author: Parker, J.

text:
    Michael J. Tansey, complainant-appellant, v. Heime Suckoneck, defendant-respondent,
    [Submitted March term, 1925.
    Decided October 19th, 1925.]
    Tn actions for specific performance based on a writing relied on as a contract, where it is apparent from the writing' that it is not intended as the final and complete agreement of the parties, but that there are outstanding features of the bargain to be settled by further treaty and to be embodied in a completed contract, equity will refuse its aid.
    On appeal from a decree advised by Vice-Chancellor Foster.

      Jlessrs. Kraemer .& Siegler, for the appellant.

      Mr. Samuel Roessler, for the respondent.
   The opinion of the court was delivered by

Parker, J.

This is a vendor’s suit for specific performance of the stipulations of a paper-writing relied on by complainant as a contract to purchase real estate. Mo answer was filed, but on motion the vice-chancellor advised a dismissal of the bill of complaint, and the appeal is from this decree of dismissal.

We conclude that the decree should be affirmed on the fundamental ground, presently to be stated, without passing on the other reasons assigned in the court below.

The paper-writing relied on ivas on a business letterhead of the complainant, and, omitting the printed heading, reads as follows:

“Received, Xewark, X. .7., Tuesday, October 2Stli, 1924, from Heime Suckoneck, two hundred and fifty dollars on account of purchase price 100 x 100 s. w. corner Miller street and Avenue O, Newark, for $10,000, formal agreement to be executed and additional amount paid on November 7th, 1924; title to be taken as soon as searches are made.
“$5,000 cash and $5,000 mortgage.
“H. Suokokeok.
“$250 Michael J. Tansey.”

It is to be observed that this paper does not specify how much additional amount is to be paid on November 7th, nor what all the terms of the formal agreement are to be; nor does it state the rate of interest on the mortgage or how long it is to run, or whether it is to contain any provisions for default of interest, taxes, &c., common in such cases. Nor does it state what kind of deed is to be given. It is further to be observed that the clause “formal agreement to be executed and additional amount paid on November 7th, 1934,” points clearly to another and definite agreement which should normally settle all outstanding details of the transaction.

The vice-chancellor in his memorandum of decision specified seven particulars in which he held the paper to be incomplete and while conceding that some of these, under decisions cited by him, might be supplied by intendment, went on to say that the others could not be so supplied because the parties evidently intended that they should be set forth in the formal agreement referred to in the paper, and added that it was clear “that the parties had not completed their negotiations * * * and that they intended by the execution of the formal agreement to supply the deficiencies in, or these omissions of, this receipt.”

We do not think it is necessary to go into the question whether, if the paper had purported on its face to be a complete and final agreement, certain features usual in such agreements but missing in this ease could be supplied by intendment. On this point resort may be had to previous decisions in this court. The basis for decision in the present case is that the paper is on its face preliminary and not final, and by its very language indicates that other features left unsettled are to be settled by further negotiations, and this requires the application of the well-settled and fundamental rule that to support a decree of specific performance for the sale and purchase of real estate .“the bargain must have been completely determined between the parties and its terms definitely ascertained. So long as negotiations are pending over matters relating to the contract, and which the parties regard as material to it, and until they are settled and their minds meet upon them, it is not a contract, although as to some matters they may be agreed.” This is the language of Mr. Justice Knapp, speaking for this court in Brown v. Brown, 33 N. J. Eq. (at p. 655). The same rule is recognized in many cases, among them McKibbin v. Brown, 14 N. J. Eq. 13; 15 N. J. Eq. 498, and Davila v. United Fruit Co., 88 N. J. Eq. 602, both of which cite Fry Spec. Perf. §§ 164, 202; see, also, Wharton v. Stoutenburgh, 35 N. J. Eq. 266.

Applying this rule, it is clear that the vice-chancellor properly held that the bill had failed, on the face of it, to state a case for the favorable interposition of a court of equity, and the decree of dismissal is therefore affirmed.

For affirmance — The Chiee-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner; Van Buskirk, McGlennon, Kays, JJ. 14.

For reversal — None.


source: Caselaw Access Project

author: Kalis ch, J.

license: Public Domain

text:
    East Jersey Water Company, complainant-appellant, v. City of Newark and Town of Kearny, defendants-respondents. East Jersey Water Company, complainant-appellant, v. City of Newark and Town of Nutley, defendants-respondents.
    [Argued May 28th, 1925.
    Decided October 19th, 1925.]
    1. In a contract between a city and a water company, giving the city the option to purchase the company’s water works, a clause providing that the city, in the use of the water to be delivered or purchased, could supply inhabitants of the purchasing city and those of designated towns, but that the city should not supply public or private corporations outside of the designated territory, held to refer merely to the period of time covered by the option, and did not restrict the city’s use of the water after it had purchased the water works of the company.
    2. Legal effect should be given to a clause if it can be done without violence to settled legal rules, and is not against public policy.
    3. A legislative grant to a water company to appropriate waters to public use does not confer a right upon that company to control the sale and use of water by a city which purchased the- entire water works of the company.
    4. The attempt of a water company, in selling its water works to a city, to restrict the sale of water to such city and other designated municipalities is beyond its powers, and violative of the public policy of the state.
    On appeal from an order of the court of chancery advised by. Vice-Chancellor Church, dismissing complainant’s bills of complaint, reported in 96 N. J. Eq. 231.

      Messrs. Humphrey & Sumner, Mr. John B. Humphreys and. Mr. Frederick J. Faulks (Mr. Josiah Stryker, of counsel), for the appellant.

      Mr. Jerome T. Congleton and Mr. Joseph G. Wolber, for the city of Newark.

      Mr. John H. Cooper, for the town of Kearny.

      Mr. J. Harry Hull, for the town of Nutley.

      Mr. Frank II. Sommer (Mr. Merritt Lane, of counsel), for the municipalities.
   The opinion of the court was delivered by

Kalis ch, J.

A motion was made to strike out the bill of complaint filed in each cause upon several grounds, which, collectively, in legal effect, rested upon the single ground of want of equity in the bill. As the same legal question was involved in both cases they were heard together by the learned vice-chancellor, who made an order in each case striking out and dismissing the bill of complaint for want of equity, and it is from these orders that appeals were taken to this court and argued together.

The bills filed by the complainant in the court below prayed ¡for an injunction against the city of Newark, the town of Kearny and the town of Nutley to restrain the city of Newark from supplying- the latter municipalities with water for municipal purposes.

The basis of the relief applied for is a contract made on the 24th day of September, 1889, between the Lehigh Valley Eailroad Company, then the owner of a large part of the water supply now owned by the city of Newark and the East Jersey Water Company and the city of Newark.

The ninth clause of the contract granted an option to the city of Newark to purchase the water, water rights, dams, reservoirs, works constructed by the water company for the purposes of the contract, with all their appurtenances, for the sum of $4,000,000, with the further provision that upon the exercise of the option by the city of Newark, the Lehigh Valley Railroad Company and the East Jersey Water Company would immediately convey by absolute conveyance to the municipality, the dams, reservoirs, sites, conduit or conduits, and all the works of every nature and kind, &c., for the purpose of supplying the water contracted for, with all their appurtenances, together with water and water rights sufficient to supply fifty million gallons daily forever, &c.

The city availed itself of the option, and the required conveyances having been made to it, it became vested with all the right, title and interest of the East Jersey Water Company to and in its water supply system, and the sources of its supply as contracted for, free and clear of all claims and demands of every person or persons whatsoever. The complainant-appellant relies for relief on a provision contained in the fifteenth clause of the contract, which provides that the city, “in the use of the water to be delivered or purchased under this contract may supply not only the inhabitants within the present or any future corporate limits of the city, but also the inhabitants of the township of Belleville, South Orange, East Orange and Clinton; but will not supply public or private corporations or persons for use outside of the territory aforesaid.” The appellant’s contention is that the city’s use of the water before and after it became the absolute owner of the complainant’s water system and sources of supply was strictly restricted to the city’s own use and the use of the municipalities mentioned, by force of the very terms of this provision.

■ To support this contention, appellant’s counsel place much stress upon the phrase “water to be delivered or purchased under this contract,” and it is argued that by the use of the word “purchased” it related to a situation after the city became the absolute owner under the contract. But this does ,not seem to us to be logically dedueible from the contract when read in its entirety. For the contract had a dual object. One was to provide terms and conditions while there was pending an option to purchase by the city, and during which time water was delivered to it and purchased by the city of the complainant; the other to provide terms for the sale by the complainant of the water system and sources of supply to the city when the latter availed itself of the option. It is to be borne in mind that, under the option, water was to be delivered to and purchased by the city. It is quite evident that after the city became the absolute owner of the water system and the sources of supply, delivery of water and purchase thereof by the city of complainant had come' to and end, and it is a permissible and consistent construction of the undertaking of the city that “it will not supply public or private corporations or persons for use outside of the territory aforesaid,” that this clause has reference to the period of time covered by the option. This was but a natural and commercial-like clause to insert on behalf of the company for the purpose of protecting the business interests in the delivery and sale of water to other municipalities and to users of its water during the period that the water company remained the owner of the water and of the sources of supply and the city of Newark was obtaining the water from the company under an option of purchase, which might never eventuate. An entirely different situation would manifestly arise as to the use and disposition of the water in the city when the water company ceased to be the owner and the city became the absolute owner of all the right, title and interest of the water company to and in the water and the sources of supply.

In such a posture the canon of construction universally adopted is to give legal effect to the clause if this can be done without doing violence to settled legal rules and is not against the public policy of the state.

The learned vice-chancellor has made it quite clear that the clause, in legal effect, if applied to the status of the city’s absolute ownership of the water rights formerly owned by the company, would not only render it void, because it is in restraint of trade, but also against public policy.

In East Jersey Water Co. v. Board of Utility Commissioners, 98 N. J. Law 449, this court, speaking through Chief-Justice Gummere, who, in discussing the status of the complainant and its duties (at p. J¡51), said: “That this company operates its water system for public use we have no doubt. The control of the fresh water streams within our boundaries resides in the state in its sovereign capacity as representative of, and for the benefit of, the people in common * * *. Our legislature, in the exercise of this sovereign power, has passed statutes for the conservation of the water supply of the state, in order that the rights of our people therein may be properly protected.” While we recognize the right of the complainant, by virtue of its legislative grant, to appropriate the waters in question to public use and to turn them over to the city of Newark, to the extent of fifty millions of gallons-daily, it is manifestly against the policy of the state, the aim of which is to conserve its potable waters for the use and benefit of its inhabitants, that if there was a surplus of water remaining after the needs of the inhabitants of the city of Newark and the municipalities mentioned in the contract are satisfied, to permit the remaining millions of gallons of water to go to waste, to the detriment and irreparable injury of the inhabitants of other municipalities in the state.

No such right as is claimed by the water company was - conferred upon it by the legislature, and the attempt to exercise and enforce such claim is clearly beyond its legal power and in direct violation of the public policy of the state.

The decree in each case dismissing the complainant’s bill is affirmed, with costs. ■

For affirmance — The Chiee-Justice, Tbenci-iabd, Mintukn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskibk, McGlennon, Kays, JJ. ■ 13.

For reversal — None.


author: Kalisch, J.

text:
    The Central Railroad Company of New Jersey, complainant-respondent, v. Board of Chosen Freeholders of the County of Hudson, Joseph B. Payton, James Billington and Charles A. Moore, as boulevard commissioners of the county of Hudson, and the City of Bayonne, defendants-appellants.
    [Submitted May term, 1925.
    Decided October 19th, 1925.]
    Where it appeared that a railroad company granted, in 1892, to the boulevard commission of Hudson county the right to construct and maintain an overhead bridge, on the former’s right of way, in continuation of a boulevard laid out and constructed by the commission, “for so long as the boulevard shall be and remain a public road,” and since the making- of the grant a public necessity arose in that, in order to safely carry passengers and properly provide for interstate, intrastate and water-borne trafile a more efficient bridge was required to replace the old one across the Newark bay, in conjunction with the railroad company’s safe and proper use of its right of way, which new bridge was authorized by the federal government, and where it further appeared that in the use of the newly-erected bridge by the railroad company it required, in turn, the elevation of the company’s tracks to such a higher level as would necessitate a change in the location of the boulevard bridge and in the method crossing the railroad company’s right of way, and that the municipality and the railroad company had failed to agree as to how and in what manner their respective easement shall be used and enjoyed. Held, that the court of chancery had jurisdiction to settle the controversy and to authorize a crossing under grade, notwithstanding that the original grant from the railroad company was for a period as long as the boulevard should be used as a public road.
    On appeal from a decree- of the court of chancery advised by Vice-Chancellor Church.

      Mr. Thomas F. Meehan and Mr. John J. Fallon, for the board of chosen freeholders and boulevard commissioners, appellants.

      Mr. James Benny, for the city of Bayonne.

      Messrs. Lindabury, Depue & Faullcs, Mr. Charles F. Miller, Mr. Frederic J. Faullcs, Mr. George Homes (Mr. Richard V. Lindabury, of counsel), for the respondents.
   The opinion of the court was delivered by

Kalisch, J.

The object of the complainant’s suit, as disclosed by its bill of complaint, was to invoke judicial action and determination of the court of chancery of a conflict which has arisen between the complainant, Central Railroad Company, and the Hudson county boulevard commissioners, as to the manner in which their respective easement shall be used and exercised in the existing crossing of the main line of the railroad company between Avenues A and C in the city of Bayonne, where the Hudson Boulevard, by means of an overhead bridge, is continued across the right of way of the railroad company. The boulevard was opened and constructed in 1892 and crosses the main line of the railroad about one thousand seven hundred feet east of the easterly end of the railroad company’s bridge across Newark bay. This bridge was constructed in 1860 or 1861 and contained two draw openings each seventy-five feet in width, and was about four feet above mean high water.

Later, in 1904 and 1905, the draws were reconstructed to increase the openings to eighty-five feet. The increase in both rail and water traffic made it necessary for the railroad company to replace the bridge by another which would meet the requirements of both conditions.

To promptly meet the exigency the complainant obtained an act of congress approved February 15th, 1921, authorizing the construction and maintenance of a new bridge with approaches thereto across Newark baje The plans and specifications were' duly approved by the secretary of war and chief of engineers on December 29th, 1922. These plans and specifications required the construction of a bridge of which the draw openings shall have a clearance of not less than thirty-five feet above mean high water, and a width of one hundred and twenty-five feet on the easterly side and two hundred feet on the westerly side, the widths to be at right angles to the channel. The company commenced the construction of the bridge in the early part of 1923, and it places the estimated cost of the structure, exclusive of the approaches and changes in the main line, at $8,500,000, and further shows that it has already expended in excess of $6,000,000 thus far on the work done and to be done. It is apparent that the old bridge is inadequate to provide with any degree of efficiency for water-borne and railroad traffic, since it is quite evident that from the lowness of the superstructure and width of its draw openings it is impossible for vessels to pass through the draws without opening them, and hence the result is that on account of the great increase in the water-borne traffic the draws are required to be opened with much frequency, and this, in turn, operates to delay and obstruct interstate and intrastate commerce carried on by both land and water. It is obvious to the contemplative mind that the evil pointed out has not only a decided tendency to seriously interrupt commerce, but as a natural consequence to derange, also, the schedule of the running time of trains prescribed and adopted by the railroad company for the purpose, among other things, to insure regularity in the operation of its trains and to indicate their position during the journey and thereby guard the lives of the traveling public and the railroad employes against accidents.

Confronted with such a situation which involved, not only a menace to human life, but a serious check upon the transportation of commodities by land and water, it was not only a. moral but a legal duty incombent upon the railroad company to take prompt measures to remedy the evil. The complainant obtained an act of congress to that end, as above referred: to.

It is made quite clear that, in order to make the new bridge across the Newark bay available for the running of the company’s trains over it, it will be necessary to raise its tracks where the same are crossed by the boulevard about thirteen feet. This will operate to do away with the boulevard bridge. It is pointed out that “the grade of the boulevard bridge and its approaches is now so steep that it will be impracticable to raise the bridge to the height necessary to provide the present clearance, which is the standard on complainant’s railroad, and necessary for the proper operation thereof over said tracks when so'raised.”

And it is further made to appear that, in order to permit the use of the lands owned by the complainant both for the purpose of the operation of its railroad and for public travel on the boulevard across the same, it will be necessary to depress the boulevard and carry it under the complainant’s tracks.

In these circumstances the complainant’s bill avers that for the purpose of securing the consent of the board of freeholders and the boulevard commissioners of Hudson county to such a change of grade as is above indicated, it entered with them into negotiations to that end, but without success.

The defense is interposed bj1" the county boards to the complainant’s bill is that the complainont, on September 1st, 1892, granted to the board of chosen freeholders the right, license and privilege of entering in and upon the lands of the complainant (describing the locus in quo) for the purpose of constructing and maintaining an elevated or overhead bridge and the approaches thereto, &c., and that said contract is still in force and effect, and, as a consequence, the county has a vested right to maintain the bridge as it at present exists, and which right cannot be impaired or disturbed.

As a further defense it was insisted that the court of chancery was without jurisdiction to take cognizance of the subject-matter in controversy.

The learned vice-chancellor, after a hearing in which testimony was taken, tending to show the necessity of a change at the crossing and the necessity for the removal of the overhead bridge, and having had before him the various plans proposed to properly meet the situation which presented itself, decreed as follows:

“1. That tho public interest requires that the overhead bridge by which the public road known as the Hudson County Boulevard heretofore opened and now maintained across the main line of complainant’s railroad between Avenue A and Avenue C in the city of Bayonne, in the county of Hudson, at a point one thousand seven hundred feet or thereabouts east of the easterly shore of Newark bay, together with the approaches to such bridge, shall be removed, and that in lieu thereof there shall be constructed and maintained an underpass and approaches thereto by means of which said Hudson County Boulevard shall cross under instead of over said railroad of complainant.
“2. That the said underpass shall be the one designated as plan C upon the hearing herein, and said underpass and its approaches shall be located, constructed and maintained as shown on the three' blueprint maps attached hereto and marked, respectively, C-l and C-2, which said maps are made part of this decree.”

The appellants, the board of chosen freeholders of Hudson county and the boulevard commissioners of that county, appeal from the decree upon the sole ground that the court of chancery was “without authority to make such decree,” whereas the city of Bayonne, a party defendant to the proceeding and more nearly affected by the result, since the crossing, where the contemplated changes are to be made, is within the city limits, has acquiesced in the decree.

In support of the contention that the court of chancerjr was without authority to make the decree, counsel of appellants argue that, in view of the fact that the grant made by the railroad company to the board of chosen freeholders of Hudson county provides that the overhead bridge and approaches thereto should be for “so long as said public road shall be and remain a public road under and in pursuance of the act and the acts supplemental thereto and' amendatory thereof, authorizing the same to be laid out, constructed, maintained and improved,” the board of freeholders acquired an easement “to endure as long as the right of way thus granted should be used for public road purposes,” and that the public right to the easement created by the grant can only be released, in the absence of the consent of the county officials under legislative authority therefor, by the legislature itself.

We think the construction sought to be put upon the grant by counsel of appellants, namely, that the method by and the manner in which the use of such easements shall be exercised by the respective joarties can only be altered by their mutual consent or in-the absence thereof by legislative sanction, is unsound.

This contention ignores a controlling circumstance in this case, in that the easements were to be enjoyed in common by the contracting parties. At the time of- the grant a continuation of the boulevard by means of an overhead bridge at the crossing was deemed to be an appropriate way for the use and enjoyment by the appellants of their easement and compatible and' in harmony with the use and enjoyment bjr the railroad company of its easement, at the crossing, in connection with the use of its bridge over the Newark bay as then constructed.

Now, it seems to us, if we were to< give heed to the appellant’s contention, it would lead to the absurd result that because in 1893 they had acquired, by grant, a right to construct and maintain the boulevard bridge, so long as the boulevard remained in existence, a method of crossing apparently in harmony with the exercise by the complainant of its easement, such manner of use of the easements' must remain unchanged unless by consent of the parties or by legislative sanction, even though the boulevard became as ancient as the Appian Way, and even though it appeared, as here, that since the time of the making of the grant traffic by land and water has increased to such an extent that the complainant’s bridge had become wholly inadequate to meet the demands of interstate and intrastate commerce, and the proper'and safe conduct of passenger and freight trains over it, the movements of which were being seriously deranged and interfered with by reason of the incapacity of the bridge with its draws to efficiently take care of the increase in the water-borne • traffic, since the bridge was constructed, some sixty years ago. We have already observed that congress recognized the need of a new bridge to supplant the old, by passing an act authorizing its construction, and that the bridge has been constructed and is in process of completion according to plans approved by governmental authorities.

That the court of chancery had jurisdiction to take cognizance of the controversy between the parties and to grant relief by fixing and determine how the respective easements shall be used and enjoyed in the situation disclosed by the evidence cannot be successfully questioned.

In Delaware, Lackawanna and Western Railroad Co. v. Erie Railroad Co., 21 N. J. Eq. 298, Chief-Justice Beasley speaks trenchantly on the subject in hand (at ¶. 304), where he says: “In the case before me these parties possess a community of interest in this property. They are tenants in common of an easement, and if this court cannot protect the one against the injustice of the other, the party whose rights are invaded is clearly without any adequate remedy, for it is certain that either of these companies, thus situated, can so act with respect to the common easement as to render it worthless to the other, and thus bring upon the latter incalculable mischief.” And, again, further along, speaking of the nature of railroad companies, he says: “In truth, as these companies, although technically private corporations, are in some measure public agents, there exists in such eases as the present an additional reason why a judicial control should be extended as far as possible over their conduct towards each other. I have no doubt as to the jurisdiction of this court over this subject, and shall not scruple, therefore, to exercise it to the fullest extent that the circumstances of the case may now, or at any time hereafter, appear to require.”

In commenting upon this language, Vice-Chancellor Grey, in Palmyra v. Pennsylvania Railroad Co., 62 N. J. Eq. (at p. 617); affirmed by this court in 63 N. J. Eq. (at p. 799), says: “The principle is the same where a dispute arises between a railroad company and a municipality as to their respective use of a highway crossing a railway.”

The circumstance that in the present case the grant of the railroad company contained an express agreement on its part that the municipality shall have the right to construct and maintain an overhead boulevard bridge at the crossing, so long as the boulevard itself shall exist, seems to us to be inconsequential, in view of the fact that each of the contracting parties was charged with the performance of public duties to be properly exercised in the public interest, and we must assume in that regard that the method and means agreed upon between the parties as to how and in what manner the easements of the respective parties shall be used and exercised were predicated upon the situation and conditions which were then prevailing, and in a measure controlling, and presumably upon the theory to continue only so long as such conditions should remain the same. But whether this be so or not, it is quite clear that the municipality cannot with legal propriety insist upon the enforcement of the grant of easement to it, to be used and exercised by it, in the manner evidenced by the terms of that instrument, since it appears here that to enforce the terms of the grant would render incalculable mischief to the railroad company in the enjoyment of the easement, in common with the municipality, imperil the safety of the traveling public and obstruct interstate and intrastate commerce.

The municipality and the railroad company being unable to agree as to the method and manner of the use and enjoyment of the easement by the municipality in which easement, as has already been observed, the railroad has an interest in common with the municipality, and a public necessity having arisen for a change at the crossing, it was clearly within the jurisdiction of the court of chancery to intervene and fix and settle the terms and conditions of the use and enjoyment of such easement by the municipality and the railroad company.

The decree of the court of chancery is affirmed, with costs.

The vote in each of the three cases here decided was as follows:

For affirmance — The Chief-Justice, Trenchard, Parker, Minturh, Kalisch, Black, Katzehbach, Campbell, Lloyd, White, Gardner, Yah Buskirk, McGlennon, Kays, JJ. 14.

For reversal — None.


author: Per Curiam.

text:
    Mulford T. Rose et al., complainants-appellants, v. George J. Buckley et al., defendants-respondents.
    [Argued May 22d, 1925.
    Decided October 19th, 1925.]
    An action in attachment begun for the purpose of recovering a deposit of money paid on a contract of purchase of real estate constitutes, in eifect, a rescission of the contract on the part of the plaintiff in such action, and precludes the bringing of a subsequent suit for specific performance in enforcement of the contract.
    On appeal from a decree of the court of chancery.

      Messrs. Bourgeois & Coulomb, for the appellants.

      Messrs. Bndicott & Bndicotl, for the rspondents.
   Per Curiam.

This appeal is from a decree dismissing appellants’ bill filed in the court of chancery to compel specific performance of a contract for the sale of real estate. The bill was dismissed by the vice-chancellor oil the authority of the opinion of this court in the case of Claron v. Thommessen, 96 N. J. Eq. 650. The appellant in his brief says: “We assume, therefore, that this court will not undertake to pass upon the merits of the complainant’s case for specific performance, but will confine itself to a consideration of the correctness of the views expressed by the court of chancery.” Following this assumption we will content ourselves with the simple statement that we concur in the view expressed by the vice-chancellor that the case was controlled in principle by the case above cited. Since the opinion in the Claron Case was filed, however, the case of Maturi v. Fay, 98 N. J. Eq. 377, was decided by this court, and the precise question here involved, which is whether the commencement of an action in rescission of a contract barred a second action seeking its enforcement, and it was held, following Claron v. Thommessen, supra, that such was the effect. In the present case the appellant issued an attachment seeking thereby to recover the deposit money. Having done so, he cannot now retrace his steps and obtain enforcement of the contract which he has once repudiated.

The decree is affirmed, with costs.

For affirmance — The Chiee-Justice, Trehohard, Minturh, Kauisoit, Black, Katzehbach, Campbell, Lloyd, White, G-ardher, Yah Buskirk, McGlehhoh, Kays, JJ. 13.

For reversal — None.


author: Pee Cuetam.

text:
    Bertha Baumann, appellant, v. Reginald B. Naugle et al., respondents.
    [Decided September 29th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan, whose opinion is reported in 97 N. J. Eq. 110.

      Mr. Earl A. Merrill, for the appellant.

      Mr. Augustus G. Nash, for the respondents.
   Pee Cuetam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Buchanan.

For affirmance- — The Chiee-Justice, Parker, Minturn, Kaltsoh, Black, Katzenbaoi-i, Campbell, Lloyd, White, Gardner, Van Bus kirk, McGlennon, Kays, JJ. 13.

For reversal — None.


text:
    William J. Boehm, executor, &c., appellant, v. Mary Domagauer Reider et al., respondents.
    [Argued May term, 1925.
    Decided October 19th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan, whose opinion is reported in 96 N. J. Eq. 167.

    Messrs.- Stamler, Stamler & Eoestler, for the appellant.

      Mr. Abe J. David, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Buchanan.

For affirmance — The Chibe-Justice, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, McGlennon, Kays, JJ. 13.

For reversal — None.


author: Pee Cueiam.

text:
    Mungo J. Currie et al., complainants-respondents, v. Mayor and Aldermen of Jersey City et al., defendants-appellants.
    [Argued June 2d, 1925.
    Decided October 19th, 1925.]
    On appeal from a decree advised by Vice-Chancellor Griffin, whose opinion is reported in 95 N. J. Eq. 412.

      Mr. Thomas J. Brogan, for the appellants.

      Mr. Richard Boardman, for the respondents.
   Pee Cueiam.

Of the five points specifically taken up and decided by the learned vice-chancellor, only two are urged on this appeal. They are, first, that the filing in the county clerk’s office of the Currie map (which he properly held to be an unofficial filing), plus the adoption of grades by the city, worked a complete dedication; second, that the deeds made by complainants (in which intent to dedicate was expressly disclaimed) were a confirmation of an original dedicatory intent.

We conclude that the decree should be affirmed, and for the reasons given in the opinion of Vice-Chancellor Griffin so far as they deal with the points now argued. As to other points considered by him, but not raised here, we, naturally, express no opinion.

For affirmance — The Chibe-Justice, Pabkbe, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Van Busker k, McGlennon, Kays, JJ. 11.

For reversal — Paekee, J. 1.


text:
    El Mora Development Corporation, complainant-respondent, v. Morris Horwitz et ux., defendants-appellants.
    [Argued March 24th, 1925.
    Decided October 19th, 1925.]
    On appeal from a decree advised by Vice-Chancellor Buchanan, whose conclusions are reported in 97 N. J. Eq. 126.

      Mr. Herbert J. Hannoch, for the appellants.

      Mr. Charles Jones, for the respondent.
   Per Curiam.

We find nothing in the grounds urged at the argument and in appellants’ brief to call for a reversal of the decree brought up on this appeal.

The first ground is that the contract on which this suit for specific performance is based is harsh and oppressive. The reasoning of the vice-chancellor in the court below disposes of this point in a manner satisfactory to us.

The second and third grounds are that courts of equity will not direct specific performance of contracts to build, and that the provisions for building in the contract in suit are not severable from the rest of the contract.

We agree that the requirements to build should not be specifically enforced. But, as in Orange Society v. Konski, 95 N. J. Eq. 254, so, in the present case, the court has not undertaken to enforce them. It is claimed that the elimination of this feature should carry the whole contract with it, but to this we cannot agree. The complainant has waived the building scheme and the mortgage attached thereto. We see no reason why the requirements to give and accept the exchange deeds should not stand.

Fourth, that the contract is uncertain and vague, in that the requirements for erection of houses are not specific. We think they are reasonably definite, but as they are out of the case it seems to be immaterial whether they are sufficiently in detail.

Finally, that the court, in its discretion, should have refused specific performance. There are cases in which the exercise of the equitable discretion in this class of cases has been reversed on appeal, as in Worth v. Watts, 76 N. J. Eq. 299, but the present case, in our estimation, is not one of them.

These are all the reasons urged for a reversal, and as we conclude there is not substantial merit in any of them, the decree under review, will be affirmed.

For affirmance — The Chief-Justice, Trehchard, Parker, Mihturx, Kalisch, Black, Katzehbach, Campbell, Lloyd, White, Vast Buskirk, McGlehkoh, Kays, JJ. 13.

For reversal — None.


text:
    Bertha Hoffman, respondent, v. Frederick Rauchmiller et al., appellants,
    [Argued May term, 1925,
    Decided October 19th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Church, whose opinion is reported in 95 N. J. Eq. 500.

      Mr. Theodore G. Ilinderlang, for the appellants.

      Messrs. LeWbach, Johnson & Ormond, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Church.

■For affirmance — The Chiee-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, McGlennon, Kays, ,TJ. 14.

For reversal — None.


author: Pee Oubiam.

text:
    Perth Amboy Dry Dock Company v. Harden L. Crawford et al., partners, &c.
    [Argued May term. 1925.
    Decided October 19th, 1925.]
    On appeal from a decree of the court of chancery.

      Mr. George W. G. McCarter, for the appellants.

      Mr. Thomas G. Haight and Mr. William H. Carey, for the respondent.
   Pee Oubiam.

The parties to this litigation entered into contracts by the terms of which the complainant agreed that two vessels belonging to the defendants should be moored at the dry dock plant of the complainants in Perth Amboy, in order that they might there be “scrapped.” The time limit within which, as the complainant claims, the scrapping of these vessels was to have been completed and removed from its plant having expired, and the two vessels at that time having been only partly dismantled, the present bill- was filed by the complainant, praying a decree directing the defendants to forthwith remove their vessels, and that a mandatory injunction should be issued against them so directing.

When the hearing was completed the vice-chancellor orally expressed the view that the complainant was entitled to the relief sought, and that it was the duty of the defendants to see that both vessels were taken away. He then added: “It may be that after both sides have considered the view I have expressed they can arrive at some amicable arrangement,” and counsel for the defendant then announced, in open court, that his clients would remove their vessels from the complainant’s plant as speedily as possible, and this was done by them shortly after the hearing was concluded. The pronouncement of the vice-chancellor was made on the 17th of July, 1924, and on the 30th of December of that year, long after the vessels had been removed by the defendants, a decree nunc pro tunc was advised, ordering, adjudging and decreeing “that the defendants forthwith and as speedily as possible remove the said vessels referred to in the bill of complaint from the complainant’s plant at Perth Amboy.” The decree further adjudged costs against the defendant and a counsel fee. Prom this decree the defendants have appealed.

In order to be entitled to appeal from a decree of the court of chancery, it must appear that the appellant had been aggrieved by it. Coryell, Executor, v. Holcombe, 9 N. J. Eq. 650; Green v. Blackwell, 32 N. J. Eq. 768; Beckhard v. Rudolph, 68 N. J. Eq. 749. And, as was stated in the case first cited, where the decree appealed from has been executed, the object of it attained, and there is nothing upon which a judgment of reversal could operate, no appeal will lie. In that case the appellant sought to bring up for review an order directing the issuing of process to bring in parties to answer for an alleged contempt. Prior to the taking of the appeal the process was issued, the appellants were brought before the court, entered their appearance according to the rule of the court, and answered the interrogatories exhibited before the master. In this situation this court held that, if the appeal should be maintained and the order appealed from set aside, the appellants could derive no benefit from our judgment, the reason being that, as the order sought to be reviewed had been executed, a reversal thereof would be the pronouncing of a nugatory and idle judgment which this court would be without power to enforce. The doctrine expounded in this case is declared in Green v. Blackwell, supra, to-be in uniform accordance with the practice of this court, and was affirmed in this later case. From what has been said, it is apparent that the appellants are not aggrieved by so much of the decree as directs them to do something which they had already done at the time the decree was actually signed.

The propriety of that part of the decree, which imposes costs and counsel fees upon the defendants, has not been discussed by their counsel, and, therefore, has not received consideration from us.

The decree under review will be affirmed.

For affirmance — The Chief-Justice, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Van Busicirk, MoGlennon, Kays, J'J. 12.

For reversal — None.


author: Pee Ciibiam.

text:
    Fannie Schecktman, complainant-appellant, v. Morris Schecktman, defendant-respondent.
    [Argued May 2d, 1925.
    Decided September 19th, 1925.]
    On appeal from the court of chancery advised by Vice-Chancellor Church, whose opinion is reported in 95 N. J. Eq. 493.

      Mr. Harry Gastelbaum, for the appellant.

      Mr. Benjamin M. Weinberg, for the respondent.
   Pee Ciibiam.

Our examination of the evidence in this case convinces us that the moneys received by the wife from her husband were not a gift, and that when later they were placed to the husband’s credit in his bank or used to pay the dues on building association stock standing in his name, it was but the application of his own funds. In this view of the facts and their import it is unnecessary to determine the legal effect of the application of the funds to the husband’s account in bank or to the payment of his building association dues on the assumption that the moneys were originally a gift from the husband to the wife.

The decree is affirmed, with costs.

For affirmance — The Chief-Justice, Tbenchaed, Paeicee, Mintuen, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gabdnee, Van Buskiek, McGlennon, Kays, JJ. 14.

For reversal — Kone.


author: Pee Cukiam.

text:
    Ferdinand Thommessen v. Absecon Land Company et al.
    [Argued May term, 1925.
    Decided October 19th, 1925.]
    On appeal from a decree of the court of chancery.

      Mr. John C. Reed, for the appellant.

      Messrs. Bourgeois & Coulomb, for the respondents.
   Pee Cukiam.

The bill in this case was filed by Thommessen to compel the specific performance of a contract for the sale of land located in "Veutnor City and owned by the Absecon Land Company. The hearing resulted in a decree in favor of the defendant company, and the complainant has appealed.

The contract was entered into on February 2d, 1922, the vendee being one Mansbach, who later assigned his interest therein to Thommessen, the complainant. It was to be executed by the payment of the purchase-money and the delivery of the deed at the office of EL G. Harris & Company, in Atlantic City, they being the brokers who had negotiated the sale on March 17th, 1922, at or before three o’clock in the afternoon.

The basis of the complainant’s claim to be entitled to a specific performance of the contract is that when the time of performance arrived he was present at the place of performance, ready to pay the purchase price, and that no one appeared on behalf of the intending vendor. The defense was a denial of the truth of this averment, and the counter contention that the defendants were present by their agent, ready and willing to deliver the deed; that the complainant failed to appear, and that by reason of such failure the obligation of the defendant to make a conveyance ceased to exist.

The complainant, in support of his contention, called witnesses who testified that he had attended at the office of the Harris company at aboxxt texx o’clock in the morning of March 17th, taking with him cash of sufficient amount to complete the payment of the purchase-money; that at that time no one xvas present representing the intending vendor, and that he could get no explanation from parties present in the office as to such absence; that he made inquiries for the purpose of ascertaining the location of somebody who could act for the company, but. was unsuccessful; that he waited at the Harris office until xxoon and then left, taking with him the cash, which he had brought for the purpose of paying the purchase-moxiey, and deposited it in the bank, and that there was no attempt subsequexxtly made either on his part or on the part of the land company to complete the transaction.

On the other hand, the land compaixy called witnesses to . prove that the deed for the conveyance of the property was prepared and duly executed prior to the time limit fixed by the agreement; that it xvas taken by their representative to the office of H. G. Harris & Company before three o’clock in the afternoon of March 17th, there to be delivered to the intending purchaser upon the payment of the purchase-money; that nobody appeared then or afterward on the part of the complainant to complete the contract; that about four o’clock the presideixt of the land company called up on the telephone the coxxnsel of the complainant for the pxxrpose of ascertaining the cause of his client’s non-appearance, but received no answer to his inquiry, except that the matter xx'-ould have to be settled by a suit in chancery.

Our examination of the proofs sent up with the appeal satisfies us that the defense interposed by the land company is supported by the clear preponderance of the evidence; that the complainant, on his own showing, failed to perform his part of the contract by neglecting to attend at "the place designated therein for the payment of the pxxrchase-money and the delivery of the deed at the time fixed therein for such payment and delivery, or at any later time; that no legal excuse was shown for such failure on his part, and that, by reason thereof, the defendant company was entirely justified in declaring the contract at an end.. Holding this view as to the effect of the proofs submitted, and as to the legal consequences resulting therefrom, we conclude that the decree under review should be affirmed.

Other matters were involved in the controversy and were considered by the vice-chancellor before whom the case was heard. These matters, however, become of no legal importance in view of the conclusion .we have reached upon the facts recited.

For affirmance — The Chief-Justice, Trenchard, Min-turn, Kalisoh, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, MoGlbnnon, Kays, JJ. 13.

For reversal — None.


text:
    Wallace & Tiernan Company, Incorporated, respondent, v. United States Cutlery Company, appellant.
    [Argued May term, 1925.
    Decided October 19th, 1925.]

      Messrs. Edward M. & Runyon Golie, for the appellant.

      Mr. Benjamin F. Jones, for the respondent.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Baches, whose opinion is reported in 97 N. J. Eq. 408.

   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Baches.

For affirmance — Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, White, McGlennon, Kays, JJ. 9.

For reversal — The Cttiee-Justice, Lloyd, Van Buskirk, JJ. 3.


text:
    Jacob Strauss, appellant, v. August Rabe et al., respondents,
    [Argued May term, 1925.
    Decided October 19th, 1925.]

      Messrs. Bauer & Ranker, for the appellant.

      Messrs. Melosh, Morlen & Melosh, for the respondents.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Bentley, whose opinion is reported in 97 N. J. Eq. 208.

   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Yiee-Chancellor Bentley.

For affirmance — The Chief-Justice, Teehchard, Parker, Mihturh, Kalisch, Black, Katzehbach, Campbell, Lloyd, White, Gakdher, Yah Buskirk, MoGlehhoh. Kays, JJ. 14.

For reversal — None.


text:
    Waterworks Equipment Company, respondent, v. Patrick M. McGovern et al., appellants.
    [Argued May term, 1925.
    Decided October 19th, 1925.]
    On appeal from a decree of the court of chancery.

      Mr. Aaron A. Melnilcer, for the respondent.

      Mr. John Milton, for the appellants.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 96 N. J. Eq. 520.

   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Griffin.

For affirmance — The Chief-Justice, Trenohard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, McGlennon, Kays, JJ. 1+.

For reversal — None.


text:
    Ye Olde Staten Island Dyers and Cleaners, complainant-respondent, v. Barrett, Nephews & Company, Old Staten Island Dyeing Establishment, Inc., defendant-appellant.
    [Argued May 28th, 1925.
    Decided October 19th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Church.

      Mr. Wendell J. Wrighl, for the appellant.

      Messrs. Pomerehne, Laible & Kauiz {Mr. Henry Pomerehne, of counsel), for the respondent.
   Per Curiam.

This is an appeal from an order granting a preliminary injunction on-reading the bill, answer and affidavits filed.

The injunction restrains the defendant, until the further order of the court, from using the name “Old Staten Island” or any other name or words similar thereto, and from interfering with the complainant’s business in the manner alleged in the bill, and also from continuing in the operation of its business at No. 925 Broad street, Newark, under a name containing the words “Old Staten Island” or any name or words similar thereto, &e.

The bill alleges that complainant acquired its business in 1924, and the rights to use the name “Staten Island” from others who acquired it from a corporation which had used the name for fifty years; that the words “Staten Island” had acquired a particular trade meaning in the business; that (since February 3d of the present year) defendant conducts and operates a business at No. 925 Broad street, Newark, under its name containing the words “Staten Island”; that the general appearance of the name as used by the defendant is calculated to deceive the general public, and that defendant fraudulently designs to procure the custom and trade of the complainant and has solicited customers of the complainant; that complainant has suffered irreparable damage from the use of the name by the defendant, which is greatly prejudicial to the business of the complainant, and that unless the imitation is discontinued it will ultimately destroy the character and standing of the complainant’s name and business and will mean complainant’s business ruin.

How, as we look upon the answer and defendant’s affidavits, the material facts in the bill upon which the complainant’s equity depends, are met by a full, explicit and circumstantial denial under oath. Such being the case, a preliminary injunction should not have been granted. Citizens Coach Co. v. Camden Horse Railroad Co., 29 N. J. Eq. 299; Meyer v. Somerville Water Co., 79 N. J. Eq. 613.

The order under review will be reversed.

For affirmance — Hone.

For reversal — The Chief-Justice, Trehchard, Parker, Mihturh, Kalisch, Black, Katzehbach, Campbell, Lloyd, White, Gardher, Yah Buskirk, McGlehhoh, Kays, JJ. 14.


text:
    Young Men's Christian Association of Matawan, New Jersey, complainant, v. T. Frank Appleby et al., executors, &c., defendants.
    [Argued May term, 1925.
    Decided October 19th, 1925.]
    On appeal of Katherine Brown et ux.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, whose opinion is reported in 97 N. J. Eq. 95.

      Mr. Thomas Brown, for the appellants.

      Mr. J. Raymond Tiffany, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Foster.

For affirmance — The Chief-Justice, Trenchard, Min-turn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, McG-lennon, Kays, JJ. 13.

For reversal — None.


text:
    Young Men’s Christian Association of Matawan, New Jersey, complainant, v. T. Frank Appleby et al., executors, &c., defendants.
    [Argued May term, 1925.
    Decided October 19th, 1925.]
    On appeal of Katherine Brown et ux.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, whose opinion is reported in 97 N. J. Eq. 95.

      Mr. Thomas Brown, for the appellants.

      Mr. J. Raymond Tiffany, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Foster.

For affirmance — The Chief-Justice, Trbnchard, Min-turn, Kalisch, Black, Katzenbach, Campbell, Lloyd, Wi-iitb, Gardner, Van Buskirk, McGlennon, Kays, JJ. 13.

For reversal — None.


text:
    William C. Clough et al., respondents, v. Samuel J. Mesnick et al., appellants.
    [Argued May term, 1925.
    Decided October 19th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 96 N. J. Eq. 482.

      Messrs. Weinberger & Weinberger, for the appellants.

      Mr. Henry G. Whitehead, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Lewis.

For affirmance — The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, McGlennon, Kays, JJ. 14.

For reversal — None.


author: Pee Cubiam.

text:
    Genevieve L. Hart, appellant, v. Arthur L. Lamborn et al., respondents.
    [Argued May term, 1925.
    Decided October 19th, 1925.]
    On appeal from a decree of the court of 'chancery advised by Vice-Chancellor Backes, who rendered the following opinion:
    “The Court — Mrs. Hart, complainant, executed a bond and mortgage on her home to Mrs. Lamborn, defendant, for $26,000, and by her bill seeks to set them aside on the ground that they were procured on a false or artificial consideration, and by duress. The counter-claim prays a foreclosure of the mortgage. The law imposes a very great burden and responsibility upon Mrs. Hart to establish the fraud alleged. To overcome these regularly executed documents, under seal, the evidence of fraud must be clear and convincing. Mrs. Hart claims that she, the owner of the four patents, assigned them to a corporation formed by her husband and Mr. Lamborn in consideration of forty-nine per cent, of the capital stock of the company, and of Mr. Lam-born’s discharging a mortgage on her home, on which there was due $24,500, besides taxes on the land, &c., and which was then under foreclosure. That Mr. Lamborn advanced the money, but later forced her, under threat of arrest, to give the bond and mortgage in suit in repayment. It appears that Mr. Hart is an inventor; he had patents, or applications for patents, and he sought and obtained the aid of Mr. Lamborn to promote his inventions, Mr. Lamborn to furnish the funds; Hart the brains. The agreement is in writing, states the terms, what each was to contribute, the division of the capital stock of the corporation to be formed, &c., after test of Mr. Hart’s patents proved satisfactory to Mr. Lamborn. While the tests were under way Mr. Lamborn agreed to lend Hart the money to pay off the foreclosure suit; that the property was to be bought in at the sheriff’s sale, and a new bond and mortgage given for the loan. Mr. Lamborn got his wife to lend the money. The foreclosure went to a sale. Hart bid in the property and took title in the name of his wife. He paid the purchase price with Mrs. Lamborn’s check and a draft on her account, both payable to the sheriff, aggregating $24,500, which were given to Hart for that purpose. Then Hart and Mrs. Hart refused to give the mortgage, and only after pressure upon both and threats of prosecution, and, after a long delay, Mrs. Hart executed and delivered the documents. It stands out prominently in the ease that the promotion scheme and the loan were unrelated and entirely independent transactions. The written contract indicates that. The consideration for the assignment of the patents to the corporation was the issuing of the forty-nine per cent, of the stock. The mortgage transaction arose after that deal. In both matters, the patents promotion and the loan, Mr. Lamborn dealt only with Mr. Hart. While the patents stood in Mrs. Hart’s name, they were dealt with by Mr. Hart as his own; Mr. Lamborn understood they were owned or controlled by him. None of the negotiations was with Mrs. Hart. She knew only what her husband told her. She left all to him. Now, it may be that he tricked her into believing that, by contributing the patents, in which she had invested some $15,000, she would receive money enough to pay off the mortgage under foreclosure, to have her home clear of it, and forty-nine per cent, of the stock of the corporation, or that he painted to her some rosy prospect of that kind. If that was the case, we can readily understand why. Mrs. Hart refused to give the mortgage. But Hart knew better; he knew that the $24,500 was an out and out loan, for which a mortgage was to be given, and that it was aside from the patent’s promotion. He tried to cheat Mrs. Lamborn out of her money; that is clear. If Mrs. Hart was not a party to the cheat, she undoubtedly was keenly disappointed when the truth was disclosed. It is urged that Mrs. Hart’s husband was acting as her agent and that Lamborn and his wife were put on notice, and that an inquiry of her would have disclosed upon what consideration she parted with the patents. The fact is that Hart dealt with the patents as his own, and, though they stood in her name, there was no duty on the part of Mr. Lamborn to inform himself of the source of Hart’s title or his control of them.
    “As to the duress. When Hart delayed giving the bond and mortgage Lamborn threatened him with the district attorney; threatened to lay the matter before the district attorney in Hew York. Mrs. Hart says he also threatened her with criminal prosecution, but I do not find that to be so. How, Hart’s conduct was fraudulent, and it may be that Mrs. Hart was a party to it, although I am unwilling to say that. Lamborn’s demand upon him and her were just. They had his wife’s money and they refused to give the security. I know of no rule that makes it oppression to threaten criminal action to compel one to do what he is lawfully obliged to do. I find no oppression in fact or in law in this case.
    “The prayer of the bill will be denied and the foreclosure ordered.”

      Mr. Nathan H. Berger, for the appellant.

      Messrs. Lindnbury, Depue & Faulks, for the respondents.
   Pee Cubiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Backes.

For affirmance — The Chiee-Justice, Teenchaed, Pakicee, Mintubn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gaednee, Van Buskieic, MoGlennon, Kays, JJ. 14.

For reversal — Hone.


text:
    Clifford M. Hickman, receiver, &c., complainant, v. The Second National Bank of Orange, New Jersey, and C. E. Dowling, defendants.
    [Argued May term, 1925.
    Decided October 19th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Church, who delivered the following opinion:
    “This is an action brought by the receiver of the Waverly Smelting and Chemical Corporation against the Second National Bank of Orange and C. E. Dowling to set aside the transfer and delivery of about $10,000 worth of metal made by the corporation to Dowling in December, 1924.
    “On December 12th, 1923, the defendant Second National Bank of Orange, held two notes of the WaVerly Smelting and Chemical Corporation, amounting to the sum of $10,000. These notes were endorsed by Charles E. Dowling and were secured by a mortgage pledged as collateral by Dowling to the bank.
    “On December 12th, 1923, the Waverly Smelting and Chemical Corporation took up two notes, paying for the same with the corporation’s check. The bank at the same time gave its check for $39.17 in payment of unearned discount and surrendered to Dowling his collateral. About December 4th, 1923, Dowling purchased from the corporation ingots manufactured by the corporation at a price of $10,499.47, which is admitted to be the market price. They were delivered to him on December 11th.
    “The complainant claims that the transfer and the payment of the notes was in violation of section 64 of the Corporation act, which reads as follows:

      “ ‘Whenever any corporation shall become insolvent or shall suspend its ordinary business for want of funds to carry on the same, neither the directors nor any officer or agent of the corporation shall sell, convey, assign or transfer any of its estate, effects, dioses in action, goods, chattels, rights or credits, lands or tenements, nor shall they or either of them make any such sale conveyance, assignment or transfer in contemplation of insolvency, and every such sale, conveyance, assignment or transfer shall be utterly null and void as against creditors; provided, that a bona fide purchase for a valuable consideration, before the corporation shall have actually suspended its ordinary business, by any person without notice of such insolvency or of the sale being made in contemplation of insolvency, shall not be invalidated or impeached.’
    “The testimony shows that the company did not suspend its ordinary business until December 16th. No testimony was adduced which shows that Dowling had knowledge of the alleged insolvency.
    “In Reed v. Helois Carbide Specialty Co., 64 N. J. Eq. 231, Vice-Chancellor Gray said, among other things:
    “ ‘T do not understand this prohibition to be applicable to conveyances made in good faith by the officers of a corporation at a time when the financial embarrassments of the company are such that its insolvency may be within contemplation, if, as incidental to and essentially a part of the conveyances made a present consideration moves to the company. For instance, if a mortgage be given to secure the payment of money paid in good faith to the company coincidentally with the delivery of the mortgage, or a purchase-money mortgage be given to secure the payment of the purchase-money of land conveyed to the company, coincidentally with the making of the mortgage, or, if property be in good faith transferred to the company and its property or money be given in exchange therefor.5
    “I think that the defendant was a bona fide purchaser for valuable consideration before the company actually suspended,, and that the sale to him was valid.
    “The complainant in his brief says that: ‘The only question to be considered in this case is the question of whether the 'Waverly Smelting and Chemical Corporation was insolvent or in contemplation of insolvency when either or both aforementioned transactions took place.

      “In considering this point, I have reached the conclusions that the complainant has failed to prove that the corporation was insolvent or contemplated insolvency on December 12th, 1923. The complainant has not submitted any evidence showing the value of the assets of the corporation as of December 12th, 1923, except to show the state of the bank account in the Second National Bank.
    “The testimony shows that the corporation had other assets upon which the receiver realized between $16,000 and $17,000, and it may very well be that at the time of the sale to Dowling these other assets were sufficient to render the company solvent at that time. In regard to the notes of the corporation, the testimony shows that they were renewed in regular course as they fell due. It is apparent, therefore, that by an honest use of credit they might have continued in business, and did continue for some time, at least, after the sale to Dowling.
    “Vice-Chancellor Lane, in Hoover, &c., v. Schafer, &c., 89 N. J. Eq. 433, defined insolvency as used in the sixty-fourth section of the Corporation act as a general inability to meet pecuniary liabilities as they mature by means of either available assets or an honest use of credit.
    “See, also, Regina Music Box Co., v. Otto, 65 N. J. Eq. 582; affirmed, 68 N. J. Eq. 802.

    “I, therefore, find that the company was not insolvent, or contemplating insolvency, within the meaning of section 64 of the Corporation act, and I will advise a decree dismissing the bill.”

      Messrs. Bilder S Bilder, for the appellant.

      Mr. William. A.. Calhoun, for the respondent.
   Pee Cueiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Church.

For affirmance — The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Yan Buskirk, McGlennon, Kays, JJ. 13.

For reversal — None.


text:
    J. Morgan Holloway, respondent, v. Frank Hendrick et al., appellants.
    [Decided June 18th, 1925.]
    On appeal from a decree of the court of chancery advised by Yice-Chancellor Fielder, who delivered the following opinion:
    “Mountain Lakes, Inc., entered into a contract with the defendant Prank Hendrick, dated March 18th, 1920, whereby the former agreed to sell, and the latter agreed to purchase, three lots of land upon which the seller, by the terms of the contract, was to erect a dwelling-house. The consideration named in the contract for the land and building was $22,200, of which $12,200 was to be paid in cash and the balance, $10,000, was to be paid at the time of taking title, by the purchaser ‘assuming and agreeing to pay a certain first mortgage of $10,000.’ By the terms of the contract, title was to close on or before July 1st, 1920. The contract was duly recorded July 2d, 1920.
    “Subsequently to the date of the contract, Mountain Lakes, Inc., executed a mortgage, dated April 29th, 1920, to the North Jersey Title Insurance Company, to secure the payment of $15,000, covering the three lots agreed to be con
      veyed to Hendrick, and nine other lots, which mortgage was recorded May 6th, 1920. By deed dated July 1st, 1920, recorded July 9th, 1920, Mountain Lakes, Inc., conveyed to Hendrick the three lots in question, which conveyance was expressly made subject to the mortgage for $15,000 and by deed dated July 14th, 1920, recorded July 15th, 1920, Hendrick conveyed two of said lots to Lillian E. Mason, who-, by deed dated and recorded on the same dates, conveyed said tAvo lots to the defendant Katherine E. M. Hendrick (wife of Frank Hendrick), both deeds being made expressly subject to said mortgage of $15,000. Ity release of mortgage dated November 22d, 1920, recorded November 24th, 1920, H. J. Hapgood, Avho then owned the mortgage by assignment, released to Mountain Lakes, Inc., for the consideration of $5,000, all lots covered by the mortgage except the three conveyed to the defendant Frank Hendrick, leaving said three lots subject to the balance of $10,000 secured by said mortgage. The mortgage was thereafter assigned to the complainant, who by this suit seeks its foreclosure, claiming $10,000 and interest due thereon. The complainant is a stranger to all the transactions herein mentioned and is bound only by such notice as the record gives.
    “The first defense presented is that the mortgage, the deed from Mountain Lakes, Inc., to Frank Hendrick and the release of mortgage, were not properly acknowledged because the person who, as a foreign commissioner for New Jersey in NeAV York, certified such acknowledgments, was not such a commissioner, and, therefore, these instruments Avere not properly recorded and are not notice .to anyone. The only proof offered by the defendants to show that the certifying commissioner Avas not, in fact, such commissioner, was a certificate under the hand and seal of the secretary of state of NeAV Jersey, purporting to certify such fact. The offer of such certificate in evidence was rejected as not proper evidence of the fact sought to be proved. Even were the acknowledgments defective and were these instruments not proper, for that reason, to be recorded, and, therefore, not constructive notice to anyone, the defendants had actual notice of the mortgage because it is recited in their deeds; and the deed from Mountain Lakes, Inc., to Hendrick is good as between the grantor and grantee, without any acknowledg- ■ ment, and it does not appear that anyone has questioned the defendants’ title thereunder; and the release of mortgage is valid between the releasor and the mortgagor, without an acknowledgment, and it does not appear that anyone other than the defendants question its effect as a valid release of the mortgage lien. In his bill of complaint the complainant admits notice of the deed and the release of mortgage. ■
    “The defendants claim that the instrument mentioned, and-the various assignments through which the mortgage came into the complainant’s ownership, were not properly proved on the hearing of this cause, the basis of their contention being that they gave due notice to the complainant before the hearing, under Comp. Stat. p. 1555 § 56, that they would require the complainant to produce the original instruments instead of the record thereof. Why the record would not have been sufficient- proof, and the reason for the demand, is not apparent from anything in the case, but in compliance with the demand the complainant did produce all the original instruments, except the release of mortgage, which release was executed and delivered to Mountain Lakes, Inc., and, presumably, was not in complainant’s possession. This release was proved by the admission in evidence of a certified copy of the record, to which admission the defendants made no objection, and it is impossible to perceive how such certified copy, rather than the original, could have been detrimental to any defense set up- by'the defendants.
    “The next defense presented is that the dwelling-house erected upon the mortgaged premises is not subject to the mortgage because it was not in existence when the mortgage was executed and delivered.. As between the owner of the land and the mortgagee, any improvement placed on the land as part of the freehold becomes subject to the lien of the mortgage, and in this case it is expressly stated in the mortgage that it is to cover a house on the lots in question. It does not appear that there were any equities in1 favor of the owner as against the holder of the mortgage at the time the house was erected which would change or modify the rule, or, if there were, that the complainant had notice of such equities.
    “The next defense interposed is that Hapgood, the owner of the $15,000 mortgage at the time he executed and delivered the release to Mountain Lakes, Inc., had no> right to release nine lots, from the lien of the mortgage for a consideration of $5,000, and subject to the defendants’ three lofs and the dwelling-house thereon, to the lien of the balance of the mortgage. The contract between the defendant Prank Hendrick and Mountain Lakes, Inc., was that Hendrick should pay $22,200 for a dwelling-house and three lots, of which consideration $10,000 was to be paid by assuming, or taking title subject to, a mortgage for that amount, which mortgage, as appears from the wording of the contract, was to be a lien on the property prior to the conveyance to Hendrick. Between the date of the contract and the delivery of the deed to Hendrick, Mountain Lakes, Inc., created a mortgage lien on the house and lots and on nine other lots of $15,000, and Hendrick took title expressly subject to this mortgage, and in the settlement of the purchase price, under the terms of the contract, he was allowed credit for $10,000 on account of this mortgage lien. Prom the evidence on the part of the defendants it appears that title was so taken, rather than in strict accordance with the contract, because Hendrick feared that Mountain Lakes, Inc., was in financial straits and might go into the hands of a receiver or be adjudged a bankrupt, and Hendrick wanted title before either of these things occurred. Whether or not his fear was well founded does not appear, but he took title subject to the $15,000 mortgage, after demanding a conveyance, in accordance with the terms of his contract, as to the mortgage lien, and protesting against a mortgage for $15,000 which covered his lots and other property. It is my recollection that the evidence shows that his grantor then promised to have the mortgage released as to the other property, and to make a payment on the mortgage which would reduce it to $10,000; but however that may be, while title to the three lots was in Hendrick, and also after he had conveyed two of them to his wife, he continued his demand for himself and as agent for his wife, that the mortgage be reduced to a mortgage of $10,000 on said three lots. Hapgood was president of Mountain Lakes, Inc., from the time the contract between -the company and Hendrick was entered into to the execution of the deed to Hendrick, and he knew that Hendrick claimed to be entitled to a conveyance of his lots subject to a $10,000 mortgage, and when, in November, 1920, Hapgood became the owner of the mortgage by assignment, he complied with Hendrick’s demand, and by the execution and delivery of his release, Hapgood reduced the mortgage to $10,000 and made it a lien only on the three lots in question. Thus, Hendrick and his wife (the latter having notice of the terms of the original contract because it was recorded) were placed in the position, with respect to the principal amount of the mortgage, in which they demanded they should be placed, and thereafter they made payments of interest on a $10,000 mortgage down to April, 1923. It is impossible to conceive how the release injuriously affected their rights. Rather, it conceded and established their rights according to their contention.
    “Finally, the defendants claim that the house which Mountain Lakes, Inc., agreed to construct upon the land in question does not conform to the house for which the defendant Frank Hendrick contracted, and, therefore, the defendants owe nothing on the mortgage. This claim is stated in a nebulous fashion, and the evidence does not support it. Had it been established that the house was not constructed according to the contract, and had this been a purchase-money mortgage, the defendants might be entitled to a set-off or to an abatement, as against the mortgage debt, but this was not a purchase-money mortgage. Under his contract the defendant Frank Hendrick was to take title subject to a mortgage which Mountain Lakes, Inc., was to secure on the property before conveying to Hendrick, and this mortgage was executed by Mountain Lakes, Inc., to North Jersey Title Insurance Company, before the construction of the house was begun and the mortgage had passed, by assignment, to the Hackensack Trust Company before the deed to Hendrick was delivered. When Hendrick took title and made the balance of his cash payment under his contract, his right was to have such equities as he now claims arose under his contract with Mountain Lakes, Inc., adjusted with that company, and such equities did not -extend as against the mortgagee and the assignee of the mortgage, because they were strangers to said contract. The defendant Mrs. Hendrick has no equities arising under said contract as against the complainant. She was not a party to the contract, and she took title to two of the lots expressly subject to the mortgage. She must be deemed to have retained from the consideration which-moved from her on the purchase of those lots a sufficient sum to pay the principal of the mortgage. If she could make this defense, and avoid the payment of the whole or part of the sum she retained, she would receive the benefit of the amount of the consideration money she retained, although she has sustained no damage.
    “The voluminous brief and reply brief filed on behalf of the defendants set up other matters of defense which I do not consider of sufficient merit even to discuss.
    “There will be a decree in favor of the complainant for $10,000, with interest from April 29th, 1923.”

      Mr. George B. Beach and Mr. Thomas G. Haight, for the complainant.

      Mr. Frank Hendrick and Mrs. Katherine F. M. Hendrick, pro sese.

   Pee Cukiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Yice-Chancellor Pielder.

■For affirmance — The Chief-Justice, Trenohard, Parker, Minturn, Kalisch, Black, Campbell, Lloyd, White, Gardner, Van Buskirk, McGlhnnon, Kays, JJ. 13.

For reversal — -None.


text:
    Nicholas A. Kaiser, respondent, v. Mazie (May) Kaiser, appellant.
    [Argued May term, 1925.
    Decided October 19th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Poster, who filed the following opinion:
    “Petitioner originally charged his wife with the offense of desertion, which, by her answer, she denied, and by her counter-claim she charged him with constructive desertion, and also charged him with adultery alleged to have been committed with Caroline Burdick. Petitioner thereupon amended his petition, charging that the defendant had committed adultery with one Michael Gelsimine, during the months of October, November and December, 1922. Gelsimine, who intervened as a party to the suit, filed an answer denying the petitioner’s charge of adultery, and Mrs. Kaiser filed an answer containing a similar’ denial.
    “The jurisdictional facts of the marriage and residence of the parties have been duly established. The parties separated on the 4th of September, 1921, and the clear preponderance of the proof establishes the truth of petitioner’s charge that his wife deserted him on that date, and the petitioner’s further charge that Mrs. Kaiser committed adultery with the co-respondent, Michael Gelsimine, is further established to my satisfaction by a clear preponderance of the proof, which shows that they lived together at the home of Mr. and Mrs. Jackson, from about the middle of October, 1922, until December 7th, 1922, when, because of a quarrel between Mr. and Mrs. Jackson, she left the home, and no further proof is offered of the relations between Gelsimine and Mrs. Kaiser after that date.
    “It appears from the proofs that Mrs. Kaiser lived at the Jackson house under the name of Miss Jackson. That within a few days after taking up her residence with the Jacksons she bought a double bed from Kirch, and it further appears that shortly thereafter Gelsimine took up his residence there, if not continuously, at least for a large portion of the two and a half months above mentioned. There is some proof that during that period he also kept up his residence with Mrs. Summers, with whom, apparently, he is now residing, and with whom, prior to the fall of 1922, he had boarded or roomed. Gelsimine denies having lived at the Jackson home, but his denial is completely overcome by the testimony of witnesses that they saw him there on several occasions when he seemed to be in control of the household, and quieted a noisy party that was held there on a Hallowe’en, and that he was seen by another resident in the apartment-house, in the house at late hours of the night, or early hours of the morning, attending to the furnace. It is also significant that while in 1923 he voted from Mrs. Summers’ residence, in 1922, when he is said to have been living with Mrs. Kaiser, he voted from police headquarters in Maplewood, and no explanation whatever is offered to account for his failure to vote from his alleged place of residence with Mrs. Summers.
    “Aside from the testimony of Gelsimine, Mrs. Kaiser is without any corroboration on her charge of desertion, and aside from the testimony of a drunken police officer, who was under the command of Gelsimine, and the driver of a taxicab, there is not the slightest evidence to show any improper relation existing between petitioner and Mrs. Bnrdick. The testimony of the drunken officer and the taxicab driver is to the effect that at a party in petitioner’s home, or rather in the home of his brother, that petitioner, at a late hour of the night, or early in the morning, left the company and retired to a room, presumably a bedroom, with Mrs. Burdick, and was not seen again by these two men. This testimony is contradicted by a number of people who were present at the party, and who testify that the officer, Vogel, was in such a drunken condition that he became ill, and, apparently, was incapable of observing or understanding anything that took place at the party. I find no proof of any kind that will satisfactorily establish any improper relations existing between the petitioner and Mrs. Burdick, and certainly none of adultery committed by them at the times charged in the counter-claim, or at any other time. I will therefore advise that the counter-claim for desertion and adultery be dismissed, and that petitioner be granted a decree on the grounds of both desertion and adultery.”

      Mr. Don glass R. Todd, for the'appellant.

      Mr. Theodore G. Ilinderlang, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Poster.

For affirmance■ — The Chirp- Justice, Teen chard, Min-turn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, McGlennon, Kays, JJ. 13.

For reversal — None.


text:
    James C. Manning et al., complainants-respondents, v. Home Building and Supply Company, defendant-appellant.
    [Argued May term, 1925.
    Decided October 19th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, who delivered the following opinion orally:
    “I may as well dispose of this case now. If either of you desire to appeal, I will file a formal memorandum, but I have the situation in mind now better than I will have a month hence, if I wait for briefs to be filed.
    “It appears that in 1908 James C. Manning, one of the complainants in these causes, was the owner of property in the town of Westfield, county of Union, which he conveyed about the 15th day of May of that year to the Home Building and Supply Company, the defendant corporation in these causes; that he took back for part of the purchase price a mortgage for $16,000, and that he held the mortgage for some time, .and that before he made the transfer of the property to the Home Building and Supply Company he had laid out the property by one map; which, apparently, never was put in use. Subsequently, about 1907 or 1908, he revised that map, and it has been designated and referred to throughout the pleadings as the revised map.
    “About the time oE the conveyance of the property to the Home Building and Supply Company another map of the premises was prepared, which was designated or referred to throughout the cases as the perfected revised map. In the course of years the Home Building and Supply Company defaulted in the payment of interest, so that Mr. Manning was entitled to foreclosure, and did foreclose. The record of that foreclosure proceeding has been offered on behalf of the complainants here, and offered at the court’s suggestion. I haven’t the papers before me to know when the bill of foreclosure was filed, but counsel agree that the sale of the premises by the sheriff occurred some time about 1915. In the bill to foreclose that mortgage, the mortgaged premises are described. It is stated therein that certain parts of the mortgaged premises were duly released, according to the terms of the mortgage, from the date of the conveyance up to the date of the filing of the bill, and they are excepted from the foreclosure by express reference thereto, and by further express reference to the fact that such releases of mortgage are recorded in the office of the clerk of Union county.
    “The foreclosure proceedings were uncontested by any of the defendants; decrees pro confesso were duty entered, and a writ of /?. fa. was duty issued. In the decree, as counsel have called it to my attention, it directs the sale of the mortgaged premises, to satisfy the amount of about $9,000 due to Mr. Manning, the complainant therein.
    “In the course of the hearing I stated that I understand the reference in the decree to the mortgaged premises to mean or to refer to all of the mortgaged property that had not been released by complainant, and I would say that this is so, whether the releases refer to the perfected revised map or the revised map. Ho intervening interest of an. innocent party has appeared in the case.
    “By the terms of the writ the language of the decree is not followed, nor were the terms of the allegations of the bill of complaint followed, but a reference is made in the writ to the revised map, and this reference is the cause of and has produced this litigation.
    “The sale and conveyance to Mr. Manning by the sheriff occurred some time in the year 1915. Subsequently, it was discovered that the sheriff’s deed, given in pursuance of the sale and in the performance of his duty under the writ, did not conform in the description to the mortgaged premises as described in the bill of complaint, nor did it convey the property which Mr. Manning held as security under his martgage after the released premises had been deducted therefrom.
    “As a result of this discovery, Messrs. Codington & Blatz, on the 19th of December, 1921, concluded that, in order to get the title to the mortgaged premises, the decree had directed to be sold, into Mr. Manning or into the name of his grantee, Miss Adams, cleared up, the proper procedure was to file a bill of strict foreclosure against the omitted and unsold portion of the mortgaged premises, if there were any, as admittedly there was. That proceeding went along until one of my motion days, a year or two ago, when objection was made to the bill, and I then intimated, apparently, not only on that day, but on a subsequent motion day, when the matter again came before me, that I thought Mr. Manning was without any right to file a bill of strict foreclosure, and suggested that he had better take some other proceeding to get the relief he thought he was entitled to; acting upon that suggestion, or acting independently of it, Messrs. Lindabury, Depue & Baulks were consulted and a new bill was filed, without the old bill for strict foreclosure having been dismissed, or the action thereon discontinued. Mr. Angle-man, representing some of the directors and stockholders of the Home Building and Supply Company, answered in both suits, disputing the right of any or all of the complainants to the relief they seek. Both suits have now gone to final hearing, and no evidence has been offered in support of the bill of strict foreclosure, and I shall advise that it be dismissed, as I find no right in the complainants to maintain any such bill, in view of the facts set out in the pleadings in the second suit, and such facts as are offered in evidence on this present hearing.
    “I am not clear when it happened, but by the governor’s proclamation the defendant, Home Building and Supply Company, has had its charter forfeited, and it is now appearing by two of its stockholders and directors, who are acting more or less in the capacity of liquidators. The other defendant, Mr. William H. Abbott, was a stockholder and also a director of this defunct corporation. Complainants this morning, at the opening of the hearing of both of these canses, asked leave to amend the bill of complaint, by adding as a party complainant the British-American Investment Company, which is a corporation organized and controlled by Ada Abbott, one of the complainants, and, notwithstanding the objection of Mr. Ángleman, I have allowed the amendment to be made. I am making it on the express condition that it actually be made on the record in the clerk’s office, and that if Mr. Angleman’s pleadings do- not already meet the rights of the British-American company, which I understand are merely the same rights of Miss Abbott, and is only another name for her, I shall, of course, give him leave to file any additional pleading he may wish to file, to protect his clients’ interest against this corporation, and shall consider that he has done so as of this morning. I presume, if I understand your position correctly, Mr. Angleman, it will be that you deny that this corporation has any greater rights or is entitled to any more relief than Ada Abbott or Mr. William H. Abbott, and is bound as much as Miss Abbott and Mr. Manning, and if you desire you can file a formal answer to that effect, and I shall consider that to have been done for the purpose of this hearing.
    “From the statements of counsel, which are not disputed and are in harmony up to the issuance of the writ, I find that there is a substantial discrepancy in the mortgaged premises as described in the bill and referred to in the decree, and that described in the writ and as sold by the sheriff, and for which he gave a deed. I find that complainants are entitled to have this discrepancy corrected. I think that the Home Building and Supply Company and the other defendants have no interest therein, or in the premises that were omitted from the sheriff’-s sale by reason of such error and mistake, and I will advise that complainants are entitled to have an alias writ issue, if that be the course they elect to pursue, and I think it is a proper one, or I will permit the writ to be amended and deed reformed, if it be necessary, in order to give them relief so that they may effect a sale of the premises or acquire title to the omitted premises. I am inclined to think that is almost unnecessary. The decree in itself, I think, gives you all the relief you want, but if you desire the additional sale, in order to perfect your rights in the interest of other parties who have purchased from you, as well as others who may purchase in the future, I will advise that such an alias writ issue to you, with the understanding, however, that if you do so perfect your title, or perfect it in any way under the decree of the court, that you shall give the benefit of that perfected title to any purchaser from you since the date of the conveyance from the sheriff to you, so that other people may be protected with yourselves.”

      Mr. Win-field 8. Angleman, for the appellant.

      Messrs. Lindabury, Depue & Faulks, for the respondents.
   Per Curiam.

It is admitted, as expressly set forth in respondent’s brief, that the defendant, Herbert C. McVoy, in his individual capacity, set up no interest in the property in question, and that he should therefore not be included individually in that portion of the decree which orders confirmation deeds to be given, and that the decree of the court of chancery should be modified in this respect, leaving its provisions as to such deeds, however, as to the defendants, Home Building and Supply Company, and Herbert McVoy and Mary Mc-Voy, two of the trustees on dissolution, in full force and effect.

Subject to this modification, which is hereby directed, the decree of the court of chancery is affirmed, for the reasons set forth in the opinion of the learned vice-chancellor, who advised it.

For affirmance — The Chief-Justice, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Van Bus-kirk, McGlennon, Kays, JJ. 11.

For reversal — None.


text:
    Mary H. Mullen, appellant, v. Mary Serefin Mullen et al., respondents.
    [Argued May term, 1925.
    Decided October 19th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, whose opinion is reported in 98 N. J. Eq. 90.

      Mr. Merritt Lane, for the appellant. •

      Messrs. Wall, Haight, Carey & Hartpence, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Fielder.

For affirmance — The Chiee-Justice, Parker, Minturn, Kalish, Black, Katzenbach, Campbell, Lloyd, White, Van Buskirk, Kays, JJ. 11.

For reversal — Tone.


text:
    Mary H. Mullen, respondent, v. Mary Serefin Mullen et al., appellants.
    [Argued May term, 1925.
    Decided October 19th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, whose opinion is reported in 98 N. J. Eq. 90.

      Mr. Merritt Lane, for the appellants.

      Messrs. Wall, Haight, Carey & Hartpence, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Fielder.

For affirmance — The Chiee-Justice/ Parker, Minturn, Kalisctt, Black, Kays, JJ. 6.

For reversal — Katzenbach, Campbell, Lloyd, White, Van Buskirk, JJ. 5.