author: Voorilees, J.

text:
    Charles Cobb Van Riper, executor, &c., complainant, respondent and appellant, v. Elizabeth A. Wickersham, defendant, appellant and respondent.
    [Argued November 26th, 1909.
    Decided June 20th, 1910.]
    1. It is the uniform rule in this state to decline to decree specific performance where reasonable doubt concerning the title exists, though rested on grounds merely debatable, but which might visit upon the purchaser litigation in that regard, and that too, where at law, the title might in fact be declared good.
    2. When the vendor in a suit for specific performance by reason of the silence or the conduct of the vendee regarding the title to be conveyed during the negotiations or in the progress of the cause, has lost an opportunity to perfect his title before decree, this opportunity will still be afforded to him by the allowance of a reasonable time, even after the entry of the decree, if it can be done without hardship to the vendee.
    On cross-appeals from a decree of the court of chancery, advised by Vice-Chancellor Learning.
    These are cross-appeals from a decree of the chancellor for specific performance, advised by Vice-Chancellor Learning. The bill is filed by Charles Cobb Van Riper, executor and trustee under the last will and testament of Joseph A. SefEarlen, deceased, and is founded upon an agreement dated October 7th, 1907, whereby the executor agreed to sell and convey certain premises in Atlantic City to Elizabeth A. Wickersham. This instrument provided that the premises to be conveyed should be clear of encumbrances and the title good and marketable; that the settlement should be made within thirty days after authority of a court shall have been obtained authorizing the sale, time to be the essence of the agreement. The agreement was executed upon the express Condition that the proper court having jurisdiction should authorize the sale to be made, the vendor covenanting that he would with due diligence apply to the court to make the sale. A peculiar provision of the will of the testator gave rise to the covenant inserted in the agreement regarding the application to the court for arithority to sell. The testator’s will provided as follows:
    “I also give to my said daughter, Mary Regina C. McCloskey, the right and privilege to occupy my cottage at Atlantic City, New Jersey, which is used by me principally as a summer residence, without any charge for rent, taxes or water rent, and if she desires to so occupy the said property she may do so during the term of her natural life and during her occupancy of said property my executors and trustees are authorized to keep it in good order and repair, to pay all taxes, water rent and charges thereon as they shall periodically fall due.
    “Second. I .also give my daughter, Laura Agnes SefEarlen, the same right and privilege to occupy my aforesaid Atlantic City Cottage and to share the same with Mary Emma Rothenberger during the term of the natural lives of both the said Laura Agnes SefEarlen and Mary Emma Rothenberger and the same benefits and advantages that I have given my said daughter Mary Regina C. McCloskey regarding the said cottage are also given to my said daughter Laura Agnes SefEarlen and the said Mary Emma Rothenberger. And I direct my executors and trustees to permit the said Mary Emma Rothenberger to take care and full charge of my said daughter Laura, and if my daughter Mary Regina O. McOloskey does not desire to occupy the Atlantic City Cottages during the winter months, it is my wish and desire that my daughter Laura Agnes Seffarlen and Mary Emma Rothenberger, shall occupy the same, and whatever costs and expenses are necessary for the proper care, keep and comfort of my daughter Laura, shall be paid by my trustees as a primary charge out of the income of my residuary estate.
    “And if neither of my said daughters desire to occupy my Atlantic City cottage, my executors and trustees are directed not to rent it, but they are authorized and directed to sell the cottage at public or private sale under the general power of sale of my real estate, hereinafter delegated to them.”
    The executors and trustees under the will were made guardians of the estate of the testator’s daughter Laura, who was of feeble mind, and the will further directed
    “And I hereby authorize and direct my said trustee to see that the comfort of my said daughter Laura Agnes Seffarlen, is in every way provided for so long as she shall live, and I direct that they employ proper persons for that purpose, preferably my trusted servant Mary E. Rothenberger, and if necessary other persons under them and that they make liberal compensation out of said income for that purpose.”
    All the parties to the contract had notice that Laura was of feeble mind and incompetent to express a desire not to occupy the premises. Therefore the complainant, in pursuance of the provision in the agreement, filed his bill on January 23d, 1908. but did not make Mary Emma Rothenberger a party defendant thereto. On the eleventh day of May in the same year a decree was entered in said cause which, after reciting that in the opinion of the chancellor the said Laura Agnes Seffarlen was not mentally competent to express her desire not longer to occupy said premises, and the court being of the opinion that it is for her best interests that the agreement should be performed and the saie consummated, adjudged that Mary Regina O. McOloskey does not desire longer to occupy said premises, and that said Laura Agnes Seffarlen is not mentally competent to express her desire in the premises, and that the executor and trustee under the will be and is authorized and directed to sell the premises under the terms of said agreement and that the purchaser need not look to the application of the purchase-money.

      A deed was prepared and tendered to the vendee on July 7th, 1908, within thirty days after the decree, but was refused by her. The defendant did not object to accepting the deed because of any alleged outstanding interest of Mary Emma Rothenberger in the premises, but solely because due diligence in procuring the above mentioned decree authorizing the sale had not been used, and of laches in tendering the deed.
    This bill was filed July 22d, 1908. The defendant filed her answer thereto September 18th following, in which she admitted the tender of the deed and her refusal to perform, basing such refusal upon the delay by the complainant in instituting suit for authority to make sale of the premises, because time was of the essence of the agreement. The cause came on for hearing on December 30th, 1908, when the defendant asked leave upon affidavits to amend her anstver by setting up therein that the title as tendered to her was not good and marketable, because Mary Emma Rothenberger had not been made a party defendant in the proceedings in the court of chancery to obtain leave to sell the premises and her rights were in no way affected by such proceedings; that she did not join in the deed tendered and that she, under the will of Joseph A. Seffarlen, had an outstanding interest in the premises. Leave was given, and such answer was immediately filed. The vice-chancellor rendered his decision at the conclusion of the hearing on the same day, and a decree thereon was entered January 13th, 1909, ordering specific performance of the agreement, and that the complainant within thirty days from the date of the decree deliver a good and sufficient conveyance to the defendant, and, if the defendant require it, cause a deed of release of any interest which Mary Emma Rothenberger might have in the premises to be executed by her releasing to the defendant such interest and deliver the release to the defendant contemporaneously with the conveyance.
    Erom this decree cross-appeals were taken; by the complainant from that part of the decree adjudging that the complainant procure a release from Mary Emma Rothenberger on the ground that Mary Emma Rothenberger possessed no interest in the premises; and by the defendant because the complainant was not entitled to have the agreement specifically performed by reason of Ms delay in acquiring authority from the court to make the conveyance and by reason of his not tendering a marketable title prior to the filing of his bill, and that the defendant was entitled to have the bill dismissed upon the pleadings and proofs.

      Mr. S. Slang er Iszarcl, for the complainant.

      Messrs. Grey & Archer, for the defendant.
   The opinion of the court was delivered by

Voorilees, J.

Whether the complainant was in laches in procuring the authority from the court of chancery to make the conveyance under the will was a question of fact. Between the execution of the agreement and the filing of the bill the defendant consulted a conveyancer in Philadelphia, who in turn consulted a title company, and in October • notified the complainant that a commission in lunacy for Laura and the appointment of a guardian would be required by the title company. The complainant was not willing to take proceedings of that character, which would consume more time, and New Jersey counsel was called in, advising that such proceedings were not necessary, and thereupon took up the matter with the title company selected by the defendant, and finally reached an understanding some time in December with the title company that the proceedings, as they were finally taken, should be commenced.

We agree with the conclusion of the vice-chancellor that the complainant was reasonably diligent, and is not chargeable with laches in the commencement of those proceedings under the circumstances evinced by the proofs.

That being admitted, it follows that the tender of the deed was within the time prescribed by the contract, namely, within thirty days after the decree was entered in the court of chancery.

The next question to be determined relates to the title tendered, whether it was unmarketable because of a possible interest outstanding in Mary Emma Bothenberger.

The principle adopted by courts of equity in matters of specific performance is that they will not compel a purchaser to take a title of which there is a reasonable doubt, and such doubt is held to exist if the purchaser, desiring to sell the lands, would be adversely affected by such doubt. Fry Spec. Perf. ch. 17.

Professor Pomeroy, in his work on Specific Performance (at § 198), says:

“In suits by a vendor the purchaser will not be forced to complete the contract unless the title is free from reasonable doubt. * * * If, however, there arises a reasonable doubt concerning the title, the court, without deciding the question, regards its existence as a sufficient reason for not compelling the purchaser to carry out the agreement.”

So it is the uniform rule in this state to decline to decree performance where such doubt exists, though rested on grounds merely debatable, but which might visit upon the purchaser litigation in that regard, and that too where at law the title might in fact be declared good. The following cases are in point: Vreeland v. Blauvelt, 23 N. J. Eq. (8 C. E. Gr.) 483; Dobbs v. Norcross, 24 N. J. Eq. (9 C. E. Gr.) 327; Tillotson v. Gesner, 33 N. J. Eq. (6 Stew.) 313; Cornell v. Andrew, 35 N. J. Eq. (8 Stew.) 7; S. C., 36 N. J. Eq. (9 Stew.) 321; Paulmier v. Howlamd, 49 N. J. Eq. (4 Dick.) 364; Lippincott v. Wilcoff, 54 N. J. Eq. (9 Dick.) 107; Day v. Kingsland, 57 N. J. Eq. (12 Dick.) 134.

We agree with the learned vice-chancellor that the objection raised to the title tendered should be decided in favor of the vendee.

The decree below allowed to the complainant thirty days in which to procure the release of the alleged outstanding interest and to tender it within that time, together with the executor’s deed. While this allowance of time is not made a specific ground of appeal by the defendant, yet the point has been argued.

The complainant, however, alleges as ground of appeal that he should not be compelled to obtain the release of Mary Emma Rothenberger. A material allegation of the bill is that the complainant executed and tendered to the defendant a good and valid deed of conveyance and that the complainant was ready and willing to deliver a good and valid conveyance in accordance with the agreement.

In her original answer the defendant admits the tender made to her of the deed mentioned by the complainant and her refusal to accept is placed, not upon the ground that the title thus offered was unmarketable, but because of the laches of the complainant in making the tender. This ground is set out in the answer with extreme minuteness. If the defendant did not thus, by failing to answer the material allegation of the tender of a good title, confess that fact (Sanborn v. Adair, 29 N. J. Eq. (2 Stew.) 338; Lee v. Stiger, 30 N. J. Eq. (3 Stew.) 610; Jones v. Knauss, 31 N. J. Eq. (4 Stew.) 609; Pinnell v. Boyd, 33 N. J. Eq. (6 Stew.) 190; Halsey v. Ball, 86 N. J. Eq. (9 Stew.) 161; Heyde v. Ehlers, 10 N. J. Eq. (2 Stock.) 283; Tate v. Field, 56 N. J. Eq. (11 Dick.) 35), she lulled the complainant into inactivity and a feeling of security as to any objection that might be urged on the score of title and she furthermore allowed this condition of affairs to remain undisturbed until the day of the final hearing, excusing her delay, however, upon the ground that the true state of the title was unknown to her until about the time of the hearing. Furthermore, in March, 1908, two months before the decree, the defendant served notice of rescission of the contract on account of delajr. No objection was then made to the character or the validity of the proceedings for obtaining an order authorizing the complainant to sell.

This conduct of the defendant likewise had a natural tendency to raise in the mind of the complainant a reasonable belief that the point of difference between the parties was laches and not the character of the title. Now, if the defendant had promptly specified that objection would be made to the title, the complainant would have had all the time existing between the disclosure of that defence to him and the entry of the decree, in which to remove the defects complained of. So that we do not need to press to its extreme result, the effect of the failure to answer the material allegations of the bill as to a good title being tendered, but may rest upon the fact that the silence of the defendant in this particular has raised an equity in favor of the complainant, entitling him to such reasonable time for completing the title not exceeding that which he might have had if the defendant had urged this defence promptly.

The English rule seems to be that laid down in Langford v. Pitt, 2 P. Wms. 630, by Sir Joseph Jekyll, M. R., that it is sufficient if the party entering into articles to sell has a good title at the time of the decree. The eases are collected under Seton v. Slade, 2 White & T. Lead. Cas. (4th Am. ed.) 529. It has been said that the courts have never directed performance by the vendee if the title at the time of the decree was still defective. The English rule, however, holds that if the master’s report on title is that the vendor, upon getting in a term or getting administration, &c., will have a title, the court will put him under terms to procure that speedily. Coffin v. Cooper, 14 Ves. 205. In a note to Cooper v. Drnne, l Fes. 567, it is said that the rule has been productive of great hardship, and Lord Eldon, who decided Coffin v. Cooper, declared that he would never extend it to any case to which it had not been previously applied.

The difference, however, between the practice of the English courts and that of our own, makes it illogical to apply their rules with exactness to all cases arising in our courts. They have the matter of title first referred to a master to report upon and then comes the decree. They hold that perfection of the title by the time of the decree, that is, after its adjudication by the master, is sufficient. How with us the title is not adjudicated until the final hearing, upon which a decree may be entered and signed immediately. Thus we see that the English rule is even more lenient than ours, for it allows the necessary time intervening between the master’s determination of the title and the time of the entry of the final decree.

Professor Pomeroy, in his work on Specific Performance (at § 424), says: • “There are many modes in which the vendee, by his acts or omissions, will waive all right to object to the vendor’s delay in making out a good title.” And in Seton v. Slade, 7 Ves. 265, where specific performance was decreed, the abstract, though delivered very late, and under a notice that the vendee would insist on his deposit, with interest, if the title should not be made out and possession delivered by the time of payment, having been received and kept without objection, Lord Eldon, upon summing up the case, said: “Under the circumstances, therefore, whether the time is or is not an objection founded upon the authorities, the reports of this court furnish — which I will not discuss, let the authorities upon that point turn the scale either for the defendant or the plaintiff — there is no authority that has not some reference to the conduct of the party in the meantime; and upon the conduct, this defendant has no right, under the circumstances, to say this contract was not performed within the two months.”

In Murrell v. Goodyear, 1 DeG. F. & J. 432, Lord Justice Turner said: “I am not prepared to hold that in the case of bona fide conduct on the part of the vendor putting up property for sale in winch he has a partial interest supposing himself to have entire interest, it is competent to a purchaser to say that the contract shall be no contract if the vendor is able ultimately to make a title to the property according to the more extended interest he has contracted to sell. I certainly have always thought that in such a case a purchaser could have no right to resist a specific performance of the contract. But I say without any hesitation that if a purchaser has any such right as he has contended for and insisted upon on the part of this defendant, it is a right he is bound to insist upon at the first moment.”

In Dresel v. Jordan, 104 Mass. 415, it was said: “In all cases it is sufficient for the seller upon a contract made in good faith if he is able to make the stipulated title at the time when, by the terms of the agreement or by the equities of the particular case, he is required to make the conveyance, in order to entitle himself to the consideration.”

The defendant concedes that there are precedents where a decree has been made on terms allowing a vendor to remove mortgages from the property (Oakey v. Cook, 41 N. J. Eq. (14 Stew.) 350), and where the vendor has perfected his title before bill filed, or before the hearing, or before the decree, or even after that time, when the vendor held a contract entitling him to such outstanding interest (Soper v. Kipp, 5 N. J. Eq. (1 Halst.) 383), but it is contended that no cases can be found where addir tional time has been decreed to afford an opportunity to acquire an outstanding title over which the vendor had no control.

■ AVhen the vendor, in a suit for specific performance, by reason of the silence or the conduct of the vendee, regarding the title to be conveyed, during the negotiations or in the progress of the cause, has lost an opportunity to perfect his title before decree, this opportunity will still be afforded to him by the allowance of a rea'sona’ble time even after the entry of the decree, if it can be done without hardship to the vendee.

It is apparent that by reason of the defendant’s delay in not bringing forth her objection until the very day of the hearing, an equity has arisen in favor of the complainant that he be not deprived of the period of time, which he would have had under the ordinary rules, and therefore we are constrained to hold that the allowance of thirty days after the making of, the decree within which to obtain a release for the alleged outstanding interest is not inequitable, and does not work hardship upon the defendant.

The decree should be affirmed.

On complainant’s appeal—

For affirmance — The Chief-Justice, Garrisor, Swayze, Trerciiard, Parker, Berger, Yoorhees, Mirturr, Bogert, AArederburgh, Gray, Dill, Corgdor — 13.

For reversal — ArR00M—1.

On defendant’s appeal—

For affirmance — The Chief-Justice, Garrisor, Swayze, Trerchard, Parker, Berger, Yoorhees, Mirturr, Bogert, ArREDERBURGH, YROOH, GRAY, DlLL, CORGDOR-M.

For reversal — Hone.


source: Caselaw Access Project

author: Vbkdenbubgh, J.

license: Public Domain

text:
    Mayor, &c., of the Borough of South Amboy et al. v. Pennsylvania Railroad Company et al.
    [Argued March 22d, 1910.
    Decided June 20th, 1910.]
    1. Section 29 (P. L. ISOS p. 660), providing- that where any railroad company shall not properly construct crossings of highways as required by law, the municipality where the crossings are located may proceed by a suit in equity to compel specific performance of the duties imposed by law on the company, is not applicable to a ease where the fact of an alleged encroachment upon the highway by the railroad company averred in the bill, is in doubt and substantial dispute under the evidence, or has not been settled at law, and confers no jurisdiction upon a court of equity to try such a controversy.
    2. Nor can the bill be sustained as one for the abatement of a public nuisance by injunction, where there is no averment in it of irreparable damage, and the evidence shows a substantial dispute as to the fact of the nuisance upon which the bill is founded, and the question is in doubt, or has not been determined at law.
    On appeal from a decree o£ tlie court of chancery advised hy Vice-Chancellor Stevenson, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 67.

      Mr. Frederic M. J’earse and Mr. George 8. Bilzer, for the borough of South Amboy and others, complainants.

      Mr. Alan II. Strong, for the Pennsylvania Railroad Company and others, defendants.
   The opinion o£ the court was delivered by

Vbkdenbubgh, J.

The complainants have set in motion the present statutory proceeding by filing their hill of complaint in equity, framed under the twenty-ninth section of the General Railroad law of this state. P. L. 1903 -p. 660.

The principal object of the suit (as must conclusively be inferred from the terms of the decree in their favor brought up for review) is to compel the widening of the public highway as it now exists in the borough of South Amboy, New Jersey (known as Ridgeway or Stevens avenue), at a point in it called in the petition attached to the bill, “The Hole in the Wall,” to its alleged legal width. The decree appealed from, if enforced according to its terms, will eject the defendants from the possession of a parcel of land at least nineteen feet in width and of an undefined length, which has been, admittedly, in their exclusive and peaceable occupation for more than sixty years last past. The questions involved in this appeal, therefore, are of importance both in fact and in principle.

In the year of 1833, in the earliest days of railroad building both in this country and the world, the Camden and Amboy Railroad Company first built its railroad, and laid down the rails of its tracks at the place in controversy. They built it across an old road, or driftway, which has since grown into Ridgeway avenue. This old road, in 1833, was merely a single track wagon way, used by the public in driving their horses and wagons over the railroad track, and remained of the same width and condition until the year 1857 — a period of twenty-five years — when, the defendants, acting, doubtlessly, for their own interests, as well as for those of the public, widened its limits by constructing, at right angles with the road, two stone wall abutments, fourteen feet apart, and then elevating and placing their railroad tracks upon the top of the abutment walls sufficiently high and wide above the wagon road to permit the passage of carriages, horses and cattle over it, and under the railroad, in conformity to law and charter provisions. The effect of this change of 1857 was to widen the highway there from .a single wagon track crossing at grade of about seven feet in width to an undergrade crossing of fourteen feet in width. The devotion in 1857 by the defendants of this increased width of land for the purposes of the crossing, must be presumed, as against them, to have been a dedication by them of their land to and for the use of the public. It has remained unchanged ever since and up to the time of the entry of the decree below.

Uo recorded or other return in writing of the laying out of the old road, nor any applicable to it, appears in the evidence, but the bill of complaint avers that this Ridgeway avenue or highway was originally laid out to a width of fifty feet, and charges that the abutments encroach upon the highway, and asks that they be changed to the proper line of the street, and the roadway between them be widened accordingly. Its specific prayer for mandatory injunction (which I deem important to transcribe here) is that

“the Pennsylvania Railroad Company and the United New Jersey and Canal Company may answer the premises, and may be compelled specifically to perform the duties imposed by law upon them, or either of them, with respect to the construction, maintenance and repair of the crossing of Ridgeway avenue, or Stevens avenue, in the borough of South Amboy by their tracks, and that your honor will prescribe the crossing to be reconstructed and the repairs to be made, and that they may be required to remove the abutments placed by them within the lines of the highway aforesaid, and to properly improve said highway to the full width thereof and make the necessary provision for the carrying away of surface water and drainage and sand soil now washed upon said highway beneath said tracks,”

concluding witli the usual prayer for other and further relief.

After hearing the evidence the learned vice-chancellor, without finding or determining, in express terms, that the highway at the crossing had been narrowed or encroached upon by the defendant, has, in effect, by the decree advised by him, so determined, as will presently appear. The terms of the injunction decree, in respect to the matters we are now interested in, adjudge and command “that the defendants shall, within six months from its entry, separate the walls now constructed under the tracks of the defendant companies at the place set forth and described in the bill of complaint in this cause so as to leave thirty-three feet in the clear between said walls, said width being deemed by the court at this time adequate for public travel on said highway. Provided, however, that the defendants shall have the right to erect supports or columns through said passageway to occupy at the base thereof a space not greater than two feet in width, and to so erect the same as that there shall be a roadway of not less than twelve and one-half feet on the northerly side of said passageway, and a roadway of not less than twelve and one-half feet ■ and a sidewalk of six feet on the southerly side of said passageway, said sidewalk to be constructed immediately adjacent to the southerly wall of said passageway.”

It will be seen, at a glance, that this decree is the equivalent of a judgment in ejectment at law, and will, if enforced, oust the defendants from the possession of their land, as effectually as if a writ of possession had issued from a court of law.

It is important to observe at this point that there is no averment in the bill of complaint that any specific number of feet, or 'quantity of land, of the highway had been, previous to the filing of the bill, taken or appropriated by the defendants, nor does the prayer of the bill give any notice to the defendants that a decree and judgment of the court of chancery awarding the possession of any land to the complainants was asked for. The absence from the bill of complaint (in this peculiar statutory proceeding in equity) of any demand of possession of a defined quantity of land, as compared with the certainty of such demand of possession required in proceedings at law, gives rise to the suggestion of the jurisdictional difficulty encountered, and hereinafter to be considered.

The defendants, by their answer filed in the cause, deny the jurisdiction of the court below in the premises, and insist that the complainants have a full, complete and adequate remedy at law; that the lawful width of the highway can only be determined in an action at law. At the hearing before the vice-chancellor the questions of fact presented by the complainants’ evidence related mainly to the claimed encroachment by the defendants upon the old highway since the year 1857 up to the filing of the bill.

As has already been stated above, there was no evidence that the old road was ever laid out as a public road, or that its courses or limits were ever fixed or designated by any map or return, or writing whatever, hior was there any proof in the case of the existence of fences, or other visible monuments, defining either the lines or the limits of Eidgeway avenue at this crossing at any time. There was a mass of testimony, given by old witnesses from personal recollection; as to the user by the public. by wagons and otherwise, of the highway since the year of 1851. While evidence of this character was apparently sufficient to influence the learned vice-chancellor to conclude that the minimum lawful width of the avenue at the locus in quo was thirty-three feet, yet it seems to us that such evidence was too indefinite and uncertain to furnish foundation for the decree appealed from. We are of the opinion, moreover, that the proper forum for settling the width of the highway is a court of law, and the proper tribunal for its correct determination is a trial by jury. Where such a fundamental question is in dispute we think the twenty-ninth section of the General Kailroad law has no application. We agree with the opinion below in its statements to the effect that the bill of complaint is not one to have a nuisance in a public highway abated by injunction, nor one to have conflicting easements regulated, but must be regarded as invoking only the jurisdiction conferred upon the court of chancery by section 29.

There is, however, another reason, not adverted to in the opinion below, why, under the facts in controvers3r in this case, the bill cannot be sustained as one for the abatement of a public nuisance by injunction. The bill does not aver irreparable damage, nor is such claim made under the evidence. Professor Pomeroy, in his work upon Equitable Remedies (vol. 1 § 54%), after stating that the same principle must govern the question as to the interference of the court, whether the case be one of public or private nuisance, and that the principle by which the court ought to be governed is “whether the extent of the damage and injury be such that the law will not afford an adequate remedy,” adds: “If there is a substantial dispute as to fact or law, and the question is in douibi, a tidal at law will be required before equity will intervene.”-'

In the case of Attorney-General v. Heishon, 18 N. J. Eq. (3 C. E. Gr.) 412, it is said, in the opinion of Chancellor Zabriskie (after stating that the court of chancery has power to cause nuisances to be removed and abated, both public and private), “that it will only exercise that power when the fact of nuisance is beyond doubt, or has been settled by a verdict at law,” citing cases at page 413. In the TIeishon Case, as in the case at bar, the controversy was over a question of an encroachment of clefondant's erection upon a public street, but there was no record or survey of the laying of the street, and no proof of its width, and it was held that the facts in dispute should be determined by a jury, and that if the bill was retained an issue should be directed to try the question by jury whether Heiahon’s building extended beyond the true line of the street. In the case in band the width of Ridgewaj^ avenue at the crossing was not established by an}1, record or survey of the laying out of the highway, but the facts respecting the width were in sharp dispute and grave doubt under the evidence.

The learned vice-chancellor, after saying in Ms opinion that the court had to deal with the highway as it existed by user or presumed dedication when the railroad tracks were constructed over it, and after a very able and earnest effort to reconcile the mass of testimony before Mm respecting its lawful width at the crossing, arrived at the conclusion, from the weight of the testimony, that it was at least two rods in width. That he was in much doubt about the fundamental fact of the true width is evident from a reading of Ms opinion.

A few of the many eases in this state supporting the principle declared above by Pomeroy and in the case of Attorney-General v. Heishon, supra, are: Carlisle v. Cooper, 21 N. J. Eq. (6 C. E. Gr.) 576; Attorney-General v. Brown, 24 N. J. Eq. (9 C. E. Gr.) 89; Outcalt v. George W. Helme Co., 42 N. J. Eq. (15 Stew.) 665; Todd v. Staats, 60 N. J. Eq. (15 Dick.) 507.

From what has preceded it follows that the jurisdictional validity of the decree below must depend entirely upon the terms of section 29. It reads:

"When any company shall not properly construct and maintain the bridges or other crossings of highways by its railroad tracks as required by law, it shall be lawful for the governing body of the township or municipality wherein such crossings are located, within a reasonable time, after notice to the company, to construct or repair such bridges or other crossings, and the cost thereof may be collected from the company, whose duty it is to make such construction or repair, by action in any court of competent jurisdiction; or in lion of such construction or repair the township or municipality may proceed by a suit in equity to compel the specific performance of the duties imposed by law upon such company with respect to the construction, maintenance and repair of such bridges and crossings, and the court shall prescribe the crossing to be constructed or the repairs to be made; and in order to enforce obedience to its decree or mandate, the court may restrain the exercise of any of the franchises of the company or adopt such other remedies as may be in accordance with the practice of the court.”

Docs this statute confer upon a court of equity authority to try and determine the question of encroachment bjr a railroad upon a public highway in cases where its width is in doubt or dis-¡rate or has not been settled at law ?

The case of Metuchen v. Pennsylvania Railroad Co., recently decided in this court and reported in 73 N. J. Eq. (3 Buch.) 359, and in the court of chancery in 71 N. J. Eq. (1 Buck.) JiOJ+, does not assist us in the decision of the point in which we are now interested. In that case the jurisdictional force of the twenty-ninth section was construed, but not in regard to the feature now in question. Yice-Chancellor Pitney, with characteristic acumen, held (71 N. J. Eq. (1 Buch.) 404 and this court .subsequently in 73 N. J. Eq. (3 Buch.) 359, affirmed his holding for the reasons given by him) against the defendant’s contention, which was, that the legislature had no power to confer on the court of chancery the right to give to a municipality “compulsory remedy by way of compelling specific performance by a railroad company of its duties in this behalf as contradistinguished from its power to give it a preventive remedy;” but the context of his opinion shows that he was then only concerned with the question of such power so far forth as it rested upon the ground of the specific performance of contractual duties owed by the railroad companies to the state, and he went on to say that section 39 “merely provides for the compelling of the specific performance of a duty resting upon the railway by virtue of its original contract with the state,” * * * and that it seemed to him that the jurisdiction given by that section “is cognate to the familiar jurisdiction of the court to compel the specific performance of contracts.” This ground, it is plain, can have no application to the ease, sub judice. The defendants here cannot be said to have been under any contract with the state to surrender to it, for its use, their private rights of possession in their own lands. The distinction between the cases will further clearly appear when we notice that in the Metuchen Case, the width of Main street, in Metnchen, which was sought to be widened by the complaining borough, was not disputed by the railroad. Its width and limits at the crossing of Main street were precisely defined of record and not controverted; nor was there room for any controversy as to its lawful width. The reverse is true in the present case. I think that no other decision of our courts construing this section upon the point before us can be found, and 1 conclude that the question now raised must be regarded as one of first impression in this court.

It will be conceded that this statute does not, in express terms, confer iipon the court of chancery authority to try or determine the fact of encroachment upon a highway by the railroad companies, asserted and assumed in the proceedings and decree before us, and I think the court will be slow to imply from those terms a legislative design to deprive the courts of law of any part of their ancient and exclusive jurisdiction to try such questions according to the course of the common law.

One of the cardinal rules of statutory construction is to regard the effect and consequence of the law. A long array of authority has denied to courts of equity the right to entertain suits where there is a substantial dispute over the title to land, or over legal estates of easement in lands — a right which has hitherto remained within the exclusive cognizance of the courts of law of this state.

The number and uniformity of these adjudications are such that an intent on the part of the legislature to create so important a change and transfer of jurisdiction from law to equity, as’was attributed to this act, by the court below, seems to us to be unwarranted by its language and clearly untenable. It should be added, lest the point might be thought to have been overlooked by this court, that if the purpose of the statute had been to confer such authority upon a court of equity, it would have been constitutionally invalid under the doctrine of Jersey City v. Lembeck, 31 N. J. Eq. (4 Stew.) 255, and the cases which have followed it. It is a familiar rule of the construction of statutes that the court will not declare void an act of the legislature for unconstitutionally when a construction can be given to it which will not have that effect.

Deferring to some of these authorities, upon the question of equity cognizance, if will be seen that in Todd v. Staals, 60 N. J. Eq. (15 Dick.) 507, this court held that “when the fundamental right, on which the complainant prays equitable relief is the legal title to an easement in lands of the defendant, and that right is in substantial dispute, the establishment of the right at law is necessary to justify the interference of a court of equity.”

In the leading case of Hart v. Leonard, 42 N. J. Eq. (15 Stew.) 416, it was held by this court that “a substantial dispute over a private legal right in land is not ordinarily cognizable in a court of equity.” In that case the bill averred that the complainant was the owner of a lot of land, and that he and his predecessors in title had, by adverse user for over twenty years, acquired a rig]it of way across the lands of the defendant from a certain public road to said lot; that the defendant obstructed said way, and the bill prayed a decree that the complainant was entitled to the way, and a mandatory injunction commanding the defendant to remove the obstruction and allow the defendant to pass through. This court, in its opinion delivered by the late Mr. Justice Dixon, said: “From the foregoing statement it appears that the claim s'et up a purely legal interest in lands, resting upon a purely legal basis. Before attempting to determine the validity of the claim, it is proper to consider whether the question, presented comes within the cognizance of a court of equity.” After classifying the cases in which courts of equity may, by decree and injunction, protect and enforce legal rights in lands, the opinion declared that the case did not come within any of those classes, because the evidence showed “a substantial dispute over the fact of adverse user which the defendant is entitled to have settled by the verdict of a jury.”

In a later case, affirmed by this court on appeal, of Delaware, Lackawanna and Western Railroad Co. v. Breckenridge, 55 N. J. Eq. (10 Dick.) 141, 593, it yas held that “a court of equity is without jurisdiction of an action to enjoin a continued trespass in lands by the maintenance across them of pipes laid under the surface, where the right to relief depends on the question of the complainants being the owner of the legal title to the land, which has not been determined by a court of law, the trespass being one not involving irreparable injury, and one for which' an action in ejectment affords full and complete relief.”

In Millville Gas Light Co. v. Vineland Company, 72 N. J. Eq. (2 Buch.) 309, it is declared that “where the basis of a bill in equity is the refusal of defendant to yield to complainant the enjojunent of his legal estate in lands, and the title of complainant is in dispute, it is well settled that equity will not entertain jurisdiction until the title is first established at law.” See, also, Palmer v. Sinnickson, 59 N. J. Eq. (14 Dick.) 530, and the cases cited, supra, on page 247 of this opinion, and Ballantine v. Harrison, 35 N. J. Eq. (10 Stew.) 560, 561, where Chief-Justice Beasley’s opinion, in this court, declares that “when an injunction is asked for as auxiliary to the maintenance of a legal, in contradistinction to an equitable right, the rule is entirely settled that such preventive process will never be issued except to preclude irreparable damages,” * * * and “even when such intervention occurs, equity will not take to itself jurisdiction over the legalities of the controversy, but will content itself with conserving the subject of dispute, pending the litigation at law,” &c.

Eor the reasons given, I think the decree below should be reversed.

For affirmance — Hone.

For reversal — Ti-te Chief-Justice, Garrison, Swayze, Trenohard, Bergen, Yoobhees, Minturn, Bogert, YredenBURGH, YROOjYI, GRAY, DtLL, CONGDON — 13.


author: Dill, J.

text:
    Washington National Bank, complainant and appellant, v. David C. Beatty and George McClellan Beatty, defendants and respondents.
    [Argued November 26th, 1909.
    Decided June 21st, 1910.]
    1. The statute relating to fraudulent conveyances extends its protection to all persons having a valid cause of action or suit for damages arising from torts as well as from contracts, but a tort claimant, to be entitled to the protection of the statute, must reduce his claim to judgment. When his claim has thus been established, a conveyance made after the liability accrued and before suit may be set aside, on the theory that such judgment, when once obtained, relates back and becomes a debt as of the time when the original cause of action accrued, thus constituting him an existing creditor.
    2. A voluntary conveyance is void by force of the statute with respect .to existing debts. When attacked by a subsequent creditor, fraud as a fact must be proven. It must be shown that the conveyance was intended to defraud some creditor either existing or subsequent. If the conveyance be thus shown to be fraudulent it may be set aside at the instance of any creditor existing or subsequent. It is not necessary for the subsequent creditor to show that the deed was made with the intent to defraud such persons as should, subsequent to its date, become creditors of the grantor, overruling on this point Gardner v. Kleinke, 46 N. J. Eq. (1 Diek.) 90; explaining and following Hagerman v. Btichanan, J/5 N. J. Eq. (18 Slew.) 292.

    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 75 N. J. Eq. (5 Buch.) 433.

      Mr. Oscar Jeffery, for the appellant.

      Mr. Elmer King, for the respondents.
   The opinion of the court was delivered by

Dill, J.

This appeal from the court of chancery brings up for review a judgment dismissing the bill in a creditor’s action to set aside a voluntary conveyance of real estate. The bill charges the transaction as being “in violation of the statute entitled ‘An act for the prevention of frauds and perjuries/ approved March 27th, 1871.”

There is no element in the case, either by way of pleading or proof, that the complainant bank gave any credit to the defendant relying upon his ownership of the property in question. The answer, denying the material allegations of the bill, specifically raises the issue that the firm of commission merchants, hereinafter referred to, were not, at the time of the conveyance or subsequently, creditors of the defendant within the purview of the statute.

The essential facts of the case are within a narrow scope.

In 1891 David C. Beatty, a farmer, consigned certain farm produce to a firm of commission merchants in New York. They failed to remit the proceeds.

Beatty, in his wrath, exposed to public view a card on which he had written “All fruit shippers beware of” (naming the commission merchants). “They are damned frauds.”

Two days later the commission merchants wrote, threatening to sue him for $100,000 damages. This so alarmed the farmer that he put his property out of his hands, transferring the farm which he owned and the mortgages he held on another farm to his son, without consideration, and at once duly recorded the conveyances. The complainant offered no evidence to controvert Beatty’s statement that the commission merchants were frauds in that they converted to their own use proceeds due him. The case shows affirmatively that the commission merchants never did more than to threaten Beatty, and never proceeded, in any way, to establish the verity of their claim for damages, never sued him and never obtained any judgment against him, but were content to let the matter stand in stalu quo until the statute of limitations had intervened. Admittedly, Beatty made the transfer for the purpose of making himself judgment-proof against these commission merchants, if they should sue him and if the judgment should go against him.

There is no evidence of any other claims or debts against Beatty.

The bank, which was not organized until five years after the conveyance by Beatty, obtained a judgment against him on an accommodation note twelve years after the transfer, and to collect this judgment it now seeks to set aside the deed.

The vice-chancellor below dismissed the bill, holding: First, that, under the evidence, the commission merchants whose threat to bring suit induced the transfers were, within the meaning of the statute of frauds, creditors at the time the transfers were made, and that the-deeds were fraudulent as to them; second, that a conveyance made for the purpose of defrauding a single existing creditor is not void as against subsequent creditors, the incurring of the debts to whom was not within the contemplation of the debtor at the time when the conveyance was made.

We concur in the action of the vice-chancellor in dismissing the bill, but not with his conclusions of law.

Taking them in their inverse order, the first legal question is whether a creditor whose debt is contracted subsequent to the execution of a deed, which is fraudulent as against a single existing creditor, in order to have such deed set aside, must show not only that the deed was fraudulent as to such existing creditor, but also that it was made with intent to defraud such persons as should, subsequent to its date, become creditors of the grantor. The vice-chancellor held to the affirmative of this proposition, relying to some extent upon the statement of Vice-Chancellor Pitney in Gray v. Folwell, 57 N. J. Eq. (12 Dick.) 446 (at p. 456), and following the rule laid down by Vice-Chancellor Van Fleet in Gardner v. Kleinke, 46 N. J. Eq. (1 Dick.) 90.

In our judgment the rule laid down by Vice-Chancellor Van Fleet in Gardner v. Kleinke, supra, and the holding of the vice-chancellor in this case below, in acc.ordance therewith, were erroneous.

The effect of the statute is to make a voluntary deed fraudulent as against existing creditors, without regard to the intention with which it was executed. It is fraudulent in law. This was settled in 1879 by this court in Haston v. Castner, 31 N. J. Eq. (4 Stew.) 697.

The effect of a voluntary conveyance upon the rights of subsequent creditors was decided by us in 1889. Hagerman v. Buchanan, 45 N. J. Eq. (18 Stew.) 292.

It is true that it was considered by the court of chancery in Gardner v. Kleinke, supra, that Hagerman v. Buchanan established the principle that a subsequent creditor was not entitled to have a voluntary conveyance set aside unless he could show that it was made with intent to defraud such persons as should, subsequent to its date, become creditors of the grantor.

The following language of Mr. Justice Reed, in the opinion, was cited by Vice-Chancellor Van Fleet as requiring that conclusion: “A voluntary settlement can be attacked by a subsequent creditor only upon the ground of the existence of an actual intent in the mind of the parties, at the time of the execution of the conveyance to hinder, delay or defraud creditors by means of the deed.” But the citation does not justify the conclusion. In fact, it declares that the test is an actual intent in the mind of the grantor to defraud creditors — not subsequent creditors alone, but any creditors; and that this is the principle intended to be established by that decision is made plain by the subsequent language of the opinion where Mr. Justice Reed, speaking of subsequent creditors, says: “An actual fraudulent intent to defraud some creditors must be proved.”

The true rule is that when a conveyance is attacked by a subsequent creditor, the question to be determined is whether the conveyance was fraudulent.

The question is the same when attacked by an existing creditor ; the only difference is the method of proof. When an existing creditor attacks the conveyance, and shows that his debt was incurred before, and was existing at the time when the conveyance was made, the law, without further proof, raises a conclusive presumption of fraud so far as that creditor is concerned.

When, however, the conveyance is attacked by a subsequent creditor, he must prove fraud as a fact — that is, “an actual fraudulent intent to defraud some creditor.” By some creditor is meant any creditor, either existing at the time when the conveyance is made or subsequently. If this be shown, the conveyance is proven to be fraudulent, and it may be set aside at the instance of any class of creditors, without regard to the time when the debt came into existence.

The next question is whether, under the evidence, the commission merchants, who asserted the claim for damages upon an alleged liability1-, were proven to be existing lawful creditors or other persons named in the statute entitled to set aside the conveyance as fraudulent against them.

It was necessary for the bank, as a subsequent creditor, to prove —first, a voluntary conveyance; second, an existing creditor or other person having a lawful claim or debt within the meaning of the statute; third, an actual intent on the part of the defendant by means of the deed to delay or hinder some creditor, existing or subsequent.

Conceding that an actual intent on the part of the defendant to defeat any judgment which the commission merchants might have obtained is proven, the question still remains whether they come within the purview of the statute.

The rule, both in England (Twyne’s Gase, 8 Golee 821) and in this state, is, that the statute extends its protection to all persons having a valid, cause of action arising from torts as well as from contracts. Boid v. Dean, 48 N. J. Eq. (3 Dick.) 193; Post v. Stiger, 29 N. J. Eq. (2 Stew.) 554; Scott v. Hartman, 26 N. J. Eq. (11 C. E. Gr.) 89; Thorp v. Leibrecht, 56 N. J. Eq. (11 Dick.) 499.

Nevertheless, a tort claimant, to place himself in the position of a lawful creditor or person competent under the statute to set aside a voluntary conveyance, must reduce his claim to judgment, and thus establish a legal debt against the fraudulent grantor. When his claim has thus been liquidated and established as a lawful debt, he may attack a voluntary conveyance made after the liability arose and before suit was brought, to defeat his debt> on the theory that such judgment when once obtained relates back and establishes a debt as of the time when the original cause of action accrued.

The complainant failed to bring this case within the rule that if after a person has incurred a liability for a tort, and before suit brought upon it he makes a voluntary conveyance or settlement of his propertjr, and judgment afterwards goes against him for the tort, the eonve3',ance is void as against that judgment. See Boid v. Dean, 48 N. J. Eq. (3 Dick.) 193 (at p. 203).

A subsequent creditor who attacks a voluntary conveyance as in fraud of a person at the time of the eonve3'’ance claiming damages based on the tort of the grantor, must make legal proof of the verity and legality of the claim. See Baker v. Gilman, 52 Barb. (N. Y.) 26.

A judgment in favor of the claimant and against the tortfeasor would be conclusive evidence. What further or other proof would be equivalent thereto, we are not called upon in this case to decide, for the complainant, upon this point, offered no evidence.

The verity of the claim of the commission merchants has not been established by any judgment or competent proof, and the complainant bank therefore failed to prove that''the commission merchants were lawful creditors or other persons within the meaning of the statute, the intent to defraud whom would vitiate the conveyance.

As against claims and demands, the verity of which is never established b3’' any judgment or competent proof, the statute does not forbid coni^ances or assignments or declare them to be void.

Therefore, upon the ground stated in this opinion, the judgment of the court below dismissing the bill of complaint is affirmed.

For affirmance — Ti-ie Chirr-Justice, Garrison, Swayze, Trenohaed, Parker, Bergen, Yoorhees, Minturn, Bogert, Yredenburgt-i, Yrooai, Geay, Dill, Congdon — 14.

For reversal — Hone.


text:
    Peter Schlicher, complainant-appellant, v. Trenton, Lakewood and Atlantic Railway Company, defendant, Abel B. Haring, respondent. Peter Schlicher, complainant, William P. Schmidt, appellant, v. Trenton, Lakewood and Atlantic Railway Company, defendant, Abel B. Haring, respondent.
    [Argued November 26th, 1909.
    Decided March 16th, 1910.]
    Rulings of a receiver upon the validity of the claims of creditors submitted may be reviewed by the court which appointed him, although no appeal to the court is taken upon such ruling.
    On appeals from a decree of the court of chancery advised by Vice-Chancellor Walker.

      Messrs. Alan II. & Theodore Strong, for the appellants.

      Messrs. Mag aman & Able, for the respondent.
   The opinion of the court was delivered by

Dill, J.

These are two appeals taken respectively by Peter Schlicher and William P. Schmidt from an order advised by Vice-Chancellor Walker, overruling the determination of the receiver of the Trenton, Lakewood and Atlantic Railway Company, an insolvent corporation, allowing the claims of the appellants for money alleged to .be due to them from the corporation. By the determination of the receiver, Schlicher was allowed $4,013.96 and Schmidt $3,641.66. From this conclusion Abel B. Haring, one of the stockholders of the insolvent corporation, appealed to the court of chancery. The vice-chancellor disallowed both claims in toto, although in each case an item of $750 allowed by the receiver was not appealed from.

We think the court of chancery erred in refusing to allow to each of the claimants the sum of $750.

The Trenton, Lakewood and Atlantic Railway Company was incorporated for the purpose of constructing a railroad. The president of the company employed a contractor to grade portions of the right of way. After the work was done, the contractor demanded payment, but his claim was repudiated on the ground that it was unjust and that the work had not been authorized by the company. Furthermore, the company was without funds, and the contractor threatened to institute insolvenc)7 proceedings. To avoid this, the claimants, together with other directors of the corporation, paid the contractor a part of his' claim without prejudice to his right to recover the remainder from the company. Of the amount paid, each of the*appellants advanced $750. We are of the opinion that this money was paid by these appellants for the benefit of the corporation, was properly allowed by the receiver, and should have been allowed by the vice-chancellor.

Although the record shows that no appeal was taken from the determination of the receiver allowing this claim, still we are of the opinion that the court of chancery has a right in a case of this character to review the action of its appointee, the receiver, even if there be no appeal from all the transactions.

Another item, amounting to $41.67, claimed by each of the appellants as an advance made by them to the company to pay the cost of printing bonds, was a proper claim against the corporation and should have been allowed by the vice-chancellor. We. agree with the vice-chancellor that all the other claims were not debts against the corporation and should not have been allowed.

The order of the court below should be modified s'o as to sirstain, in each ease, the claims of the appellants to the two items above mentioned amounting to $791.67. In other respects the decree of the vice-chancellor is affirmed.

On appeal of Peter Sch'licher—

For affirmance — Bone.

For reversal — The Chief-Justice, Garrison, Swayze, Trencbard, Parker, Bergen, Voobeiees, Minturn,-Bogert, Yroom, Graf, Dill, Congdon — 13.

On appeal of William P. Schmidt—

For affirmance — Hone.

For reversal — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Yoortiees, Minturn, Bogert, Yroom, Gray, Dill, Congdon — 13.


text:
    William Groff et al., complainants-respondents, v. Margaret B. Stitzer et al., defendants-appellants.
    [Argued March 8th, 1910.
    Decided June 20th, 1910.]
    A bank accepted stock standing in the name of a third party, endorsed in blank as security for a -loan to one of its customers. It had notice that the owner of the stock was an invalid, and the cashier wrote asking- her if the endorsement was genuine. He received a reply, signed by the invalid, confirming the signature. It subsequently appeared that' the invalid was of unsound mind. — Held, notice to the bank that the owner was an invalid was not notice that the owner was of unsound mind. Under the circumstances, the bank was entitled to a lien upon the stock for the residue of the debt of its customer thereon, after first exhausting its remedy against other collateral for the same debt and against its customer individually.

      On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 75 N. J. Eq. (5 Buch.) 455.

      Messrs. Grey <£ A rcher, for the appellants.

      Mr. James Fisher, for the respondents.
   The opinion of the court ivas delivered by

Dill, J.

This is an appeal from a decision of Vice-Chancellor Howell in an action by the executors of the will of Caroline Bowers, de- - ceased, to set aside a transfer, made by her during her lifetime, of thirty-two shares of the capital stock of the Essex County Rational Bank.

These certificates were endorsed in blank by Mrs. Bowers and delivered to J ames H. Stitzer, Jr., the son of Margaret Stitzer, who was a stepdaughter of Mrs. Bowers. The transfer to James Stitzer was not absolute, but was merely for the purpose of enabling him to use the stock as collateral security for certain promissory notes which he proposed to have discounted at the Quaker City Rational Bank of Philadelphia. After receiving the certificates, Stitzer pledged them with the bank as collateral security for loans made by the bank amounting to $4,300. He also pledged with the bank, as collateral for these loans, four shares of stock of the Morristown Rational Bank, belonging to his mother, and loaned to him by her for that purpose.

While the stock in the name of Mrs. Bowers was in the possession of the bank, at the request of James H. Stitzer, Jr., and upon presentation of a power of attorney and assignment executed by Mrs. Bowers, the bank sent it for transfer from the name of Caroline Bowers to the name of Margaret Stitzer, and a new certificate in the name of Margaret Stitzer, endorsed by her, was returned to the bank in place of the old certificates.

Margaret Stitzer now claims to be the owner of this stock by . virtue of the transfer.

The vice-chancellor decided that, on the facts proved, Mrs. Bowers was so enfeebled, mentally and physically, as to be under the domination and control of Mrs. Stitzer and her son; and that, in order to sustain the transfer of this stock, or of any interest therein, to them, the burden rested upon them to show that it was the voluntary, well-understood act of the donor.

He held that they had failed to bear this burden, that as to them the transfers were void, and that the complainants were entitled to the relief sought.

In this respect we concur in the vice-chancellor’s conclusion and for the reasons stated in his opinion.

But the court below went further and decided that the Quaker City Hational Bank was chargeable with notice of the mental condition of Mrs. Bowers, and that the bank had no claim on the stock which could he asserted against the complainants.

The evidence was that when Stitzer offered' Mrs. Bowers’s stock as collateral for the loan which he sought, the hank, through its cashier, before accepting the same, wrote the following letter:

“Tire Quaker City National Bank of Philadelphia.
June 25th, 1907.
“Mrs. Caroline Bowers.
Ilaelcettsbown, N. J.:
“Dear Madam- — Mr. James Herbert Stitzer, Jr., has left with us tliirtytwo (32) shares.of the Essex County National Bank, standing in your name and endorsed by you with the signature of Margaret B. Stitzer as witness.'
.“As is- customary in such cases I wish to confirm the genuineness of your signature, to the certificates, there being two of sixteen shares each. Mr. Stitzer. advises me that you are quite an invalid. You can therefore have some one else write the letter, shandy stating the signature is correct, if such is the case', then you sign it.
“Yours very truly,
“W. D. Brelsford,
Cashier.”

'Two day’s later Mrs. Stitzer wrote a reply to the bank, signed by Mrs. Bowers and herself, as follows:

“Hackettstown, June 27th, ’07.
“Dear Sir — Your letter received. Mrs. Bowers is quite an invalid. But I will have her sign this letter same as the certificates which she signed. I hope it will prove satisfactory.
Yours,
‘ill. B. Stitier.
“Caroline Bowers.”

The vice-chancellor held that because the bank knew that Mrs. Bowers was quite an invalid, so much so- that she was unable ¿0 reply to the cashier’s inquiry in a letter written by her own hand, and because it knew that the stock in question belonged to Mrs. Bowers, therefore the burden of inquiring into the extent, nature and character of Mrs. Bowers’ invalidism was east upon it. He further held that if the bank had investigated this matter, it would have learned that Mrs. Bowers was a paralytic; that her mental powers were much impaired, and that she had been induced to part with her stock by undue influence exorcised over her by the Stitzers.

Although the question is a close one, nevertheless it seems to us that this view o£ the situation works an injustice to the bank. Invalidism and mental incompetency are entirely different. 'Knowledge of the one does not, of necessity, carry with it notice of the other. The bank knew that Mrs. Bowers was an invalid, so much so that writing letters was a burden upon her, but there is nothing in the record to show that it knew, or ought to have anticipated, that her invalidism was anything more than an affection of the body. The bank was not required, merely because of this knowledge, to investigate the question of the mental capacity of Mrs. Bowers; it was justified in assuming that she was mentally normal until facts were brought to its notice which ought to have suggested the contrary. It seems to us, further, that the bank did everything it could in reason be asked to do to protect itself. Having in its possession the stock with a blank transfer in the ordinary form endorsed thereon, it wrote to the owner of the stock to verify the endorsement on the transfer. .The letter, which it received in reply, contained nothing, we think, to suggest mental incapacity, but rather justified the bank' in doing what it did.

The decree should be modified by providing that the bank is entitled to a lien upon the thirty-two shares of stock which it holds to the extent of the residue of the debt of James II. Stitzer, Jr., upon the loans which the bank made upon the faith of this collateral, but the rule of Shannon v. Marselis, 1 N. J. Eq. (Sax.) 413, and llie decisions which have followed it, should be applied to the ease at bar. The order in. which the bank shall exhaust its legal remedies is to be as. may be determined by the court of chancery upon proper application.

The decree as to the defendants Margaret B, Stitzer and James H. Stitzer, Jr., is therefore affirmed. As to the defendant, the Quaker City National Bank of Philadelphia, the decree is reversed for the purpose o£ modification.

The cause is accordingly remitted to the court of chancery with instructions to proceed in accordance with the views herein expressed.

For affirmance — None.

For reversal — The Chief-Justice, Garrison, Stvayze, Trbnci-iard, Parker, Bergen, Yoorhees, Minturn, Bogert,' Yredenburgh, Ybooai, Gray, Dill — 13.


author: Per Curiam.

text:
    John D. Van Horn, complainant-appellant, v. Samuel R. Demarest, Jr., executor, et al., defendants-respondents.
    [Argued March 4th and 7th, 1910.
    Decided June 20th, 1910.]
    On appeal from a decree of the court of chancery advised by Yiee-Chancellor Stevenson, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 386.

      Mr. Blmer W. Demarest, for the appellant.

      Mr. Peter W. Siagg, for the respondents.
   Per Curiam.

The decreepn this ease should be affirmed, for the reasons given by Vice-Chancellor Stevenson. We are not to be understood, however, as holding that the case was one of equitable jurisdiction. Ho objection was made on this ground, and it would be wrong to dismiss the bill for that reason at this stage of the proceedings.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Gray, Dili, Congdon — 14.

For reversal — Hone.


author: Pt?r Curiam.

text:
    James L. Myles, petitioner and appellant, v. Martha Myles, respondent.
    [Submitted March 16th, 1910.
    Decided June 20th, 1910.]
    The term of two years’ willful, continued and obstinate desertion described in the Divorce act as entitling the injured party to a divorce avinmilo, is that nest preceding the filing of the petition for divorce.
    On appeal from a decree of the eourt of chancery advised by Vice-Chancellor Emery.

      Messrs. Goult & Srniih, for the appellant.

      Mr. Edward Kenny, for the respondent.
   Pt?r Curiam.

Tlio decree of the court of chancery will be affirmed, for the reasons given in the opinion oE Vice-Chancellor Emery, with one reservation, which seems to be required by certain expressions in the opinion, and especially in the concluding part of it.

The suit was for divorce on the ground of willful, continued and obstinate desertion for the term of two years. P. L. 1902 p. 502 § 2; P. L. 1907 pp. 171-, 170. The parties had lived separate fox over twelve years preceding the commencement of the suit, the husband claiming the original separation to have been due to the fault of the wife. From the language of the opinion already referred to, the inference is permissible, if not necessary, thgt the vice-chancellor regarded the first two years of the separation as the period to be examined in determining whether petitioner was entitled to his divorce. We hardly think he meant to be so understood, but to avoid any misunderstanding of our affirmance of the deciee, we think it advisable to express our dissent from any such proposition. The two years contemplated by the statute are of course those immediately preceding the filing of the petition. Such, we think, has always been the understanding of the bar, and we think that since the act of 1794 (Pat. L. 1791 p. 118 § 8) the recognized precedents of petitions in desertion cases, to which the petition in the present case conforms, have always alleged that “for more than the statutory number of years last past” {i. e., preceding the filing of the petition), the defendant has willfully, continuously and obstinately deserted the petitioner. Dick. Ch. Prec. (2d ed.) 458; Bidd. N. J. Div. Prac. 46, 86; Potts Ch. Prec. 264. That the period of desertion must be that immediately preceding the petition, is plain from the fact that if the petition left a hiatus between such period and the date of filing of the petition, such hiatus might readily represent a complete reconciliation and munition of the parties that would entirely destroy any right to a divorce arising out of a previous desertion.

Applying this rule to the facts in the case as appearing from the testimony, we agree with the vice-chancellor that petitioner has failed to show such desertion as under the statute entitled him to a divorce.

For affirmance — Tim Ci-iief-Justice, Garrison, Swayze, Trenohaed, Parker, Bergen, ArooRi-iEES, Mtnturn, Bogert, AArEDENBURGH, ArROOM, GRAY, DlLL, CONGDON-14.

For reversal — Hone.


text:
    The Prudential Insurance Company of America, respondent, v. James Godfrey, administrator, et al., appellant.
    [Submitted March 22d, 1910.
    Decided June 20th, 1910.]
    On appeal of tlie defendant Mary Orr from a decree of the court of chancery advised by Arice-Chancellor AValker, whose opinion is reported in 75 N. J. Eq. (5 Buch.) 484. [

      Mr. William B. Knight and Messrs. French & Richards, for the appellant.

      Mr. James Guest, Mr. Edioard D. Bnffield and Mr. G. Bore Cogsiuell, for the respondent.
   Per Curiam.

The complainant company having in its hands a fund due upon a policy of insurance issued by it, and which each of the defendants claimed, filed a bill against them praying that they be required to interplead. To this bill the defendant Oit filed an answer denying the right of the complainant to a decree of interpleader. The defendant Godfrey, as administrator, filed an answer which did not challenge the right of the complainant to a decree; and a cross-bill in which he asserted that he, and not the defendant Orr, was entitled to the fund. Mrs. Orr answered the cross-bill denying the right of Godfrey, as administrator, to the fund, and asserting that it belonged to her. At the hearing before the vice-chancellor, the complainant put m its proofs in support of its right to a decree requiring the defendants to interplead, and Mrs. Orr proved the facts upon which she based her denial of the complainant’s right to such a decree. At this stage of the case, it was suggested by counsel for Mrs. Orr that the vice-chancellor should first determine the question whether the complainant was entitled to a decree, before requiring the defendants to submit proofs in support of their respective claims to the fund. The vice-chancellor acquiesced in the propriety of the suggestion, and announced that he would reserve his decision on the question of the complainant’s right to a decree of interpleader until a later date; and that if he should come to the conclusion that such a decree should go, he would then set a day for hearing the witnesses of the defendants upon the question of which one of them was entitled to the fund. The learned vice-chancellor, on the proofs submitted, concluded that the complainant was entitled to the relief sought by its bill, and then, without hearing further proofs (probably because he considered that the proofs already in were' conclusive of the question), decided that Godfrey, as administrator, and not Mrs. Orr, was entitled to the fund. Prom the decree based iipon these conclusions Mrs. Orr appeals. In her petition of appeal, she sets up as grounds of reversal that the vice-chancellor, on the proofs submitted, should have adjudged that Godfrey, as administrator, had no claim upon the fund; that the fund belonged to her, and that her right to it had been recognized by the complainant; that the complainant was not entitled to a decree of interpleader; and that the fund should have been directed to be paid to her, and the complainant’s bill dismissed.

The grounds for reversal set out in the petition of appeal seem to us to be without merit. We concur in the conclusions expressed by the learned vice-chancellor in his opinion filed in the court below, that, upon the proofs before him, the complainant was entitled to a decree, and that the right to the fund was in Godfrey, as administrator, and for the reasons expressed in the opinion.

The contention of counsel for the appellant made at the argument before us, that the action of the court below in deciding the issue between the defendants without affording the appellant an opportunity to submit further proofs in support of her claim was without legal justification, and requires a reversal of the decree upon that issue, is not raised by the petition on appeal, and, consequently, is not before us for consideration.

The decree under review will be affirmed.

For affirmance — Ti-ie Chiee-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Yoorhees, Minturn, Bogert, Yredenburgh, Yroom, Gray, Dill, Congdon — 14.

For reversal — Hone.


text:
    Mary E. Kelsey, appellant, v. Sarah Dilks et al., respondents.
    [Argued and affirmed without opinion March 2d, 1910.]
    On appeal from a decree in the court of chancery advised by Yiee-Chaneellor Learning, whose opinion “is reported in 74 N. J. Eq. (4 Buch.) 270.

      Mr. John J. Graniall, for the appellant.

      Mr. John Boyd Avis, for the respondents.
   For affirmance — The Chiee-Justice, Garrison, Swayze, Reed, Trenchard, Bergen, Yoorhees, Minturn, Bogert, Yredenburgh, Ykoom, Gray, Dill, Congdon — 14.

For reversal — Hone.


text:
    Hippolyte L. Hardy, respondent, v. Atlantic Engineering and Construction Company, appellant.
    [Argued and affirmed without opinion March 17th, 1910.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell.

      Mr. John M. Enright, for the appellant.

      Mr. James P. Northrop, for the respondent.
   For affirmance — The’ Chief-Justice, Garrison, Swayze, Reed, Trenchard, ' Parker, Bergen, Voorhees, Minturn, Bogert, Vredenbuegh, Veoom, Gray, Dill, Congdon — 15.

For reversal — Hone.


text:
    John S. McMaster, receiver, respondent, v. Charles H. Drew et al., appellants.
    [Argued March 4th, 1910.
    Affirmed without opinion June 20th, 1910.]
    On appeal from a decree of the court of chancery advised by Advisory Master Pitney.

      Mr. James P. Northrop, fox the appellants.

      Mr. Norman Grey, fox the respondent.
   For affirmance — The Chief-Justice, Garrison, Swayze, Trencharb, Parker, Bergen, Yoorhees, Minturn, Bogert, Yredenbuegh, Yrooai, Gray, Dill; Congdon — r14.

For reversal — ETone.


text:
    Florence Pfefferle et al., appellants, v. Charles F. Herr, as executor, &c., et al., respondents.
    [Argued December 3d, 1909.
    Affirmed without opinion June 20th, 1910.]
    On appeal from a decree of the prerogative court advised by Yice-Ordinary Walker, whose opinion is reported in 75 N. J. Eq. (5 Buch.) 219.

      Mr. Samuel A. Besson, for the appellants.
    . Mr. Alfred F. Skinner, for the respondents.
   For affirmance — Ti-te Chief-Justice, Garrison, Swayze, Trencharb, Parker, Bergen, Yoorhees, Minturn, Bogert, Yredenburgh, Yrooai, Gray, Dill, Congdon — 14.

For reversal — Done.


text:
    John B. Cavagnaro, appellant, v. Harvey F. Johnson et al., respondents.
    [Submitted March 22d, 1910.
    Affirmed without opinion June 20th, 1910.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 74 N. J. Eq. (4 Buch.) 589.

      Mr. Robert L. Lawrence, for the appellant.

      Mr. Wendell J. Wright, for the respondents.
   For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voori-iees, Minturn, Bogert, Yhedenburgh, Yroom, Gray, Dill, Congdon — 14.

For reversal — Hone.


text:
    Bernard Brindse, respondent, v. Atlantic City Policemen's Beneficial Association, appellant.
    [Argued March 10th, 1910.
    Affirmed without opinion June 20th, 1910.]
    On appeal from a decree of the court of chancery advised by Yiee-Chancellor Learning.

      Mr. Eli H. Chandler, for the appellant.

      Mr. Clarence L. Cole, for the respondent.
   For affirmance — Tine Ciiiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Yooriiees, Minturn, Bogert, Yeedenburgit, Yroom, Gray, Congdon — 13.

For reversal — ISTone.


text:
    Arnold Kohn, respondent, v. Samuel H. Kelly et al., appellants.
    [.Submitted March 22d, 1910.
    Affirmed without opinion June 20th, 1910.]
    On appeal from a decree of the court of chancery advised by Yice-Chancellor Learning, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 132.

      Mr. George A. Bourgeois, for the appellant.

      Mr. Lewis Starr, for the respondent.
   For affirmance — The Oi-itee-Justice, Garrison, Swayze, Trenchard, Yoorhees, Minturn, Bogert, Yredenburgh, Ykoom, Gray, Dill, ' Congdon — 12.

For reversal — Parker, Bergen — -2.


text:
    Thomas R. Jennings et al., respondents, v. Moses Ritter et al., appellants.
    [Argued December 6th, 1909.
    Affirmed without opinion June 20th, 1910.]
    On appeal from a decree of the prerogative court advised by Vice-Ordinary 'Walker.

      Mr. Fred. J. Hyer, for the appellants.

      Mr. Alfred F. Skinner, for the respondents.
   For affirmance — The Chiee-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenbprgi-i, Vroom, Gray, Dill, Congdon — 14.

For reversal — None.


text:
    Charles R. Stevenson, executor, et al., appellants, v. Marion E. Stambach, respondent.
    [Argued March 16th and 17th, 1910.
    Affirmed without opinion June 20th, 1910.]
    On appeals from a decree of the prerogative court advised by Vice-Ordinary Walker, one by the caveatrix affirming the decree of the orphans court admitting the will to probate, but reversing the order allowing counsel fees to the eaveatrix, and the other by the proponent allowing costs and counsel fees.

      Mr. Thomas E. French, for the appellants.

      Mr. George J. Bergen and Mr. John II. Hutchinson, for the respondent.
   On proponent’s appeal—

For affirmance — The Chief-Justice, Garrison, Swayze, Trencharu, Parker, Bergen, Vooehees, Minturn, Bogeet, Vredenburgh, Vroom, Gray, Dill, Congdon — 11.

For reversal — Hone.

On caveatrix’s appeal—

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Vooehees, Minturn, Vredenburgh, Gray, Dill — 9.

For reversal — Parker, Bergen, Bogert, Vroom, Congdon —5.


author: Emery, V. C.

text:
    Margaret Fitzsimmons v. Euplio Bonavita et al.
    [Decided May 19th, 1910.]
    1. Revision 1903 (P. L. 1903 p. 1¡30 § 55) makes the fees and expenses of a tax sale part of the tax lien which shall be paid by the purchaser. Section 36 provides for the payment of fees of the county clerk for entering and indexing the purchaser’s certificate of sale, or, at his option, for recording the certificate.as a mortgage, in proceedings to perfect his title under a tax sale. Section 57 permits the owner to redeem within two years from the sale by paying the purchaser the amount of purchase-money shown on the certificate, with twelve per cent, interest, together with such other fees and expenses as may be incurred by the purchaser under this act. Section 58 permits redemption by payment to a designated officer, where the purchaser does not cancel the certificate on proper tender. Section 59 permits the purchaser to bar the right of redemption by serving written notice to redeem upon the persons interested, and if not redeemied pursuant to the notice, permits the purchaser to annex the notice and affidavit of service to the certificate of sale, with an affidavit of non-redemption, and file them in the clerk’s office, where they shall be recorded as a deed; and also provides an additional remedy by foreclosure in equity. — Held, that no fees and expenses of the tax sale can be charged against the owner unless definitely fixed by the statute, and expenses incurred for searching the record in order to give the notice. required by section 59 in proceedings to foreclose the equity of redemption cannot be charged against the owner as a condition to the redemption of the land.
    2. A construction of a Tax act which makes the amount payable on redemption uncertain should not be adopted unless that be the clear intention of the act.
    3. The tax and warrant for sale for non-payment thereof, when taken together, conclusively determine the amount due upon redemption, and the execution for raising the amount with definite fees.
    4. As a rule, costs and expenses incurred in legal proceedings must be authorized by statute in order to impose them on a defendant in addition to the debt or obligation.
    5. Where an owner, on the refusal of the purchaser at a tax sale to accept his tender of redemption, filed the affidavit required by Revision 1903 (P. L. 1908 p. 481 § 58), and received his certificate of redemption which was filed February 21st, 1907, his rights in the property became vested and were not affected by P. L. 1907 p. 459, enacted May 15th, amending section 57 thereof.
    Oil bill to foreclose tax lien. Heard on bill, answer, replication and proofs.

      Mr. John Francis Qahill and Mr. John A. Bernhard, for the complainant.

      Messrs. Sweeney & Scoppeiione, for the defendants.
   Emery, V. C.

This bill is filed by the purchaser at a tax sale against the owners of the property sold, and two holders of mortgages thereon, to foreclose the equity of redemption, and is filed under the provisions of section 59 of the act for the assessment and collection of taxes. Rev. 1903; P. L. 894, &c. The substantial dispute is whether before filing the bill the owner tendered to the purchaser the amount she was entitled to receive under the act for the redemption of the lands. The land, assessed at the value of $.200, was taxed for $4.52, and on October 19th, 1906, was sold to complainant for the term of one thousand years for $7.57. This latter sum includes the fees and expenses of the sale, which, by the fifty-fifth section of the act (P. L. 1908 p. 480), are definitely fixed and are made part of the tax lien and required to be paid by the purchaser. There are also fixed by section 56 of the act certain definite fees or costs for proceedings which may be taken by the purchaser at the sale to complete his title. These are fees of the county clerk for entering and indexing the purchaser’s certificate of sale, or at the purchaser’s option, for recording the certificate as a mortgage.

The fifty-seventh section provides that the owner may redeem the lands within two years from the date of sale, by paying to the purchaser the amount of purchase-money shown on the certificate, with twelve per cent, interest thereon, “together with such other fees and expenses as may be incurred by the purchaser under this act,” and on the purchaser receiving such payment from the owner, the sale is declared void. If the purchaser, on proper tender, does not cancel the certificate, redemption may be made (section 58) by paying to an officer designated, with an affidavit showing the right to redeem, and paying him one percent. of the amount for his compensation. The owner in this case, on February 10th, 1907, tendered to the purchaser the sum of $10.87, being $7.57 for the purchase-money in the certificate, thirty cents for interest and $3 to cover any additional fees and expenses under the act. The purchaser refused to accept this tender and demanded $10 as fees and expenses incurred under the act. This is claimed not as a fee or expense definitely fixed by the statute, but as a reasonable fee for the services actually performed by the purchaser’s counsel in searching the title.

The act (section 59) provides as one method of barring the right of redemption, that the purchaser may serve written notices to redeem upon the persons interested in the land, and that if not redeemed pursuant to the notice, the purchaser may annex the notice and affidavit of service to the certificate of sale with an affidavit of non-redemption and file the same in the county clerk’s or register’s office, whore they shall be recorded as a deed, the notice, affidavit and record being presumptive evidence of the service and facts. The foreclosure in equity is made by the section an additional remedy which may be taken whether notice to redeem has been given or not. Notices to redeem were given in this ease, and it is contended that inasmuch as the purchaser has the right to foreclose the equity of redemption by giving the notices, and in older to give them property, must have the records searched, these expenses for searches are therefore to be included in “such other fees and expenses as may be incurred under the act,” as payable on redemption, and it is further claimed that as the act does not fix the amount of these fees for searches, the purchaser is entitled on application to redeem, to reasonable fees and expenses, to be finally ascertained on proof in court, in case of dispute. Under this contention the amount payable on redemption is uncertain, and this construction of a tax act should not prevail, unless it is clear3ty the intention of the act. So far as the tax itself is concerned, and the fees and expenses of the sale to pay the same, there can be no question that the amount to be levied, either by way of tax or fees and expenses, must be certainty and definitely fixed by the Tax act itself, and that no fees or expenses except such as are definitely and clearly provided for in the law itself could be raised by sale, or imposed on the land. Road Commissioners v. Freeholders of Hudson (Court of Errors and Appeals, 1883), 45 N. J. Law (16 Vr.) 173, 175. The tax and the warrant for sale taken together are the final and conclusive adjudication of the amount due and the execution for raising the amount with definite fees. It has been held that expenses for raising the tax by way of sale cannot be added to the tax unless authorized by statute. Hapgood v. Morten, 28 Kan. 764 cited Black T. Tit. (2d ed.) § 235, *298. The question is whether on the redemption of a tax this principle of certainty in the amount to be paid is also required, and whether any fees or expenses incurred after the purchase other than those which are specially provided for in the act can he demanded as a condition of redemption. In my judgment, they cannot, and in the absence of a clear and express legislative intent to the contrary, no fees or expenses other than those definitely fixed by the act should be required to be tendered. By an act of April, 1907 (P. L. 1907 p. passed after the tender in this case, section 57 was amended' and fees for searches in ascertaining the owners (not exceeding $10) are expressly allowed to the purchaser. There are certain fees for expenses incurred after the purchase, definitely fixed by the act, being (section 56) the clerk’s fees for entering the certificate, and the fees for recording, which are also certain, these being fixed by the recording acts, and also the fees for affidavits and notices (when given), which are rendered certain by the Fees and Costs act. But nowhere does the act authorize a fee for searching the.title to ascertain the owners, and although this may be a reasonable expense for the purchaser to incur in order to perfect his title, the expense of the search cannot be imposed on the owner as a condition of redemption, in the absence of a clear and express provision. The general rule as to costs and expenses incurred in legal proceedings, is that statutory authority is necessary to impose this burden on a defendant, in addition to the debt or obligation. The addition of costs and expenses to a tax, either by way of sale or redemption, calls, I think, for a strict enforcement of the rule. There is no dispute that the sum of $3 tendered was sufficient to cover any expenses of indexing or recording, or the fees of the notices covered by the statute, and, in my judgment, the tender was sufficient and should have been accepted. The owner, on the refusal to accept the tender, at once filed the affidavit required by the fifty-eighth section and received a certificate of redemption which was filed with the county clerk on the 21st day of February, 1907. The defendants’ rights under the act therefore became vested before the act of 1907 and are unafEected thereby, and the complainant being, under section 58 of the act, entitled to receive from the city treasurer the redemption money upon the surrender of the certificate of sale, must be remitted to that remedy for recovering the money due him, and the bill to foreclose must be dismissed, with costs.


author: Emery, Y. C.

text:
    Walter H. Condict v. Erie Railroad Company et al.
    [Decided June 4th, 1910.]
    1. In a suit to quiet title, the fact that so much of the answer as shows defendant’s claim of title may be defective is no reason for striking out the whole answer, where response is correctly made to complainant’s allegations as to his own title and possession.
    2. An answer in equity is evidence for complainant so far as it extends, and so far as it is against him, it makes an issue of fact to be tried.
    3. In a suit to quiet title, the allegations in the answer setting up defendant’s title could not be struck out on the ground that no title was shown, on a motion under rule 213, allowing objections to pleadings to be made by motion, as the rule was intended to substitute the motion for an exception, and not for a demurrer to an answer, and makes the motion a waiver of the right to demur or except.
    On motion to strike out answer.

      Messrs. Condict, Condict & Boardman, for the motion.

      Messrs. Cortlandt óc B. Wayne Parker, for the defendants.
   Emery, Y. C.

At the hearing of the motion to strike out the answer in this case, the objections that the answer was not filed in time and that it was not under the seal of the corporation, were abandoned and the motion rested on the other objections. The bill is filed under the act to quiet title, alleging, among other things, complainant’s peaceable possession of the lands in question- — defendant’s claim of title to some part of it, and that no suit is pending to enforce or test the validity of defendant’s title or claim, and the bill calls for answer by the defendants. The two defendants answering jointly admit

“that complainants are in possession of part of said premises, but say that these defendants are. in possession of such part of said premises as are hereinafter stated.”

This part of the premises so referred to is a tunnel for a railroad track, under the premises described by the bill, constructed by defendants’ predecessor in title previous to complainant’s purchase of the lands, and as to the possession of this part of the premises, the answer says the defendants

“have been the owners and possessors of said tunnel and its appurtenances as originally existing or projected through the said premises mentioned in said bill and that they have been in open, notorious and exclusive possession of said tunnel to the extent that it was capable of being owned and possessed,”

and that any rights complainant has acquired are subject to defendants’ rights.

The answer also sets up certain facts relating to the location and construction of the tunnel and to certain mortgages given by the company which constructed the tunnel, and foreclosure of the mortgages under which defendants claim title.

Exceptions have not been taken to any part of the answer as insufficient, but the only motion is to strike out the entire answer, which includes as well the parts of the answer responsive to the allegations relating to possession and title, as well as the part setting up defendants’ claim. At the argument the motion to strike out the entire answer is based substantially on the reason that the defendants’ claim of title as set out in the answer is not a valid claim either at law or in equity. If this were a valid reason for a motion to strike out so much of the answer as purports to set up defendants’ claim, it is no reason whatever for striking out so much of the answer as is responsive to the complainant’s allegations as to his own title and possession and ■which he has called on defendants to answer, and which they were obliged to answer, and have answered. The answer so far as relates to these allegations of the bill is certainly proper. It is evidence in complainant’s favor so far as it extends, and so far as against him, makes an issue of fact to be tried, but the answrer cannot, as a whole, be ignored and stricken from the files.

Nor, under the decisions as they stand, could that part of the answer which sets up defendants’ title be stricken out on this motion, on the ground that no title is shown by the answer. The motion is made under rule 213, allowing objections to a pleading, or any part of it, to be made on motion, the motion being a waiver of a right to demur to a bill or except to an answer. This rule has stood in its present form since 1886, and the cases have uniformly held that a motion to strike out part of an answer because it set up no equitable defence, did not come under the rule. The rule, as the eases hold, was not intended to allow a demurrer to an answer in the form of a motion, but only to allow the motion to strike out to take the place of an exception.

In Doane, &c., Co. v. Essex Building Co. (Vice-Chancellor Stevens), 59 N. J. Eq. (14 Dick.) 142, a motion to strike out part of an answer because it did not disclose an equitable defence was denied, and it was said that the proper method of raising this question, if complainant chose to take the risk, was to set the case down for hearing on bill and answer, where all the allegations of the answer are, under the statute, taken as true. Chancery act § SI. The same ruling was made in Brill v. Riddle Company (Vice-Chancellor Grey, 1900), 47 Atl. Rep. 223; in Haberman v. Kaufer (Vice-Chancellor Grey, 1900), 60 N. J. Eq. (15 Dick.) 271, 274, and Sea Coast Railroad Co. v. • Wood (Vice-Chancellor Reed, 1903), 6\5 N. J. Eq. (20 Diclc.) 580. The decision of Vice-Chancellor Stevenson in Fittichauer v. Metropolitan, &c., Co. (1905), 70 N. J. Eq. (J/. Robb.) 1(29, relied on by complainant’s counsel, does not at all question these cases, but only decides that where the complainant, besides alleging the statutory facts giving jurisdiction, goes on to state defendants’ title, the court will not, on demurrer to the bill, decide as to the validity of defendants’ tille. His observations as to the nature of an answer as an affirmative pleading, do not affect the present question.

The motion to strike out will be denied, but in view of the waiver of the formal objections made at the hearing, for the purpose of arguing the motion on the merits, no costs will be allowed.