author: Griffin, V. C.

text:
    Frederick U. Northrup v. Catherine Ackerman et al.
    [Submitted December 26th, 1914.
    Decided December 31st, 1914.]
    1. Construction of a will, though asked by the parties in a suit to foreclose a mortgage, being unnecessary to doing full justice under the issues raised by the pleadings, may not be had.
    2. A., who joined with C. in making a bond for a loan of money, containing an agreement ’to pay charges “on the premises described in the mortgage accompanying this bond,” was charged with notice that C., in making the mortgage, was conveying the fee-simple and covenanting as owner, and so is estopped to set up, against the mortgagee, any remainder interest.
    3. A title acquired by one after mortgaging to secure a loan, and covenanting as owner in fee, enures to the benefit of the mortgagee.
    4. The after-acquired title of a mortgagor enures to the benefit of the mortgagee, not only against the mortgagor, but as well against one who, with knowledge of the facts, takes a warranty deed free from encumbrances from the mortgagor.
    Heard on bill, answer, replication and proofs.

      Messrs. McDermott & Enright, for the complainant.

      Mr. Elgin L. McBurney, for the defendants.
   Griffin, V. C.

The bill in this case is filed to foreclose a mortgage made by Catherine Ackerman to Josiah Northrup, which by mesne assignments is now vested in the complainant. It appears that William A. Ackerman, being seized of the premises in question, departed this life in the year 1885, leaving a last will and testament, which was admitted to probate by the surrogate of the county of Bergen, October 14th, 1885, the pertinent paragraphs of which are as follows:

“Secondly. I give, devise and bequeath unto my beloved wife, Catherine, all my estate, of every description, both real and personal, whatsoever and wheresoever the same may be found, which I give unto her and her heirs and assigns forever.
“Thirdly. In case my said wife should not survive me, or if she survives me and shall die intestate, then, and in either case, I give, devise and bequeath all the property, real and personal (so given to her) unto Sarah B. Cannon, wife of Harrison T. Cannon, to dispose of as she may think proper for her Own benefit.”

Under this will it is claimed that Catherine took an estate for life, with power of appointment by will; that Sarah B. Cannon took either a vested remainder in fee, subject to be defeated by Catherine leaving a will, exercising the power of appointment; or a contingent remainder in fee, the contingency being not as to the person, but as to the exercise of the power of appointment by Catherine. Since the probate of the will Sarah conveyed her interest in the lands devised to Catherine and her son Abraham. Catherine and Abraham made the bond secured by the mortgage in suit. Catherine alone made the mortgage to secure this bond. Afterwards, Abraham combed to his mother, and she thereupon conveyed the premises to the defendant Brick, by full covenant warranty deed, ignoring the existence of the complainant’s mortgage.

The arguments of counsel deal very largely with tire construction of the will of William A. Ackerman, and they ask the court in the determination of the issues between them to construe the will. This is wholly unnecessary. The titles, estates and interests of all the parties spring from a common source and are similarly affected by the will, thus enabling full justice to be done under the issues raised by the pleadings without passing on the efficacy of the deed of Sarah to give any title, or the right of Catherine, in view of the deed and mortgage given by her, to now exercise the power of appointment under said will. These are questions which may more properly be decided when the situation calling for their direct determination arises. Bird v. Davis, 14 N. J. Eq. 467, 479; Hoagland v. Cooper, 65 N. J. Eq. 407; Shreve v. Wilkins, 82 N. J. Eq. 18.

The history of the case is as follows: On the 1st of May 1869, the testator, William A. Ackerman, and Catherine, his wife, made their mortgage to Garret V. Demarest for $1,500, covering the premises in question. William A. Ackerman died in the year 1885. On May 9th, 1896, the executors of Garret V. Demarest assigned this mortgage to Josiah A. Northrup with a covenant that there was then due $800. This assignment was recorded on the 12th of May, 1896, and on the same day the mortgage was discharged by a satisfaction piece. On May 7th, 1896, just prior to the cancellation of the above mortgage, there was recorded a mortgage made by Catherine Ackerman, widow, to Josiah A. Northrup, for $1,800, dated May 1st, 1896, covering the premises sought to be foreclosed and other property. This mortgage was in the common form, the granting clause and habendum being in fee. There was also contained therein a tax clause, as follows:

“And the said Catherine Ackerman for herself, her heirs, executors and administrators does covenant and grant to and with the said party of the second part, his heirs and assigns that the said party of the first part, her heirs and assigns shall not nor will apply for or claim any deduction by reason of this mortgage from the taxáble value of the said lands and premises and that the said party of the second part, his heirs and assigns shall and may from time to time and at all times after default shall be made in the performance of the proviso or condition herein contained peaceably and quietly enter into, have, hold, use, occupy, possess and enjoy all and singular the above granted and bargained premises with the appurtenances without any let, suit, trouble, hindrance or denial of the said Catherine Ackerman, her heirs or assigns or any other persons whatsoever.”

On May 20th, 1899, Sarah B. Cannon, with her husband, conveyed to Catherine Ackerman, widow, and Abram W. Ackerman, in fee-simple, with habendum in fee and a covenant against grantor’s acts, the following:

“All right, title or interest which the said Sarah B. Cannon may or can have or claim in and to any and all the estate, both real and personal, and wheresoever situate, of which William A. Ackerman died seized, said interest or claim arising from and by virtue of the provisions of the last will and testament of William A. Ackerman, deceased, bearing date February 7th, 1885, and recorded in the Bergen county surrogate’s office in Liber P, page 282.”

On the 11th day of August, 1902, the $1,800 mortgage above mentioned was discharged of record, and another mortgage was made by Catherine Ackerman, widow, to said Josiah Northrup, bearing date August 1st, 1902, acknowledged on the 8th day of August, 1902, and recorded on the 11th day of August, 1902, for $2,200, conveying property described in the bill and other property. This mortgage was likewise in the common form, the granting clause and habendum being in fee, and contained the identical tax clause in the last-mentioned mortgage above recited.

On the 1st of December, 1906, another mortgage was mode by Catherine to Josiah, in the sum of $1,200, conveying in fee the same premises, with habendum in fee, which mortgage also contained the tax clause above recited.

On the 20th day of February, 1910, the last two mentioned mortgages, amounting to $3,400, were receipted for cancellation by the said Josiah and were actually canceled of record on the 21st day of February, 1910.

On the 1st day of February, 1910, as appears by the date thereof, Catherine Ackerman and Abram W. Ackerman made their bond to Josiah Northrup in the penal sum of $8,000 with condition to pay $4,000 on February 1st, 1913. Said bond is on the common printed form and contains an agreement to

“pay any tax, assessment and water rent, or other municipal or governmental rate; charge, imposition or lien imposed or acquired upon the premises described in the mortgage accompanying this bond,”

and further providing in case of default, that the bond should become due and payable at the option of the said Josiah.

The mortgage given to secure this bond (being the mortgage here sought to be foreclosed) bears date the same date as the bond, and is made by Catherine Ackerman, widow, alone, Abram W. not joining therein. It recites that Catherine is indebted to Josiah in $4,000, secured to be paid by her certain bond, &c. No mention is made that Abram is on the bond. It then recites the tax and insurance clauses in the bond and conveys in fee the premises described in the bill, with habendum in fee. Said mortgage also contains the following covenant:

“And the said Catherine Ackerman, the owner of the lands above described, for herself, her heirs and assigns, does further covenant and agree to and with the said party of the second part, his heirs, executors, administrators and assigns, that she or they will pay in full all taxes levied, or to be levied, upon the lands embraced in this mortgage, and •will not claim any credit on, or make any deduction from the interest or principal hereby secured by reason of the payment of any taxes so levied, during the continuance of the lien of this mortgage, and upon the breach of this covenant or any part thereof, this mortgage may become and be due and payable immediately, at the option of the said party of the second part hereto.”

This bond, and the mortgage accompanying it, by assignment, came to the possession of the complainant.

On the 5th day of December, 1911, Abram W. Ackerman, who was the son of Catherine (and one of the grantees in the deed from Sarah B. Cannon), with his wife, conveyed by deed of bargain and sale, in fee, with habendum in fee, to said Catherine Ackerman, widow,

“All their interest to that certain tract or parcel of land and premises hereinafter particularly described, situate, lying and being in the borough of Saddle River formerly township of Washington in the county of Bergen and State of New Jersey. The intention being to release and convey unto the said Catherine Ackerman all the right, title and interest which the parties of the first part can or may have or claim as grantees of Sarah B. Cannon in and to any and all the estate both real and personal wheresoever situate of which William A. Ackerman died seized. Said interest or claim of the said Sarah B. Cannon arising from and by virtue of the provisions of the last will and testament of William A. Ackerman, deceased, bearing date February seventh, eighteen hundred eighty-five and recorded in the Bergen county surrogate’s office in Liber P, page 282,” &c.

This deed was acknowledged on the 6th day of December, 1913, and recorded on the 7th day of December, 1911. Some time in December, 1911, either on the 6th or some day prior thereto, an agreement was drawn between

“Catherine Ackerman, widow, of Saddle River, Bergen county, New Jersey, Abram W. Ackerman, her son, of the same place, and Jessie Ackerman, his wife, all parties of the first part, and Louis Brick, of Montclair, New Jersey, party of the second part.”

At the time the agreement was prepared the day of the month was left blank, and afterwards the word “sixth” was inserted, mailing the date December 6th, 1911. The words underscored were erased, and the word which was originally “parties” was corrected by writing "y” over “ies.” In and by the said agreement the first party agreed to sell, and the second party agreed to buy the lands described in the mortgage for the sum of $7,750, which the second party agreed to pay to Catherine in manner following:

First. Five hundred dollars on the execution and delivery of the agreement, the receipt of which is acknowledged.

Second. Four thousand dollars by taking said premises subject to a mortgage now a lien thereon for that amount, which said mortgage has still about one year to run, and which bears interest at the rate of five per cent, per annum, and on which the interest shall have been paid up to the date of the delivery of the deed, or the amount then due for said interest is to be deducted from said consideration price.

Third. One thousand dollars on the delivery of the deed.

Fourth. Mortgage "to Catherine Ackerman, one of the parties of the first part hereto” for $2,250.

In the contract it was provided that the party of the first part should deliver to the party of the second part a sufficient deed conveying the premises

“in fee-simple absolute free and clear of any and all encumbrances and liens whatsoever excepting the lien of the said mortgage for $4,000, and which deed is to be delivered at the office of Louis Wertheimer, the attorney for the party of the second part hereto, Nos. 302, 304 Broadway, Manhattan borough, New York City, on the fourth day of January which will be in the year one thousand nine hundred and twelve at eleven o’clock in the forenoon.”

At the foot of this contract is the following memorandum:

“The closing of the above contract is hereby adjourned by consent, to January 11th, 1912, at same time and place. Dated Jan. 4th, 1912.
“Louis Brick, by “Louis Wertheimer, Ms Atty."

Prior to January 4th, 1912, the date fixed for passing the title, Catherine Ackerman, widow, by deed dated December 8th, 1911, and recorded February 3d, 1912, at nine thirty-one a. m., conveyed the premises described in the bill, in fee-simple, by full covenant warranty deed free from all encumbrance.

This deed contains no reference to the mortgage in suit.

On January 27th, 1912, Abram W. Ackerman conveyed the premises described in the bill to said Louis Brick by full covenant warranty deed, the covenants being the same covenants as those contained in the deed to Brick from his mother, Catherine. This deed was acknowledged the 27th day of January, 1912, and recorded February 3d, 1912, at nine thirty-one a. m. ; the deeds from mother and son to Brick being lodged with the clerk for record at the same minute.

On the 31st day of January, 1912, said Louis Brick executed, acknowledged and delivered to said Catherine Ackerman an agreement as follows:

“In consideration of the sum of one dollar and other valuable consideration to me, Louis Brick, in hand paid by Catherine Ackerman, of Saddle River, Bergen county, New Jersey, receipt whereof by me is hereby acknowledged, I hereby permit her to continue in possession of the premises in Saddle River where she is now residing, for the rest of her life without any claim in my favor for rent, subject, however, to the rights of any person other than myself, and I hereby underake to pay the interest on four thousand ($4,000) dollars of mortgage at six per cent. (6%) per annum on said premises as long as she may live, and to pay the taxes thereon as they respectively become due and payable.
“Dated, New York, January 31st, 1912.
“(Signed) Lotus Brick, [l. s.]”

On the foregoing facts, the questions to be determined are these (1) when Abram W. Ackerman conveyed to his mother, Catherine, on December 5th, 1911, did such title enure to the benefit of the complainant and enlarge the estate actually covered by the mortgage, so that later, when (2) Catherine and Abram both conveyed to Brick, did not Brick take subject to the lien of the complainant’s mortgage?

The evidence shows that this mortgage was given to secure the bond of Catherine and Abram, who together were seized of all of the estate, right, title and interest which may be affected by a decree of foreclosure in this suit. Abram, in executing the bond, as appears from the recitals therein, knew that his mother was making a mortgage covering the fee-simple, and that that mortgage was given to secure said bond. Such circumstances would ,seem sufficient to create an estoppel against Abram from asserting that the mortgage made by his mother did not cover his as well as his mother’s interest in the lands. The mortgage also indicates that the mortgagor and mortgagee both understood and intended that the mortgage would convey a fee-simple. She covenants as owner, and covenants to bind her heirs — covenants which would be senseless if she did not intend to convey a fee. Therefore, when, afterwards, Abram conveyed his interest in these lands to his mother, the estate thereby vested became at once subject to the lien of the mortgage. Van Rensellaer v. Kearney, 11 How. 297; Hannon v. Christopher, 34 N. J. Eq. 459; Shreve v. Harvey, 74 N. J. Eq. 336.

The above cases had to deal with deeds where there were no covenants of warranty, but the intent to i convey and the expectation of receiving the fee clearly appeared in the instruments.

Treating the mortgage as a conveyance, and applying the same rules as above applied to deeds, it is perfectly clear, from the whole course of dealings between the parties and from the instruments themselves, that Catherine intended to convey, and Northrup, the mortgagee, expected that his mortgage would cover the fee-simple in the lands in question. Not only did the granting clause in all of the mortgages convey a fee, and the habendum was in fee, but the various covenants, by binding not only the mortgagor but her heirs and assigns, clearly indicate the intent of the parties. It would be senseless for Catherine to covenant binding her heirs to the performance of certain things to be done with respect to the lands, when, on her death, the lands could not descend from her to her heirs. And particularly, in the mortgage in suit, the tax covenant recites that she is the owner of the lands, and, as such covenants for herself and her heirs. Added to this is the fact that this mortgage is given to secure the joint debt of Abram, who held the outstanding interest, and' Catherine, his mother. His bond refers to this mortgage. He is therefore charged with notice that when his mother made this mortgage she was conveying the fee-simple; and he joined in the transaction whereby the mortgagee canceled the prior indebtedness and paid certain moneys in cash as the consideration of this mortgage. Abram was clearly estopped from setting up his interest. The ease is not one where Abram even stood by and saw his mother mortgage his interest in the lands without speaking; but he was an actual party to the transaction whereby the mortgagee canceled his prior securities and paid additional sums of money in cash which payment enured to his, Abram’s, benefit.

There is another view of the case also which should lead to a decree for the complainant, namely: A mortgage stands on a somewhat different footing as to after-acquired title enuring to the benefit of the mortgagee by way of estoppel, than a deed. As was said by Chief-Justice Field, in the case of Clark v. Baker, 14 Cal. 612; 76 Am. Dec. 449: “The mortgagor holds a very different relation to the mortgagee from that of a vendor to a vendee. By the execution of a conveyance without warranty all relations between vendor and vendee are dissolved. They henceforth hold one another at arms’-length as they do the rest of the world. The dealing between them is completed; nothing further remains to be done. The reverse is the case between mortgagor and mortgagee. By the execution of the mortgage the transaction between them has only begun. Every substantial part remains to be performed. The mortgagee is to return to the mortgagor the estate, and the mortgagor is to return to the mortgagee the money and interest secured; and until this is consummated the obligation rests upon both to do nothing which can impair the rights of the other or embarrass their enforcement.” After discussing the reciprocal rights and duties of the mortgagor and mortgagee, the chief-justice then proceeds to say: “It is sufficient in this case to observe that the relation is one which requires him [the mortgagor] to preserve the property for the purposes of the security for which it was originally pledged; and, hence, to insure good faith and fair dealing he is forever precluded from denying the existence of the lien which he has attempted to create, or defeating its enforcement against the property upon which it was placed. In the case at bar the mortgage is upon the property, and not upon any particular estate therein or right thereto. It is the property itself which Baker has pledged, and it is the property itself which he has promised by his contract to preserve for the purposes of the security; and equity will not suffer him, in violation of good faith, by any act, to impair or destroy the security. Any claim or outstanding title he may» have purchased only went to strengthen his own title to the premises, and hence, through him, to give greater value to the security.” While it appeared in this case that the statute of California gave to a deed or mortgage conveying a fee the same attributes as if they had contained covenants of -title, nevertheless the chief-justice did not rest his opinion solely on the statute, but as well upon general equitable principles, and the excerpts from his opinion above quoted had reference not to the statute, but to those general equitable principles.

The principle above enunciated that the subsequently acquired title of the mortgagor enures to the benefit of the mortgagee by way of estoppel, is confirmed by the English cases. In Doe, ex dem. Ogle et al. v. Vickers, 4 A. & El. 782 (111 Eng. Rep. 927), Chief-Justice Lord Denman said: “He [the mortgagor] mortgages the land as his own. Then ejectment is brought against him by a third party, in which he consents to a verdict and takes a fresh lease from the party; what effect can this have as between himself and his mortgagees?” Mr. Justice Little-dale said: “If he found that the Earls of Shrewsbury and Berwick had a title superior to his own, it was his duty'to get a good title. He cannot set up such a title after he has obtained it as an answer to this ejectment.”

In Goodtitle v. Baily, 2 Cowp. 597 (98 Eng. Rep. 1260), Lord Mansfield said: “It shall not lie in his mouth to dispute the title, &c., no more than it shall be permitted to the mortgagor to dispute the title of the mortgagee.”

In Right v. Bucknell, 2 B. & Ad. 278 (109 Eng. Rep. 1146), decided by Lord Tenterdon, the dispute arose between the first and second mortgagee. At the time the first mortgage was made the mortgagor had merely an equitable title. The instrument recited that “said Thomas Jarvis is legally or equitably entitled to the several messuages or dwelling houses conveyed,” and in the covenant of title the releasor covenanted

“that he is and standeth lawfully or equitable, rightly, absolutely and entirely seized in his demesne as a fee of and in and otherwise well entitled to the said several messuages, dwelling-houses,” &c.

Afterwards, Tliomas acquired the legal title and made the second mortgage, the mortgagee having no notice of the existence of the prior mortgage. The court decided the case principally on two grounds — first, on the ground of uncertainty as to the estate covered by the instrument — that is, stating it in the alternative, that “he was entitled to a legal or equitable estate” was uncertain, and, therefore, could not operate by way of estoppel ; and secondly, as the second mortgagee, at the time he took his mortgage had also delivered to him the title deeds and had absolutely no notice of the existence of the first mortgage, his right under his mortgage was a first lien on ,the legal estate. Lord Tenterdon, in his opinion, referred to the English cases holding that the after-acquired title enured to the benefit of the mortgagee by way of estoppel, and distinguished them from the case with which he was then dealing.

An examination of the New Jersey cases indicates that they are in accord with the cases above cited. In Den v. Gardner, 20 N. J. Law 556 (at p 560), the supreme court said: “Whatever may be the effect of ordinary deeds of conveyance without warranty, including a grantor who has released or conveyed without interest, yet in relation to mortgages the question is well settled. By an equitable estoppel, based upon the legal fraud which would be otherwise permitted, one who mortgages land as his own, upon suit thereupon brought against him, shall not be permitted to derogate- from his own mortgage by denying his title, or setting up title in a third person.”

The above principle was afterwards approved by the court of errors and appeals in the case of Demarest v. Hopper, 22 N. J. Law 599, in the dissenting opinion of Judge Carpenter. The case, however, did not concern a mortgage, and Den v. Gardner was merely cited to illustrate the point made by the justice in his opinion.

In Decker v. Caskey, 3 N. J. Eq. 446, the court said (at p. 449) : “If a mortgage be made of an estate to which the mortgagor has not a good title, and then he who has the real title conveys to the mortgagor or his representatives with a good title, the mortgagee will be entitled in equity to the benefit of it.”

In Bird v. Davis, 14 N. J. Eq. 467 (at p. 479), Chancellor Green said: “Upon a bill to foreclose, the mortgagor cannot dispute his title to the mortgaged premises. The decree will bind his interest, whatever it may be, and nothing more.”

It might be urged that the cases of Smith v. De Russy, 29 N. J. Eq. 407, and Shreve v. Harvey, 74 N. J. Eq. 336, state a different doctrine; but a careful examination of those cases will show clearly that they do not. In Smith v. De Russy, decided by Chancellor Runyon, in 1878, the complainant conveyed to the mortgagor by deed without covenants. There was no covenant of seisin or warranty in the mortgage. The entire premises were described in the mortgage as being mortgaged thereby. Following the description was the statement that the property mortgaged “is the same which was conveyed by the complainant to the mortgagor by deed of even date with the mortgage,” and that the mortgage was given to secure the payment of part of the purchase-money of that conveyance, and such was the fact. This recital was clearly a limitation on the property mortgaged, namely, it was the same property which the complainant conveyed ; and, on principle, the vendor could not complain if the estate covered by the mortgage was no greater than that conveyed by the deed, as the mortgage was given to secure part of the consideration for a conveyance which did not vest in the mortgagor the estate described in the deed. Clearly, at the time the deed and mortgage were made it was neither the intention nor the expectation of the mortgagee that the mortgage should cover a greater estate than that which the mortgagee conveyed. In that case there was an outstanding title which did not pass by the deed, but which was afterwards acquired by the mortgagor, who subsequently made a mortgage covering the fee-simple in all the property. The court held that the lien of the second mortgagee was prior to that of the first mortgagee on the title subsequently acquired.

This seems to be the interpretation of this case entertained by Chancellor Walker in Shreve v. Harvey, supra, in which case it appeared that four brothers and four sisters were seized as tenants in common of the fee of a farm. The four sisters conveyed to the four brothers. One brother, William T. Harvey, was a minor. The three adult brothers made a mortgage in fee to the sisters, which, in effect, actually mortgaged a three-fourths interest in the property. William T. Harvey became of age two years after the making of the mortgage, and died about thirty years later, and by his will devised to his brothers. During his lifetime William was recognized as a part owner of the premises and dealt with respect thereto. The chancellor found that it was not the intent of' the parties at the time the mortgage was made that the mortgage should cover the after-acquired estate of William, and decided that when the one-fourth interest came to the brothers by devise of William T., it did not enure to the benefit of the mortgagees by way of estoppel. The mortgage in this ease was also a purehase-mohey mortgage, and, in fact, covered more than the mortgagees conveyed, because the mortgagees conveyed one-half of the estate, and the mortgage given in return, covered three-fourths of the estate.

The distinction raised by the cases seems to be between mortgages given to the vendor as part of the consideration or the purchase price, and those who, not having any title or interest in the property before the mortgage was made, advance money as a loan on the faith of the security pledged.

In the present case, when Catherine made the mortgage there-appeared to be an outstanding interest in her, son Abram, which it was her duty to acquire for the benefit of the mortgagee; therefore, when she procured a deed from Abram, in contemplation of law, it was obtained for the benefit of the mortgagee in performance of that duty.

It is clear that if Catherine was the owner of the premises on the date of the filing of the bill, a sale under the decree would divest her of all of the estate she had on the date of the making of the mortgage, as well as of that acquired from her son Abram. This precise issue is properly raised by the pleadings in the cause. Chadwick v. Island Beach, Co., 43 N. J. Eq. 616, 623. But after Abram made his deed Catherine conveyed the premises in question to Brick by a full covenant warranty deed, free from all encumbrances. In view of this, the point propounded is, does the grantor, Brick, talcing with full knowledge of the facts, stand in a better position to dispute the complainant’s claim than Catherine would be if she had not parted with the title? My conclusion is that he does not. The mortgage was recorded. It covered the fee-simple. When the contract to convey was made, Brick was informed of the existence of this mortgage, and provided in the agreement that the premises should be sold subject to that mortgage, and the amount thereof, on the settlement, should be deducted from the purchase price. No question appears to have been raised as to the quantum of estate owned by the mortgagor and covered by the mortgage until after the contract was executed, and, presumably, after the title was examined, which examination disclosed the infirmities above indicated — discovering which, 'the whole scheme was changed; Brick 'caused the mortgagor to execute a full covenant warranty deed conveying to him the fee-simple in the premises, free from all encumbrances, which covenant against encumbrances was broken the instant the deed was delivered. And, although Abram had theretofore conveyed to his mother, he procured. Abram also to execute and deliver to him a full covenant warranty deed, free from encumbrances, when it is apparent that Abram at no time had any such estate. What the purpose of this deed was does not appear. And at or about the time of the delivery of the deeds, Brick signed an agreement permitting Catherine to continue in possession of the premises for the rest of her life without rent, Brick undertaking to pay the interest on the mortgage in suit and the taxes as they became due and payable. For aught that appears in the testimony, Brick has paid no part of the purchase price; he has not shown that he paid one dollar of consideration for his deed. The whole scheme is palpably transparent, and devised for the purpose of hampering the complainant in the collection of his mortgage debt.

I will advise a decree in favor of the complainant.


source: Caselaw Access Project

license: Public Domain

text:
    Theodore Nash v. Leith Bremner and Edith Bremner.
    [Submitted January 14th, 1915.
    Decided January 15th, 1915.]
    1. Where a testator makes his will or omits to alter it on the promise of a beneficiary that he will make a certain disposition of the property bequeathed or some part thereof, equity will declare the beneficiary a trustee for the performance of his promise to prevent the statute of wills being used as an instrument of fraud. But to create such a trust in opposition to the terms of the will the testator must communicate his intention to the legatee, the legatee must assent thereto, and the testator must act upon such assent.
    2. In a suit to establish a trust in property bequeathed by a testator to his brother, evidence — Held sufficient to show that the testator intended that the bequest should be held in trust for a person not named in the will, or that the brother knew of such intention or promised to so hold the bequest.

      Mr. Warren Dixon, for the complainant.

      Mr. William B. Gourley, for the defendants.
   Griffin, V. C.

The bill in this cause is filed by the complainant to obtain a decree declaring the defendant Leith Bremner, her trustee, of a portion of the property bequeathed to him under the fourth paragraph of the will of Robert G. Bremner, deceased, which reads as follows:

“Fourth. I hereby give, grant, devise and bequeath to my brother Leith Bremner, now of Richmond, Virginia, all of my right, title and interest in and to the capital stock of the Passaic Herald Printing Company, a body corporate of the State of New Jersey, now publishing the Passaic Daily Herald, and running a printing business at No. 41 Lexington avenue, in the city of Passaic, and all the rights or appurtenances thereto belonging. It is my wish and I hereby direct my said brother Leith Bremner, shall succeed me as manager of said business, and that as soon as the profits of said newspaper, and printing business at the number aforesaid, shall warrant, it is my will and I hereby direct my executors hereinafter named to pay to my wife, Edith L. Bremner, the sum of thirty-five dollars per week, in lieu of any and all services that she might render in conducting iny said newspaper business and in the event of that my said executor and the owners of the controlling stock of the said Passaic Herald Printing Company, should determine to sell and dispose of my said newspaper business, including the real estate and appurtenances thereto belonging, then and in that case, I direct that one-half of the net profits remaining after paying all just debts, shall go to my wife Edith L. Bremner, and the remaining one-half to go to my said brother Leith Bremner, and to be disposed of by him as he may see fit.”

The bill also prays an injunction restraining both Leith and Edith L. Bremner, who are the executors under said will, from disposing of the interest bequeathed to Leith under said paragraph. On the filing of the bill an order was granted directing the defendants to show cause why an injunction should not issue according to the prayer of the bill, which order contained a restraint.

The defendants, Leith and Edith, were not made parties as executors, but, on the hearing of the order to show cause, it was consented that the bill might be amended by making them parties in their representative capacities, and that said bill, on the argument, might be treated as amended without prejudice to the restraint. The hearing was thereupon proceeded with.

The bill and supporting affidavits alleged certain facts tending to justify consideration of the complainant at the hands of the testator in the testamentary disposition of his estate, but, by reason of certain circumstances, it was deemed either improper or unwise to pay his alleged obligation to the complainant by direct testamentary gift, and accordingly resort was had to the secret method of bequest to Leith with a promise from him that he would hold the property bequeathed on certain trusts for the benefit of the complainant.

The complainant says she has established this trust in two ways — first, by a letter written by the testator to Leith declaring the trusts upon which he should hold the property mentioned in the fourth paragraph of the will, and his acceptance of the terms thereof; second, by a conversation had in January, 1914,_ between the testator and Leith in the presence of the complainant, shortly before the testator’s death, 'wherein the testator requested, and Leith promised to hold said property on the same terms as those contained in the letter and acceptance above mentioned.

The rule is that where a testator makes his will or omits to' alter it on the promise of a beneficiary that he will make certain disposition of the property bequeathed, or some part thereof, equity will declare the beneficiary a trustee for the performance of his promise to prevent the statute of wills being used as an instrument of fraud. Heinisch v. Pennington, 73 N. J. Eq. 456; S. C. on appeal, 75 N. J. Eq. 606; Williams v. Vreeland, 32 N. J. Eq. 135; S. C. on appeal, 32 N. J. Eq. 734; Yearance v. Powell, 55 N. J. Eq. 577; Duvale v. Duvale, 56 N. J. Eq. 375; Carver v. Todd, 48 N. J. Eq. 102; Smith v. Smith, 54 N. J. Eq. 1, 7; Belknap v. Tillotson, 82 N. J. Eq. 271.

But to create such a trust in opposition to the terms of the will, it was necessary that the testator should have communicated his intention to the legatee, the legatee should have assented to the same, and the testator should have acted upon such assent. Williams v. Vreeland, supra (at p. 738).

As the letter was not produced, and Leith positively swears not only that he never received such letter and never made the promise imputed to him, but that he never knew of complainant’s claim until after the death of the testator, and as there is no positive evidence to the contrary, the complainant must fail on her first claim.

As to her second claim of the trust created in January, 1914, her statement going to show the creation of such trust, is flatly contradicted by Leith, whose testimony receives persuasive support from the affidavit of one Speer, who, speaking of a time when he was in the room with the testator and the complainant, about January 27th, 1914, says:

“I was in the room when Robert G. Bremner informed Miss Nash that it was best that she should leave; that he was going to leave the hospital as soon as he could make arrangements. Miss Nash violently objected to this. I also advised her that it would be better for herself that she should leave. She answered that it did not matter to her as her father would have nothing to do with her, anyway. Mr. Bremner told her he was going back with his wife. At this she became very angry and said, ‘You know, Bob Bremner, what I can do to you, and I will do it.’ ”

This conversation does not indicate that at that time the testator was particularly anxious to create a trust for her benefit, but, on the contrary, showed that he feared and was anxious to be rid of her.

There is, therefore, lack of proof of the creation of the second trust.

Throughout the affidavits of the complainant and her witnesses are numerous statements of what the testator had.said, tending to show the creation of the trust; but none of these statements possess evidential force, because they were not communicated to Leith, and therefore it is evident that he did not take the bequest on terms other than those contained in the will.

I will advise an order dismissing the order to show cause.


author: Leaming, Vice-Ordinary.

text:
    Edwin Robert Walker, Ordinary.
    John R. Emery, Frederic W. Stevens, Eugene Stevenson, Edmund B. Leaming, James E. Howell, Vivian M. Lewis, John H. Backes and John Griffin, Vice-Ordinaries .
    In the matter of the estate of Charles G. Diament, deceased.
    [Submitted January 13th, 1915.
    Determined January 27th, 1915.]
    1. Evidence held to support a conclusion of the orphans court that testator had destroyed the third codicil to his will animo revocandi.

    2. Where a will is proved to have been executed and to have remained in testator’s custody, or where he had ready access to it, the fact that it cannot be found after his death raises a presumption that he destroyed it animo revocandi.

    3. Where one will is revoked by another, the revocation is testamentary, and the revocation of the later will revives the former, since the revoking instrument is itself revocable, and does not become final or absolute until the death of testator.

      4. Testator, in November, 1902, executed a will making a detailed disposition of his entire estate, and in February, 1911, and in December, 1912, executed first and second codicils merely modifying specific parts of the will, and thereafter executed a third codicil revoking the devise in the will to his housekeeper, but in no other way superseding the will, and subsequently withdrew the third codicil from the trust company,where it had been deposited with the will and the first two codicils, and destroyed it ammo revocandi. — Held, that such revocation did not revoke the will and the first two codicils, and that they were entitled to probate.
    On appeal from the Cumberland county orphans court.

      Mr. Rex A. Donnelly and Mr. John W. Wescott, proctors for the appellants.

      Mr. James S. Ware, proctor for certain respondents.

      Mr. LeRoy W. Loder, proctor for Eva M. Ewan, respondent.
   Leaming, Vice-Ordinary.

This is an appeal from a decree of the orphans court of Cumberland county admitting to probate three certain instruments in writing; the first as the' last will and testament of Charles G. Diament, deceased, and the others as codicils thereto. The will bears date November 12th, 1902, the first codicil February 1st, 1911, the second codicil December 19th, 1912.

A third codicil was executed by testator in the latter part of August or the forepart of September, 1913, and its provisions and proper execution have been adequately established by the evidence taken before the orphans court, but the instrument has not been found and was refused probate as a lost will.

The present appeal is based on the contentions — first, that the third codicil should have been admitted to probate as a lost codicil, and second, that assuming the evidence adequate to support the finding of the orphans court that it was destroyed by testator animo revocandi, its execution and subsequent destruction were operative to revoke the former will and two codicils.

The conclusion of the orphans court, to the effect that testator destroyed the third codicil mimo revocandi, is clearly supported by the evidence. After its execution it was left with John S. Ware, as an officer of the Cumberland Trust Company, for safe keeping by that institution; thereafter testator desired its return to him and one Charles S. Ware, at testator’s request, procured it from the trust company and delivered it to testator; testator then asked Charles S. Ware “the best way to annul it,” and Mr. Ware replied, “to destroy it.” No-justification can be found for doubting the truth of the testimony of Charles S. Ware touching these matters. It thus appears that this third codicil was recalled by testator from its custodian, and as a part of that transaction testator was informed, in response to his inquiry, that its destruction was an adequate means of cancellation. The testimony of Mrs. Ewan, touching its destruction, is subject to question by reason of her vital interest in the controversy ; her testimony is to the effect that she saw Mr. Ware hand a paper to testator and that testator then came to the house and burned a paper in the kitchen stove. That testimony cannot, however, be wholly disregarded.

The well-recognized rule in cases of this nature is that when a will is proved to have been executed, and it cannot be found at testator’s death, if the will remained in his custody, or after its execution he had ready access to it, the fact that it cannot be found after his death raises a presumption that he had destroyed it animo revocandi. 30 Am. & Eng. Encycl. L. (2d ed.) 635; Jarm. Wills 133; see, also, In re Cunnion, 201 N. Y. 123. This rule has been expressly adopted by this court. In re Willett’s Estate (Vice-Ordinary Reed), 46 Atl. Rep. 519. This presumption may be rebutted, but there is in this case no, circumstance sufficient to rebut it; the testimony of testator’s two sons, touching conversations with their father, is clearly insufficient for that purpose, and the testimony already referred to substantially supports the presumption.

The remaining question is whether the destruction of the third codicil by testator with intention to revoke its provisions is operative to deny probate to tire will and two codicils already referred to.

At common law the revocation of a subsequent will which revoked, either expressly or impliedly, an earlier will, left the earlier will unimpaired. The reason for the rule appears to hare been that the revoking will was itself revocable and did not become final or absolute until the death of the testator. In the English ecclesiastical courts, however, the intent of the testator in this respect was a subject of inquiry. In this court Chancellor Bunyon, sitting as ordinary, in the ease of Randall v. Beatty, 31 N. J. Eq. 643, defined the rule in this state as follows: “The true rule on the subject is, that where one will is revoked by another, the revocation is testamentary, and the revocation of the latter will revives the former.” In that case, however, the learned ordinary also found evidence of an intention on the part of the testatrix that the earlier will should remain her will. That evidence was found in the circumstance that testatrix destroyed the later will and retained the earlier one until her decease. In a later case, in this court (Moore’s Case, 72 N. J. Eq. 371), Chancellor Magie, sitting as ordinary, made inquiry into the circumstances of the case to ascertain the intention of testator in revoldng the later will, and discovered satisfactory evidence of an intent that the earlier will should- not stand as the will of the deceased. In that case, the evidence disclosed that the earlier will had not been retained by testator in a manner indicating a purpose to preserve it, but testator “had practically thrown the paper (the earlier will) away,” and it had also been partially burned and rendered in part incapable of being read; furthermore, there was a provision in the earlier will for the wife of testator, and she was dead at the time the later will was destroyed. These several circumstances were held to adequately disclose that when the later will was revoked testator did not intend that the earlier instrument should be his will. As already suggested, the common law regarded the revocation* of an earlier will by a later one as a testamentary act and deduced therefrom the rule that it was a necessary conclusion of law that when the later will was revoked the former will would stand, and no proofs were 'admitted to overthrow that conclusion. But where the testator has destroyed, or has undertaken to physically destroy the former will, as in the Moore Case, the situation presented is obviously outside the field of operation of the common law rule; in that aspect the Moore Case cannot be properly regarded as a repudiation of the common law rule as stated in Randall v. Beatty, supra; but in considering the circumstance of the wife’s death prior to the revocation of the later will as a circumstance tending to disclose intent, the Moore Case appears to have made the ecclesiastical rule the basis of the decision to that extent.

In the present case, the will'of testator, dated November 12th, 1909, makes detailed disposition of his entire estate. By the eighth, ninth and tenth items of that will a life estate in certain real and personal property is given to Mrs. Eva M. Ewan, who. was housekeeper for testator, on condition that she remained with him until his decease; at her decease the property was given to testator’s heirs-at-law. The will also contains a re-' siduary clause in favor of the heirs-at-law of testator. Neither the first nor second codicil were designed to wholly revoke the will; the provisions of each are modifications of specific portions of the will and are designed to stand with the will as specific, modifications thereof. The third codicil, which was destroyed, was of like nature; it revoked the provisions of the will which are in favor of the housekeeper, but in no way revoked or superseded the will except as to the specific items referred to in the codicil. The situation thus presented prior to the destruction of the third codicil was that of an existing will making detailed disposition of all of testator’s estate with three successive codicils, each making specific modifications of the will, and each designed to confirm the will as modified by the codicils. It may be that the effect of the destruction of a codicil, so far as the specific provisions of the will to which the codicil relates are concerned, cannot be logically distinguished in principle from the destruction of a subsequent will which expressly or by necessary implication wholly revokes a former will; but when a codicil is regarded as a mere modifying instrument intended only to modify or change specific provisions of a will and designed to stand with the will as a mere amendment to or modification of its provisions, it is difficult to conceive the destruction of the codicil and retention of the will by the testator as other than the adoption of a convenient method of withdrawing or nullifying the amendment, even though no force be given to the underlying principle of the common law rule that a provision for revocation, express or implied, is purely testamentary in its inherent nature. In executing such a codicil the intention of testator is that the -will and codicil shall be read together; .in destroying such a codicil and retaining the will the intention most apparent would seem to be that the will should be read without the codicil. The will here in question has never been revoked, except in so far as the destroyed codicil may be held to have revoked the specific provisions of the will to which that codicil was directed. The will must accordingly be admitted to probate, while the destroyed codicil cannot be admitted to probate because it was destroyed by testator a/nimo revocandi; it follows that if it be held that the destroyed codicil was effective in revoking the provisions of the will to which it referred, notwithstanding its revocation by testator, the same effect will be given to the destroyed codicil as though it had not been revoked; such result would attribute no intelligent purpose to the act of destruction.

But should inquiry be made into the intent of testator, the evidence in this case adequately establishes that intent. The will, and the three successive codicils, were deposited with a trust company by testator for safe keeping. Subsequently, testator withdrew from the depository the last codicil and destroyed it and permitted the will and two preceding codicils to remain with tire depository until his death. That circumstance appears to be uniformly treated as satisfactory evidence of an intention upon the part of testator to revive a former will which has been preserved by him in that manner. The evidence also disclosed that shortly before the death of testator he requested the officer of the trust company, already referred to, who had drawn the second and third codicils, to draw another codicil, to make specific disposition of some cash which had come to the hands of testator by reason of a security referred to in the original will having been turned into' cash. This proposed codicil was not executed by reason of the death of testator on the very day it was to be drawn.

I will advise a decree affirming the decree of the orphans court.


author: Gummere, Chief-Justice.

text:
    Mary Gerba, respondent, v. Mike Mitruske, appellant.
    [Submitted December 7th, 1914.
    Decided March 1st, 1915.]
    1. A vendor is entitled to a decree of specific performance, where time of performance is not of the essence of the contract, if he can, at the time of the decree, give a clear title.
    2. As a general rule, in equity, time is not deemed to be of the essence of the contract unless the parties have so treated it, or it • necessarily follows from the nature and circumstances of the contract.
    On appeal from a decree of the conrt of chancery advised by Vice-Chancellor Howell, whose opinion is reported ante p. 79.

      Mr. Thomas Brown and Mr. Freeman Woodbridge, for the appellant.

      Mr. Adrian Lyon, for the respondent.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

By the bill in this case the complainant, Mary Gerba, sought the specific performance of a contract made by her and the defendant for the sale of certain lands to him owned by her, and located in the city of Perth Amboy. The defence set up by the .answer was that, at the time of the filing of the bill, the complainant was unable to make a good title, by reason of the fact that there was then in existence a prior valid agreement made by her with one Kish for the sale of the same premises, which had been duly recorded, and second, that the building upon the lot which was the subject of the agreement extended beyond the property lines of the complainant and upon lands belonging to a stranger.

The agreement sought to be enforced was made on the 27th day of September, 1911, and provided for the conveyance of the property by a deed of general warranty, free from all encumbrances, on or before the 1st day of November then next ensuing. The agreement between the complainant and Kish was entered into on the 11th day of September, 1911, was recorded on the 17th day of October of that year, and was to be performed on the 24th day of that month. The present bill was filed on the 29th of December, 1911. The defendant’s answer was not filed until July 28th, 1913.

The one hundred and sixteenth section of the act relating to conveyances (Comp. Stat. p. 1573) provides that every agreement for the sale of land thereafter recorded shall be absolutely void as against subsequent judgment creditors of the vendor, and as against subsequent purchasers and mortgagees for value of the lands, unless the vendee within three months after the date fixed in such agreement for its consummation shall commence suit for the specific performance of the said agreement or for its rescission. By force of this statutory provision the agreement between the complainant and Kish became void on the 24th day of January, 1912, so far as subsequent purchasers were concerned, unless Kish on or before that day commenced suit as required by the statute. This he did not then do, or at any time thereafter ; and, so, although his agreement was in force at the time of the filing of the bill, it had become null and void as to the defendant before the filing of the latter’s answer.

The hearing in the court of chancery resulted in a decree directing performance of the contract; and from that decree defendant now appeals.

The principal question presented by the appeal is whether a decree compelling the defendant specifically to perform his contract can be legally justified, in view of the fact that, at the time fixed by the contract for the transfer of the title, and even when the bill was filed, the land was encumbered by the prior agreement.

The prevailing rule, with relation to eases of this kind, is that where the time of performance is not of the essence of the contract the complainant is entitled to a decree, if a clear title can be given by him at the time of the making thereof. Oakey v. Cook, 41 N. J. Eq. 350, 364; Moore v. Galupo, 65 N. J. Eq. 194; Agens v. Kock, 74 N. J. Eq. 528. The rights of the parties in the present ease must therefore depend upon whether time was of the essence of this particular contract. We think it was not. As a general rule, in equity, time is not deemed to be of the essence of the contract unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract; and, so, equity will enforce the specific performance of agreements after the time fixed for their performance has been suffered to pass by the party asking for the intervention of the court, unless the facts submitted show that the parties to the contract intended that time so fixed should be of its essence. Huffman v. Hummer, 17 N. J. Eq. 263; King v. Ruckman, 21 N. J. Eq. 599. Our examination of the facts in the present case discloses nothing to indicate that the time of performance was considered a matter of importance by either of the parties, but rather the contrary, for when the contract was made the principal inducement for making it, so far as the defendant was concerned, was the permanent possession of premises which he was already occupying as lessee, and he remained undisturbed in that possession until the 1st of April, 1912, three months after the filing of the bill.

We conclude, therefore, that the existence of the Kish agreement at the time of the filing of the bill afforded no ground for refusing the complainant the relief which she sought, in view of the fact that it had become null and void as to the defendant prior to the time of the making of the decree.

As to the second defence set up in the answer, we are entirely content with the disposition of it made by the court below, and have nothing to add to what was said by the vice-chancellor in the memorandum opinion filed by him.

The decree under review will be affirmed.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, White, Terhune, Williams — 14.

For reversal — None.


author: Gummere, Chief-Justice. Garrison, J.

text:
    William R. Thropp et al., respondents, v. Public Service Electric Company, appellant.
    [Submitted December 7th, 1914.
    Decided March 1st, 1915,]
    The right of a public lighting corporation to occupy with its poles, by legislative authority, land in a public highway, the title to which is in an abutting owner, is a purely legal one. So too is the right of the abutting owner to oust such corporation from the possession of such land if its occupation thereof is illegal. Consequently the determination of the question, in a given case, whether the occupation by a public lighting corporation, of land in a public highway, by its poles, is within or without the legislative grant is one which, under our system of jurisprudence, is solely within the cognizance of courts of law.

      On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 83 N. J. Eq. 564.

      Mr. Frank Bergen, for the appellant.

      Mr. Richard S. Wilson, for the respondents.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The complainants by their bill sought to obtain a mandatory injunction compelling the defendant corporation to remove certain electric light poles which it had erected in a public highway, in Hamilton township, Mercer county, in" front of the complainants’ land, the ultimate title to that part of the highway in which the poles were erected being in the complainants. At the time of the erection of the poles the defendant company was under a contract with the township authorities to furnish light for the highways thereof; and for the purpose of such public lighting it was entitled to erect poles, fix cross-arms upon them, and string wires thereon, without obtaining the consent of the abutting owners along the line of its route. General Township act, § 67; Comp. Stat. p. 5600; Andreas v. Gas and Electric Co., 61 N. J. Eq. 69.

The charge in tire bill is that the defendant company, under color of the authority so conferred, erected poles much larger in size, both in diameter and height, than were required for the purpose of publicly lighting the highways of the township, in order to use them, not only for that purpose, but also for the carrying of wires thereon for private'lighting, and for a high-tension transmission current; that the complainants have not consented to the erection of poles in front of their property for any such purpose, and that without such consent the erection of poles of the character described' is a direct invasion of their property rights.

Upon final hearing it was adjudged that the poles referred to were much larger than the defendant company was legally enth tied to erect and maintain in front of the complainants’ premises, and a decree was entered directing the defendant to remove them from in front of the complainants’ property within thirty days after service of a copy thereof upon it. Prom this decree the defendant appeals.

From the foregoing recital it appeal’s that the ground of action set up by the complainants in their bill is the tortious entry upon and occupation by the defendant of land, the legal title to which is in them; and that the relief they seek is the ejection of the defendant therefrom.

Before considering the meritorious questions involved in this litigation, it is necessary to determine whether the case presented comes within the cognizance of a court of equity; for, unless it does, the decree’ appealed from is without legal force. That, on the one hand, the right of the defendant to occupy, by legislative authority, land in a public highway the title to which is in the complainants (if such right exists); and that, conversely, the right of the complainants to oust the defendant from the possession of this land, if the defendant is in the wrongful occupation thereof, are, each of them; essentially, legal, not equitable, in character, cannot be doubted. Mayor, &c., of Jersey City v. Gardner, 33 N. J. Eq. 622; French v. Robb, 67 N. J. Law 260. As a general proposition it may be said that, in this state, where the dispute between the parties is over a purely legal right in land, the proper, and, indeed, the only, tribunal in which to settle it, is a court of law. Borough of South Amboy v. Pennsylvania Railroad Co., 77 N. J. Eq. 249 ; Mason v. Ross, 77 N. J. Eq. 527; Imperial Realty Co. v. West Jersey and Seashore Railroad Co., 79 N. J. Eq. 168. It is true that this rule is not universal; but the occasions in which it is not applicable are rare. The various classes of cases in which the power of equity to entertain jurisdiction over such disputes exists are specified by this court in Hart v. Leonard, 42 N. J. Eq. 416. It is not necessary to recite them here. A reference to the opinion in that case will show that the facts of the present case do not bring it within any of the excepted classes.

Another principle to be remembered in considering cases like the present is that courts of equity do not ordinarily entertain jurisdiction of causes where there exists at law a remedy plain, adequate and complete to redress the wrong complained of. This rule, as was said by this court, in Mayor, &c., of Jersey City v. Gardner, supra, “stands paramount among those which serve to define the jurisdiction between courts of law and courts of equity.”

That the complainants in the present case have a complete and adequate remedy at law seems to us to be beyond question. The wrong complained of is quite similar in its legal essence to that set up by the complainant in Mayor, &c., of Jersey City v. Gardner, supra. In that case the complainant filed his bill to restrain the municipality from wrongfully using lands belonging to him which had been condemned for a public highway, until compensation had been made to him for its taking. We pointed out, in our opinion, that “for such a wrong the action of ejectment generally lies, the result of such remedy being to give the plaintiff, if successful, the possession of his lands, and, under present procedure, damages for their detention;” and declared that “this gives as ample and complete redress as is within the power of any court to afford the suitor.” That such an action will lie against a corporation which has wrongfully erected in a public highway poles, cross-arms and wires, without the consent of the owner of the soil, was specifically decided by this court in French v. Robb, supra.

The assumption of jurisdiction by the court of chancery, being in disregard of these fundamental rules, which “define the boundary of jurisdiction between courts of law and courts of equity,” the decree under review must be reversed, and the court of chancery directed to transfer the cause with the record thereof, and all papers filed therein, either to the circuit court of the county of Mercer, or to the supreme court, for hearing and determination, pursuant to the provisions of “the Transfer of Causes act (1912).” P. L. p. 417.

Garrison, J.

(dissenting).

I do not question the soundness of the legal propositions stated in the opinion, but I deny their application to the decree under review.

The decree is that the poles intended for private lighting are larger than the defendant is lawfully entitled to maintain and that they be removed, to the end that others of a lawful size may be substituted in their stead. This decree, so fax as it adjudges the quesiion over which the court of equity took jurisdiction, is that the unlawful size of the poles intended for an unlawful purpose must be reduced to a size that is lawful for a lawful purpose, the rest is by way of execution. If this decree could be executed in any other way the court below would doubtlessly have adopted or permitted such method; no such method was laid before the court below or suggested to this court. The removal of the larger poles to make way for the smaller is therefore a mere incident to the execution of an otherwise valid decree.

To lay hold of such an incident of execution as if it were the point of the decree or the basis of the jurisdiction exercised by the court of chancery is, to say the least, most unfortunate, in view of the perfectly patent fact that the remedy by action of ejectment affords the complainant no relief at all from the dangers incident to tire unlawful maintenance upon his property of a deadly current of electricity. Such action at law with its varying fortunes of jury trial and its review and of appellate procedures may run on for months or years, during all of which time the complainant will be exposed to a source of danger from which, if it be unlawful, he should be promptly relieved. Equity can give this prompt relief; law cannot.

I am not suggesting that because of this fact we should extend the jurisdiction of equity over real actions or permit that exclusive domain of the law to be invaded; what I do assert is that in an injunction suit where that remedy alone can give relief we should not lay hold of a mere incident of execution as the ground for the assertion of a legal jurisdiction which when invoked will be entirely powerless to afford the required relief.

The complainant’s bill is neither in form or substance an action for the possession of land; what he seeks is not the possession of the few inches of his property on which the illicit pole is erected, but the protection of all of his property and possibly the lives of its occupants from an illicit use to which such pole is to be put and for which it is the preparation. The decree does not eject the defendant, for when executed it leaves it in possession of so much of the complainant’s land as is occupied by a pole intended for a lawful use; it is only by refusing to carry out the decree that the defendant may eject itself from complainant’s land, but that is the voluntary act of the defendant and not that of the complainant or of the court. If, as was said in French v. Robb, in speaking of such poles, “equity will restrain their misuse in the future,” why should not such misuse be restrained ab initio or as soon as such illicit character is clearly established ?

Such is the sole object of the present suit following the case of Taylor v. Public Service Corporation, 75 N. J. Eq. 371, which was affirmed by this court in 78 N. J. Eq. 300. A comparison of the ease cited with that now before us shows to a demonstration that, unless we are to have two contrary rules, the present reversal is based upon an incident of execution that in nowise affects or involves the jurisdictional question discussed in the majority opinion.

I think I have made clear the ground upon which I vote to affirm the decree of the court of chancery.

I am requested by Mr. Justice Trenchard and by Judge White to say that they concur in the foregoing views.

For affirmance — Garrison, Trenchard, White — 3.

For reversal — The Chief-Justice, Swayze, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, Terhune, Heppenheimer, Williams-12.