author: Pitney, V. C.

text:
    William J. Mague,' Chancellor. Henry C. Pitney, John P. Emery, Alfred Peed, Frederic W. Stevens and Martin P. Grey, Vice-Chancellors.
    The Mayor, &c., of Woodridge and The Mayor, &c., of Wallington, both in the county of Bergen, v. The Mayor, &c., of Carlstadt, The Inhabitants of the Township of Bergen and George Zimmerman, all in in the county of Bergen.
    [Decided May 25th, 1900.
    Filed February 11th, 1901.]
    1. Where specific performance was sought of a contract agreeing on a division to be made of assets held by a township, between such township and boroughs set off therefrom, as required by P. L.'of 1896 oh. 188, an allegation in the bill of a conveyance by the township, for nominal consideration, of valuable property forming part of such assets, in fraud of the boroughs, and to hinder and delay the settlement, was not an allegation of a revocation by the township of the contract.
    2. A contract agreeing on a division of the assets and liabilities- of a township, under P. L. of 1896 oh. 183, requiring apportionment and division of assets between the township and boroughs set off therefrom, and making the action of a majority of the municipalities binding on the others, is a complete contract and is not revocable by the township.
    3. A contract intended as the basis of a settlement between a township and boroughs set off therefrom of the liabilities and assets of the township, under P. L. of 1896 oh. 183, agreeing on a retention by the township of a certain percentage of the funds, and an equal division of the balance between the boroughs, and a conveyance to each borough of the real property lying therein, is sufficiently clear and definite as a basis of settlement to be specifically enforced against such township.
    4. Where a bill sought specific performance of a contract executed as a basis of division of assets between a township and boroughs set off therefrom, as required by P. L. of 1896 oh. 183, and to set aside as fraudulent a conveyance for nominal consideration of a portion of such assets, made to one of the defendants having notice of the contract, to hinder and delay its enforcement, such bill is not demurrable because of multifariousness- and misjoinder of parties or causes of action, since its object is to carry out the contract, and the fraudulent conveyance must be disposed of to accomplish that result.
    5. Where the parties to a contract have become incapable of carrying it ■out without judicial aid, by reason of an alleged fraudulent conveyance to another person, with notice of the contract, of a portion of the property -contracted for, equity will take jurisdiction to enforce their rights.
    On the several demurrers of the defendants.
    The object of the bill is to enforce, by specific performance, a contract entered into by the four municipalities, complainants and defendants, and, among other things, for the conveyance of certain lands, and, incidentally, to have set aside a conveyance by, the township of Bergen to the defendant Zimmerman for a portion of those lands.
    The facts set up in the bill and admitted by the demurrers are as follows:
    The territory of each of the three boroughs was originally a part of the territory of the township of Bergen in the county of Bergen. The borough of Carlstadt was organized on the 28th of June, 1894; the borough of Woodridge was organized on December 5th, 1894:, and the borough of Wallington was organized on December 31st, 1894. Eo arrangement was made between the municipalities for a division of the assets and liabilities of the mother township until after the passage of the act of April 16th, 1896 (P. L. of 1896 p. 270), entitled “An act to provide for the division of the assets and liabilities of townships between such townships and any borough or boroughs set off from the same.”
    After the passage of that act the three boroughs united in a movement against the township to compel such partition, and simultaneously adopted a resolution, of which the following, mutatis mutandis, is a copy:
    “Be it resolved by the mayor and council of the borough of Oarlstadt, that Messrs. Demarest and Be Baun be engaged as counsel to proceed against the township of Bergen, for a division of assets and liabilities, under act of 1896, chapter 183, and that in conjunction with the borough of Wood Ridge and Waliington, the expenses of suit are to be paid share and share alike, until all three boroughs have received their share due them, or the suits settled.”
    At the time of the incorporation of the boroughs there was in the possession of the officials of the township of Bergen assets amounting to $2,500 in cash, or its equivalent, besides real estate in various parts of the township, which had been sold for taxes and bought in by the township.
    On the application'of the borough of Oarlstadt, in pursuance of this resolution, a rule to show cause was granted by the supreme court in February, 1897, why a 'writ of mandamus should not issue to compel the township committee of Bergen township, then composed of William Bade, William Fleischman and William Foose, to make an apportionment and division of the assets of the township between said borough and the township. That rule was argued at the February Term, 1897, of the supreme court, and at the June Term, 1897, an order was made for the issue of a peremptory mandamus, as reported in •Carlstadt v. Bergen, 81 Vr. 860.

    Pending that litigation, and on the 5th of April, 1897, the borough of Oarlstadt, by proper proceedings, took some additional territory from the township of Bergen, and after the decision of the supreme court in June,'1891, proceeded at once-to- make < a division between them — Bergen and Oarlstadt — of the assets of the township, without taking into consideration the rights of Woodridge or Wallington, and Bergen paid Oarlstadt $.150 in performance of that agreement of partition.
    • Later on, each of the municipalities, by resolutions adopted by each, appointed, authorized and empowered a committee from each of said municipalities to meet and agree upon a fair and equitable settlement of the matters between them. In pursuance of those resolutions a meeting was held July 21th, 1891, at the school-house in Woodridge, and at that meeting each of the committees so appointed from each municipality (that of the township of Bergen consisting of its three township committeemen), by unanimous vote, adopted the following contract, which is signed by each of the committees:
    “At a joint meeting held by the township committee of Bergen, and the duly authorized committees of the boroughs of Oarlstadt, Wallington and Woodridge, it was mutually agreed to make a division of the liabilities and assets of the township of Bergen as same existed on the fifth day of April, 1897 (the division of assets made between Oarlstadt and township of Bergen under annexation to be invalid and canceled), in the following manner: Bergen township to retain seventeen per cent, of the funds then on hand and same percentage of funds yet collectable from tax duplicate of 1896, and other sources; the balance to be paid to Oarlstadt, Wallington and Woodridge boroughs, share and share alike (each one-third). The property held by the township of Bergen in the boroughs of Oarlstadt, Wallington and Woodridge shali be quit-claimed by the town committee to the boroughs in which located respectively. What is located in Bergen township to be retained by the township.
    “The amounts due for back taxes on properties in each borough to be taken from tax property book, the three amounts added together to form basis of division of said property between the three boroughs, one-third of the total amount to be the share each borough is entitled to.
    “If either borough has more property tax claim within its borough than it. is entitled to, then twenty-five per cent, of the amount of surplus shall be paid over in cash to the borough receiving less than its share as settlement of such difference.
    .“.This agreement to bo duly accepted by the township committee of Bergen and the mayor and council of Ihe three boroughs, a committee of three from each borough to meet with the township committee on the 24th day' of August, 1897, and make the division as herein agreed upon, and the money still uncollected by the township collector to either be divided as per this agreement, when money .is received by him, or the township, authorities to give each borough a due-bill for its share, payable in six months-from date of final division; Each borough to pay for the execution of quit-claim deeds. . .
    “Dated Carlstadt, New Jersey, July 27th, 1897.
    “Signed by the following committees:
    “Alfred Harry,
    “William Fleischman, “William Bade,

      “Township Committee of Bergen Township. “Henry Mayer,
    “John H. Rasmus,
    “August R. Klauss,

      “Carlstadt Borough.

    “-F. Kohberts,
    “H. E. Brinkeriioff, . “Franz Fritsci-i, ■

      “Woodridge Borough.

    “Thomas R. Callins,
    “Bernhard Koster, ,
    “Edward Yanderwhit,, .

      “WalUngton Borough.”

    This agreement was ratified and confirmed by each of the municipalities, the inhabitants of the township of Bergen acting through its township committee.
    At" the time of the making of this agreement a large part, of the assets of the township consisted of real estate held by the township by virtue of tax sales made for unpaid taxes, and a large portion of that real estate was situate within the territorial limits of the borough,of Woodridge.
    On the 3d of August, a week after the making of this agreement, three persons, purporting to be the township committee of the township of Bergen, to wit, the same three persons who were its committee on the previous 27th of July and who executed the agreement on, behalf of the township, made a conveyance to, the defendant Zimmerman, then the mayor of Carlstadt, of a large part of the real estate so held by the township by virtue of sales for unpaid taxes.
    No consideration, or, if any, only a nominal and, quite insiifficient one, was paid by Zimmerman for this land. That expressed in the deed is $75. Two of the committeemen who signed the deed had resigned before executing it, and others had been appointed in their place.
    Zimmerman was in nowise interested in the land as owner or otherwise.

      No resolution, of the township committee was made authorizing the conveyance, and the deed was not attested by the township clerk.
    The allegation of the bill is that the deed was made to Zimmerman and procured by him for the purpose of defeating the rights of Woodridge and Wallington under the agreement of July 27th.
    There was due for unpaid taxes and for taxes which had accrued after the sale to the township, upon the land so conveyed, $800, a sum much greater than that paid by Zimmerman for it. The allegation of the bill is that the making of the deed was a violation of the agreement of July 27th, and a fraud against the complainants herein, and that it hinders and delays the settlement agreed upon.
    The bill alleges an application by complainants to Zimmerman and the township of Bergen to carry out the agreement according to its spirit and terms, and that the Zimmerman title should be released and the lands conveyed to him be treated as if still belonging to the township of Bergen; that Zimmerman declined to release to the township, and Carlstadt and Bergen pretended to be ready and willing to carry out the agreement, but that their readiness and willingness is a. mere pretence on their part. And while it is not distinctly alleged in the bill that their proposition is to divide the assets as if the conveyance to Zimmerman was made in good faith and the township of Bergen only be charged with what they actually received from Zimmerman, yet such is the fair inference from the language used. In other words, the inference from the allegations of the bill is that the township of Bergen and the borough of Carlstadt contrived to have the lands in question conveyed to Zimmerman, who was mayor of Carlstadt, at a nominal consideration, with the view of gaining an advantage over the complainants in the carrying out of the agreement.
    There is no direct allegation in the bill that the lands conveyed to Zimmerman were owned by the township of Bergen on April 5th, 1897, but there is a clear and distinct allegation that most of those lands were within the territorial limits of Woodridge, and “would have been set off to Woodridge if the terms of the agreement of July 27th were carried out.” This is tantamount to an allegation that the lands were the property of the township of Bergen on April 5th, 1897.

      Mr. Luther Shafer, for the township of Bergen and the borough of Carlstadt.

      Mr. Edward J. Luce, for George Zimmerman.

      Mr. Milton Demarest, for the complainants.
   Pitney, V. C.

The principal reliance of defendants in support of the demurrers at the argument was that, under the construction put upon the act of April 16th, 1896, by the supreme court, in the case of Orvil v. Woodcliff, 32 Vr. 107, the contract of July 27th, 1897, was not binding on the township of Bergen without a vote of the people in its confirmation. But this ruling was, after the argument herein, reversed by the court of errors and appeals, as reported in SB Vr. 292, and it was held that the vote of the township was not necessary, and that the action of the . township committee bound the township.

It remains to consider other objections.

The objection next in importance is that the contract is incomplete, being a mere memorandum looking to a future and complete agreement, and is revocable, and appears by the bill to have been revoked by the township of Bergen; and further, that it is uncertain, vague and indefinite in its meaning.

In considering these objections it must be borne in mind that the duty of the defendants to unite with the complainants and agree, or attempt to agree, on a division, is thoroughly established, not only by the decision of the supreme court in Carlstadt v. Bergen, but by that of the court of appeals in the ease of Orvil v. Woodcliff, just referred to; and it may be fairly inferred and assumed that the meeting of the representatives of the four municipalities on July 27th, 1897, was held in pursuance of the mandate of the supreme court. I fail to find anything in the bill which shows a direct revocation, or attempt ' to revoke, by the authorities of the township of Bergen, and, as the second section of the act of April 16th, 1896, makes the action of a majority of the-municipalities binding on the others, I doubt the power of one of the four to revoke the contract after it has once been entered into. Further, in the absence of fraud, accident or mistake, I doubt the power of a majority to revoke.

As to its indefiniteness: I think it sufficiently clear and definite as a basis of a settlement. And that was all it was intended to be. Besides, the allegations of the bill show that-the defendants did not object to carrying it out on that or any other ground, but were apparently, or pretended to be, ready to proceed. '-The real difficulty in the way of a settlement, such as the complainants1 ought to be satisfied with, was that the defendants had made a conveyance of the property, which was subject to the agreement, at an inadequate price, and. apparently intended to insist in carrying out the settlement on the basis' that ■they were to account for those-properties at the price which they had received for-them. Or, to state it differently,'they had • attempted to render themselves incapable of performing the agreement by aliening a part of its subject-matter; and the object of the bill is not so much to enforce-the carrying out of the agreement as to annul the action just named. It is substantially the same as a bill by vendee against vendor for the specific performance of a contract to convey land, and with it, added, a statement that after the contract was made the vendor had conveyed it to a third party, with notice of the contract, for a nominal consideration, for the purpose of defeating, in whole or in part, the enforcement of the contract.

And this consideration disposes of the only other serious objection raised, and that is, that the bill is multifarious, and that there is a misjoinder of causes of action; that the defendant Zimmerman is not interested in the other question. •

This objection, clearly, is without merit. The object of the suit is to carry out the contract of July 27th, 1897, which was made in obedience to a mandate of the court and in fulfillment of a clear legal duty resting upon the defendants; and in order to accomplish that result it is necessary to dispose of the fraudulent conveyance from the township to Zimmerman, who was at the time mayor of Carlstadt, the 'other defendant, and is ehargeable with notice of the contract to convey the very property, or the greater part of it, entered into several days before the conveyance to him. It is not necessary to cite authorities to show that such a suit is not open to. the .charge of being vicious by reason of either multifariousness or misjoinder of causes of action or parties. ■ ■ • *

This is clearly a case for proceeding in this court. It is manifest that the aid of an expert accountant is necessary to state the accounts between the parties, and no action at law can avail' to apportion these assets on the basis of the agreement of July 27th, 1897. The contract, if it cannot be carried out between the parties without judicial aid, must, of necessity, come into a court of equity, where all the persons interested have been made parties, and the rights'of each enforced.

The demurrers should be overruled, with, costs, with leave to the defendants to answer on the iisual terms.


source: Caselaw Access Project

license: Public Domain

text:
    Timothy Burnet v. Oliver Dean and The Village of South Orange.
    [Submitted May 19th, 1900.
    Decided June 9th, 1900.
    Filed February 11th, 1901.]
    1. Act of April 4th, 1872 (P. L. of 1872 p. 1203), empowers the board of ■trustees of the village of South Orange to raise money for internal expenses,-but reserves to the township officers the duty of 'assessing and collecting the same. Act of March 30th, 1875 (F. L. of 1875 p. 395)', provides that a village tax collector shall perform the duties theretofore incumbent upon the township collector. Act of March 14th, 1879 (F. L, of 1879 p. 340 % 1), provides that all taxes shall be a lien for two years after they become due. Section 18 of such act provides that it “shall not be construed to * * * repeal the provision of any charter of any city, village or borough whereby the collection of taxes is regulated, * * * and the lien of taxes on lands in any such city shall remain as now regulated, * * * this act being intended to apply to townships * * * and not other municipalities.” Act of March 10th, 1880 (P. L. of 1880 p. 11/9), provides that taxes shall be a lien, in cities and villages, as provided by their charters. Act of March 17th, 1882 (P. L. of 1882 p. ISO), extends the lien provided for in the act of 1879 to three years. — Held, that section 18 of the act of 1879 did not have the effect to exclude the village of South Orange from its terms, and taxes are a lien on land therein for three years after they become due.
    2. Act of February 22d, 1888 (P. L. of 1888 p. 97), providing that taxes levied on real estate in villages and municipal corporations governed by a board of trustees shall be a lien on the land until paid, does not apply to taxes levied before the act took effect,
    3. Act of February 22d, 1S88 (P. L. of 1888 p. 97), providing that in villages and other municipal corporations governed by a board of trustees, taxes shall be a lien on real estate until paid, is in violation of the Constitution, article 4, section 7, paragraph 11, as amended, providing that the legislature shall not pass private, local or special laws regulating the internal affairs of towns and counties.

      Mr. Chandler W. Biker and Mr. Joseph D. Gallagher, for the complainant.

      Mr. James McC. Momio and Mr. William H. Morrow, for South Orange.
   Pitney, V. C.

This is a bill to foreclose a mortgage given by the defendant Dean to the complainant, dated April 10th, 1891, covering certain lands within the corporate limits of the village of South Orange.

The municipality of South Orange is made a party defendant because it claims a paramount lien upon the premises for certain taxes assessed by it for municipal purposes for the several years intervening between 1877 and the date of the mortgage, and also for certain taxes assessed upon the premises for the several years since the execution of the mortgage up to and including 1897. The prayer is that these, taxes may be declared not to be a lien.

The only question litigated was whether the lien of such taxes was paramount to the mortgage.

In considering this question it must be borne in mind that the existence of a lien on land for taxes imposed upon the same,, and the length of time such lien continues, is a matter depending entirely upon legislative enactment. It has no other foundation. For more than half of the present century there was no such lien, and when first imposed by statute it was held to be simply a lien upon the interest of the party against whom the tax was assessed, and was not paramount to encumbrances by mortgage or otherwise. The taxes levied by some few of the cities of the state were, by the terms of their charters, held to-be paramount to encumbrances. But it was not until 1879, by the statute approved March 14th of that year (P. L. of 1879 p.8J/.0), that taxes throughout the state were made paramount to encumbrances, and a rational method adopted for enforcing the lien.

The question presented, then, is entirely one of statutory construction.

The territorial limits of the village of South Orange, as at present constituted, formed originally a part of the township of South Orange, and the inhabitants of that portion were incorporated into a body politic and corporate by the act of March 25th, 1869. P. L. of 1869 p. 6.^5. The incorporation was partial only, and in that respect resembled the original incorporation of Morristown and other towns and villages in this state. The roads within the limits of the village were, by that act, put under the control of the village trustees, who were given little, if anything, more than the powers of overseers of the highway. The township committee of the township were directed to give a certain proportion of the road money collected in the whole township to the trustees of the village. •

This charter was amended by the act of April 4th, 1872. P. L. of 1872 p. 1208. That act, by the fifteenth section, gave the board of trustees power, by ordinance, to order to be raised in each year, upon the persons and property in said village, such sum or sums of money as the said board may deem expedient or necessary for the following purposes: lighting streets, grading, graveling or otherwise improving streets and highways, and cleaning and keeping the same in repair; support of a police department; payment of any indebtedness of the village, and contingent expenses, of the village. •

This act did not supersede the right of the township to assess "and collect taxes within the limits of the village for general township, county and state purposes. That machinery was left in full force and vigor.

By section 28- it was provided that the village clerk should transmit to the assessor of the township a copy of the ordinances that might be passed for the purpose of raising money by tax, and ■ •

“it shall be the duty of the assessor of the township to assess the said sum or sums upon the persons and property within the limits ;of the village, and the duty of the collector of, the township to collect the same, in the same manner and at the same time that the taxes in the townships of said county are assessed and collected; provided, that no township tax for the working, repairing, paving or permanent improvement of roads shall be assessed and collected within the limits of the village,”

and no such, tax in the .other part of the township shall be expended within the village. And, by the twenty-ninth section, the collector of the township, after collecting such taxes, shall turn them over to the treasurer of the-village.

A supplement to this charter was passed in 1875. P. L. of 1875 p. 895. That act provided for the appointment of a collector of taxes for the village, and for the payment of taxes directly to such collector; and section 10 provided that the duties now prescribed by the previous sections of the act to be done by the collector of the township shall be performed by the village collector.

The act of March 14th, 1879 (P. L. of 1879 p. SJfO), first piade taxes generally throughout the state a paramount lien over and above mortgages. It declares (section 1) that

“all taxes which shall be laid, assessed or imposed for or on account of 'any lands, shall be, become and remain, from and after the date of such levy and-assessment, a full and complete first and paramount lien on all the lands, tenements, hereditaments or real estate, on account of which such levy and assessment shall be made, for the space of two years from the time when such taxes so assessed were payable

and subsequent language makes it paramount to mortgages.

In the second and subsequent sections provision is made for the collection of such taxes by advertisement and sale; and by the thirteenth section it is declared

“that it shall be the duty of the township collector, before the 1st day of February in each year, to make return in writing to the clerk of the county in which his township is situate, of all unpaid taxes assessed the previous year,”

and the clerk shall make a list of thenn

By the fifteenth section: .

“That in case such tax return shall not have been made at the time herein provided, or in case a name or names shall have been omitted from such return, then, and in that case, such tax shall cease to be a lien upon such real estate as against a purchaser or mortgagee in good faith.”

The eighteenth section provides as follows:

“This act shall not be construed so as to alter, modify, affect, annul or repeal the provision of any charter of any city, milage or borough whereby the collection of tames is regulated, and the taxes assessed and to be assessed in any such city, village or borough, shall be levied, assessed and collected as heretofore, and the lien of taxes on lands in any such city shall be and remain as now regulated, and nothing in this act shall be held to impair, alter or affect the said lien in any way whatsoever, this act being intended to apply to townships in this state and not other municipalities.”

. -This eighteenth section was amended by an act of May 6th, 1889 (P. L. of 1889 p. 857), but such amendment did not affect its construction for present purposes..

Much discussion was had as to the true construction of this act.

I think it was intended to make all lands subject to a tax for two years, and no longer; but the period of two years might be cut down by a failure to comply with the terms of the thirteenth and fifteenth sections in cases of townships and township collectors. The effect of the eighteenth section was simply to prevent the machinery previously in that act provided for being held applicable to any city, village or borough which already was provided with a particular machinery of its own; and that the provision for the lien extending two years, and no more, did not .apply to any city. The reason of this was that it was well known nt the time that many cities in the state had charters which provided for an indefinite lien for taxes, and the fear was that this limitation of two years in the act in question might be construed to limit the lien of tax'es in those cities. This explains the force of the last line1 — “This act being intended to apply to townships in this state and not to other municipalities.”

It seems to me that that clause did not prevent the application to villages of the general declaration- that all taxes should be a lien for the space of two years. The effect of that was to make the taxes levied by the village of South Orange for its municipal purposes a lien for two years. And it is unnecessary for present purposes to determine whether or not the thirteenth, fourteenth and fifteenth sections of that act apply to the «village of South ■Orange and leave the- collector of that village without any means -of enforcing the collection of its taxes.

By the act of March 10th, 1880 (P. L. of 1880 p. H9), it is provided:

“That all taxes which may hereafter be laid, assessed or imposed, pursuant to the laws of this state, within any incorporate city, village, bor■ough or other municipality of this state * * * shall be, become and remain from and after the date of such levy and assessment, a full and •complete, first and paramount lien on all the lands, tenements, hereditaments or real estate * * i|! for and during the period now provided for in the act of incorporation or any supplement thereto or revision of the same, ■of any such city, village, borough or other municipality as.aforesaid.”

The effect of this act, which, by its terms, applied to villages, was to set at rest any doubts which might exist as to the paramount character of the lien for taxes over and above mortgages .•and other encumbrances.

On March 17th, 1882, another act was passed (P. L. of 1882 p. 180), which, in effect, extended the lien for nearly one year, namely, three years from and after the date of the assessment. (See Hohenstatt v. City of Bridgeton, 33 Vr. 169, where the -construction of this language is discussed.)

I hold, then, that the taxes assessed for municipal purposes by South Orange were a lien for three years from and after the time they were levied, and paramount to complainant’s mortgage, and that the liens of those taxes have in fact expired except those brought within that limit, unless other legislation has changed the situation.

The defendant contends that by an act of February 22d, 1888 (P. L. of 1888 p. 97), such change has been effected. That is an act in three sections, the title of which is “An act concerning taxes and assessments in villages and other municipal corporations governed hy a hoard of trustees, and making same a first lien on real estate, and authorizing sale for the payment of the same.” The first section provides that taxes

“assessed by any hoard of trustees -of any village or other municipal corporation against any person or persons, for and on account, &c., situate in the village or municipality so governed, together with lawful interest thereon, and ail costs, fees, charges and expenses in relation thereto, shall be, become and remain a first and paramount lien upon the lands or real estate * * * until paid.”

The second section provides for the sale of the land, giving the board of trustees power to issue a warrant for their sale.

This act, if valid, and not contrary to the fundamental law, establishes the permanent lien for all taxes assessed after it took effect, which was on February 22d, 1888.

The defendant contends that it applies to previous taxes. I cannot adopt that view. It says “such taxes and assessments as may be lawfully levied, imposed or assessed by any board of trustees,” &c. It is clearly prospective in its. scope.

The defendant further refers to the first section of the act of March 25th, 1895 (P. L. of 1895 p. 671), which is a supplement to the act of February 22d, 1888, just referred to, and provides that section 2 of that act is amended to read as follows:

“And be it enacted, that in case any taxes or assessments referred to in the last section, whether heretofore levied, imposed or assessed, together with interest thereon * * * shall remain or shall have remained,” &c.

That section evidently refers to the first section of the act of 1888, and that, as we have geen, is clearly prospective in its effect.

. The complainant attacks this legislation on the ground of its unconstitutionally: It is argued that it is contrary to that clause of the constitution which provides that

“the legislature shall not pass private, local or special laws in any of the following enumerated cases, that is to say, * * * regulating the internal affairs of towns and counties.”

And it has been held that a classification such as that here attempted, to wit, villages or towns governed by a board of trustees, is not sufficiently general to prevent its being in effect a local and special law.

The cases relied upon are Ross v. Winsor, 19 Vr. 95; Dobbins v. Long Branch Commissioners, 30 Vr. 146.

In Ross v. Winsor, the act was entitled “An act providing for additional powers and certain changes in the government of certain localities governed by commissioners;” and the first section of the act was “That in all seaside resorts in this state governed by a board of commissioners.”

In Dobbins v. Long Branch Commissioners, the title was “An act authorizing municipalities governed by commissioners to pave and improve streets and avenues, and provide for the payment thereof.” And the first section of the act provided that “whenever the governing body of any municipality, by whatever name' the same may be known, and however created, governed by commissioners,” &c. *

In both these cases, the supreme court held -that the classifi- , cation depending upon the name of the body by which the city was governed was inadmissible, and rendered the acts special instead of -general, and hence unconstitutional.

The language used in the enactments -condemned by the two cases just cited is quite similar to that here under consideration,- and those must control the present case, -unless it can be properly held that the fixing of the time for which a lien for taxes in a particular municipality shall continue is not an act “regulating the internal affairs of towns and counties.” It has been 'held that the word “towns” used in the constitution includes all' municipalities from townships up. Van Riper v. Parsons, 11 Vr. 1; Pell v. City of Newark, 11 Vr. 550.

I am of the opinion that the fixing of the time for which a lien for taxes shall continue is a regulation of the internal affairs of the town. Such seems to have been the assumed basis of the discussion in the case of Hermann v. Town of Guttenberg, 34 Vr. 616. Suppose the legislature should pass an act declaring that there should be no lien for taxes within the territorial limits of the village of South Orange, naming it as such, could it .he doubted for a moment that such an act would be within the constitutional inhibition in question? I think it could not.

I must therefore hold that the complainant is right in his contention that the claim of the village of South Orange for taxes is invalid, except such as shall be found, upon inquiry, to be within the rule laid down in the case of Hohenstatt v. City of Bridgeton. The amount of these may be ascertained by a reference, if the parties cannot agree upon them.


text:
    Charles E. Chapman v. Theodore C. Bates and William H. Lee.
    [Submitted May 17th, 1900.
    Decided June 14th, 1900.
    Filed February 11th, 1901.]
    Where much time and labor were expended, and valuable contingent rights were acquired in compensation for their services, by stockholders in a corporation, in reliance on a proxy and power of attorney given them by the majority stockholders, conditioned to be irrevocable for a certain term, and giving possession and control of the stock in trust to carry out the Corporate purposes for their equal benefit, with power to sell or exchange the same, equity will not revoke such document during such term, in the absence of misconduct or breach of trust.
    Heard on bill and answer.

      Mr. Charles L. Corbin, for the complainant.

      Mr. Charles D. Thompson, for the defendants.
   Pitney, V. C.

The complainant is the registered holder of fifty-one shares of $100 each of the capital stock of the Hnion Terminal Association, a corporation organized under the laws of the State of New Jersey, by certificate filed on July 6th, 1898.

The object of the bill is to revoke and set aside a power of .attorney and proxy executed by the complainant on July 6th, 1899, granting to the defendants, Bates and Lee, extensive powers over the shares of stock so held by him, and to procure .a return to him of the certificates of the same, which were •delivered to the defendants with the power of attorney and proxy.

The power of attorney and proxy is precisely like one prewiously given by the complainant to the defendant Bates and •one Amory. Mr. Amory becoming incapacitated by ill-health •to perform the duties imposed upon him by the first document, resigned his trust thereunder, and the instrument attacked' by -complainant’s bill herein was executed to the defendants herein, .and is called “Proxy and Power of Attorney B.” It is too voluminous to be set out at length. Suffice it for present •purposes to say that it clearly created the relation of trustee .•and cestui que trust.

The defendants have answered, and the cause was brought to hearing on bill and answer, and, of course, for the purposes of the hearing, the allegations of the answer are taken as true.

The capital stock of the corporation was fixed at $5,000,000, and of this $1,962,900 were issued. The defendants are large holders of this stock.

The object of the incorporation was not only, as set out in”the’ bill, “to purchase, sell and dispose of shares of stock and securities of certain railroad and other corporations in the State of Missouri,” but, by means of such purchase, to become the proprietor of a railway and road bridge across the Missouri river at Kansas City, Missouri, and, in connection therewith, of a union railway station within the limits of that city.

In pursuance of that object, the company, shortly after its organization, purchased ninety-six per cent, of the capital stock of the Kansas City and Atlantic Eailroad Company, amounting to over two millions of dollars; all the stock of the Terminal Improvement Association of Kansas City, amounting to $200,000; a majority of the stock of the Missouri Agricultural and Fair 'Grounds, of Gallatin township, Missouri, amounting to $48,000, out of a total of $90,000, and also all the outstanding first mortgage bonds of the Kansas City and Atlantic Eailroad Company, amounting to $600,000; which corporations were seized of rights, privileges, franchises and properties in and about the city, which were valuable for the purpose of carrying ■out the objects of the corporation.

In the early spring of 1899, in order to successfully carry out those objects, eighty per cent, of the stockholders, in value and number, made the first proxy and power of attorney above mentioned, and afterwards executed “Proxy and Power of Attorney B."

Under the power of attorney here attacked, the defendants, in strict pursuance of the objects of the corporation, have proceeded and done a great deal of work, and advanced large sums •of money on the strength of the document in question, which, by its terms, is irrevocable before the 1st day of January, 1902.

The complainant contends that the document is revocable, notwithstanding that clause, upon the principles laid down and .acted upon in Cone v. Russell & Mason, 3 Dick. Ch. Rep. 208, and again in White v. Thomas Inflatable Tire Co., 7 Dick. Ch. Rep. 178, and the cases there cited. He does not, however, allege any misconduct of the defendants as trustees, or any failure, faithfully and honestly, to perform their duties as such under the power.

The defendants contend that this ease is not within the principle of either of those eases, but is within the exception stated in 3 Dick. Ch. Rep. 215, bottom, as follows: “This conclusion does not reach so far as tó necessarily forbid all pooling or ■combining of stock, where the object is to carry out a particular policy 'with the view to promote the best interests of all the stockholders. The propriety of the object validates the means, and must affirmatively appear.”

I am of the opinion that the contention of the defendants is sound. The document here sought to be disturbed is something more than a mere proxy, and is quite different in its purposes and objects from that dealt with in Cone v. Russell. It puts the defendants in the position of actual owners of the stock, subject only to their duty to account, as trustees, to the complainant as cestui que trust for their dealings therewith. They have power, by the document, to sell and assign and exchange the shares of stock as they shall see fit; to organize a new corporation, and accept stock in such new corporation in place of the shares of the old corporation.

While the particular objects and purposes of the trust are not stated in the instrument, yet they are stated in full in the answer, and those purposes so stated must be taken to be the real purposes of the project.

The defendants allege that they have expended a great deal of time and labor, and have advanced moneys, and borrowed money, and entered into contracts on the strength of the continued control of the stock during the period mentioned in the instrument, all for the purpose of carrying out the purposes of the corporation, and for the equal benefit of all the stockholders, and they contend, and I think rightly, that under such circumstances it would be inequitable and unjust to deprive them of the power so given to them, without reinstating them in their original condition.

Among other things, they allege that they have offered the stock for sale, and, in effect, given an option on it, and that such offer is liable to be accepted at any time. In case of such sale, the instrument in question gives them a plain right to deduct from the proceeds an amount sufficient to compensate them for .their services.

They are themselves stockholders and interested in the success of the corporation. That fact of itself makes the ease an exception to some of the authorities' relied on in Cone v. Russell.

Many authorities were referred to by counsel of defendants in favor of his position, which I do not deem it necessary here to cite. Most of them are collected in 88 Am. L. Reg. (N. S.) 48 (January, 1899).

• I think the present case clearly distinguishable from Gone v. Russell, and that the complainant’s bill fails, and must be dismissed.


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    Pauline C. McGean v. James J. McGean.
    [Decided June 22d, 1900.
    Filed February 11th, 1901.]
    Petitioner was a domiciled resident of the State of New York; was married there, and abandoned by her husband a few days after the marriage under aggravating circumstances. She consulted New York counsel and was by him advised that she had no remedy in New York, but must come to New Jersey. She came to New Jersey, took up her abode with a friend, paying a little board, but spending much of her time with her parents in New York. At the end of two years she filed a petition for divorce on the ground of desertion. The defendant was not served within the state, and did not appear to the suit. She testified that she came to New Jersey for the purpose of obtaining a divorce, but that she intended to make it her permanent home. — Held, that the proof did not establish such a residence in this state as is necessary to give the court jurisdiction.
    Petition for divorce. Heard ex parte on exceptions to master’s report declining to advise a decree for petitioner.

      Miss Mary RhilbrooTt, for the petitioner.
   Pitney, V. C.

The petition was filed on the 3d of October, 1899. On failure to find the defendant within the state for service of process, order of publication was taken against him as a non-resident. No service of any bind was made within the state. He did not appear, and the usual order of reference was made to a master to take depositions and-report.

The ground of relief alleged in the petition is desertion.

The master reported against the divorce on two grounds: First, that it did not sufficiently appear that the desertion complained of was willful and continued for the period of two years; second, that the petitioner was not a domiciled resident of the State- of New Jersey.

Exceptions to this report were filed, and came on for hearing, and the petitioner was permitted to produce further proofs in support of her case, by evidence taken orally before the court.

The facts developed are as follows: Petitioner and defendant, at the time of the marriage, were both domiciled residents of the city of Brooklyn, in the State of New York, and neither of them had ever lived in New Jersey. They were married on September 9th, 1897, in the city of New York; cohabited for one night, and then separated for a few days by mutual consent. They saw one another in the petitioner’s mother’s parlor for one evening a few days after the marriage. The defendant lived at his mother’s house in Brooklyn. He was dissipated and worthless to the last degree.

Shortly after, and during the month of September, he wrote the petitioner an abusive and offensive letter, in which he called her vile names, and stated, in effect, that she had taken advantange of him while drunk to marry him; that the marriage was not binding, and that he would not recognize it.

The petitioner and her mother (her father being disabled by impaired health) at once consulted counsel, and were advised by him that the petitioner had, and could have, no remedy in the State of New York, and advised her to go to New Jersey.

Petitioner then, on October 1st, 1897, came to Jersey City, and took up her abode with a Mr. and Mrs. Nelson, friends of lier father and mother. Mr. Nelson belongs to the fire department of Jersey City, and is away from home at night continuously, except for one night in ten. His wife and children occupy apartments, without a spare room. .The petitioner occu- - pied the same room with Mrs. Nelson, assisted her in domestic wotIc, and paid $1 a month fox board. She visited her mother in Brooklyn frequently.

This petition was filed on the 3d of October, 1899, barely two years from the time the petitioner swears that she took up her residence in New Jersey.

The avowed object of coming here was to obtain a divorce from her husband. She swears that she intends always to live in Now Jersey; and her mother swears that as soon as she and her husband can dispose of some real estate they have in Brooklyn they intend also to come to New Jersey and live.

It is quite manifest that the reason why the petitioner came to New Jersey was that, by the laws of New York, she could not obtain a divorce from her husband on the ground of desertion, while that matrimonial offence is sufficient in New Jersey.

With regard to the first ground taken by the master, I am not sure that the evidence does not warrant the belief that the desertion by the husband was, from the beginning, sufficiently decided and obstinate to warrant him in finding otherwise than as he did on that point. It is quite certain that what occurred during the month of October and part of November, 1897, did show his intention unmistakably.

But without passing upon that ground relied on by the master, I think that the'second ground, namely, the lack of a bona 'fide domiciled residence in New Jersey, is fatal to the petitioner’s claim.

A long line of cases in this state has settled beyond dispute the ground of jurisdiction to entertain suits for divorce where the defendant is a non-resident, and is not served with process within the jurisdiction of the state, and does not appear to the suit, and that is, that there must be a bona fide domiciled residence by the complainant or petitioner within the state for the requisite period. I refer to Doughty v. Doughty, 1 Stew. Eq. 581; Fairchild v. Fairchild, 8 Dick. Ch. Rep. 678; Felt v. Felt, 12 Dick. Ch. Rep. 101; S. C., 14. Dick. Ch. Rep. 606; Streitwolf v. Streitwolf, 13 Dick. Ch. Rep. 563; Dumont v. Dumont, 45 Atl. Rep. 107.

The character of the required domiciled residence in a case like this is stated in this wise by Mr. Justice Gummere, speaking for the court of errors and appeals, in. Magowan v. Magowan, 12 Dick. Ch. Rep. 324: “To effect a change of domicile, not only must the residence at the place chosen for the new domicile be actual, but to the faclum of residence there must be added the animus manendi.”

In each of the cases of Streitwolf v. Streitwolf and Dumont v. Dumont, the plaintiff swore most positively in the foreign jurisdiction, when applying for his divorce, that it was his intention always to reside in the territorial jurisdiction of the court; and the court acted upon that declaration; but in both cases the divorce was no sooner granted than the parties were back at their former residence, and, in the Dumont Case, the plaintiff engaged in his former business. In fact, it is quite common knowledge that in all these cases where parties leave one jurisdiction and take up a nominal residence in another, for the purpose of taking advantage of the favorable laws of that jurisdiction to obtain a divorce, they invariably push their conscience to the point of swearing in the most solemn manner that they intend to make that place their permanent residence; but the intention is changed as soon as the divorce is granted.

The evidence in this case does not satisfy me that the petitioner took up her residence, such as it was, in New Jersey for the purpose of making this her permanent home; and I am therefore of the opinion that this court obtained no jurisdiction to pronorince a decree of divorce between the parties.

The master’s report must be -sustained, and the petition dismissed.


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    Catharine Tracy v. John T. Tracy.
    [Decided June 22d, 1900.
    Filed February 11th, 1901.]
    A married woman, living apart from her husband in another state, came to New Jersey, visited a friend for a few weeks, then returned to her former residence and visited there several weeks, after which she returned to New Jersey and took lodging in a boarding-house several months, and then ran a boarding-house of her own for a year. She then sold her boarding place and broke up housekeeping, and shortly afterwards filed her petition in New Jersey for divorce, and then spent the summer in the state of her former residence. Defendant was served with process as a non-resident. She testified that she came to the state without thought of getting a divorce, and with intention of making it her home. — Held, that the animus manendi necessary to give the court jurisdiction was not established, since the mere sworn statement was not sufficient to establish an animus manendi, in the absence of facts preceding and attending the change of residence to corroborate it.
    Petition for divorce. Heard ex parte on the coming in of the master’s report, which was in favor of the divorce.

      Mr. Malcolm MacLear, for the petitioner.
   Pitney, V. C.

The ground of the divorce stated in the petition is desertion, and I think that the evidence taken by the master satisfactorily establishes it. But there is another matter, standing in the way of granting the petitioner relief, which does not seem to have struck the master as it does me.

The facts are these: The parties were both domiciled, at the time of their marriage and at the time of the desertion, in the State of New York. Heither had ever lived in New Jersey. The petitioner came to New Jersey on May 18th, 1897, and filed her petition for divorce on May 25th, 1899. The defendant, at that time, resided in Rochester, in the State of New York, and process not being served, the usual order 'of publication was made against him as a non-resident, and notice was served upon him by mailing it to him at his place of residence in Rochester. He did not appear, and the usual order of reference, to a master to hear the petitioner’s case ex parte was made.

It is abundant]j established in New Jersey as held by me in the recent case of McGean v. McGean, 15 Dick. Ch. Rep. 21, that, in order to give the court the power to proceed and grant relief against the defendant under such circumstances, upon service out of the jurisdiction, the complainant must have been an actual bona fide domiciled resident of the state for the period of two years before the petition was filed. To. acquire such a domicile in this and similar cases requires an actual change of domicile from another jurisdiction. And, repeating the language quoted in McGean v. McGean from the opinion of the court of errors and appeals in Magowan v. Magowan, 12 Dick. Ch. Rep. 324: “To effect a change of domicile, not only must the residence at the place chosen for the new domicile be actual, but to the factum of residence there must be added the animus manendi

The petitioner’s maiden name was Cronin. She was born in the village of Cayuga Lake, Seneca county, New York. She there married a man by the name of Converse, and had by him one child, a son. Upon the death of her first husband, she moved to the city of Albany, New York, where the grandfather of her son, who appears to have been a man of means, resided, and while living there met the defendant, her present husband, and married him. His home was at Rochester, but he had a salaried position in the office of the secretary of state. He devoted little of his salary to the support of his wife, whose support and that of her son came mainly from her father-in-law Converse. Finally, in the fall of 1894-, Convefse declined any longer to extend his aid to the extent of supporting the defendant, and the latter, at that time, having lost his position • and being without means, abandoned the petitioner. She continued to .reside in Albany at a boarding-house, where she was living when her husband left her, until May, 1.897, a period of two and a half years. There she made .the acquaintance of a student named Blessing, whose parents lived a few miles in the country, and who had a sister, a Mrs. Nelson, living with her husband in Newark, New Jersey.

On the 18th of Majr, 1897, the petitioner came to Newark* with her son, and stopped at the house of Mr. and Mrs. Nelson until the 4th of July, when she left, with her son, and went to spend the summer with the mother of Mr. Blessing at her country home near Albany. She spent the whole summer there, until the first week in September, except two or three weeks, when she visited her sister in Cayuga Lake. She then returned to Newark, and took board with a Mrs. Osborne, at No. Id Central avenue, and lived with her until May, 1898, when she started a boarding-house on her own account, and continued it until May, 1899, when she sold out her plant and broke up housekeeping.

On the 25th of May, ,1899, she filed her petition for divorce. She then left New Jersey, and again spent the summer with' Mrs. Blessing, near Albany, and her sister, and returned in the fall of 1899 to Newark, and remained there, until her case came on for hearing before the master in December, 1899.

She swears that she came to Newark because she had these friends here, and because it was disagreeable for her to live in Albany in a state of separation from her husband, and that she had no thought of getting a divorce when she came here, and that she intended to live and make her home here. The’ master accepted this as sufficient proof of the animus manendi.

Eor reasons stated in McGean v. McGean, I am unable to accept this statement.

However, independent of that conclusion, I think that the time she had been residing here, before her petition was filed, did not amount to two years. Her stay of six weeks at the house of Mr. Nelson, between the 18th of May and the 4th of July, 1897, seems to me to have been a mere visit, and to have none of the characteristics of an actual residence; and that her actual residence here commenced in September of 1897, less than two years before the petition was filed. But as this view may be open to criticism and may result merely in the filing of another petition, I prefer to deal with the case as if her residence, such as it was, commenced on the 18th'of Ma]r, 1897.

Except that she kept a boarding-house for one year, and then abandoned it, it does not appear that the petitioner had any business whatever in New Jersey. Her son had an income— how much does not appear — from his grandfather’s estate, and she has been living on that. Except the acquaintances above mentioned, she had nothing to bring her to New Jersey, except to obtain a divorce, and has nothing to keep her here after it' shall be obtained. And thus the question is presented whether, under such circumstances, the mere sworn assertion by the party that he or she came to Now Jersey without a thought of getting a divorce and intends to make New Jersey his or her home, is sufficient to establish the animus manendi which is necessary in order to give the court jurisdiction. I am of the opinion that it is not; that the common knowledge and experience of the court is that such sworn declarations are unreliable, and therefore insufficient; and that there must be something in the facts and circumstances preceding and attending the change of residence, and in the history of the life of the party, to corroborate the sworn statement, in order to warrant the belief that the purpose of the change was not merely that of obtaining a divorce, and that there was and is a real animus manendi.

I must decline to advise a decree.


text:
    Christian Pohlman v. E. Louisa Pohlman.
    [Decided June 22d, 1900.
    Filed February 11th, 1901.]
    1. Where one living in New York City was deserted by his wife, and tried to induce her at various times to live with him, but was refused, and about a year after the desertion he moved to New Jersey, but carried on business in New York City, and about three years later tried again to induce his wife to live with him, but was again refused, and a few months later brought suit for divorce, petitioner’s residence in New Jersey for more than two years was sufficient to give the court jurisdiction, where defendant was served within the jurisdiction, and she voluntarily appeared in the suit.
    2. Where a husband petitioned for a divorce for desertion, the matrimonial offence having been persisted in against his will for more than four years, the fact that the wife, who lived in New York, was desirous that the divorce be granted, and voluntarily appeared in court, but made no defence, will not amount to collusion, and prevent the granting of a decree.
    Heard ex parte on the coming in of the master’s report in favor of the divorce.

      Mr. William, R. Barriclclo, for the petitioner.
   Pitney, V. C.

Th,e ground of divorce stated in the petition is desertion, and the evidence taken before the master thoroughly establishes it.

The parties were domiciled in the city of New York for many years before the marriage, which took place on January 3d, 1895. The defendant had independent means of her own, and the petitioner was a tailor employed as a cutter in a large tailoring establishment in New York City, and shortly after the marriage entered into business on his own account in New York, which he still pursues.

They lived together in apartments in New York City until June 27th, 1895, when the defendant, while the petitioner was absent attending to his ordinary business, moved her furniture away from the house, and abandoned the petitioner. He after-wards sought her out at various times, and under various circumstances, and tried to induce her to return to live with him, but she persistently declined.

In' the latter part of August, 1896, the petitioner, who had been living as a bachelor since his wife deserted him in 1895, moved his personal belongings, clothing, &c., to Hoboken, and took board there, and has continued to board there ever since, but still carries on his business in the city of New York.

In the fall of 1899 he consulted counsel, and made one more •effort to induce his wife to live with him, and called on her at the Park Hotel, New York City, with a friend, for that purpose. She declined, and gave him a declination in writing.

The petition was filed on the 1th of February, 1900, four months after this interview. Process of subpoena was issued .and.served upon the defendant by the sheriff of Hudson county. How the defendant happened to come to New Jersey, and the .sheriff to know of her presence here, does not appear, but the inference, of course, is that she came for the purpose of being served with process, and that the petitioner’s solicitor was advised of her presence. Afterwards she appeared by solicitor in the suit, but made no defence. The cause went to a reference in the ordinary way, and the master reported in favor of the divorce. The master saw nothing, of course, but a copy of the •order of reference. The circumstances of defendant coming to New Jersey to be served with process would not naturally come to his knowledge.

For the reasons stated in McGean v. McGean, 46 Atl. Rep. 656, and Tracy v. Tracy, 15 Dick. Ch. Rep. 25, recently decided by me, I feel constrained to believe that the petitioner came to New Jersey for the purpose of securing a divorce on the ground ■of desertion, which ground was not .available for that purpose in the State of New York. I am also satisfied that he did maintain an actual residence in New Jersey, such as many business men maintain here while engaged in business in neighboring ■cities, for over three years before petition was filed.

The cáse does not present any question as to the jurisdiction •of the person, such as arose in Streitwolf v. Streitwolf, 13 Dick. Ch. Rep. 563; Dumont v. Dumont, 45 Atl. Rep. 107, and the two •cases above mentioned just decided by me.

But two questions still remain: First, whether, although there be jurisdiction of the person obtained by actual service within the territorial limits, an actual residence without the . ■animus manendi is sufficient to give the court jurisdiction; and second, whether the voluntary appearance of the defendant in this court indicates such collusion between the parties as to bar the petitioner’s remed}1;

With regard to the first question, I cOme to the conclusion that it must be resolved in favor of the petitioner. There is here no fraud practiced on the court such as was found in the case of Magowan v. Magowan, 12 Dick. Ch. Rep. 322; for while I have always dealt with that case upon the understanding that the wife there actually appeared to the husband’s suit in the foreign court, yet there was in that case no actual residence, and other questions were involved, indicating clearly that an actual fraud was practiced upon the court, and also upon the wife. Here no fraud is practiced on the court, nor upon the wife. She has voluntarily appeared by competent counsel, and the cause of action is real, and not simulated, as in the Magowan Case and in the Bumont Case.

The next question is as to whether the fact that the wife is so far desirous of having a divorce, and one that shall be valid, as to induce her to voluntarily appear in a court where she is not obliged to appear, amounts to collusion?

Here, again, there is no reason to believe that any facts have been suppressed, or that the original desertion was committed .and persisted in by any connivance or collusion between the parties for the purpose of creating a cause for divorce.

Collusion is defined by Mr. Bishop (2 Bish. Mar., B. & 8. § 249) as

“a corrupt combining of married parties to procure a sentence or judicial order by some false practice; as, for one of them to appear to or in fact do what otherwise would be ground for divorce,- or in any way to deceive 'the court in a cause, thus seeking its interposition as for a real injury.”

And again, by the English courts, defined to be “An agreement between the parties for one to commit, or appear to commit, a fact of adultery [or other marital offence amounting to a cause for divorce], in order that the other may obtain a remedy at law'as for a real injury. Eeal injury there is none where there is a common agreement between the parties to effect their object by fraud in a court of justice.” And again: “If a party to a suit, by agreement with the other, procures the withdrawal from the notice of the court of facts relevant to the charge which is imputed to him or her, that is collusion.”

And by Mr. Browne, in his Commentary on Bivorce p. 29:

' “Collusion is the corrupt agreeing together of married parties, for one of them apparently or iu fact to commit a breach of marriage duties, or for the two to deceive the court regarding such alleged breach, to obtain thereby a divorce or separation as for a real injury. In other words, it is the agreement of the parlies to make up a case for the purpose of obtaining a divorce.”

Now, there is nothing of that kind in this case. The matrimonial offence was committed without the knowledge or consent of the husband, and was persisted in for four years and upwards against his will. That gives him a vested right to the remedy, and he cannot be deprived of that right by the mere fact that his wife also wishes 'to have a divorce; and it cannot defeat the injured party's cause for the defendant to facilitate his proceedings.

Says Mr. Bishop (2 Bish. Mar., D. & S. § 225):

“Both parties, to make out a case of collusion, must combine — collusion being a conspiracy. And nothing is collusion which does not implicate the one against whom it is set up. It is not collusion [he continues], for one guilty of a matrimonial offence to desire to be divorced; or for one to commit such offence, expecting, while furnishing ground for divorce, .to stimulate thereby the other party to apply for it; or, where cause exists, for both to wish the matrimonial relation suspended or dissolved — none of these things, no analogous things, will constitute collusion. The question is whether the plaintiff has suffered a real injury, and dona fide seeks relief; if so, there is no collusion. To hold that the innocent party should be refused the remedy simply because the other desires it, putting it, therefore, in the power of the delinquent to arrest the course of justice, would be, in effect, to allow a divorce when the defendant had gone a certain way in matrimonial wickedness, but to' refuse it when he had taken another step.”

The conduct of the defendant in voluntarily submitting to the jurisdiction of the court was natural, under the circumstances, for the purpose, if for no other, of having the validity of the divorce which her husband proposed to obtain from her put beyond question. The rules obtaining in the courts of New York are peculiar on that subject, and if she had not appeared to this suit, and the petitioner had obtained the divorce after service upon her out of the jurisdiction, her position in the State of New York would have been equivocal. This appears from the case of People v. Baker, 76 N. Y. 78. There the defendant, Baker, while living in Yew York, had been sued by his former wife in a court of Ohio for divorce, and a decree of divorce rendered against him there based upon substituted service, that is, service in the State of Yew York. Relying upon that decree, he contracted a marriage in Yew York, was indicted for .bigamy based on such second marriage, convicted and sentenced to state prison. If that case is still law in Yew York, the defendant herein, in the case supposed, if she desired to marry again, and did so, would be liable to criminal prosecution for bigamy.

I come, therefore, to the conclusion that the petitioner is entitled to a decree.


text:
    Hugh McKaig v. Jane McCallum, David McCallum et ux. et al.
    [Submitted June 18th, 1900.
    Decided June 23d, 1900.
    Filed February 11th, 1901.]
    In foreclosure the master reported as prior to subsequent mortgages certain docketed judgments, which were invalid as liens for want of the affidavit required by section 72 of the Tustice’s Court act (Gen. Stal. p. 1878),. which the legal profession and the attorneys for the mortgagees had assumed was abrogated by the, affidavit provided by the amendment of April 4th, 1892 (Gen. 8tat..p. 1S9S), until the contrary was established by decisions, one of which was by the court of errors and appeals just subsequently to the master’s report. The report was confirmed without objectio-n as to the validity of the docketing of such judgments, and the mortgagees' remained silent cor two years before moving to modify the master’s report, as to such priorities, when the property had been sold on the basis of the-validity of the judgments as liens. — Held, that the priorities 'determined by the master .and confirmed by decree should not be disturbed at the-instance of mortgagees because of the decisions as to the proper affidavit' for docketing judgments, as they had their day in court, and failed to> make their objections.
    Heard on petition for surplus money, and on motion .to vary an order of reference made thereon; and on a cross motion to vary the master’s report of priorities and the decree confirming the same.

      Mr. Theodore B. Booraem, for the defendant Polhemus, mortgagee, for the motion to vary the master’s report and decree.

      Mr. Alan II. Strong, for the judgment creditors, contra.

   Pitney, V. C.

The bill was filed to foreclose three several mortgages held by the complainant upon the mortgaged premises, and which were first in order of priority. The equity of redemption was held by the defendant McCallum, subject to a life estate in his mother, the defendant Jane McCullum. Complainant’s mortgages were executed by all these parties.

Complainant, bjr his bill, made parties defendant several judgment creditors of David McCallum, and also two other mortgagees, to wit, Peter G-. Polhemus and .Frederick Weigel, who held mortgages subsequent in date to the docketing of the judgments.

The bill set out all the encumbrances, including the several judgments, which latter were all recovered in the court for the trial of small causes, and 'docketed, or attempted to be docketed, in the court of common pleas of the county where the land is situate.

The statement of the judgments in the bill is in the ordinary form, and that the same were docketed in the court of common pleas, and alleging that they were a lien, if at all, subject to the complainant’s three several mortgages.

The answer of Polhemus admits that there were certain judgments recovered and docketed against McCallum, as set out in the bill of complaint, “but as to the priority of the said judgments and the amounts respectively due thereon the defendant is unable to say, and prays that the amounts and their respective priorities may be determined with due regard to the rights and interest of the defendant as mortgagee.”

Under that answer an order of reference was made to a master, in the usual form, to ascertain the amount due the complainant and to the several defendants, judgment creditors and mortgagees, and “also to ascertain and report the order of priority of the said several mortgages and judgments respectively.”

Under that order the master issued summonses to all the encumbrancers, and they all 'appeared except one judgment creditor. The master reported the amount due on the complainant’s three mortgages; then the amount due to each of the judgment creditors who appeared before him; then the amount due on the mortgages of Polhemus and Weigel; with the priorities of each encumbrance — the three mortgages held by the complainant being first, the judgment in favor of Standish and Telles next, the judgment in favor of Hines next, the judgment in favor of Slack next, the judgment in favor of Edson next; next the mortgage of the defendant Polhemus, and last the mortgage of the defendant Weigel.

On the coming in of that report a decree, called the final decree, was made, that the “said report and all the matters and things therein contained do stand ratified and confirmed,” and that the mortgaged premises be sold to raise and satisfy the amount due the complainant, and any sum beyond the amount due the complainant, with costs and interest, should be brought into court to abide the order of the court.

Under that decree an execution was issued and returned, which produced sufficient to pay the complainant in full and $679.40 besides, which is the fund here in controversy.

The reason why the decree did not direct, in the first place, that the money should be paid to the several judgment creditors and other mortgagees was that the interest of the defendant Jane McCallum should he satisfied before any of the encumbrances, except those of the complainant. There ivas no express-declaration that the judgment creditors were entitled to share in the proceeds of the sale, but the bill and answer of Polhemus, the master’s report and decree, are all based upon the idea that they were so entitled.

The motion now made is on behalf of the mortgagee Polhemus, who became the purchaser of the premises, to vary the master’s report and' also the decree, by declaring that the judgment creditors are not entitled to any part of the fund, by reason of a defect in the proceedings taken in the docketing of their judgments.

The master’s report was made on the 1st of March, and was filed on the 2d of April, and the decree thereon was made on the 6th of April, 1898.

The defect in the judgments was that dealt with by the court of errors and appeals in the ease of Grimshaw v. Carroll, 33 Vr. 730. That case, indeed, dealt with the docketing of a judgment from a district court, but it was admitted by the parties at the hearing that the language of the sections applying to district courts and that to justices’ courts is substantially the same, and that the docketed judgments herein are invalid as liens for want of the affidavit required by section 72 of the Justice’s Court act. Gen. Stat. pp. 1878, 1879. That section requires that with the certified copy of the proceedings before the justice shall be filed

“an oath or affirmation of the party, his or their attorney or agent making such request, that at the time of filing such transcript a certain amount, not less than ten dollars, is still due, stating the amount, and that he believes the debtor is not possessed of goods and chattels sufficient to satisfy said amount due." '

That act was amended by the act of April 4th, 1892 (Gen. Stat. p. 1898), which provides:

“That in docketing any judgments from the courts for the trial of small causes in any county of this state, it shall only be necessary to file with the clerk of the court of common pleas a statement signed by the justice of the peace before whom the said judgment was recovered in the court for the trial of small causes, under his hand and seal, which statement shall only be required to contain the names of the justice before whom •such judgment was obtained, and the names of the parties, the amount and date of judgment, and the date of issue and return of the execution, if any, and an affidavit of the plaintiff, or his attorney, that the said judgment about to be docketed is bona fide, and is still due and unpaid, in whole or in part.”

Proceedings for docketing judgments in the district courts are regulated by section 77 of the act of 1877 (Gen. Stat. p. 1228), and by sections 4 and 5 of a supplement of March 27th, 1882 (p. 195). Gen. Staf. p. 1260 ¶¶ 256, 257. The language found in those paragraphs is the prototype of the supplement to the Justice’s Court act of 1892.

The several provisions of the District Court and Justice’s Court acts, just referred to, had always, up to- a decision at the Passaic circuit, January Term, 1898, by Mr. Justice Dixon in Speer New Jersey Wine Co. v. Van Uriel, 21 N. J. L. J. 112 (April, 1898), and the decision of the court of errors and appeals, on the 6th of March, 1899, in the case of Grimshaw v. Carroll, supra, been construed by the profession as dispensing with the necessity of the affidavit provided for in section 72 of the Justice’s Court act, and as substituting for that the affidavit provided for in section 169 of the Justice’s Court act. The profession, with substantial unanimity, erroneously assumed that the -affidavit provided for in these amendments was a substitute for that required in the original act. The decision of Mr. Justice Dixon' at the Passaic circuit had not been so far promulgated as to be known to the bar generally, nor had the decision of the court of errors and appeals in Grimshaw v. Carroll been rendered at the-time that the master’s report was made in this cause, to wit, March 1st, 1898.

The question is, whether, under these circumstances, it is equitable and just that the priorities determined by the master and affirmed by the decree of the court, should be disturbed in pursuance of the decisions just referred to.

It seems to be sufficiently clear that, under ordinary circumstances, the court may and ought, upon a timely application, to make a change in its determination in obedience to what may be called, in common parlance, a change in the law which has occurred since its first determination.

An illustration of this is found in the history of the case of Haggerty v. Lee, first reported in 18 Stew. Eg. 1 (before the chancellor), and p. 255 (before the court of errors and appeals). There the court refused to grant the complainant a preliminary injunction, on the ground that the legal right .underlying his application was not clear at law. Afterwards, the defendant in chancery brought an action in the supreme court against the complainant in chancery, and obtained a judgment, which was fatal to the complainant’s contention. After this judgment the equity suit, which had slept in the meantime, was brought to a hearing, and the complainant’s bill was dismissed on the strength of the decision of the court at law, as reported in Haggerty v. Lee, 3 Dick. Ch. Rep. 98. After this decree a writ of error was brought to the judgment of the supreme court, and that judgment reversed by the court of errors and appeals, as reported in Haggerty v. Lee, 25 Vr. 580. The decision of the court of chancery was made in the February Term, 1891. The decision of the court of errors and appeals, reversing the supreme court, Avas made at the June Term, 1892. An appeal was then taken from the decision of the chancery court, as reported in 3 Dick. Ch. Rep. 98, and that decision was reversed, as reported in 5 Dick. Ch. Rep. 464.

Briefly stated, the result is this: The supreme court decided the question of law which laid at the basis of the complainant’s bill against him. The court of chancery then dismissed his bill in accordance with that decision. The court of errors and appeals reversed the supreme court, and then the same court reversed the court of chancery, and granted the complainant his relief.

Those conflicting decisions were between the same parties, upon the same right of action; but I think, by analogy, it should apply to cases Avhere the very point was decided, though between other parties. Thus, if the decision of the supreme court in Grimshaw v. Carroll had been in favor of the validity of the docketing of the judgment, and in accordance with that judgment a master of this court had found a lien in favor of a docketed judgment, based on precisely the same formalities as that in Grimshaw v. Carroll, and the matter had not passed beyond the poAver of this court until after the reversal of the judgment of the supreme court in Grimshaw v. Carroll, then it would have been within the power of this court to have reconsidered its decision, and decreed in accordance with the latest opinion of the court of errors and appeals.

But in the present case, at the time of this hearing before the master, the validity of the docketing of judgments in the manner clone in those cases had never been seriously questioned. The counsel for the subsequent mortgagees had no thought that any such defect existed. There is no contention that he did not know just what formalities had been adopted. He 'does not contend that he overlooked the fact that the affidavit required by the seventy-second section of the Justice’s Court act had not been made. He, in common with the great majority of the counsel of the state, supposed that judgments so docketed were perfectly valid liens; and the question was not raised or discussed before the master. The priorities of the judgments were substantially admitted before him, and the whole proceedings war» based upon the idea that they were valid liens.

The counsel for Polhemus relies on this mistaken notion of his as the ground of relief; says that his client ought not to be prejudiced by it. On the other hand, the counsel of the judgment creditors says that the error of opinion was a common one, and that the several solicitors who attended to the docketing of the several judgments were laboring under the same mistaken notion, and that their clients ought not to be prejudiced bv their mistake.

The judgment creditors further point out the circumstances that these several judgments were docketed during the first three months of the year 1894. The defendant Polhemus took his mortgage in September, 1896, two and a half years later, with full knowledge of these judgments; and the defendant Weigel took his mortgage in October, lSg?, still a year later. That no proceedings by certiorari were ever had by either of them to test the validity of the lien of these judgments. Hot only did their counsel waive any defects in the docketing at the hearing before the master, but they have lain still from that time — March, 1898 — for 'a period of two years, without moving to vary the master’s report and decree, and in the meantimé the property has been sold on the basis of the validity of the judgment liens and their priority over the mortgages of the mortgagees now contesting it.

I am unable to find in the delay of the mortgagees to test the validity of the docketing of these judgments, by proceedings for that purpose, and the fact that the premises have been sold on the basis of their validitjq ground fo'r an absolute estoppel. But I do think that those circumstances are proper to be considered, and should have weight in balancing the equities of the case. If the mortgagees had taken proceedings by certiorari to test the liens of these judgments as soon as they obtained their mortgages, the judgment creditors might have looked about to amend their position and to have enforced their remedies by execution against chattels before the foreclosure; and if the point had been taken before the master and their liens had been disturbed, they might still have amended, and protected themselves by further bidding at the sheriff’s sale. But, as I said, I do not think the loss of those opportunities amount to an absolute estoppel.

However, the question still remains, whether, upon the whole case, considering that the objection is a purely technical one, that it does not arise in an action of ejectment, that the lien of the judgments has been acquiesced in for many years, and the defect now complained of waived by the subsequent encumbrancers when the proper time for urging it was presented; in other words, that the parties now objecting have had their day in court, and then failed to make their objection, it is equitable and just that the rights of the judgment creditors, as ascertained by the decree, should be disturbed.

It is, of course, a matter that addresses itself to the sound discretion of the court, and, exercising that discretion, I come to the conclusion that it is not equitable.

■ I think this result is in accordance with the disposition manifested by the courts in dealing with a docketing of this kind when attacked by certiorari in the case of Barr v. Fleming, 32 Vr. 431. In that case the docketing of the judgment attacked was subject to the same defect as that found in those here under consideration, but no reason was assigned, in writing, for setting aside the docketing based upon that defect. When it came before the supreme court for consideration, Mr. Justice Dixon, speaking for that court, after pointing out the defect, said that the court did not feel at liberty to decide the question, in view of the special reason assigned and the limited scope of the briefs submitted. When it came before the court of errors and appeals I am informed that Mr. Strong, for the plaintiff in error, urged the point upon that court; but the court affirmed the judgment for the reasons given in the supreme court.

Now, it is to be remarked that Barr v. Fleming was argued in the supreme court, at the November Term, 1897, and the opinion of Mr. Justice Dixon delivered at the February Term, 1898; and that the counsel were the same as those who have argued this matter before me, and the opinion of Mr. Justice Dixon was delivered at or about the time the’ matter of priorities in this case was under consideration by the master. And I refer to the case not only for the purpose of pointing out the circumstances under which counsel herein failed to make objection before the master, but also to show the indisposition of the court to disturb the effect of the docketing except when compelled to do so by the point being taken in the first instance. In other words, they met technicality by technicality.

Motion is also made by the counsel of the judgment creditors who failed to appear before the master to be permitted to share in the fund in court, on the ground that his failure was due to the supposition that the property would not bring enough to reach his judgment, and that his client ought not to be prejudiced by his failure. But the complete answer is that his judgment is subject to the same defect as these, and while the court is indisposed to disturb what was done in favor of the judgment creditors who obtained their decree, it is quite impossible that it should open the decree in favor of .one whose docketing is defective, and who was not so fortunate as the others.

I will advise a decree in accordance with the above views.