author: Buchanan, V. C.

text:
    Harry Kotok, complainant, v. Frances Rossi et al., defendants.
    [Decided February 27th, 1923.]
    .1. A bill of complaint, setting up a contract as the basis of the cause of action, is not defective in. failing to negative the application of the statute of frauds.
    2. A statement in a bill that an agent was duly authorized by the principal to do certain acts, is sufficient allegation of the fact of such agency, on motion to strike out bill for failure to1 disclose a cause of action.
    3. A bill for specific performance of contract to convey lands need not allege a prior tender of the purchase price, where facts are set up showing that such tender would have been vain.
    4. A bill for specific performance of contract to convey lands is defective both as against vendor and subsequent grantee, where the contract set up in the bill is one made by an agent for a married woman and the bill fails to show -a power of attorney executed and acknowledged by her, and certification of acknowledgment in accordance with the provisions of section 39 of the act concerning conveyances.
    On bill, &c.

      Mr. Thomas G. Tusó, lor the motion. •

      Mr. Franlc Kotoic, contra.

   Buchanan, V. C.

Complainant’s bill is for specific performance of contract of sale of lands, or at least is of a kind usually spoken of as coming within that category. It seeks to compel the conveyance to himself of certain lands comprised in contract of sale between himself as vendee and the defendants Bossi as vendors, the legal title to which lands was subsequently conveyed by the Bossis to the defendants DeFalco.

The DeEalcos move to strike out the bill on the ground that it fails to disclose a cause of action. This motion is therefore equivalent to demurrer under the old practice, and comes under rule 67. The notice of motion contains the following specification of “reasons” why the bill fails to set forth a cause of action:

"1. No sufficient facts are set forth in paragraph 2 of the complaint to justify the conclusion -as a matter of law that John A. Ackley was the authorized agent of the defendants Frances Rossi and Anthony J. Rossi.
“2. Because the agreement mentioned in paragraph 4 of the bill of complaint is neither signed nor acknowledged by any of the defendants or any of the parties to be charged therewith.
"3. Because in paragraph 6 of the complaint it is alleged that ‘Frances Rossi and Anthony J. Rossi, her husband, fraudulently contrived with Anthony DeFalco,’ &c., without setting forth any facts constituting the fraud complained of.
“4. Because while complainant sets forth in paragraph'13 of the complaint that he was ready to execute a bond and mortgage and ready and able to deliver the entire balance of the money in accordance with the said agreement, complaint fails to contain an averment of the tender of the purchase-money, as an averment merely that the complainant was ready and willing to perform all things on his part to be performed and to complete the contract is not sufficient.”

Reasons 1 and 3. These need but slight consideration. Both are, strictly, objections to particular parts of the bill as contravening specific rules or principles as to the method or form of pleading, rather than specifications of omission from the bill, as a whole, of allegations deemed requisite in order for the bill to make out a prima facie case. Since the motion is addressed to the bill as a whole, I shall not deal with these two “reasons” as I should be called upon to do if they had been submitted on motion under rule 53. It may, however, not be amiss to point out that one of the objects of the 1915 chancery rules was to shorten and simplify pleadings'—■ vide rules 44, 1st paragraph; 47, 50, 51, and 53. If the pleader errs by going too far in the direction of brevity, adequate provision for the benefit of his adversary is afforded by rules 45 and 44, last paragraph.

Let us consider these two “reasons,” however, as if they respectively set forth that the allegations of agency and fraud were so defectively and insufficiently pleaded as to.be conclusions of law only; and that hence they must be disregarded and deemed nonexistent as allegations of fact; and that the allegations thus “omitted” are essential to complainant’s cause of action; and that they do not appear elsewhere in the bill—which is probably what counsel had in mind. In the first place—so far at least as concern® reason 1—the proposition that a mere bald statement of authorized agency is so improperly and insufficiently pleaded as to be disregarded as an allegation, on a motion of the kind sub judies, would seem to have been disposed of adversely to defendant’s • contention by Schreiber v. Menningham, 73 N. J. Eq. 134. In that case the question was as to -tender instead of agency, but the principle is obviously the same. An allegation of agency, like an allegation of tender, is one involving both law and fact. In the second place, neither of the particular allegations to which objection is made, is essential to complainant’s cause of action; indeed, the entire paragraph 2 and the entire paragraph 6 could be stricken from the bill without harming it. Paragraph 2 alleges simply the putting up of the property for sale at public vendue. The essential allegation of the contract of sale appears in paragraph 4 and the copy of the agreement therein referred to and made a part thereof. The allegations of fraudulent contriving in paragraph 6 aTe wholly superfluous. All that complainant needs to allege is a verbal contract between the owners and himself, and the. fact that the other defendants now have the legal title to the premises by virtue of the subsequent conveyance from the vendors. His right of action is complete if the subsequent grantees took (as he, in other paragraphs of the bill, alleges they did) without consideration or with notice of his contract (Cranwell v. Clinton Realty Co., 67 N. J. Eq. 540, and cases cited at p. 550); but it is not necessary for him to allege that the subsequent grantees were not purchasers for value without notice. Cf. McVoy v. Baumann, 93 N. J. Eq. 360, S. C. on appeal. Id. 638.

Reason 4. Where time is not of the essence of the contract (and it was not, in this case, so far as appears by the bill), a preliminary tender of the purchase price is not a prerequisite. Schreiber v. Menningham, 73 N. J. Eq. 134. The bill, moreover, does allege that complainant attended at the time and place fixed for the completion of the sale, “ready to perform the contract on his part,” but defendants failed to appear and perform; and further alleges that defendants, prior to the date fixed for consummation, refused to perform, and that prior to the date fixed for consummation they had rendered themselves unable to perform, by conveying to the DePalcos. If an allegation as to tender was requisite, complainant’s pleading thereof might be deemed sufficient on this motion, Cf. Schreiber v. Menningham, supra, but in any event the additional- facts pleaded are amply adequate to excuse tender. Reynolds v. O'Neil, 26 N. J. Eq. 223; Meyer v. Reed, 91 N. J. Eq. 237 (at p. 239). Compare also O'Neill v. Supreme Council, 70 N. J. Law 410; Wolff v. Meyer, 75 N. J. Law 181.

Reason 2. This is the only meritorious contention in support of defendants’ motion—albeit the formulation thereof is inapt. The points thereby intended to be made are (a) that the bill fails to allege or show that the contract of sale was signed by the vendors, and that this omission is fatal, under the statute of frauds; and (b) that the bill fails to set forth that the contract of sale was acknowledged by Mrs. Rossi; who was the owner of the premises and was a feme covert, and that this omission is fatal, under section 39 of the act concerning conveyances.

As to the first proposition (a), complainant argues that the statute of frauds does not limit the requisite signing of the contract to a signing by the vendors (or the “party to be charged therewith”), only; that it is equally efficacious if the contract be signed by “some other person thereunto by him or her lawfully authorized;” that such “lawful authorization” need not be by written instrument, but is sufficient if merely by parol; and that the bill alleges that the contract was made by one Ackley as the duly authorized agent of the vendors.

All this is true. I doubt, however, that it sufficiently appears, either by the bill or by the copy of the written agreement annexed thereto, that the contract was in fact signed by the agent (nor, of course, by the principals). To complainant’s name, at the foot of the copy of the agreement, is prefixed the parenthesized word “(signed),” but not so as to the name of the agent. The bill alleges that Ackley as the vendors’ duly authorized agent “entered into the written agreement” with complainant—but quaere, is that statement equivalent to, or does it import, an allegation that he actually signed it ?

Fortunately the point needs not to be determined upon any such narrow, technical ground. The answer to defendants’ proposition is that it is not necessary for complainant to allege that the bill was signed either by the vendors or by a duly authorized agent. He is not required to negative by his bill the application of the statute of frauds. Ziegener & Lane v. Daeche, 91 N. J. Law 634.

As to the second proposition (b) : In Corby v. Drew, 55 N. J. Eq. 387, it is held that equity cannot specifically enforce against a married woman her contract of sale—in the absence of her acknowledgment to such contract as required by the statute (section 9 of the act as then in force). In Goldstein v. Curtis, 63 N. J. Eq. 454, the converse is decided, namely, that a contract of sale by a married woman is specifically enforceable against her, if it has been duly acknowledged by her, and such acknowledgment duly certified, all in accordance with the provisions of the thirty-ninth section of the act concerning conveyances. In Ten Eyck v. Saville, 64 N. J. Eq. 611, it is determined that a married woman’s unacknowledged contract of sale affords the vendee no right to a decree in equity compelling conveyance to himself from her subsequent grantees with notice. At the time of these decisions the thirty-ninth section of the statute referred to required the married woman’s acknowledgment to be made separate and apart from her husband and to be that her execution and delivery was made freely, and without any fear, threats or compulsion from her husband. The necessity of these features of the acknowledgment was eliminated by the amendment. P. L. 1918 p. 119. Nevertheless an acknowledgment and certificate, of the modified character and form prescribed by -the 1918 amendment, was held by Vice-Chancellor Backes in Chassman v. Wiese, 90 N. J. Eq. 108, still to be essential to a married woman’s contract to sell lands in order to make it specifically enforceable against her. Vice-Chancellor Stevens, who wrote the opinion in Corby v. Drew, supra, and Ten Eyck v. Saville, supra, intimated the possibility of doubt on this point, in Oppenheim v. Oppenheim, 91 N. J. Eq. 160, probably being unaware of the then just recently decided determination in Chassman v. Wiese, supra. The latter was followed by Vice-Chancellor Fielder, and affirmed by the court of errors on his opinion, in Schwabinger v. Saxon, 92 N. J. Eq. 461. It is obvious therefore that the rule in Ten Eyck v. Saville, as well as that in Corby v. Drew is still the law.

In the instant case the married woman did not herself sign or acknowledge the contract of sale. Assuming that it sufficiently appears that it was signed by any one beside vendee (vide supra), it was signed on behalf of herself and her husband by J ohn W. Ackley as their “duly authorized” agent, and it is also alleged that it was acknowledged. By whom it was acknowledged is not alleged—whether by the vendors or one of them, or the agent Ackley, or by the vendee. If the fact of the acknowledgment by the married woman, or her agent, is a necessary allegation in the bill (which will be discussed later), the allegation actually made is insufficient, and nothing appears on the copy of the contract to cure the defect. Let us assume for the present that the acknowledgment was by the agent and was made on behalf of the married woman vendor and himself as her agent. Would that operate to make the contract enforceable in equity against her?

By the act of 1918, supra, the act concerning conveyances, section 39, provides that—

“No estate or interest of a feme coverb in any lands * * * shall hereafter pass by her deed or conveyance” without her acknowledgement and the official’s certification thereof. It also provides that

“every deed or instrument of the nature or description set forth in the twenty-first section of this 'act * * * executed by her (i. e., a feme covert), and so acknowledged and certified as aforesaid, shall be good and effectual to convey or affect the lands * * * or her interest therein, thereby intended to be conveyed or affected.”

The specification in the twenty-first section includes “letters of attorney for any sale, conveyance,” &c.

It would seem probable that under these statutory provisions, a contract of sale executed and acknowledged by the agent of a feme covert .vendor, in her name and on her behalf, should be sufficient to give the vendee a right to specific enforcement of such contract, if the agent had been clothed with the authority so to execute and acknowledge such contract, under and by virtue of a written power of attorney in that behalf, executed by the feme covert and having her acknowledgement and the certification thereof pursuant to the statute. Compare Goldstein v. Curtis, supra (at pp. 460, 461). At any rate let us assume this to be true. Nevertheless I think there can be no doubt that such contract made and acknowledged by the agent under mere parol authority or under any other authority than such written power of attorney, executed and acknowledged by the feme covert and with the requisite certification thereof, would be of no avail whatever to a vendee seeking specific performance. Compare the reasoning in Corby v. Drew, supra (at pp. 392-3), and Ten Eyck v. Saville, supra (at p. 612).

So much for the substantive law. Remains to be considered the application thereof from the standpoint of pleading. It is quite clear that the facts of the married woman’s acknowledgment and the certification thereof (either to the contract of sale itself or at least to a power of attorney for such contract) are essential to the creation of the vendee’s right in equity. Their right does not affect his right at law to recover damages against her for her breach of the contract. Wolff v. Meyer, 75 N. J. Law 181. They are not essentials to the validity of her contract as a contract. But the vendee’s right of action in equity is very different from his right of- action at law. The former rests upon, the validity of the contract, not as a mere contract, but as a conveyance. His right in equity is- upon -the theory that the contract has conveyed to him an equitable title to the land; that the vendor is left with the legal title as trustee for the vendee; and (in such a case as the present) that a subsequent grantee—unless he is a purchaser for value without notice—takes only the legal title and likewise holds it in trust for the vendee. Haughwout v. Murphy, 22 N. J. Eq. 581 (at pp. 546-7). Obviously, then, if a contract is invalid as a conveyance, the vendee has no- equitable title for none was conveyed to him thereby: he has therefore no- cause of action to compel conveyance to him of the legal title, either as against the vendor or a subsequent grantee. Ten Eyck v. Saville, supra (at p. 614). Hence in order for complainant vendee to maintain an action for specific performance he must prove that the contract was valid as a conveyance and did transfer to him the equitable title, and in order to> do so in such a case as the present, he must prove at least a duly acknowledged and certified) power of attorney to make the contract. But how much of this is he required to set forth in his bill ?

In Wilkinson Gaddis Co. v. Van Riper, 63 N. J. Law 394 (at p. 396), the rule is set forth:

“The general rule of pleading is th-at when a statute makes a writing necessary in a common law matter, -where it was not so before, in declaring on that matter, it is not necessary to state that -it is in writing, although it must be proved in evidence; but when the matter is created by statute -and a writing is required, then the pleading must aver the existence of the writing. Brandt S. & G. (ed. 1878), section 77, and cases cited.”

Under that principle, the inquiry in the instant case isi whether or not, prior to the original enactment of the prohibitory provision now comprised in section 39 of the Conveyances act, a married woman’s contract to sell lands, joined in by her husband, but not acknowledged by her, could have been specifically enforced against her. If not, then the right to such specific enforcement rests upon the statutory authorization comprised in the second part of the thirty-ninth section aforesaid, and under the rule above quoted, the bill must allege the requisite acknowledgment and certification. So far as I am aware this question has never been expressly decided. It was left undecided in Goldstein v. Curtis, supra (460-1). It seems to me, however, that it must inferentially be assumed to' have been decided,, although not so stated, in Schwarz v. Regan, 64 N. J. Eq. 139, as the necessary basis for the decision in that case. Bijur & Co. v. Machinists’ Assn., 92 N. J. Eq. 644 (at top of p. 646). Schwarz v. Regan c-ame before this court in precisely the same way as the present case. The bill was to enforce a contract made by a married woman and her husband. It did not appear by the bill that the contract had been acknowledged by her, and this omission was held fatally defective and to require the bill to be struck out.

I think, therefore, that that decision controls the disposition of the present motion, and that complainant’s bill must be struck out because of the failure to show, at the least, a proper power of attorney, acknowledged by the defendant Frances Rossi, and the certification of such acknowledgment.

Complainant may be able to amend, and may have leave so to do within ten days.


source: Caselaw Access Project

author: FlELDEH, Y. C.

license: Public Domain

text:
    Joseph A. Brady, complainant, v. John C. McHugh et al., defendants.
    [Decided January 16th, 1922.]
    3. A wife cannot vary or invalidate the terms of a mortgage signed by her, as against a bona fide holder for value, without notice, by parol evidence that she did not know that the paper she signed was a mortgage, where it is undisputed that 'the mortgagee loaned money to the husband upon the security of a mortgage in fact signed by the husband and wife and where the wife alleges no fraud in the transaction on the part of the mortgagee.
    2. The purpose and effect of P. L. 1916 p. 821, being a supplement and not an amendment to a former act, were merely to eliminate the requirement of a separate acknowledgment by the wife and to substitute therefor an acknowledgment made in the same manner as if she were a feme sole and to leave the remaining provisions of the former act in full force and effect.
    3. A mortgage executed 'by a married woman and her husband is not enforceable against her in equity, as a mortgage, unless it is acknowledged by her in compliance with the statute.
    4. A certificate of acknowledgment of the execution of a mortgage is prima facie evidence of its contents and the burden of proof to show that it is untrue is upon the one disputing its validity.
    5. In this case the evidence held sufficient to show that the certificate of acknowledgment was false and that the wife did not acknowledge the execution of the mortgage.
    6. The rule that where a mortgage given by a married woman is invalid because of a defect in or lack of acknowledgment, it will nevertheless operate in equity as an appointment of the property described in it for the payment of the debt, and equity will decree that the debt be a charge on the property so appointed, does not apply where the debt was not contracted for the benefit of the wife’s separate estate, or for her own use on the credit of that estate.
    On bill to foreclose.

      Mr. Gerald M. F. McLaughlin, for the complainant.

      Mr. Joseph Anderson, Sr., for the defendant Ella D. McHugh.
   FlELDEH, Y. C.

On. November 27th, 1916, John C. McHugh entered into a bond to Mary Curnen conditioned for the payment on the same day of $1,000 with interest at six per cent. He and Ella D. McHugh, his wife, executed their mortgage to Mrs. Curnen, bearing even date with and to secure the paj'ment of said bond, which mortgage covers lands in Jersey City and is'not recorded. At the date of the bond and mortgage said lands were not owned by the mortgagors but were afterwards conveyed to them as tenants by the entirety, by deed from William H. Carey, executor of Anna B. Cowles, dated November 29th, 1916, and recorded the same day. By assignment dated March 1st, 1922, Mary Curnen assigned the bond and mortgage to the complainant, Joseph A. Brady, who, about six weeks later, filed this bill to foreclose the mortgage. The only defendants are John C. McHugh and Ella D. McHugh, and the bill was taken as confessed against the former. Mrs. McHugh has interposed several defences, of which I think it necessary to consider but two—first, that she signed a paper to acknowledge that Mary Curnen had loaned her husband $1,000, but that she did not know that such paper was a mortgage covering her interest in the lands in question, and second, that she did not acknowledge the execution of the mortgage.

.As to the first defence, it is sufficient to say that it is undisputed .that the mortgagee loaned John C. McHugh $1,000 upon the security of his bond and said mortgage, and since Mrs. McHugh admits that her signature on the mortgage produced in court is genuine and she imputes no fraud in the transaction to the mortgagee, and it appears that complainant is a bona fide holder for value, without notice of this defence, parol evidence on the part of said defendant to vary or invalidate the terms of the mortgage she signed, cannot be considered.

As to the second defence, the signatures of the mortgagors appear to have been witnessed by one Anna C. Datz, and the mortgage bears a certificate of acknowledgment dated November 27th, 1916, signed “Anna C. Datz, Notary Public of N. J.,” to which is affixed a notarial seal, which certificate is in the usual form then in use in this state, including a certificate of separate acknowledgment by the wife.

By section 39 of “An act respecting conveyances,” Revision of 1898 (P. L. 1898 p. 685; Comp. Stat. p. 1547), as amended by P. L. 1912 p. 158 (Supp. Comp. Stat. p. 410), it was provided that no estate or interest of a feme covert in any lands in this state should thereafter pass by her deed or conveyance, without a previous acknowledgment made by her, on a private examination apart from her husband, before an officer authorized to take acknowledgments, that she signed, sealed and delivered the same as her voluntary act and deed, freely, without any fear, threats or compulsion of her husband and a certificate thereof written on said deed or conveyance and signed by the officer before whom it was made. The requirement of a separate acknowledgment by the wife was removed by P. L. 1916 p. 321 (approved March 17th, 1916), but in all other respects the statute was in force at the date of the execution of the mortgage in question, and under its provisions the mortgage was not enforceable against Mrs. McHugh if not acknowledged by her (Ten Eyck v. Saville, 64 N. J. Eq. 611) unless P. L. 1916 p. 321, also removed the necessity for acknowledgment by a feme covert as an essential element to the validity of her deed or conveyance. In Oppenheim v. Oppenheim, 91 N. J. Eq. 160, Vice-Chancellor Stevens suggested, without deciding, that because of P. L. 1916 p. 321, perhaps a wife’s title would pass by delivery, just as her husband’s does, without any acknowledgment whatever by the wife. But I do not think that was the intention or effect of the act of 1916. It was a supplement and not an amendment to “An act respecting conveyances, Revision of 1898,” and it expressly repealed only such acts as were inconsistent with it. I think its purpose and effect were merely to eliminate the requirement of a separate acknowledgment by the wife, as provided by section 39 of the Revision of 1898, as amended, and to substitute therefor an , acknowledgment made in the same manner as if she were a feme sole and to leave the remaining provisions of that section, Avhich are not inconsistent with such purpose, in full force and effect. That is undoubtedly the law now. P. L. 1918 p. 119; Schwabinger v. Saxon. 92 N. J. Eq. 461. My conclusion is that an acknowledgment by Mrs. McHugh of the execution of the mortgage in question was essential to the validity of the mortgage and without an acknowledgment by her it is not effectual to pass to the mortgagee- the estate by the entirety Avhich Mrs. McHugh afterward acquired.

The certificate of acknowledgment is prima facie evidence of the due execution of the mortgage, and the burden of proof is on Mrs. McHugh to sIioav that it is untrue. Wells v. Wright, 12 N. J. Law 131; Marsh v. Mitchell, 26 N. J. Eq. 497; affirmed, 27 N. J. Eq. 631; Colonial B. & L. v. Griffin, 85 N. J. Eq. 455. Mrs. McHugh testified that she signed the mortgage at her husband’s request without understanding that it was a mortgage; that no one other than her husband was present at the time; that she never acknowledged execution of the instrument before anyone and that she does not knoAV Anna C. Datz. No Avitness was called by complainant to contradict Mrs. McHugh’s testimony. Neither her husband, Avith Avhom she is not living, nor the notary, was produced, nor was their absence accounted for. The complainant made no attempt to show that the notary’s signature on the. certificate is genuine and not forged, or that such a person as Anna 0. Datz held a valid commission as notary at the date of the certificate of acknowledgment, and all this in the face of the fact that complainant Avas fully apprised by defendant’s answer that one of the defences the latter intended to interpose to the foreclosure of the mortgage was a denial that she executed or acknowledged it. I feel that Mrs. McHugh has sustained the burden in this respect, and that on the eAddence before me I must hold that she did not acknowledge the execution of the mortgage, ■ and because she did not, her estate or interest in the lands in question did not pass by the mortgage.

Notwithstanding that as to Mrs. McHugh the mortgage is invalid as a mortgage or specific lien, the complainant contends that this court should declare and enforce a lien against her separate estate for the debt intended to be secured by the mortgage. This is on the authority of Armstrong v. Ross, 20 N. J. Eq. 109, and a line of decisions in this state following the principle applied in that case, which is that a mortgage given by a feme covert, invalid because of a defect in, or lack of acknowledgment, or because her husband did not join with her in its execution, will, nevertheless, operate in equity as an appointment of the property described in it, for the payment of the debt and equity will decree that the debt be a charge on the property so appointed and that the property shall be sold to pay it, the lien being in virtue of the decree of this court and not in virtue of the mortgage. When the decisions which support this principle are examined, it will be found that in each one the debt was contracted for the benefit of the wife’s separate estate, or for her own use on the credit of that estate. In the instant case, the bond secured to be paid by the mortgage was the husband’s bond, and Mrs. McHugh by her mortgage became surety or guarantor for its payment. The money loaned on the bond was loaned to the husband and not to Mrs. McHugh. An attempt was made by complainant to show that McHugh’s purpose in borrowing the money from Mrs. Curnen was to use it as part of the'purchase price of the land described in the mortgage, but the evidence on that point is not conclusive. In her answer the defendant states that McHugh “paid the principal and interest upon the mortgage, which was a purchase-money mortgage given at the time of the purchase of said property by the defendants.” I understand that this statement refers to another mortgage for $3,500 which was on the property because the principal of the mortgage in question has not been paid and the mortgage in question was executed two days before the deed to the defendants bears date and the mortgagee (Mrs. Curnen) was not the vendor of the property, nor does it appear that her purpose in making the loan to McHugh was to enable the defendants to purchase the property, and, therefore, she could not claim a vendor’s lien. Two thousand dollars was the amount of cash paid for the purchase, a portion of which may have been the sum borrowed by McHugh from Mrs. Curnen and the balance may have been paid by McHugh wholly from his own funds. If he paid the whole of the purchase price he intended to make a gift of an interest in the property to his wife, but the obligation to repay the sum borrowed from Mrs. Curnen was primarily his, made so by the bond which he gave and she accepted. I do not think that the principle for which Armstrong v. Boss is authority applies in this case, and I consider that the debt for which the mortgage was intended as security cannot be decreed to be a lien on Mrs. McHugh’s estate in the lands in question. Peake v. La Baw, 21 N. J. Eq. 269; Perkins v. Elliott, 22 N. J. Eq. 127.

The result is that the bill of complaint must be dismissed as to the defendant Ella D. McHugh, but since the defendant John C. McHugh has interposed no defence to complainant’s cause of action and the bill has been taken as confessed against him, the complainant may have a decree against said defendant for $1,000 with interest' at six per cent, from November 27th, "1920, and directing that a fieri facias issue for the sale of all his right, title and interest in the mortgaged premises.


author: Fielder, V. C.

text:
    Magnolia Construction Company, complainant, v. Edward McQuillan, defendant.
    [Decided February 15th, 1923.]
    1. Where complainant’s building encroaches on lands of defendant, to entitle complainant to the benefit of an estoppel against defendant, it must appear that defendant, through some act done, or statement made by him, or by his silence when he should have spoken, influenced complainant to believe that it was building on its true property line and that complainant .acted upon a belief created by defendant.— Held, that because complainant erected its building upon a property line fixed by its surveyor and defendant’s acquiescence in such line followed from what complainant told him and defendant was unaware that such line was not the true dividing line between the property of complainant and defendant, no. estoppel will operate in favor of complainant.
    2. Equity will give relief against the statute of frauds which requires that a license to build on another’s land shall be in writing, to prevent a fraud, but such relief will be granted only when the parol license to build is proved to the point of demonstration. An implied license is insufficient.
    3. Where the mistake as to the property line arose from an error made by complainant’s surveyor, and defendant was misled by such surveyor into believing that the line upon which complainant proposed to build was the true line and defendant did not know to the contrary, equity will not compel defendant to release to complainant so much of his land as is covered by the encroachment of complainant’s building.
    On bill, &C.

      Messrs. Gross é Gross, for the complainant.

      Messrs. Collins .<£•.Coriin, for the defendant.
   Fielder, V. C.

Complainant acquired title to a vacant plot of land on the southeasterly side of Waldo avenue, near Newark avenue, in Jersey City, upon which it subsequently erected a four-story brick and stone apartment-house. Complainant employed an experienced surveyor to make a survey of its plot and to stake and otherwise mark the lines thereof and thereafter it constructed the northeasterly foundation wall of its building rip to and along the line designated and marked by its surveyor as its northeasterly property line and erected and completed its apartment-house on such foundation. A subsequent survey made by the same surveyor shows the apartment-house wholly within complainant’s property lines. Defendant owns a lot immediately adjoining on the northeast, which, except for a shed thereon, is vacant, and shortly after complainant’s building was completed he caused his lot to be surveyed by another experienced surveyor, from which survey it appears that the northeasterly wall of complainant’s apartment-house encroaches on defendant’s lot at several points, varying from one and twenty-nine hundredths feet at the most northerly 'corner of the house to thirty-six hundredths of a foot at the most easterly corner thereof. Negotiations between the parties for a settlement failed and defendant commenced an action in ejectment against complainant,’ whereupon complainant filed its bill in this court praying that defendant be restrained from proceeding with his suit at law and from bringing any other action against complainant for the recovery of the lands upon which complainant’s building stands, and further praying that the northeasterly, or outside line of the wall of complainant’s apartment-house, continued in a straight line to the rear of its plot, be fixed and established as the boundary line between the lands of the parties.

The first question to be determined is as to the true location of that boundary line and the testimony of the two surveyors is all the evidence on the subject. As to this evidence, I think it sufficient to say that complainant’s surveyor established such boundary line by measuring a distance from the line of Newark avenue, which latter line is not monumented, and that he accepted the line of Newark avenue as built on as the true and recognized line of that avenue and used the buildings on Newark avenue as monuments from which to measure the distance from the line of Newark avenue to complainant’s lands given in complainant’s deed. The deed to complainant, besides stating that distance, also fixes complainant’s property lines with reference to other old and established property lines, all of which can be located definitely from fixed and accepted monuments and from old maps on file in the Hudson county register’s office, but complainant’s surveyor failed to make use of such old property lines, monuments and filed maps, and seems to have relied wholly on the line of the buildings on Newark avenue as the true line of that.avenue and to have taken his measurements with reference to that line only. Defendant’s surveyor, however, used the data I have mentioned and he finds that the buildings on Newark avenue encroach on that avenue, and that those buildings, therefore, do not mark the true line of Newark avenue, and that complainant’s property cannot be accurately located and staked out by measurements taken from the building line of Newark avenue. I find as a fact that complainant’s survey was incorrect, and that its build'ing encroaches on defendant’s lot to the extent above mentioned and as shown by defendant’s survey.

Complainant contends that because defendant assisted in fixing the dividing line between their properties and acquiesced in the location of that line he misled complainant into believing that the line upon which complainant erected its building was the true dividing line between them, and because defendant stood by and saw complainant erect its building on such line, without objection, defendant is now estopped from asserting-his rights to so much of his land as is found to. be covered by complainant’s building. No actual fraud is alleged, nor is it pretended that complainant informed defendant that it intended to build on defendant’s land, or that defendant gave complainant express consent to so build. The facts upon which complainant must base its contention are that when defendant bought his lot there was no fence separating it from the adjoining plot, and that defendant did not then cause his lot to be surveyed, but erected a fence and shed on what he guessed to be his southwesterly line; that complainant afterward acquired title to the adjoining plot and had a survey thereof made, and when complainant was ready to start its foundation, one of its officers showed defendant the line marks made by its surveyor and told defendant that his fence and shed encroached on complainant’s plot and requested defendant to remove them; that because defendant had erected his fence and shed without the aid of a survey, and because complainant had caused its property to be surveyed, defendant thought complainant’s surveyor was right and he moved his shed and took down his fence; that later, defendant assisted complainant’s workmen to stretch a line, by holding one end at a crow-foot mark made on the sidewalk by complainant’s surveyor, while the other end was held by one of complainant’s employes at the surveyor’s stake which purported to mark complainant’s rear line, and that defendant’s business took him to the locality almost daily and he saw the' foundation wall laid and the apartment-house erected on that line and made no objection; that some time after the building was completed and occupied, defendant caused his lot to be surveyed and then, for the first time, discovered that complainant’s building was actually on his lot, and that he then informed complainant of the facts shown by his survey.

To entitle complainant to the benefit of an estoppel against defendant, it must appear that defendant, through some act done, or statement made by him, or by his silence when he should have spoken, influenced complainant to believe that it was building on its true property line and that complainant acted on a belief created by defendant. In this case both parties acted in ignorance of the actual facts, and what defendant did and said was induced by complainant’s statement that a survey had been made and that the line upon which it desired to build had been fixed by its surveyor. In fact, complainant had better opportunity than defendant to know the true situation because of its survey, and it was the result of its own act and opinion that it built on the line fixed by its surveyor and not because of anything defendant said or did. Defendant did not know the true line, but accepted what complainant pointed out as the true line, and what he did was not with the intention of influencing complainant but rather his acquiescence in the line followed from what complainant told him. Under these circumstances there is no estoppel to operate in favor of complainant. Mutual Life Insurance Co. v. Norris, 31 N. J. Eq. 583; Sumner v. Seaton, 47 N. J. Eq. 103; Perkins v. Moorestown Co., 48 N. J. Eq. 499.

Nor can complainant claim to hold the land in question by virtue of a parol license from defendant, because such claim would be to an interest in land which, under the statute of frauds, must be evidenced by a writing. It is true that in certain special eases a court of equity will give relief against the operation of the statute, for the purpose of preventing a fraud, but in all such cases in which a parol contract, passing an interest in land, has been validated, the contract itself has been required to be proved to the point of demonstration. In the instant case there is no evidence of an actual license granted by defendant to complainant, and the most that can be inferred from defendant’s acts is an implied license, and that is not sufficient. Lawrence v. Springer, 49 N. J. Eq. 289; Hartman v. Powell, 68 N. J. Eq. 299, 800.

Finally, complainant contends that if part of its building encroaches upon defendant’s land, such encroachment is the result of a mistake in which both parties participated, and that under the circumstances this court should require defendant to release to complainant so much of his land as is covered by the encroachment for a consideration to be fixed by this court and paid by complainant, and complainant cites McKelway v. Armour, 10 N. J. Eq. 115, as authority for its contention. In the instant case the mistake as to the location of the line in question originated with complainant and was based on supposed facts shown by a survey procured by it. Its officers showed defendant the surveyor’s marks and pointed out a line which such officers asserted was its line, and defendant, ignorant of the true facts and being misled by complainant into believing that the line upon which complainant proposed to build was the true line, was in no position to register any objection, and, therefore, acquiesced. I do not -think that a property owner who sees his adjoining •neighbor about to build and also sees, or'is assured, that the dividing line between them has been established by his neighbor’s survej'-or, is bound to procure a survey of his own, under penalty of being compelled to give a part of his land to his neighbor at a price to be fixed by a court, in case it is subsequently, ascertained that the neighbor made a mistake, and I am therefore unwilling to subscribe to the contention made by complainant in this regard. Haggerty v. McCanna, 25 N. J. Eq. 48; Kirchner v. Miller, 39 N. J. Eq. 355.

In his counter-claim defendant alleges that after the encroachment in question was discovered, the parties entered into an agreement in writing touching the occupancy of defendant’s land by complainant’s building, which agreement defendant prays may be established as a lost instrument and enforced. After the parties had negotiated for a settlement of their differences, defendant’s solicitors attempted to put into writing the terms of an agreement and sent or delivered such writing to complainant’s solicitors. I am not satisfied from the evidence that the minds of the parties had met on the terms, or that the agreement was signed by defendant, or that complainant’s board of directors had authorized its execution by complainant’s officers; neither do I find any evidence of delivery of such an agreement by complainant.

The bill of complaint and the counter-claim will be dismissed.


author: Bentley, V. C.

text:
    Sylvester Herring et al., complainants, v. Anna Esposito, defendant.
    [Submitted September 27th, 1922.
    Decided October 6th, 1922.
    Opinion filed February 20th, 1923.]
    1. IVliere a contract for sale of land contains a clause by which the parties agree that the buildings are all within the boundary lines of the lot, and that there are no encroachments thereon, and a small encroachment does in fact exist, such clause cannot be disregarded, as this would amount to making a new contract between the parties, and a bill to specifically enforce the contract will be dismissed.
    2. Van Blarcom v. Hopkins, 63 N. J. Eq. 466, and Scheinman v. Bloch, 117 Atl. Rep. 389, distinguished.
    On bill, &e.

      Mr. Robert Carey and Mr. William L. Rae, for the complainants.

      Mr. George J. McRwan, for the defendant.
   Bentley, V. C.

This is a bill by a vendor to compel the specific performance of a contract for the sale of a lot of land in the township of North Bergen, with the building thereon erected, for the sum of $14,500. The premises in question is an ordinary city lot twenty-five by one hundred feet, and stands upon a block in which the other lots are of the same dimensions, and all contain private dwelling-houses.

The defence interposed by the answer is that on the lot adjoining to the west there is a building that 'encroaches upon the premises in question to a small extent, with a counterclaim praying the return of the deposit made by the vendee.

' One of the surveyors employed by the defendant describes the ‘encroachment mentioned as running from two inches in the front to an inch and three-quarters in the rear; and the other surveyor for the defence testifies that such encroachment is two inches in the front, running down to one and five-eighths inchest in the rear. The complainants produced two surveyors who testified that no encroachment exists on the premises in question; but I am convinced that there is an encroachment of approximately such as the defendant’s witnesses describe. Counsel for the complainants does not argue very strongly that there was no encroachment, and I feel that, under the elementary rule, there is at least such a doubt created in my mind that I am obliged to find as a fact that an encroachment exists as described above.

This ease cannot be brought under the familiar class 01 opinions where the quantity of land contracted to be conveyed does not exist in the ownership of the vendor and where decrees have been made compelling the vendee to take and allowing him an abatement. The reason this case presents, so far as I know, a novel question is, that the contract which is the basis of the suit contained a specific clause which reads as follows:

“It is understood and agreed that the buildings upon said premises are all within the boundary lines of the property as described in the deed therefor, and that there are no eneroaehments thereon.”

Counsel both say that they know of no ease in which such a clause has been construed. The complainant argues that this language is of m> more effect than would have been implied from the general covenants without it; but I am not prepared to accept that view, for the reason that it is the policy of our law- to permit parties to make their own contracts so long as there is nothing antagonistic to the law or public policy. A court of equity, of course, would not permit a vendee to break his contract for some immaterial defect, or one that can be properly compensated against, in the absence of express stipulation or agreement. Griggs v. Landis, 19 N. J. Eq. 350. This, however, presents the difficulty to compliance with the complainants’ prayer, because the covenant against encroachments was expressly contained in the agreement. To disregard the clause of the contract quoted above would be to draw a new contract for the parties, upon which their minds have never met, and that is a policy that courts have universally refrained from acting upon.

I want to expressly point out that this case is entirely distinguishable from Van Blarcom v. Hopkins, 63 N. J. Eq. 466; Scheinman v. Bloch. 117 Atl. Rep. 389, and all other cases in which this specific clause is not contained.

I feel that under the often-stated rule the contract in this case cannot be properly read without the clause mentioned, and that the complainant is unable to perform Iris part of the agreement, and will, therefore, advise a decree dismissing the bill and directing the complainant to return to the de fendant her deposit of one thousand dollars.


text:
    Angelo Labruna, petitioner, v. Julia M. Labruna, defendant.
    [Submitted November 13th, 1922.
    Decided December 15th, 1922.
    Opinion filed March —, 1923.]
    1. Where a petitioning husband in a divorce suit for desertion moves to dismiss his petition, after his wife has filed a petition for alimony and counsel fee, she asserting that she is a resident of the Kingdom of Italy and was compelled to leave her husband because of his cruelty to her, such motion will be denied, and counsel fee and alimony will be awarded the wife.
    2. Verbeeck v. Verbeeck, 93 N. J. Eq. 17, followed.
    On petition, &c.

      Messrs. Whiting & Moore, for the petitioner.

      Mr. Joseph II. Guudielle, for the defendant.
   Bentley, V. C.

I have decided, for reasons that will be made apparent in this opinion, to come to a different conclusion than I liad in my mind at the close of the arguments.

The petition has been filed for a divorce a vinculo for the wife’s desertion. She is resident in the Kingdom of Italy w-ith her three children by the petitioner. She defends by an answer, alleging that she was compelled to leave the petitioner because of his cruelty.

In November, 1921, she filed a petition asking for alimony pendente lite and counsel fee, and for some reason that has not been made apparent, this petition was not argued until a year after it was filed. Upon the argument the petitioner, to avoid her demand, moved to dismiss his own petition. I shall make no point of the fact that he failed to give notice thereof to the defendant, for the reason that I feel that this question should be decided upon broad grounds, and for that reason I am going to relax another rule, under the peculiar circumstances of this case.

The defendant not only squarely meets the petition by her answer but, in -addition, sets up in her petition for alimony the cruelty of her husband, in which she is corroborated by two of her brothers whose affidavits are very convincing that she was, in fact, driven away by the petitioner. It is true that under ordinary circumstances a complainant is at liberty to dismiss his bill, a's of course, before answer is filed and upon notice and pajunent of costs after answer is filed and before the commencement of the final hearing. Hudson Trust Co. v. Boyd, 80 N. J. Eq. 267. The present rule of the court of chancery (No. 115) provides that after replication and the taking of proofs is begun the complainant shall not be at liberty to- dismiss his bill except upon special motion and notice to the defendants. From this language I apprehend that the ordinary rule would be drawn that prior to those steps' in the cause the reverse would be true, and then he would be entitled to dismiss upon notice and payment of costs.

The fourth rule, however, provides as follows:

“These rules shall be considered as general rules for the government of the court and the conduct of causes, and, as the design of them is to facilitate business and advance justice, they may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work surprise or injustice.”

I think, for the reasons I am about to express, that this is a case where injustice would be worked by a strict and harsh application of the rigid rule. ,

This is the second time the petitioner has filed a petition for a decree of divorce against his wife upon the same ground, that of desertion. The former petition was dismissed by the husband and then this petition was filed in its place. The defendant has shown in her petition for alimony, and the supporting affidavits indicate to) my mind, that it may be determined upon the final hearing that she will defeat her husband’s suit. She is in Italy, driven there, as she swears, by her husband’s cruelty, where it is difficult ■ for her to properly 'Safeguard her rights. She is without means and dependent upon an aged father for the support of herself and her three infant children out of his exertions on a small farm which he rents.

The chancellor lias recently expressed his views in Verbeeck v. Verbeeck, 93 N. J. Eq. 17, as to husbands resident in this state having sued their wives for divorce on the ground of desertion while such wives were domiciled in European countries, and when a defence is interposed, abandon their suits. The case at bar seems to me to be similar, and I feel that this court should go to any proper lengths, even to relaxing the strict rules of practice as indicated above, to afford this defendant, at her husband’s expense, the opportunity she desires of clearing herself of the charge brought against her.

In the case of Butler v. Butler, 38 N. J. Eq. 626, the Court of Errors laid down the rule that after hearing commenced the husband would not be permitted to abandon his petition to defeat his wife’s claim for alimony. Of- course, in the Butler Case there was the distinguishing fact that the parties had gone to hearing, which is not the situation in this case; but the limitation upon the authority of the petitioner over his petition is arbitrary, established for convenience and the dispatch of business under ordinary circumstances and might have been placed at any other stage of the cause perhaps with equal regard to «bund reasoning. But be that as it may, the fact remains, and I squarely decide, that this is an instance where the rule in question should be relaxed to ameliorate the condition and position in this suit of the defendant.

I have not considered the subject of the former petition between these parties as a bar to the present petition, for the reason that- it has not been raised.

I will advise an order -denying the petitioner’s motion to dismiss his petition; and a second order awarding a counsel fee of $150 to the defendant’s solicitors, in view of the expense and difficulty of communicating with their client, but I feel, for the reasons expressed by the chancellor in the Verbeeck Case, supra, that no alimony pendente lité should be allowed.


text:
    George A. Symon, petitioner, v. Edna C. Symon, defendant.
    [Decided February 27th, 1923.]
    "Where a husband establishes a proper home for his wife, and so notifies her, and she refuses for -more than two years without just cause to live with him there, she is guilty of desertion.
    On petition for divorce.

      Mr. William E. Sewell, for the petitioner.

      Messrs. Ziegener & Lane, for the defendant.
   Bentley, V. C.

This suit embraces a petition by the husband on the ground of desertion and a counter-claim on the part of the wife for the same cause.

The parties were married in November, 191'}', and took up their abode with the parents of the defendant wife. I have already sufficiently indicated to counsel my view on the facts of this case and retained it to inquire more fully into the obligation cast upon the husband, if anjr, to seek his wife’s return and then to consider how his efforts measured up to that duty. I have already indicated that so far as the counterclaim is concerned the wife must be remediless, for the reason that in all good faith the petitioner desired to establish an independent home of their own, which he had a right to do, and tof which home it was the defendant’s duty to permit the petitioner to take her, and that consequently when she without just cause refused to follow him she, in truth, became the deserter. Hunt v. Hunt, 29 N. J. Eq. 96; Purnell v. Purnell, 70 Atl. Rep. 187.

Coming now to the matter referred to, I feel that the petitioner was under no obligation to make any further effort toward securing the return of his wife. I consider this case as being on all-fours with that of Purnell v. Purnell, supra, in which Vice-Chancellor Stevenson, whose opinion was adopted by the court of errors and appeals, says that he kept the matter under advisement to determine the solution of the same question that embarrassed me in the case at bar. In that case, as in this, the wife refused to go with her husband to the home he had established at Pine Brook in this state. “The young wife preferred to live in New York.” In this case, it must be patent to' anyone who heard the testimony that the wife declined to separate from her parents. It is very significant that shet herself testified that the relations between her and her husband were all that could be desired until a few months before their separation, and that she was unable to give any clear explanation of the causes that lay at the root of their later unhappy condition.

It seems to me that this is strongly corroborative of the petitioner’s testimony, that their difficulties arose out of his desire to do what he had a perfect right to do, namely, establish an independent home, to which it was the duty of his wife to go. True, she testified that she was afraid to go with him, but I brush this flimsy excuse aside, for the reason that there was not a scintilla of proof of any violence or attempted violence! upon his part; and, further, upon her own admission that there never had been any action or conduct upon his part to substantiate such a fear.

I have already indicated my reasons for the belief that the petitioner was, to all intenta and purposes, expelled from the home of his father-in-law with the consent of the defendant. She, in fact, testified to having said to him, when he remonstrated that he had nowhere else to go, that he could go and live with his mother; and she further testified that she told her father to taire the petitioner’s house-key away from him, clearly so that he could not return.

After having thus been expelled from the home to which his wife clung, he wrote her, on March 22d, the following letter:

“New York, N. Y., March 22, 1920.
Dear Edna—
This letter is to advise you that our home at 77 McAdoo Avenue, Apartment 4, is complete and now ready for occupancy.
I hope, by giving this matter unbiased consideration, your own good judgment will recommend that you come to live, without further persuasion or argument, in the home which has been furnished for you.
With regards, I remain,
Respectfully,
George.”

In the Purnell Case, after the wife had refused to go with her husband to his new domicile, he wrote her as follows:

“Maud Purnell—
I am willing to support you only at the home I have provided.
J. W. Purnell.”

If this cold invitation, if it may be so dignified, was sufficient to discharge the burden that the law east upon the petitioner in that case, it seems to me that the letter written by Symon went far beyond what it was his duty to do.

In the case of Hall v. Hall, 60 N. J. Eq. 469, the opinion of the present chief-justice will be found to definitely lay down the rule in this behalf and is the criterion adopted by Vice-Chancellor Stevenson in the Purnell Case.

Had the petitioner been guilty of any marital misconduct, or if his conduct not amounting thereto' still was responsible for the wife separating herself from him, then his duty to have won her back might have required more robust efforts, but in the light of the proofs I feel that she being the wrongdoer he fulfilled his obligations and duty when he established a proper home and notified her of his desire to have her with him.

I will advise a decree for divorce in the suit of the husband.


text:
    Olga Paffen, complainant, v. Paul Joseph Paffen, defendant.
    [Decided March 9th, 1923.
    Opinion filed March 12th, 1923.]
    1. Where a husband and wife obtain a divorce in this court by collusion between themselves, and three years from the time of entry of final decree the wife files a bill of review for the purpose of setting aside the divorce as fraudulent, the bill will be dismissed because the parties are in pari delicto.

    2. Nichols v. Nichols, 25 N. J. Eq. 60, approved and followed.
    On bill, &c.

      21r. Emil J. Moos, for the complainant.

      Mr. Randolph Perhins and Mr. George Linh, Jr. (of the Few York bar), for the defendant.
   Bentley, V. C.

This matter comes on under a bill of review filed pursuant to an order regularly obtained. The bill charges', that after the parties had executed articles of separation on the 25th day of August, 1915, and while the defendant was paying the complainant $40 a month for the support and maintenance of herself and their infant son, he, in consideration of continuing to pay said sum as long as the complainant should live, persuaded the complainant to sign a petition for divorce and go through the necessary steps, including testifying before a special master, to an interlocutory and final decree; that such divorce suitj was of the class commonly denominated “uncontested.”

The final decree was dated and filed March 11th, 1918, and not until recently before the filing of the bill herein did she discover the fraud charged to have been prepetrated upon her; that she was not a resident of the State of Few Jersey, but was a resident of Few York at the time the petition.for divorce was filed; and that, by reason of her ignorance of the English language, she did not know that she was signing an affidavit to a petition for divorce but was fraudulently misled by the defendant and his agents into believing that the paper to which she attached her name was for the purpose of insuring the provision of alimony for herself and child. This bill was filed pursuant to the regular practice under an amended petition 'showing the discovery of matters which came to her knowledge too late to be set up or taken advantage of in the original suit.

The answer denies all of- the charges of fraud in the bill.

The petition for divorce was based upon desertion, and was filed on February 27th, 1917. It was signed by her solicitor, and the usual affidavit of non-collusion sworn to by her. The defendant was served personally on March 1st of the same year, and the matter came on for hearing before William E. Gaston, esquire, as special master, on the 7th day of September, 1917. . The special master’s report, dated October 20th, 1917, was filed October 22d, 1917; and then the cause slept, apparently for lack of corroboration of the petitioner’s residence, until April 4th, 1918, when the deposition of one Anna Heisler was taken before the special master in which she testified that she knew both of the parties and that the petitioner resided in 'Plainfield. The next step was the making and filing of a decree nisi on August 31st, 1918, and the final decree in the following March, as mentioned above.

So far as the charge of fraud practiced upon the complainant is concerned by reason of her alleged ignorance of English, no difficulty is experienced in disposing of that,. Several times she admits that she carried on conversations in our-language, as, for instance, at the hearing before the special master. She testified that she is now fifty-four years of age,, although from her appearance and other facts in the cáse I am .inclined to believe that she has availed herself of the usual privilege of a woman, and that, in fact, she is considerably older. She is a woman of some experience and by no means deficient in ordinary understanding. She had lived in this country at the time of her divorce suit for at least thirteen years, bringing up a family of children, and apparently living-the usual life of a woman of her age and circumstances and undoubtedly knew considerable English. Besides that, on several occasions, when hotly pressed by counsel on cross-examination, she answered his questions before the interpreter could put the same to her in German, and on at least one occasion replied in English perfectly .understandable to me who am not acquainted at all with the German language. Besides that, as to her ability to speak English, the colloquy attending her first appearance on the stand did not impress-me as being ingenuous on her part, and I thought at that time-she was able to speak and understand English well enough to testify without an interpreter. If, as I firmly believe, she had the ordinary understanding of our language that would be attained in thirteen years* residence in New York; it is incredible that she could have been so stupid as to have proceeded through the divorce suit from beginning to- end without a suspicion on her part of what was being done.

Perhaps most striking of all was her letter of October 17th, 1917, one month and ten days after the hearing before the special master. In that letter, a translation of which was agreed upon, she says:

“Dear Paffen:
A few days ago I won in the Passaic court my divorce against you . and you are ordered to pay $40 per mo. as long as the boy is not of age. I have no further legal rights toward you as long as you meet your obligation. As Mr. Geyer and Mr. Davidson, my attorney, told me, can I as well as you marry again after six months. Much luck.
With regards,
Miss Olga Paffen.”

If this had stopped at the end of the first sentence, perhaps it might be said that she had no knowledge of what a divorce was; but, taken in connection with the explanatory sentence following it, and especially that where she calmly announces that either of them may remarry, such a supposition is exploded. Nobody in any civilized country could fail to understand the pronouncement of a court, the result of which is to permit the parties, or either of them, to remar^ Furthermore, she, herself, testified that she had been divoxced before marrying the defendant, so that in this respect she was a woman o£ some experience.

In another letter, written on February 19th, 1921, after asking him, because of being out of funds, to help her out with some of the new clothing required by their son, she leads up to the real purpose of her missive and sa}rs:

“Dear Paul, can’t you arrange it so we are alone once for two hours, you know for what; a man gets always what he wants but I never would like to try it with another man, as I am too afraid. Don’t you remember that you promised me you would remain my friend—did you forget that? Please let me hear from you.
Kegards, O L G A.”

Iii this letter the final sentence is very significant—“Don’t you remember that you promised me you would remain my friend—did you forget that?” Why did he promise to remain her friend? If she, in fact, was proceeding against him in a suit to compel him to discharge his financial obligations to her, why was he making protestations of continued friendship ? The true explanation, I think, will occur to any one who has had experience, in these affairs. Her excuse that these letters, or either of them, was written under duress is ridiculous and disproved by the regularity of the handwriting.

It is human nature and common knowledge that a man who is tired of his wife and is without grounds for divorcing her, will agree to almost anything to persuade her to divorce him so that he may be free again. I am convinced that Paffen, for reasons I will explain later on, prevailed upon his wife to commence a divorce suit, and that the continuance of his friendship to which she alludes was promised by him so that she would not feel that she was to be left without means to face the world.

The testimony of Mr. Gaston is very persuasive that this woman testified before him without an interpreter, and the examination of her deposition at that time corroborates the fact in that there is nothing, either in that or in the report accompanying it, to indicate that >she was not capable of understanding and talking thei English language, and he recited upon the stand his recollection of her testimony, showing the facts upon which her suit was predicated.

The other aspect of the bill' is a charge of a fraud committed upon the court and against the laws of this state.

The complainant says that knowing her to be a resident of the State of New York and not of Hew Jersey, the defendant fraudulently prevailed upon her to swear falsely to facts that would give the court jurisdiction, to wit, that she had been a tona 'fide resident of the State of Hew Jersey continuedly since her marriage down to the time of the filing of her petition. That was not true. The testimony of the complainant to this effect is overwhelmingly corroborated by her witnesses and admitted by the defendant on his cross-examination; and, for the reasons just given, I am of course also driven to the conclusion that she well knew what she was doing, and that her hands were no more clean than were those of the defendant.

There is no escape, so far as I can see, from the conviction that what, in truth, took place between these parties was a collusive agreement that the complainant should commence a suit for divorce, in consideration of the defendant paying her the sum of $40 per month as long as she should live, to which no defence would be interposed. Throughout the proofs appears the hand of a man named Bobert P. Geyer, a disbarred lawyer and a former convict, on his own admission. This man was an intimate acquaintance of the defendant. They met constantly, over a period of years, upon purely social occasions. They played cards with one another, and they met in cafes at different places, at which—and the fact was apparent that they are all of German descent—it is not unreasonable to- suppose that they engaged in the German custom of moderate but most friendly convivialities. The defendant knew of the knowledge of the law possessed by Geyer. He discussed- with him, upon at least one occasion, his domestic difficulties. It was to Geyer that the parties turned for legal assistance when he drew up the articles of separation between them; it' was to Geyer that he turned, thirteen days before the complainant swore to her petition for divorce. It was twelve days before that affidavit was made that Geyer replied by his letter of February 14th, informing the defendant of the grounds upon which a divorce could be obtained in Hewi Jersey and offering his services, as he himself frankly states, in behalf of either -one of them who might desire the same. Thi-s is in keeping with the man’s record and his appearance on the stand, and the offer to act upon either side is strongly corroborative of my belief that this suit was manufactured with the knowledge and consent of both of the parties. Geyer was a most friendly witness to the defendant, and he admits that he wrote the letter in question, in fact, produced it himself, giving a very lame excuse for his possession of this document and the loss of nearly all of the rest of the files in the divorce suit.

He testified with the greatest effrontery that he had neither expected nor received any compensation for the trouble and time he devoted to the divorce suit, and, as an example of his character, it need only be pointed out that men engaged in such business as this do not devote their time gratuitously, and he had evidently forgotten that in his letter of February 14th, to the defendant, after explaining that the legal expenses would be at least $150 he said “this is not including for my time and services which we can easily agree upon.”

It is most significant that the defendant, who had not heard the witness Geyer testify, denied that: he had ever taken up the subject of divorce with Geyer, and persisted in his denial after being shown the letter just mentioned. It is significant not only as showing the credence to be given to his testimony but as indicating the determination to confess nothing that would implicate him with Geyer. Also strongly indicative of the defendant’s guilt is the fact that for two days on the final hearing he did not appear, and only presented himself after counsel for the complainant had called for his presence and the court had indicated to his counsel the dire inferences to be drawn from his failure, if innocent, to present himself and deny the charges against him.

The further fact has remained unexplained, that Geyer, only a year and half before the filing of the petition for divorce, had himself drawn and witnessed the execution of the articles of separation which he, as a former member of the bar, knew stopped, the running of the statute so that if continued desertion on the part of the wife had existed it had been obstinate only’ from some time after the 25th of August, 1915, which was less than two years. This, taken in connection with his proved friendship with tire defendant, the correspondence between him and the defendant concerning a divorce, andj the character of the man, seem to me to prove beyond question that the whole thing was the creature of the brain of Geyer, instigated and solicited by the defendant, and which, for the reasons already given, must have been known to the complainant.

There were subpoenaed for the hearing on the first day two women—mother and daughter—both of whom disregarded the processes. The mother, by a special order, was brought in on the second day of the hearing and undertook to excuse her absence and that of her daughter on the ground that the daughter, who has been referred to as Anna Heisler, was so ill as to make it impossible for her to attend. This was true, as will immediately appear.

Anna Heisler, whose name is really Anna Bonnano, was subsequently examined in her bed in a hospital. She was the witness in the divorce suit who was produced in the spring of 1918, and corroborated the complainant in her testimony in the divorce suit, as to her bona fide residence.

The deposition of Mrs. Bonnano clearly shows that she, too, must have been part and parcel of the conspiracy into which the parties entered for the collusive decree. When she was served with process by the complainant’s solicitor she denied her identity and said that Anna Bonnano was on an automobile trip to Canada. The witness, when examined, still stuck to the story that at the time of service she was upon such'a journey, although her examination by counsel for the complainant clearly indicates that she was not telling the truth. It is incredible that she could have forgotten all the circumstances of such a holiday. Her testimony, like that of Géyer, Hoke, and every other witness for the defendant with the exception of Mr. Link, is most unsatisfactory. Hoke does admit that the complainant and defendant were both residents of New York and both desirous of a divorce at the time of the hearing in the divorce suit and prior thereto.

Thus, a decree of divorce existing, and the complainant’s charge of her innocence being disproved, it seems to me that there is no escape from the conclusion that this was a collusive suit of the most flagrant sort. So far as I am aware, the precise situation disclosed by the proofs has not been passed upon by the courts of this state. There are a number of instances where decrees of one of our sister states have been considered where the successful party in a divorce suit has attacked the decree upon grounds similar to those alleged in the case in hand. Chancellor Runyon, in Nichols v. Nichols, 25 N. J. Eq. 60, considered the case of a collusive decree rendered in the State of Indiana. He held that the court having jurisdiction of the subject matter, and process having been served, the failure of the complainant to attack the decree for a period of four years and after her husband had contracted a second marriage, barred her from relief. He quoted from Singer v. Singer, 41 Barb. 139, as follows:

“Where the judgment of divorce has been acquiesced in for the period of several years, and the plaintiff has again been married, some better reason than the mere gratification of personal feeling or the desire to obtain a further sum of money from the plaintiff should be made clearly to appear before the court would be warranted in granting such an application. The ground on which such an order would be made would be one of public policy, but no such reason would suffice where, after the acquiescence of both the parties in the judgment for three years, an innocent person has been involved by marriage, and the opening of the judgment would involve her in distress and perhaps disgrace. The reason alone would be sufficient to justify me in denying the motion if there were no other reasons for doing so, and leaving the parties to the consequences of their own acts and agreements after the long delay that has taken place.”

Bishop, in his work on Marriage and Divorce (at § 1548 vol. 2), says:

“Mutual fraud, of which the common instance is collusion, and which is available to third persons in interest, cannot be brought forward by either of the parties against the other as ground for reversing any step in the cause or vacating the sentence.”

In the case of Karren v. Karren, a Utah case, where the husband prevailed upon his wife to consent to a decree of divorce so that he might gain property from his family which would otherwise not be given him, upon his promise to remarry, her after securing the same, a decree was refused, on the ground that it was against the policy of the state. It is said:

“While a decree of divorce obtained by collusion of the parties, or by the suppression of the facts, or. false testimony, is a fraud upon the court, and against public policy, it would be more against public policy to disturb the decree at the instance of either of the parties who are in pari delicto, when, after the divorce, as in this case, one of the parties has remarried.”

This case may be found in 60 L. R. A. (at p. 294), with an exhaustive note reviewing the subject under discussion.

To like effect is the later case of Robinson v. Robinson, 138 Pac. Rep. 288, reported in 51 L. R. A. (N. S.) 534, with cases later than the Karren Case digested in a supplemental note. The rationale of these authorities is set out in 9 R. C. L. 451, quoting from the leading case of Prudam v. Phillips, reported in Harg. Law Tr. 456:

“If both parties colluded in the cheat upon the court, it was never known that either of them could vacate the judgment.”

In my opinion, flagrant as was the fraud of the defendant in prevailing upon his wife-to deceive this court in the divorce suit, she cannot be heard to complain if the court, at this late day, in view of her equal guilt, refuses to hear her plea. Had she moved promptly after the entry of the decree nisi, or even the Anal decree, a different situation would have been presented for consideration. But it is evident, as was the situation animadverted -on by Chancellor Runyon in Nichols v. Nichols, supra, that this bill is filed for the purpose of securing alimony, because so long as she was paid under the corrupt agreement between the parties she remained mute. Under every dictate of policy she cannot now, when he refuses to live up to an illegal contract, secure the desired action by this court.

I will advise a decree dismissing the bill.


text:
    Ella M. Langhans, petitioner, v. Henry Frederick Langhans, defendant.
    [Decided February 21st, 1923.
    Opinion filed March 5th, 1923.]
    Wliere in a case of divorce on the ground of adultery, the uncorroborated proof offered was by an expert in handwriting who testified that a certain signature in a hotel register was in the handwriting of the defendant, this evidence standing alone is not sufficient to sustain a decree for divorce against the emphatic denial of the defendant.

      Messrs. Leavitt & Ulbrich, for the petitioner.

      Mr. Edward Stover, for the defendant.
   Bentley, V. C.

Having disposed of this case, except as to the proof of handwriting, I shall not recite the facts more than may be necessary to render this memorandum intelligible.

The petition for divorce makes two charges of adultery against the defendant, the one under consideration being based upon a comparison of handwriting in the register of the Hotel Bellevue-Stratford, at Philadelphia, under date of March 28th, 1916. The defendant is an inmate of the state’s prison, convicted of the crime of embezzlement, and since he has been there the petitioner has learned facts that led her to believe that he had previously committed the adulteries mentioned above and, I think, promptly commenced this suit. Counsel for the defendant has argued very earnestly that she was guilty of laches, but I think not, for the reason that she explains that shortly after an interview with one of his former emploj^ers, which was very damaging to the defendant, she employed counsel and, to come down to the charge in question, did not learn until last summer of his alleged registration in the hotel mentioned, whereupon she promptly filed a supplemental petition.

She did not in any way indicate the manner in which' this information was conveyed to her, so that the proofs as they stand in this regard are lacking whatever corroboration might have been given by a showing of the apparent reliability of the source of her information. The sole proof of his adultery in Philadelphia, if such it may be termed, is an entry as referred to above. On the date aforesaid somebody wrote in the register of that hotel the following words and letters:

“Kendall I Daly & wife Buffalo N. Y.”

and in the appropriate space, which is always filled in by the hotel clerk, the number “703” appears, it apparently being the room assigned to the party who made such entry.

There was produced in behalf of the petitioner an expert on disputed documents, Loren C. Horten, who had previously made a very careful examination of this handwriting, in comparison with a large number of undoubted standards, proved not only by the petitioner but admitted by the defendant to have been specimens of his handwriting. Among the evidences of the identity of the writer of the disputed entry, and the standards being one and the same person, the expert pointed out that invariably and without 'exception wherever the character “I” appeared in the standards it was indentical in type and form with that in the hotel register. Similarly, the capital letter “K” was distinctive throughout the standards, and in eyery place a replica of that of the disputed entry. In the word “Buffalo,” in the register, one of the “f’s” is peculiar, in that the loop below the line is practically an old-fashioned “f,” such as in ancient printings makes the modern reader almost pronounce it as an “s.” Just so in the standard specimens, time after time the old-fashioned “f” appears, sometimes being complete and sometimes as in the disputed signature on the border line between the old-fashioned and the new.

So on, a large number of comparisons were made and each one was very persuasive that the disputed handwriting was that of the^ defendant. Perhaps even more convincing were the specimens of his handwriting made by the defendant upon the. stand. He was required to write the words “Kendall I. Daly & wife, Buffalo, .N. Y.,” seven or eight different times, and it seems to me unescapable that he consciously tried to change his handwriting as far as he could from the disputed signature without making it too unlike his writings in the standards.

In passing it should be noted that this man described himself as an accountant and has had a long and wide experience as a bookkeeper and in other clerical work that would render him very expert in the use of pen and ink. So much so, in fact, that difficulty was experienced in securing a pen with which he could write with any faciliti'’. In the specimens of his handwriting made upon the witness-stand, when he came to the initials “N. Y.,” in order, I believe, to differentiate from the. disputed writing, he stopped and removed his pen from the paper upon the completion of the letter “N” and placed a period thereafter before resuming the initial “Y;” after which he again removed his pen from the paper and placed the appropriate, period thereafter.

Not only the entry in the hotel register but in every instance in his innumerable writings that have been put in evidence I find that where he used the abbreviation “N. J." he completed both letters with one continuous motion of the pen and did not remove the same from the paper until after the completion of the letter “J,” and then, as in the hotel register, placed the period after each letter.

That there is a startling similarity in his acknowledged handwriting and the disputed entry is unescapable. I am gravely .suspicious that it was he who made such entry; but my difficulty is whether or not such proof will convict the defendant of adultery. It must be borne in mind that the issue with which I must deal is the single, naked fact of adultery upon the part of the defendant. It seems to me that to advise a decree for the petitioner in this case would be a most dangerous precedent. This is not such a case as where there is direct, credible proof of the presence of the defendant and a woman not his wife at a hotel under such circumstances as to make one believe that they registered there as man and wife. There is not, outside of this writing, a suggestion that the defendant was at the Bellevue-Stratford or, in fact, in the city of Philadelphia or the State of Pennsylvania on the 28th day of March, 1916. There is not a scintilla of evidence, or an intimation other than the entry in the register, that he was with any woman other than his wife on that day in the city of Philadelphia or elsewhere. There is not an iota of evidence as to the identity of the woman or of any other woman with whom he had any illicit relations other than the testimony of Dr. Brown, with whose credibility I have already dealt. Prom all that appears-in the proofs in this case, some time during the latter part of 1922 an examination of the register was made, and more than six years before there was discovered a specimen of writing that bore a strong' resemblance to that of the defendant. It is clear that if a sufficient number of hotel registers should be examined by an expert it is almost a mathematical certainty that in some one of the millions of entries that have been made, as closé an approximation of the handwriting of any individual could be found as the approximation between the entry in question and the handwriting of the defendant.

Thus the entire testimony to prove this adultery rests upon the uncorroborated opinion only of a handwriting expert. He frankly confessed on cross-examination that his testimony only was intended to express his individual opinion, and he was equally honest in admitting that he might be mistaken. I am not unmindful of the distinction between the quantum of proof necessary in a divorce suit and that essential to a conviction under an indictment for adultery; but even so, I am not prepared to decide that an expert opinion in the matter of handwriting, uncorroborated, is sufficient to sustain the burden of a fair preponderance of the evidence against the most emphatic denial of the defendant, unshaken on cross-examination, even though his testimony is subject to the scrutiny always to be given to the story of a convict.

My difficulty with the proofs in this case is that the testimony of the expert witness, while it might be of very great' moment in corroboration of other testimony, is not sufficient' of itself to discharge the burden' upon the petitioner. For example, in the typical case where a witness in a divorce suit swears to the presence of the defendant and a woman not his wife at a hotel, and ini corroboration thereof a register is placed in evidence alleged to contain an entry made by the defendant, it would be of the utmost assistance to the court to have a trained expert point out the similar traits in the handwriting of such entry, as compared with the acknowledged or proven handwriting of the defendant. If there had been any testimony in this case to prove the presence of the defendant in the hotel in question, and if there had been some evidence of his being accompanied at that time by some woman then, as I have before intimated, there would be great weight to the testimony of Mr. Horten; but in the absence of any such proof his testimony is insufficient to prove the charge.

I will advise a decree dismissing the petition, without costs.


author: Walker, Ordinary.

text:
    In re Hathorn's Will.
    [Decided April 10th, 1916.]
    1. Judgments are under the control of the court which pronounces them, during the term 'at which they are rendered or entered of record; and they may be set aside, vacated, modified or annulled by that court.
    2. The orphans court is a court of general jurisdiction over the subjects within its cognizance and partakes of the powers of the chancery and prerogative jurisdictions.
    3. An order of the orphans court vacating and setting aside a decree in this cause was within the power of that court. Qucere: Oould the orphans court have vacated the decree after the term ■wherein it was made and filed?

      4. A party cannot be deprived of the right of appeal from a decree of the orphans court where all parties fall into error as to whether the decree had been made and filed, and treat it, and -proceed in that cause as though it had not been.
    5. Although parties are obliged to watch the dockets of the courts and inform themselves of the entry of decrees and. orders, nevertheless circumstances may arise which, if they do not absolve them from the duty, operate to relieve them of the consequences of their failure.
    6. Where a decree has been entered in the orphans court on appeal from the surrogate, and both parties, appellant and respondents, were ignorant of its entry, and counsel for the successful parties gave notice to the adverse -party of a motion to settle the decree, and, on such motion, the form of the decree presented was amended so as to inelude a counsel fee for the unsuccessful party, and the judge, apparently resting under the same mistake as counsel for both parties to the effect that no--decree had been entered, signed and filed another, the ti-me for appealing from the decree of the court commenced to run from the filing of the last decree; and the orphans court afterwards, on motion, properly vacated the first decree.
    On appeal from the orphans court of Essex county.
    In the matter of the probate of a paper purporting to be the last will and testament of Frederick Crane Hathorn, deceased.
    From a decree affirming an order admitting the will to probate Mary L. Hathorn appeals.
    Mote.-—-This case was omitted by inadvertence from the Hew Jersey Equity Reports at the time the opinion was rendered.

      Mr. M. Gaseivell Maine, for the appellant.

      Messrs. Pitney, Hardin & Skinner, for the respondents Pearce and others. •
   Walker, Ordinary.

The surrogate of Essex -county admitted to probate the will and codicil of Frederick C. Hathorn, deceased. Appeal was taken to the Essex county orphans court, and was heard by Judge Osborne, the hearing being concluded on July 2d, 1915. Decision was reserved, and the proctors of the parties were requested to submit briefs within a limited time, and to inclose with them such form of decree as they might respectively desire to be entered. This was done. On November 16th, 1915, Judge Osborne filed a written opinion, and signed a decree which had been inclosed to him by proctor for proponent, affirming the order of the surrogate admitting the will and codicil to probate. Counsel of the respective parties were immediately notified of the rendering of the opinion, but were not informed of the signing and filing of the decree. Proctors for the executor of the will, in ignorance of the making of the decree of November 16th, 1915, gave notice to proctor for Mary L. Hathorn that they would apply to Judge Osborne on December 7th, 1915, to settle the decree in the cause; and proctors for A. Swinton Pearce, proponent, gave a like notice. On December 7th, 1915, proctors of the respective parties appeared before Judge Osborne and a form of a decree, admitting the will to probate, was submitted by proctors for the proponent. Proctor for Mary L. Hathorn, appellant, moved for the allowance of a counsel fee, and, after argument on that question, Judge Osborne announced that he would allow a reasonable counsel fee and took the papers. On December 9th, 1915, another decree was entered and filed similar in all respects to the one made and filed November 16th, 1915, including that date, except for the addition of an allowance of a counsel fee to counsel for Mary L. Hathorn, with direction that it be paid from the estate of the deceased; and on January 15th, 1916, the orphans court made an order vacating its decree of November 16th, 1915.

The matter now comes up on motion on behalf of A. Swinton Pearce and Susie A. Pearce to dismiss an! appeal taken by Mary L. Hathorn on January 5th, 1916, from the decree of the Essex county orphans court dated November 16th, and filed December 9th, 1915, on the ground that the appeal was not taken within the time limited by law and the rules of the prerogative court, and an appeal by the Pearces from that part of the order of the orphans court dated January 15th, 1916, vacating its decree of November 16th, 1915. If the decree actually entered November 16th, 1915, is to be regarded as the decree of the orphans court, and that dated on that'day, but actually filed on December 9th is not! to> be so regarded, then the appeal of Mary L. Hathom was taken out of time, that is, more than thirty days after the making of the decree. And this results if the orphans court had no power to vacate its first decree.

Although parties are obliged to watch the dockets of the courts and inform themselves of the entry of decrees and orders, nevertheless circumstances may arise which, if they do not absolve the parties from that duty, operate to relieve them of the consequences of such failure. And the case before me is pre-eminently such a case.

It appears that after the argument of .the cause before the judge of the orphans' court both parties sent him, at his request, briefs, with a form of a decree which they desired to be entered, and they were subsequently notified by the surrogate of the filing of an opinion, hut not of the decree. Counsel for the successful proponent, in ignorance of the signing and filing of the form1 of decree which they had submitted, gave counsel for appellant notice that they would move the orphans court on December 7th, 1915, twenty-one days after the making and filing of the decree, to settle the.decree in the case. Clearly this gave counsel for appellant to be informed that no decree for the proponent had been entered, and, responding to the notice, counsel for appellant attended, and, in¡ the presence of counsel for proponent, applied for a counsel fee> and, two days later, December 9th, 1915, the judge of the orphans court, apparently resting under the same mistake as counsel for all the parties, filed another decree similar in all respects to that filed November 16th, 1915, save as to the allowance of a counsel fee, which subsequent decree was not filed until December 9th, 1915. as already stated. Afterwards, the entry of the decree of November 16th, 1915, coming to the knowledge of proctor for MaryL. Hathom, he made a motion on her behalf to the orphans court to. strike out that decree on the ground that it had been made inadvertently and by mistake. That court, the premises considered,, by an order dated January 15th, 1916, vacated and set aside the decree made and entered November 16th, 1915, and ordered that the decree filed December 9th, 1915, be made the decree in the cause disposing of the appeal from the surrogate. If this order was within the. power of the orphans court to make, it is entirely dispositive of the question before me, for it resulted in establishing the decree filed December 9th, 1915, as the only decree in the cause in the orphans court, and it was made within the same term in which the former decree was filed. I am of the opinion that this action of the orphans court was within its power.

The supreme court in Fraley v. Feather, 46 N. J. Law 429, held:

“Judgments are under the control of the court which pronounces them, during the term fit which they are rendered or entered of record, and may then be set aside, vacated, modified, or annulled by that court.”

Chancellor Pitney, as ordinary, in Re Cassidy’s Will, 80 N. J. Eq. 163; 82 Atl. Rep. 920, following the line of decisions, held:

“An orphans court is a court of general jurisdiction over the subjects within its cognizance, and partakes of the powers of the chancery and prerogative jurisdictions.”

Now, as the orphans court is a court of general jurisdiction with reference to the probate of wills, it has the inherent power to control its own decree probating a will, and to vacate o.r amend it as right and justice may require.

If anything were wanting to show how the Pearces regarded the decree filed December 9th, 1915, as the decree in the cause, it is only necessary to refer to the fact that they took an appeal from' that part of thai; decree which awarded a counsel fee to counsel for appellant to be paid out of the estate of tire decedent, on the ground that such allowance was illegal and improper. This was a tacit recognition of the decree filed December 9th, 1915, as being the decree of the orphans court in the cause, at least the other side had a right to- so regard it. They might have limited the effect of the appeal by stating in it that they did not concede the part unappealed from as being the decree of the court, but regarded and relied upon Ithe decree of November 16tn, 1915, as being the decree disposing of the question of probate. So here was another practical notice to appellant that proponents regarded the decree filed December 9th, 1915, in its entirety, as the sole and only decree of the orphans court.

I do not wish to be understood as holding that in the circumstances of this case the orphans court would! have been powerless to vacate its decree of November 16th, 1915, after the term wherein it was made and filed, that question not being involved.

If a party cannot be deprived of his right of appeal, by a mistake of a surrogate, even after the lapse of the statutory time, as was held in Mount v. Van Ness, 34 N. J. Eq. 523, surely that ought not to be denied where both parties fall into error as to whether a decree had been filed, and treat it as not having been filed, and proceed in the cause as though it had not been filed.

Assuming that if nothing had occurred for thirty days after the signing and filing of the decree of November 16th, 1915, namely, up- to December 16th, 1915, the right of appeal on behalf of Mary L. Hathorn was lost, nevertheless, as stated, the notice given to her proctor by the proponents of a motion before the orphans court on December 7th, 1915, for the settlement of the decree, amply excused counsel for appellant from thereafter looking at the docket to see whether any decree had been entered, for he wais, by such notice, definitely given to understand by counsel for the adverse parties that no' decree had been entered, and therefore the time for appealing ran for thirty days after the filing of the decree of December 9th, 1915, within which time it •was taken. It makes no difference whether^ the action of the adverse party which operates to prevent the aggrieved party from appealing is the result of honest mistake. Mount v. Van Ness, supra (at p. 528). But, as before remarked, the action of the orphans court in vacating the earlier decree, being within its power, is dispositive of the matter.

The views above expressed lead to a denial of the motion to dismiss the appeal of Mary L. Hathorn and to an affirmance of the order of the orphans court of January 15th, 1916, vacating its decree of .November 16th, 1915.