the effect would have been to bastardize a living issue of a ceremonial marriage.

An interesting case is In the Matter of Taylor, a Lunatic, 9 Paige 611. Taylor married and had four children by a wife who died shortly after the birth of the last child, and a year later took to his bed a housekeeper or servant who had been in his house all the while, lived with her for ten or twelve years and had two or three children by her. There was no proof of a ceremonial marriage, but he introduced her to all his friends as his wife and entered the names of her children in the family register. In 1816 Taylor went to England and left his family in New York, and while there this second wife or mistress, whichever she was, wrote him a letter, which was produced in evidence, in which was an admission on her part that there had been no ceremonial marriage between them, and he himself also made the same statement in writing on his return. It was held by Chancellor Walworth that the living in matrimonial habit and repute with the second woman for so many years and having children by her was sufficient to enable the court to presume a common-law marriage between them, and that this view could not be overcome by the admissions of Mr. and Mrs. Taylor, made subsequently, and therefore not a part of the res gestae; and he declared the issue of the second connection to be legitimate.

It is impossible not to discover in all these cases a disposition on the part of the court to hold in favor of the marriage where there is issue which may be bastardized by a contrary ruling.

And the same is to be said of the much-debated cases of Campbell v. Campbell, L. R. 1 H. L. Cas. (Sc. App. 1867) 182 Breadalbane Case), and De Thoren v. Attorney-General, L. R. 1 App. Cas. (1876) 686, referred to by Justice Garrison in his dissenting opinion in Collins v. Voorhees, 2 Dick. Ch. Rep. 315, on appeal from Voorhees v. Voorhees, 1 Dick. Ch. Rep. 411.

In the English cases just cited the intercourse between the parties had an unlawful beginning. At its inception one of the parties in each case was incapacitated to marry by reason of preconnubial contract, not dissolved by death or divorce, and in each the connubial intercourse continued after the impediment was removed. In the “Breadalbane” Case the incapacity was known to both of the parties. In the case of De Thoren v. Attorney-General it was unknown to both the parties. The house of lords held that the unlawful inception, under the peculiar circumstances of those cases, did not prevent the prevalence of the presumption, arising from the continued matrimonial habit and repute, that a marriage contract was actually made after the removal of the impediment. This court and the court of errors and appeals (2 Dick. Ch. Rep. 555) held the contrary upon the circumstances of the case in Collins v. Voorhees, where one of the parties knew of the impediment and the other did not. In both of our courts, however, the sufficiency of the proof by matrimonial habit and repute, and the validity of a non-ceremonious marriage, was recognized, but the probative proof in that ease was held to be overcome by the circumstance that its origin was shown to be illegal by reason of incapacity of one of the parties, due to pre-contract.

In the case in hand there is nothing to show any want of capacity to contract between Watt and the defendant when they commenced their cohabitation. Both were competent to contract marriage, and, so far as appears, the cohabitation was connubial from the start. There is no proof, as in Clayton v. Wardell, supra, that the connection commenced meretriciously or that legal measures were resorted to by the defendant to compel Mr. Watt to live with and support her, or that she was a woman of loose character, as in Chamberlain v. Chamberlain, supra, and avowedly accepted the position of a mere mistress. In fact, the indications are that the parties here, as in the two cases in the house of lords, were faithful spouses to each other during the entire period of their cohabitation.

If the question here was as to the legitimacy of the issue of this connection, the evidence would be ample and well-nigh conclusive to sustain it, even as against the denial by the parents of a ceremonial marriage. Such was the opinion of Chancellor Walworth, In the Matter of Taylor, supra, and of Chancellor Green in Wilson v. Hill, supra. That denial, however, as I read it and construe it, does not necessarily include a private parol contract of marriage in which they, in substance, said to each other, “ Let us be husband and wife, and live together as such.” And in considering what weight is due here to the denial of marriage, it must be borne in mind that both Watt and the defendant are interested in sustaining the later marriage; the defendant is interested in retaining her separation contract with complainant, and Watt is interested in being relieved of any duty to the defendant. I think the clear weight of the evidence is that there was such a contract. And if there was such a contract, accompanied as it was by actual connubial cohabitation, it is binding on the parties, and cannot be laid aside at their pleasure. They may have supposed that it was not binding, because non-ceremonious, and this supposition may account for their subsequent conduct.

In this connection it must be observed that the well-settled rule is that presumption of marriage in such a case is very strong, and not to be easily overcome. Piers v. Piers, 2 H. L. Cas. (1849) 331; De Thoren v. Attorney-General, L. R. 1 App. Cas. (1876) 686.

Against this view is urged what was said by me in the case of Rooney v. Rooney, 9 Dick. Ch. Rep. 231, namely, that “in a suit for nullity by reason of pre-contract with a living person, strict proof is required of such prior contract.” But whatever was there said on that subject must be construed in connection with the circumstances of that case, namely, that a party who comes into a court of justice and asks for a decree of nullity of marriage and the bastardizing of the issue thereof, by reason of his own pre-contract with a living person, of which he was himself conscious when he entered into the contract, must make such proof clear. If there had been issue of the marriage between the parties to this suit, and the defendant was suing the complainant for a decree of nullity by reason of her pre-contract with "Watt, and the result of the decree was to bastardize issue, then the ruling in the case of Rooney v. Rooney would be more in point. As it is, I do not think it applies.

I will advise a decree for the complainant.