text:
    Herman Hoopes et al., appellant, v. Basic Company, respondent.
    [Argued November 21st, 1906.
    Decided February 22d, 1907.]
    1. Where a proceeding is brought by a stockholder of a corporation to have it placed under disabilities because of insolvency, whether the plaintiff is a stockholder, and so' entitled to sue, may be tested in a summary manner by plea in case the suit is commenced by bill, or by answer in case it is instituted by petition.
    2. Where complainant transferred all his stock in defendant company to another corporation in exchange for the stock of the latter, and received back from it a single share, which he endorsed in blank and returned, such stock being transferred to him for the sole purpose of enabling him to qualify as a director in defendant company, he was not a stockholder thereof within P. L. 1896 p. 298 ch. 185 § 65, authorizing a stockholder of an insolvent company to sue to have the corporation placed under disabilities by injunction in respect to the exercise of its franchise and for the appointment of a receiver.
    On appeal from a decree of the court of chancery, advised by Vice-Chancellor Stevenson, who delivered the following opinion:
    This is a bill filed under our Corporation act to have the defendant corporation, the Basic Company, declared insolvent and placed under disabilities in reference to the exercise of its franchises by an injunction and a receiver appointed.. At the start the question was raised whether either of the complainants was qualified under our statute to bring this suit. One of the complainants alleges that he is a stockholder, holding one share of stock, of the par value of $10; the total capital stock being $1,000,000 par value. The other defendant, alleged to be a creditor, but practically counsel for the complainants, withdrew the claim that this co-complainant could be qualified as a creditor, and the question was presented whether Mr. Hoopes, the remaining complainant, is shown here to be a stockholder, so as to be qualified to be the actor in this statutory suit against the corporation. The court suggested, and I think counsel acquiesced in the suggestion, that it would be proper to take the proofs first in regard to the status of Mr. Hoopes as a stockholder. Whether counsel acquiesced or not in that suggestion, it seems to me that in most cases it would be very wrong, indeed, to compel a corporation to submit all its financial affairs to the inspection of the court and the public,’ as long as it was uncertain whether the party complainant bringing the corporation into court had any status as a stockholder to carry on the suit. When the suit is commenced by bill, a proper mode of contesting the capacity of the complainant as a creditor or stockholder to bring the suit would be by plea. When the suit is commenced by petition, so that the technical rules of pleading which distinguish between demurrers, pleas and answers are to a large extent inapplicable, the answer to the petition in my opinion may well be strictly confined to the defence which we are considering in all cases where that defence is set up. But in all eases under our statute, whether on bill or petition, the trial is not hampered by forms or technical rules of procedure, but is "summary” in its nature, and very largely, at every stage, under the control of the court.
    My conclusion is that the complainant is not qualified under our statute as a stockholder. The leading facts are these: At a time antedating the commencement of this suit by quite a period, the complainant, Mr. Hoopes, having a very considerable stock interest in this corporation, transferred all his holding of stock to the Union Dredging Company, and received in exchange about $60,000 par value of the stock of the Hnion Dredging Company. He admits on the stand, with great frankness, that what he received was full compensation for his stock. At the time this transaction occurred the Hnion Dredging Company transferred back to Mm a single share of stock, of the par value of $10, the share of stock by virtue of which he (Mr. Hoopes) now undertakes to sustain in this court his suit as a stockholder and invoke the statutory remedy against-this corporation. There is no doubt, however, about what the purpose of this transfer was. There was no intention that Mr. Hoopes should be the beneficial owner of this share of stock.' The transfer was made in order that he might appear on the books of the company as a stockholder and thus apparently be qualified to act as a director. The intention was that he should become, and he did become, what is commonly called a “dummy” director. Immediately after the transfer of this stock (this single share of stock) to him and its proper transfer on the only stockbook they had, Mr. Hoopes immediately after, or within a year or two—not later than the summer of 1904, long before this suit was brought— endorsed the share in blank, and handed it back to the real owner, the Union Dredging. Company. ■ There is a discrepancy in the testimony as to the time when this was done. It is not material, even if we accept the complainant’s testimony, because this transfer was made, as I said, not later than the summer of 1904. I strongly incline to the opinion that the transfer was made immediately after the share was made out to him. The share was made out to him for the purpose which I mentioned, he endorsed it and handed it back, and he did not have it in his possession afterwards; and, whichever date we take, in the summer of 1904, long before this suit was commenced, the Union Dredging Company, the actual owner of this share of stock, had the certificate in its possession, with the endorsement, in blank, of Mr. Hoopes, the party who appeared on the face of it as the holder of it. Of course Mr. Hoopes’ name appears on the books of the company, if that expression can be applied to the mere stock-book; but Mr. Hoopes appeared on what books the company had as the holder of this one share of stock. Now, the question is, on which this whole controversy turns, whether Mr. Hoopes, holding this share of stock, nominally in this way, without any beneficial interest in it whatever—the sharp question, I say, in this case—is whether Mr. Hoopes, holding this single share of stock in this manner and for the purpose which I have indicated, is to be regarded as a stockholder within the meaning of that word as used in the sixty-fifth section of our Corporation act. P. L. 1896 p. 298 ch. 185. This section provides—and the language is the same that was employed when the law was first enacted as a part of the act to prevent fraud by incorporated companies in 1829—“whenever any corporation shall become insolvent or shall suspend its ordinary business for want of funds to carry on the same, any creditor or stockholder may, by petition or bill setting forth the facts, invoke the jurisdiction of the court of chancery, and, upon proof of the facts upon summary hearing, have a decree placing the corporation under disabilities by an injunction in respect to the exercise of its franchises and also, if necessary, the appointment of a receiver.” Now, the question is, is this man a stockholder within the meaning of that act? There are no cases that I am acquainted with, either in New York or New Jersey, in which this question has been discussed. I gave counsel an opportunity to present eases and discuss the question, but their briefs do not contain anything that is helpful. They undoubtedly made careful examination and failed to find any authorities that would throw light on this subject. There is one case, and one only, that I know of, where the meaning of the word “creditor” in this clause of the act which I have read was the subject of investigation. There have been a number of cases where the meaning of the word “creditor” in the subsequent clauses, which defines the parties who may come in and prove claims and take a share of the assets, has been discussed; and the rule is well settled that the word “creditor” in that part of the act, that part which deals with the beneficiaries who are to take dividends, is to be construed very liberally. The last case in which this matter is discussed was the case of Lehigh and Willees-Barre Goal Go. v. Stephens é Gondit Transportation Go. The report of the ease will be found in 63 N. J. Eq. (18 Dick.) 107. I can state the leading facts sufficiently for present purposes from memory. In that case Vice-Chancellor Stevens holds that one having a claim for damages, unliquidated damages, against the corporation, based upon a tort of the corporation, may come into the insolvency proceedings and have his damages assessed, by a jury or otherwise, under the provisions of the act, and take a dividend ratably with the other creditors; and the reasoning upon which the vice-chancellor supports his conclusion seems to me to be unanswerable. He does not hold, nor has it ever been held, that such a person, holding a claim for unliquidated damages, is qualified as a creditor to be the actor in the suit; that does not follow. The case goes upon the idea that the assets are distributable to those who have just claims of all kinds agáinst the corporation, and as the residue is to be distributed to stockholders, it would be exceedingly unjust to leave claimants whose claims were based upon torts without relief against the assets while the stockholders were allowed to absorb them; and so, while such a claimant as 1 have mentioned is not a creditor, strictly speaking, at the time of the commencement of the insolvency proceedings, he is permitted to become a creditor by the establishment of his claim by a judgment, and thus he stands as a creditor before the proceedings are concluded and he takes his dividend. I give that case simply as an illustration to show the distinction between a creditor as defined in this act for the purpose of distribution, and a creditor as defined in the act for the purpose of allowing him to invoke the jurisdiction of the court as in this case. The case that I referred to a moment ago, which I think is the only case where the meaning of the word “creditor” under the first clause of section 65- is discussed, is Fort Wayne Electric Corporation v. Franklin Electric Light Co., 97 N. J. Eg. (IB Dick.) 16. In that case Chancellor McGill holds, and the court of errors and appeals affirmed his decision for the reasons which he stated, that a creditor who had assigned his claim away, or had agreed to assign it away, but stood as the legal owner of the debt, having also a beneficial interest in the debt, because he had not been paid the price for the assignment-—he had neither made the assignment, nor received the price—was qualified to maintain this suit. In the case of Gallagher v. Asphalt Company of America, 65 N. J. Eg. (BO Dick.) 258, I referred to this subject as follows: “The meaning of the word ‘creditor/ as used in our statute in defining the classes of persons who are authorized to maintain this statutory proceeding, has been discussed in several cases (which are here stated). It is settled that the word ‘creditor’ is not used in our statute in a narrow, technical sense. It is used in a broad sense, and I think it is safe to say that the general intention is that if a party is so related to the corporation and its assets as to be entitled to a share of what is divided among creditors—if the party can come into the proceedings as a claimant and prove his claim, so as to be entitled to a dividend—it must be generally true that he is qualified as a creditor to institute tlie proceedings which result in the distribution of the assets in part to himself. But in this case it is not necessary to lay down so broad a rule as that in order to find that the complainants are qualified as creditors.” In that case I indicated a general opinion that as a general rule if the party posing as a creditor, claiming the right to institute this statutory action, stood in such relation to the assets that he had a right to a share or a dividend, then he was properly qualified as a creditor to institute the action. Such further reflection as I have given to the subject iras not disturbed that impression. I think, however, especially in view of this decision of Vice-Chancellor Stevens, one modification is necessary. The party who claims to be a creditor, so as to be entitled to institute this action, must, I think, at the time he comes into court with his bill, be a creditor, as distinguished from being merely entitled to become a creditor by the proof of a claim for damages. If the party complainant, asserting that he is a creditor by proving-before the receiver precisely what he proves before the court in order to qualify himself to bring the suit, is entitled to a dividend, then I think he passes the test. Of course, a man who has a claim for damages for a tort cannot meet that test. He cannot come into court with a bill against the corporation and say, “I am a creditor;” but he can say, “1 can make myself a creditor, if somebody else will only start these proceedings, by bringing forward my claim and having it proved, having a trial by jury.”
    Now, then, when you pass from the case of the creditor to the case of a stockholder, I know of no other test. If the party asserting that he is a stockholder has no interest as a stockholder in the assets, then it seems to me he cannot maintain this suit. He is not a stockholder within the meaning of this first clause of section 65. I stated to counsel, in postponing this case the other day, some of the leading principles which, I think, control, and which relate to the fundamental nature- of this statutory action. I had occasion to discuss these principles at considerable length in the ease of Gallagher v. Asphalt Company of America, 65 N. J. Eq. (20 Diclc.) 258j 55 Atl. Hep. 259, in the same case in a subsequent opinion, reported in 58 Atl. Rep. k-OS, and more recently in the- ease of Pierce v. Old Dominion Copper Mining and Smelting Go., 58 Atl. Pep. 819. It was because of the views which I expressed in these eases in regard to the nature of our statutory action that I laid this point over for further argument and further consideration. We have here not a private action inter partes. The complainant, whether he is a stockholder or a creditor, acts as the representative of the public, and particularly of the whole body of stockholders and creditors of the corporation. It is a great mistake to suppose that this is a collection suit or a creditors’ suit. The complainant, if he is a creditor, by his decree, whether he is a creditor or stockholder—by his decree against the corporation, resulting in its being wound up and its assets being distributed—gets nothing necessarily advantageous to himself. He is obliged afterwards to come humbly before the receiver and prove his claim, and it may be rejected, and he may never have any share awarded to him in the assets, and that fact, as I have pointed out in this case, very strongly indicates that Chancellor Williamson and Chancellor Vroom were entirely right in saying that this is an action in which, not the particular grievance of the complainant is redressed, but the grievance of the public, including the whole body of stockholders and creditors. Now, with that sort of an action, in which the actor appears as the representative of other interests, in which the actor is not prosecuting for a decree which entitled him necessarily to anything himself, the question was raised in my mind what the legislature meant originally, and what it means now, in saying that a stockholder, any stockholder, may file this bill in which the rights of the public are so directly concerned, in which the rights of all the stockholders and all the creditors are concerned, and in which finally the actor, this representative, the complainant, may take nothing at all. The result of my reflection upon the subject in the absence of any authorities, is that the legislature means to commit the institution of this suit to the parties who are interested as creditors or as stockholders. The legislature relies upon the selfish interest of the creditor or of the stockholder to have suit brought when public interests require it. That is a very common principle that runs all through our jurisprudence, and is an ancient principle. All qui tarn actions are based upon it. The original New York statute of 1825, upon which our act of 1829—the act to prevent fraud by incorporated companies—was modeled, made it the duty of the attorney-general to bring the suit. A creditor, also, was permitted to bring the suit, but not a stockholder. A little later the stockholder was enabled to appear as the actor. Our New Jersey statute from the start allowed the suit to be brought by either a stockholder or a creditor, while it conferred no power and imposed no duty upon the attorney-general of the state in relation thereto. The legislative theory appears to have been that the public interests, and the interests of stockholders and directors of corporations particularly, would be best cared for if reliance was had upon the selfish interest of some stockholder or some creditor to come forward when the corporation becomes insolvent and its operations become inimical to public interests. Now, applying the test, does Mr. Hoopes appear as an outsider ? He holds this piece of paper. No; he does not even hold the piece of paper which represents $10, one share of stock of this corporation. He was not even trusted to retain that certificate. It was issued to him, he endorsed it, and turned it back to the Union Dredging Company, and the dredging company owns it to-day; and if this suit should proceed, and there should be a dividend payable to stockholders, Mr. Hoopes would not get any dividend on that share of stock. It would go to the dredging company. In my judgment no corporation of the state should be bound to meet the attack of one who comes into court with a share of stock which he admits he does not own, which belongs to somebody else.
    The views which I have endeavored to indicate lead to the result that the bill of complaint should be dismissed.

      Mr. George Whitefield Betts, for the appellant.

      Mr. Thomas B. Mamed, for the respondent.
   Per Curiam.

The decree, in this ease is affirmed, for the reasons stated in the opinion filed in the court of chancery by Vice-Chancellor Stevenson.

For affirmance—The Chief-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayzb, Reed, Trenci-iard, Vredenburgi-i, Vroom, Green, Gray, Dill—14.

For reversal—None.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    James B. Duke, respondent, v. Lillian N. Duke, appellant.
    [Argued November 22d, 1906.
    Decided November 26th, 1906.]
    On appeal from an order of the chancellor, advised by AUee-Cliancellor Pitney, whose opinion is reported in 70 N. J. Eq. (4 Robb.) 135.

      Mr. Ohauncey G. Parker, for the appellant.

      Messrs. Linddbury, Depue ■& Faulks, for the respondent.
   Per Curiam.

The order appealed from in this case is affirmed, for the reasons ’ stated in the opinion filed in the court of chancery by AUceChancellor Pitney.

For affirmance—Ti-ie Chief-Justice, Garrison, Fort, Hendrickson, Pitney, Swayze, Reed, Trenchard, Bogert, AJre-DENBURGH, A^ROOM, GliEEN, GRAY, DlLL-14.

For reversal—None.


text:
    Richard Siegman, complainant-respondent, v. Electric Vehicle Company et al., defendants-appellants.
    [Argued November 26th, 1906.
    Decided March 26th, 1907.]
    On appeal from an order of the chancellor, advised by Vice-Chancellor Stevens.

      Mr. Richard V. Lindabury, for the appellants.

      Mr. James B. Howell, for the respondent.
   Per Curiam.

This canse was argued together with Siegman v. Electric Vehicle Co. and Kissell, decided by this court at the present term, upon an opinion delivered by Mr. Justice Pitney, ante p. 403. The same question being presented in each of the two cases, the order under review herein will be affirmed, with costs, for the reasons given in that opinion.

For affirmance—The Ci-iiee-Justice, Garrison, Port, Garretson, Hendrickson, Pitney, Swayze, Reed, Trenci-iard, Bogert, Vredenburgi-i, Vroom, Green, Gray, Dill—15.

For reversal—None.


text:
    Robert W. Pryor, receiver, appellee, v. Allen S. Gray, appellant.
    [Submitted December 10th, 1906.
    Decided March 4th, 1907.]
    On appeal from an order of the court of chancery, advised by Vice-Chancellor Grey, whose opinion is reported in 70 N. J. Eq. (4 Robb.) 418.

      Mr. Malcolm MacLear, for the appellant.

      Mr. Frank Benjamin, for the appellee.
   Per Curiam.

The order appealed from, which is an order overruling a demurrer to an amended bill of complaint, will be affirmed for the reasons set forth in the opinion filed in the court of chancery by Vice-Chancellor Grey in so far as that opinion discusses the merits. Two grounds of demurrer, viz., the fourth and fifth, were not considered by the vice-chancellor for the reason that they could have been assigned under a previous demurrer that had been filed to the original bill, and this circumstance was held by the learned vice-chancellor to be a waiver of any right of objection to the amended bill upon these same grounds.

Without passing upon the correctness of the vice-chancellor’s conclusion upon this point of practice we have considered the grounds of demurrer referred to upon their merits.

The fourth ground of demurrer is, that the amended bill of complaint does not show that there are any moneys due by the insolvent company to persons other than the defendant, or that persons other than the defendant are interested, in the estate of the insolvent company.

The fifth ground of demurrer is, that the amended bill of complaint does not show that there are not sufficient moneys to pay all the debts of the insolvent company.

We have examined the amended bill of complaint in the light of these criticisms, and our conclusion is that the matters referred to are shown by such bill with sufficient certainty for all purposes involved in the pending litigation, and hence that the demurrant suffered no injury by the action of the court below that entitles him to a reversal of its order.

For affirmance—The Ci-iiee-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Reed, Trenchard, Bogert, Vredenburgi-i, Vroom, Green, Gray, Dill—15.

For reversal—None.


text:
    James Brown, respondent, v. Citizens Ice and Cold Storage Company et al., appellants.
    [Submitted December 11th, 1906.
    Decided February 2d, 1907.]
    A corporation, empowered by its charter to do any act in connection with its business, and to issue bonds secured by mortgage, and to sell the same to raise money with which to erect machinery, &c., has authority to borrow money and execute a mortgage to secure the same, the clause having reference to the issuing of bonds not preventing the corporation from borrowing money and securing it by mortgage.
    On appeal of the Pennsylvania Iron Works Company from a decree in the court of chancery, advised by Vice-Chancellor Bergen, who filed the following opinion:
    The defendant company gave two mortgages, one for $10,000 to the complainant, another for $7,235 to Annie Lisle Balling-all, which she assigned to the complainant. There is no dispute about the amount of the loans, nor that they represent debts due by the company, but the defendant insists that under the terms of defendant’s charter, as expressed in the following words: “And the doing of any other act or acts, thing or things, incidentally to grow out of, or connected with said business or any part or parts thereof; to issue bonds secured by mortgage or mortgages upon the property and franchises of said corporation, and to sell the same for the purpose of raising money, with which to erect machinery and otherwise to improve said lands.” The corporation had no authority to mortgage its property, other than for the purposes above stated, and as the money, to secure which the two mortgages were given, was not applied to the payment of debts due for “machinery and otherwise to improve said lands,” the mortgages are ultra vires, and cannot stand as encumbrances on the land. In my opinion, the general power given a corporation, under our act to mortgage its property, is not restricted by the terms of the charter invoked. That clause has reference alone to the issuing of bonds in the usual commercial form, of a negotiable character, to be sold and passed by deliver]7, and was not intended to, and does not, prevent the corporation from securing to a creditor its debt by way of mortgage in common form; and the power to do so is fully conferred by the clause in the charter which authorizes the company “to do any act or thing incidentally to grow out of or in connection with said business,” implying the right to borrow money and pledge its property as security.
    The complainant is entitled to a decree.

      Mr. Norman Grey, for the appellant.

      Mr. E. Ambler Armstrong, for the respondent.
   Per Curiam.

The decree appealed from in this case is affirmed, for the reasons stated in the opinion filed in the court of chancery by Vice-Chancellor Bergen.

For affirmance—The Gimo?-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Eeed, Trenoi-iard, Bogert, Yredenburgii, Yroom, Green, Gray, Dill—15.

For reversal—None.


text:
    Clara K. Lipp, executrix, &c., appellant, v. Benjamin H. Fielder, et al., respondents.
    [Submitted December 11th, 1906.
    Decided February 2d, 1907.]
    1. Where a plaintiff sued in his lifetime to compel specific performance of an alleged verbal promise by his wife that on the death of either certain land which complainant had purchased in her name should become the land of the survivor, the wife’s executor being a necessary party in his representative capacity, both because he had a power of sale under the wife’s will and because he might need the proceeds of a sale of the property to pay debts, the husband was not a competent witness, under P. L. 1900 p. 362, excluding a party as a witness, where the opposite party is sued in a representative capacity.
    2. Complainant purchased certain land with his own money, but caused it to be conveyed to his wife to prevent his children by a former marriage from obtaining the same at his death. On the death of the wife he sued to establish a trust in the same, and that if one died the other would get the property.—Held, that the evidence was insufficient to rebut the presumption that the wife took the property by irrevocable gift.
    3. Evidence held insufficient to establish a contract by which a wife agreed to make an irrevocable will in her husband’s favor.
    On ajqieal from a decree of the court of chancery, advised by Yice-Ohancellor Stevens, who filed the following opinion:
    This is a suit which was begun by William G. Lipp in his lifetime for the purpose of compelling the specific performance of an alleged verbal promise made to him by his deceased wife, that at the death of either of them certain land which he had purchased in her name should become the land of the survivor. He has since died, but not before he gave his testimony in reference to the alleged agreement. The defendants to the bill are Benjamin H. Fielder, Jr., executor of the wife, and the Lakewood Library Association, her devisee.
    I think that, without the testimony of the deceased complainant, the allegations of the bill, either in its original or amended form, are not satisfactorily proved. The first question is, therefore, whether the complainant is a competent witness under that provision of the Evidence act which excludes a party from being sworn as a witness where the opposite party is sued in a representative capacity. The complainant testified shortly before the new Evidence act took effect (P. L. 1900 p. S6£), but that does not make any difference in this case. Under Kemp Lon v. Bar-tine, 59 N. J. Bq. (14 Dick.) 149; 60 N. J. Bq. (15 Dick.) 411, and Wyckoff v. Norton, 60 N. J. Bq. (15 Dick.) 47'S, the executor is a necessary party. In any view, he is a proper party. He has, in fact, been made a party in his representative capacity, both because he has a power of sale under the will, and because, as is said by Vice-Chancellor Grey in the ease above cited, he may, as executor, need the proceeds of sale to pay the testatrix’s debts. Inasmuch as the executor and devisee are really, as well as formally, on the same side, are equally interested in resisting the complainant’s claim, and will both be injuriously affected by the establishment of that claim, it seems to me that Hodge v. Goriell, 44 N. J. Law (15 Vr.) 456; 46 N. J. Law (17 Vr.) 854, applies. The record is conclusive and prevents the complainant from testifying against either defendant, because that record shows that on the defendant side there is a party being sued in a representative capacity. This renders it unnecessary for me to consider whether a devisee is a party sued in a representative capacity where the suit is based upon the contract of the ancestor, which, it is alleged, binds the devisee or affects the lands devised to him, a point upon which there is a conflict of authority.
    Without this testimony I think that the Duvale Case, 54 N. J. Bq. (9 Dick.) 581; 55 N. J. Bq. (11 Dick.) 876, is not applicable.

      The complainant, Lipp, was a farmer. On April 14th, 1869, the Bricksburg Land Company, for the consideration of $1,080, agreed to convey to him a tract of land near Lakewood, containing thirty-six acres. In February, 1871, the company, instead of conveying it to him, conveyed it to his wife Joanna. They had been married in May, 1866, and on August 23d, 1868, Joanna had executed a will by which she gave all the property then possessed by her, or of which she might thereafter become possessed, to her husband. The evidence indicates that her husband had made a similar disposition in her favor at the same time. In point of fact, neither of them, at that time, possessed property of any considerable value, except a mortgage which the wife held, and from which she appears to have realized $500.
    The complainant’s insistment is that at the time of the conveyance of the tract in controversy to his wife, it was verbally agreed between them that the property should be his if he survived her. Outside of his own evidence, which must be disregarded, the witness chiefly relied upon is Abraham Daily, a Brooklyn lawyer. He says that in a conversation, had between himself and Mr. and Mrs. Lipp at the dinner table, sixteen or seventeen years before he testified,
    “it was stated that Mr. Lipp' had purchased that property, taking the title in the name of his wife, so that if anything should happen to him certain relatives whom he had in California would not come on and disturb her; that an agreement had been made between them that she, on her decease, was to leave a will giving the property to him, so that he would have a home if he outlived her.”
    He says, further, that the question came up whether under Mrs. Lipp’s will, as then made, the property subsequently acquired would pass, and he said "that there would be no necessity for drawing an additional will as long as that will was made to cover any subsequent purchased property.” He says distinctly, on cross-examination, that the agreement referred to preceded, as he understood, the making of the wills. These wills, as I have said, were made nearly three years before the deed was actually delivered.
    The statement was the complainant’s statement to him, and not his wife’s although made in her presence. It was not made in a professional interview, but casually, at the dinner table, sixteen or seventeen years before the witness testified. Assuming, however, it to be a perfectly correct version of what was said, and assuming, moreover, that because not contradicted by the wife at the time she must be deemed to have admitted its truth, it neither shows a binding promise to dispose of the land by will, nor does it show a resulting trust.
    It is said in Duvale v. Duvale, supra, that when lands are purchased by one person who pays the purchase price, and they are conveyed to another person who is a stranger, a trust in the land is implied and results in favor of him who has paid the consideration. But that where a husband purchases and pays for lands and takes the title in the name of his wife, a presumption arises that the husband has caused the conveyance to be made by way of settlement upon her, and that this presumption will only be overcome by clear proof to the contrary.
    As I have said, Mr. Daily testifies that he understood that the agreement preceded the making of the wills. Now, as Vice-Chancellor Reed said in Duvale v. Duvale, 5J^ N. J. Eq. (9 Diclc.) 588, a verbal agreement to exchange wills would not, so far as land was concerned, be binding, because of the provisions of the statute of frauds. The making of the wills. themselves would not be part performance. Either party could revoke at pleasure, unless restrained by binding contract, and such contract, if it had reference to land, must have been in writing. Up to the time of the conveyance, therefore, neither party was bound. Then came the conveyance. Now, this conveyance, standing by itself, even assuming as the evidence indicates that it was paid for by the husband’s money, would, under the operation of the rule above stated, import a gift to or settlement upon the wife. This being its import, how, in the absence of any agreement then made, could it be regarded as proof that the wife thereupon became bound by contract to devise the land to her husband; that her will, up to that time revocable, now, because her husband made her a gift, became irrevocable. Such an insistment seems to me to be little short of absurd.
    But how does the matter stand upon the notion of a resulting trust? The presumption is, in the case of a wife, against a resulting trust. It must be shown, clearly and satisfactorily, that a resulting trust was intended. Here we have no proof of any agreement relating to the matter, or even of any admission of facts from which such agreement could be inferred. A verbal agreement relating to a will that she had made, three years before, having no reference to that particular land, is certainly not proof of such agreement. The transactions have no inherent relation to each other; they are severed in point of time, and they are not connected by evidence. There is no express proof that it was agreed that Mrs. Lipp was to hold the land as trustee, and it cannot be reasonably inferred that she then irrevocably bound herself to do so, because three years before she had made a revocable will. Mrs. Lipp’s title was evidenced by a regular deed, made at her husband’s instance and duly recorded. It declared, in terms, that she was to hold for her own use. Public policy requires that such a conveyance should have its proper effect, unless there is convincing proof to the contrary.
    The other evidence produced by complainant amounts to little more than the admission by the wife of that which was the undoubted fact, viz., that she had made a will in her husband’s favor and that under this will he would take at her death. Several of complainant’s-witnesses testify that the reason both Mr. and Mrs. Lipp gave for putting the title in her name was that his children by his first wife would be thereby prevented from getting the property. That he did not wish to provide for them appears from the fact that in January, 1899, he, by his last will, left all his property to his niece, the present complainant. The result of the evidence, outside of the husband’s, seems to be this: That he wanted to secure his wife in the possession of the property in his lifetime by a decisive act which his children, by his first wife, could not nullif}^ and that having, at that time, entire confidence in her, he was willing to trust her sense of right to leave him the property by will if she died first. It was not until twenty j^ears afterwards that they quarreled.
    Mrs. Daily testifies that Mrs. Lipp told her that Mr. Lipp had bought the property with his money and put it in her name so that she would be protected, but that she had made a will and left it all to him. Mr. Marston says he heard them say that if one died the other would get the property. Clara Lipp, the present complainant, Mr. Lipp’s devisee, goes further. She says that on one occasion Mrs. Lipp said that her husband had put the deed in her name so that if anything should happen his children would not cause trouble: “that they had an agreement that whoever should die first the other should take the property.” In her conversation with this witness it would appear that Mrs. Lipp admitted an agreement—but what agreement? If the reference is to the agreement to make mutual wills, it is disposed of by what has already been said. If to some other agreement, when and where and under what circumstances was it made? Was it supported by a consideration? Was it in writing or was it merely verbal ? Without information on these important points it is impossible to say whether or not an obligation arose or a trust resulted. This witness, whose interest in the result is apparent, does not give us any information about them. A statement so indefinite can hardly avail to overcome the evidence of the deed, and be deemed satisfactory proof of the allegations of the bill.

      Mr. R. Ten Broech Stout, for the appellant.

      Mr. Aaron E. Johnston, for the respondent.
   Per Curiam.

The decree in this case is affirmed, for the reasons stated in the opinion filed in the court of chancery by Vice-Chancellor Stevens.

For affirmance—The Ciiiee-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Reed, Trenci-iard, Bogert, Vredenburgh, Vroom, Green, Gray, Dill—15.

For reversal—Vroom—1.


text:
    Hazer Feinberg, respondent, v. Annie Feinberg, appellant.
    [Submitted December 11th, 1906.
    Decided February 2d, 1907.]
    On appeal from a decree of the court of chancery, advised by Vice-Chancellor Grey, whose opinion is reported in 59 Atl. Rep. 880.

      Mr. John W. Wescott, for the appellant.

      Mr. Andrew J. King, for the respondent.
   Per Curiam.

The decree in this case is affirmed, for the reasons stated in the opinion filed in the court of chancery by Vice-Chancellor Grey.

For affirmance—The Chief-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Reed, Trenoi-iard, Bogert, Vredenburgh, Vroom, Green, Gray, Died—15.

For reversal—None.


author: Maguí, Chancellor.

text:
    The Mayor and Common Council of the City of Newark et al. v. The Erie Railroad Company et al.
    [Submitted December -, 1906.
    Decided April 4th, 1907.]
    1. A bill was filed by a city setting forth its control of public streets therein, and that a railway company, by its charter, constructed a railroad across a street of said city; that the franchises and rights of that company are now vested in one of the defendants, and that the other defendant has leased the said property and franchises, and charging that the defendants are obligated to perform the duties imposed on the railroad company which constructed the road; that across said street the defendants now have laid six tracks; that by the increase of population the street in question is used by a great number of people, and that crossing it at grade with those six tracks forms a serious impediment and obstruction to travel on the street; that by the ninth section of the charter of the railway company which constructed the said crossing that company was required to construct and keep in repair good and sufficient passages over or under said railway where any public or other road should cross the same, so that the passage of carriages, horses and cattle across the railway should not be impeded, and praying that this court should, by injunction, compel the defendants to effect the crossing of the tracks across said street in some other manner than at the grade of the street.— Held, (1) that upon these statements the jurisdiction of this court to make the decree prayed for'is conferred by section 29 of the revised act concerning railroads, approved April 14th, 1903; (2) that the conferring of such jurisdiction upon this court was within the power of the legislature.
    2. The duty imposed upon the railway company which laid the tracks in question was not a duty completely performed by an original construction in conformity therewith, but it was a continuing duty, varying according to the changed circumstances, and requiring a crossing to be sufficient to permit the passage across the railway without impediment.
    3. Such a bill is not objectionable because it fails to assert that the crossing of said street in a manner other than at grade is practicable, or because it does not specify what crossing the city seeks to have decreed. If the jurisdiction of the court is made to appear by the statements of the bill, the practicability of a safe crossing and the determination of what crossing should be made is for the court to determine.
    4. Such a bill is not objectionable because it fails to state that notice of the intention to file such bill was given to the defendants. The notice prescribed by section 29 of the revised Railroad act relates only to the proceeding to construct such crossings by the municipality if the railroad to which notice is given does not, within a reasonable time, itself construct them. The notice fixes the commencement of the time, and has no relation to the application to this court to fix and determine how the crossing should be constructed under the law governing the railroad company.
    5. The statements of the bill present a case for the jurisdiction of this court over the joint use, by the public and by a railroad company, of the same land. Where two public users are in conflict, this court may determine how the users may be continued so as to be safe and convenient.
    On demurrer to bill.

      Mr. Joseph Coult, for the complainants.

      Mr. Cortlandt Parker, Mr. Charles L. Corbin and Mr. Cortlandt Parker, Jr., for the defendants.
   Maguí, Chancellor.

The bill demurred to sets forth the power of the city of Newark and its board of street and water commissioners to control and regulate public streets and highways in that city, and among others, a street called Summer avenue.

The bill then proceeds to state the incorporation of the Montclair Railway Company, by an act of the legislature, approved March 18th, 1867, which company, under the authority thereby conferred, laid and constructed a railroad from Montclair, in Essex county, to the Hudson river, in Hudson county, and that subsequently, by various foreclosures, the property and franchises of the Montclair Railway Company became vested in the New York and Greenwood Lake Railroad Company, one of the defendants, which latter company thereby became obligated to perform the duties imposed on the Montclair Railway Company by the act above cited, and that afterward, the Erie Railroad Company, a corporation of the State of New York, the other defendant, leased the property and franchises of the New York and Greenwood Lake company, and thereby acquired the rights and privileges given to the Montclair Railway Company by said act, and so it also became obligated to perform all the duties imposed upon the Montclair Railway Company by said act.

The bill further states that two main tracks now operated by the Erie Railroad Company on the division called the Greenwood Lake Division, which are owned by the New York and Greenwood Lake company, and were originally constructed by the Montclair Railway Company, cross the street known as Summer avenue, at grade, and that the Erie Railroad Company has laid, and is now using, additional tracks, to the total number of six tracks, at the crossing of Summer avenue.

The bill further states that, by the development of the northern part of the city of Newark, the public street known as Summer avenue has greatly increased in use and importance, and is now used by a great number of people at that crossing.

The bill recites the ninth section of the act incorporating the Montclair Railway Company, which requires the company to construct and keep in repair, good and sufficient bridges over and under the said railway, where any public or other road should cross the same, so that the passage of carriages, horses and cattle across the said railway shall not be impeded thereby.

The bill further states that the crossing of Summer avenue, at grade, with six sets of railroad tracks forms a serious impediment and obstruction to travel upon the said street, and that defendants have not constructed, and do not keep in repair, good and sufficient bridges over or under the said railroad at Summer avenue, and have not performed the duties imposed upon them in this regard; that the crossing over the tracks at Summer avenue, as now laid, is difficult and dangerous, because of the frequent passage of passenger and freight trains across said street at a high rate of speed, and that persons attempting to cross the tracks are frequently detained at this crossing for a long space of time; that crossing this street is attended with great inconvenience and great danger, and that a different method of crossing, which will be safe for the public using the street, is imperatively demanded.

The bill further refers to section 29 of the “Act concerning railroads” (Revision of 1903), approved April 14th, 1903 (P. L. 1903 p. 645), and although it omits a portion of the said section, it states the provision contained in that section which prescribes that, when any railroad shall not properly construct and maintain the bridges or other crossings of highways by its railroad tracks, as required by law, it shall be lawful for the governing body of the municipality wherein such crossings are located, by a suit in equity, to compel the specific performance of the duties imposed by law upon such company with respect to the construction, maintenance and repair of such bridges and crossings.

The bill proceeds to charge that it is the duty of the defendants to have the crossing at Summer avenue made so as not to impede public travel and the public use of the said street, and that defendants should have made some other crossing by depressing or elevating the tracks of their railroad, or by making necessary changes in the grade of the street.

The bill further charges that, where the right of the public to use a public highway, and the right of a railroad company to operate its railroad across that highway, are in conflict, as in the case of this crossing, this court has power to regulate the manner of crossing so as to protect the rights of both parties and insure the safety of the public.

Upon these statements the prayer of the bill is that defendants be required, by mandatory injunction under the direction of this court, to effect the crossing of the present tracks over Summer avenue in some other manner than at the grade of the street, and for this purpose to construct and keep in repair good and sufficient bridges or passages over or under said railroad tracks, as at present constructed across Summer avenue, so that the passage of carriages, horses and cattle upon said street or highway shall not be impeded thereby. There is also a prayer for further relief.

To this bill the defendants filed joint and several demurrers, and for causes of demurrer they show various objections, which, I think, may be summarized under five heads:

First. That upon the statements of the bill the defendants must be presumed to have made a suitable crossing, under the requirements of law, at the time they laid their tracks across Summer avenue, and that the bill discloses no duty imposed by law upon them, by reason of the changed conditions in the increase of the trains upon defendants’ railroad, or in the increase of population and the consequent increase in the number of people passing across the tracks at that crossing.

Second. That this court has no statutory or equitable jurisdiction to prescribe another crossing in substitution of the crossing shown in the bill.

Third. That the bill is defective because it fails to show that an overhead or undergrade crossing at Summer avenue can be practically constructed, and further fails to point out the manner in which the defendants should properly construct the crossing at Summer avenue demanded by the bill.

Fourth. That the twenty-ninth section of the revised Railroad act of 1903, so far as it purports to authorize this court to prescribe a crossing not at grade at Summer avenue, is unconstitutional and void, as attempting to confer on this court the prerogative proceeding by mandamus out of the supreme court and as unlawfully assigning to this court legislative powers; and

Fifth. That by the provisions of that section the complainants, before proceeding to file this bill, were required to give notice to the defendants, which does not appear, by this bill, to have been given.

The first contention raises the question of the true construction of the clause contained in the ninth section of the act of incorporation of the Montclair Railway Company, under which act that corporation obtained the franchises which the defendants now exercise, and under which the tracks were laid and are now maintained across Summer avenue at grade. The language in which the legislature expressed its will is the following:

“It shall be the duty of the said company to construct and keep in repair good and sufficient bridges over or under the said railway where any public or other road shall cross the same, so that the passage of carriages, horses and cattle across the said railway shall not be impeded thereby.”

Was the duty thus imposed completely performed by the construction of bridges” under or over the railway where it crossed Summer avenue, which were, at the time of their construction, “sufficient” to prevent the public use from being “impeded” by the railway? It is impossible to give such a construction to the language of this clause. The bridges which it is the duty of the defendants to construct are to be sufficient to permit the passage, in the use of the public easement, of carriages, horses and cattle, so that it shall not be impeded by the railway. If the bridge at first provided becomes insufficient for the required purpose, whether because of the increased business of the railway company, or of the increased use of the public easement in the street, the duty, which is a continuing one, has not been performed.

The ninth section of the original charter of the Central Railroad Company of New Jersey contains a clause identical, in all substantial effects, with the clause of the ninth section of the Montclair Railway act above recited. It came under review in Central Railroad Co. ads. State, 32 N. J. Law (3 Vr.) 220. The supreme court, in the opinion of Chief-Justice Beasley, declared that the clause imposed a duty on the railroad company in favor of the public which was continuous, and the performance of which must be measured by circumstances. The prescribed duty was, it was held, to keep at all times and under all circumstances the public highways at the points where they cross the railroad, in a condition fit for safe and convenient use. The doctrine was again expressed in the supreme court in Reed v. Camden, 53 N. J. Law (24 Vr.) 322, and when that case came into review in the court of errors and appeals, while the judgment of the supreme court was reversed, there was no criticism of the doctrine. Chancellor McGill, in this court, in construing a similar clause in the General Railroad act, held that if the crossing constructed originally was not of sufficient capacity it must, from time to time, be enlarged as public accommodation demands. Raritan v. Port Reading Railroad Co., 49 N. J. Eq. (4 Dick.) 11. In Clark v. Elizabeth, 61 N. J. Law (32 Vr.) 565, the opinion of Chief-Justice Beasley was cited with approval. Vice-Chancellor Grey declared that the doctrine of a continuing duty, under such legislative prescription, had been adopted by our courts (West Jersey and Seashore Railroad Co. v. Waterford, 64 N. J. Eq. (19 Dick.) 663), and his opinion giving expression to this view, in Palmyra v. Pennsylvania Railroad Co., 62 N. J. Eq. (17 Dick.) 601, was adopted by the court of errors and appeals in affirming the decree made on his advice, in 63 N. J. Eq. (18 Dick.) 799. Vice-Chancellor Van Fleet, in Newark v. Delaware, Lackawanna and Western Railroad Co., 42 N. J. Eq. (15 Stew.) 196, declared, and Vice-Chancellor Emery, in Swift v. Delaware, Lackawanna and Western Railroad Co., 66 N. J. Eq. (21 Dick.) 34, assumed, that the doctrine of a continuing duty in such cases is beyond doubt. See, also, S. C., 66 N. J. Eq. (21 Dick.) 452.

In my judgment the bill is not open to the objection made upon this ground.

The claim that no statutory jurisdiction has been conferred on this court to prescribe the crossing to be constructed if any railroad company shall not properly construct bridges or other crossings of highways as required by law, may be, for the present, passed by with the observation that by section 29 of the revised Railroad act of 1903, the legislature has undertaken to confer, and has conferred by language which is incapable of any other construction, precisely the jurisdiction in question. It is contended, however, that in so doing the legislature exceeded its constitutional powers. This contention will hereafter be considered. That the twenty-ninth section of the act above cited does, by its terms, confer such jurisdiction, has been settled in this court. Metuchen v. Pennsylvania Railroad Co., 71 N. J. Eq. (1 Buch.) 404.

The cause of demurrer, which asserts that this court has no equitable jurisdiction to grant the relief sought by this bill, is evidently aimed at the fourteenth paragraph of the bill, in which the complainants charge that where the right of the public to use a public highway and the right of a railroad company to operate its railroad across such highway are in conflict, this court has the power to regulate and direct the manner of crossing so as to protect the rights of both parties and insure the safety of the public. Such a jurisdiction in this court was obviously asserted and acted upon in Newark v. Delaware, Lackawanna and Western Railroad Co., 42 N. J. Eq. (15 Stew.) 196, for upon no other ground can the opinion of Vice-Chancellor Van Fleet, on whose advice the decree in that case was made, be vindicated. What was said in the opinion of Mr. Justice Reed, in New York and Greenwood Lake Railroad Co. v. Montclair, 47 N. J. Eq. (2 Dick.) 613, with respect to the general equitable power of the court, was unnecessary to the decision, for, as was pointed out, the jurisdiction asserted was put solely upon certain legislation which was held to be ineffective. In the subsequent case in this court of West Jersey and Seashore Railroad Co. v. Atlantic, &c., Railroad Co., 65 N. J. Eq. (20 Dick.) 613, such jurisdiction was directly asserted and the decree was made thereon. Under those decisions this contention cannot avail defendants.

It is next contended that the bill is defective in two respects, first, because it fails to show that an overhead or undergrade crossing of Summer avenue can be practically constructed, and second, because it fails to point out the manner in which defendants should properly construct the crossing of Summer avenue. With respect to this objection the complainants, in my judgment, are not compelled to assert that one or the other crossing is capable of being practically constructed. It is sufficient if their bill presents a case for the exercise of the jurisdiction of this court, leaving for its determination what kind of crossing should be decreed. It would be equally inappropriate, in my judgment, for complainants to set out in the bill the mode of crossing that they think defendants should adopt. If they present a case for the exercise of jurisdiction, they must accept such mode of crossing as the court shall decree, and to seek a decree for a particular mode of crossing might hamper the court and prevent the exercise of its power, whether statutory or équitable, if the mode which the court is asked to decree is not, in its judgment, practicable or fair.

The next contention challenges the constitutionality of the legislation contained in section 29 of the Railroad act above cited. It is argued that the legislature thereby undertook to confer on this court the power which the supreme court may exercise by its prerogative writ of mandamus, and the power to fix the mode of crossing by railroads of public highways, which it is claimed the legislature alone can do. I think I am not at liberty to deal with these questions. The legislation contained in section 29 has been pronounced to be within the constitutional power of the legislature in this court, and that decision is binding on me. Metuchen v. Pennsylvania Railroad Co., ubi supra. Other legislation of similar scope and effect has also been pronounced constitutional in this court, and that decision has been approved by the court of errors and appeals. Palmyra v. Pennsylvania Railroad Co., ubi supra. See, also, Echert v. Perth Amboy and W. Railway Co., 66 N. J. Eq. (21 Dick.) 437; S. C., 65 N. J. Eq. (20 Dick.) 777.

It is lastly urged in support of the demurrer that the bill is defective in that it fails to state that notice had been given by complainants to defendants of the intention to proceed by suit in equity to obtain relief. This requires a construction of the language of section 29 of the Railroad act. In my judgment such notice as is thereby prescribed relates only to the proceeding to construct or repair such crossings by the municipality, if the railroad noticed does not, within a reasonable time after such notice, itself construct or repair. That must be done within a reasonable time, the commencement of which is at the giving of the notice. Such notice has a reasonable relation to the proceeding by the municipality to construct or repair, but has no reasonable relation to the application to this court to fix and determine how the crossing should be constructed under the provisions of the law governing the railroad company. This objection cannot prevail.

None of the causes being found good, the demurrer must be overruled, with costs.

With the above case were argued two other cases presenting the same questions. In one of them the bill was filed by the same complainants against the same defendants, and relief of the same kind was thereby sought in respect to the crossing of Fourth avenue in Newark by the same railroad. In the other of them the bill was filed by the same complainants against the Pennsylvania railroad and the New York Bay railroad, and relief of the same kind was thereby sought in respect to the crossing of Clinton avenue in Newark by the railroad owned and operated by the companies last named. The bills were identical'in substance with that filed in this case. Demurrers were interposed to each of them, raising the same questions above considered. For the reasons hereinbefore stated each demurrer must be overruled, with costs.


author: Magie, Chancellor.

text:
    Charles D. Thompson v. Rebecca E. R. Ramsey.
    [Submitted December 27th, 1906.
    Decided April 16th, 1907.]
    Pending a foreclosure a receiver appointed by this court, and with the approbation of this court, made a lease of the mortgaged premises, expiring October 8th, 1904. The mortgaged real estate was sold by the sheriff to Carr for $70,000. Carr paid $5,000 to the sheriff upon the purchase. The sale was confirmed July 5th, 1904. On July 26th, 1904, the sheriff executed a deed to Carr, and notified him that it was ready for delivery. Carr did not pay the remainder of the purchase price and take the deed until September 17th, 1904, when he paid $65,000 only. On application for the distribution of the rents collected by the receiver— Held, that Carr was not entitled to any part of the rents attributable to the real estate mortgaged until after he had performed the conditions of sale and accepted the sheriff’s deed.
    On bill to foreclose. Application for distribution of surplus moneys.

      Messrs. Godfrey & Godfrey, for Charles R. Myers, defendant.

      Mr. William, M. Clevenger, for Showell & Fryer, defendants.

      Messrs. Bourgeois & Booy, for John II. Carr, purchaser.
   Magie, Chancellor.

It appears, from the depositions taken, that under a decree in this cause, mortgaged real estate (consisting of the Hotel Shelburne) was sold by the sheriff on the 4th of June, 1904, for $70,000. There were prior mortgages upon the property, alleged to amount to $223,000 of principal. The purchaser at the sale was Joseph H. Carr, who paid to the sheriff $5,000 on the day of sale. Exceptions to the confirmation of the sale were interposed, and pending their consideration, a receiver of the property was appointed by order of the court, who, with the approval of the court, leased the mortgaged property for a term commencing on the 30th day of June, 1904, and ending on the 8th day of October, 1904, for a rent of $13,750. The sale was confirmed July 5th, 1904. On July 26th, 1904, the sheriff executed a deed to Carr for the mortgaged real estate and notified him that the deed was ready for delivery. The balance of the purchase price, viz., $65,000, was not paid by Carr until September 17th, 1904, and then it was paid without any accrued interest. After deducting the expenses of the receivership, and other incidental expenses, there remains in the hands of the receiver, out of the rental money, $12,204.25, and it is the distribution of this sum which is now sought.

The mortgage foreclosed covered real and personal property. The personal property was the furniture contained in the hotel. This was not sold by the sheriff, because the sale of the real estate was ordered to be made first, and that sale produced more than enough to satisfy the mortgage of the complainant. The lease included the hotel and all its furniture. The rents which were received were due in part to the real estate, and in part to the personal property leased. It becomes necessary to determine what portion of the rents remaining is properly to be attributed to one kind of property, and what to the other kind included in the lease. This becomes necessary because the purchaser of the real estate claims that the rents attributable to the real estate, or at least some part thereof, should be paid to him. There is also a judgment entered upon a mechanics’ lien upon the real estate, which can only be paid out of the rents which are attributable to the real estate. As there are also subsequent mortgages which include, or claim to include, both real and personal property, it is obviously necessary to make this discrimination with respect to the rents.

Unfortunately, the evidence leaves this question without much to enable the court to reach a satisfactory conclusion. On one hand, it is claimed that the value of the personal property is less than $12,000, and that the- value of the real estate, as indicated by the amount received at the sheriff’s sale, subject to previous mortgages, is about $300,000, and it is insisted that the rents remaining should be proportioned in the ratio which the respective values bear to each other. The valuation of the personal property appears, by the testimony, to be made by a single witness, and it does not seem to be in accord with testimony as to the cost of the furniture and the annual depreciation from the use thereof. On the other hand, it is insisted that real estate, rented, depreciates but little in value if repairs are properly made, while personal property of the nature of this does depreciate quickly and largely in value by reason of its use. There is but a single expert who presents this opinion, but it seems to be in accord with reason. The same expert testifies to the fact that, in Atlantic City, owners of cottages sometimes unite with the owners of furniture, which the latter use in furnishing the cottages for renting, and that in such cases the rents are divided equally between the owner of the real estate and the owner of the personal property. No other witness has been called to express such an opinion, or to indicate such a custom. There is no proof that the custom testified to in renting cottages would be applicable to the renting of large hotels.

This leaves me in perplexity. I have so little to rely upon in making an adjudication as to the equitable division of this fund, that I am inclined to fall back upon a division to be arrived at by a comparison of the value of the real with the value of the personal property.

But, I am not satisfied to fix the value of the personal property at the figure named by the expert witness. According to a calculation made from the cost of the furniture, with the expert’s evidence of the yearly depreciation, I think that the value may be fairly fixed at $30,000, so that if the real estate is deemed to be worth $300,000, the rents in hand are attributable thus: ten-elevenths to the real estate and one-eleventh to the personal property.

It is next to be determined how these respective amounts are to be distributed among the claimants. First, to whom shall the amount of rents raised from the real estate be paid? The purchaser at the sheriff’s sale claims them because he has a sheriff’s deed for the leased real estate, dated July 26th, and he insists that his title thereby became perfect as of the date of the sale, which was June 4th. Subsequent mortgagees and lien claimants insist that the purchaser is not entitled to any part of the rents which accrued from the real estate, unless it be that which accrued after September 17th, when he paid the balance of the purchase-money, or that if he is entitled to the whole thereof, he should not be allowed to take the same, except ujDon accounting for a fair rate of interest upon the purchase-money retained by him from July 26th, when he was notified that the deed was ready for delivery, until September 17th, when he paid the same.

The contention of counsel for the purchaser at the sheriff’s - sale is that the title the purchaser acquired by the sheriff’s deed relates back to the date of the sale at which he became the purchaser. The appeal is to the doctrine of relation, which is described by Lord Mansfield, in Vaughn v. Atkin, 5 Burr. 2764, in this language: “There is no rule better founded in law, reason and convenience than this, that all the several parts and ceremonies necessary to complete a conveyance shall be taken together as one act, and operate from the substantial part by relation. The formal effectuates the substantial part, and therefore must relate to it.”

This definition of Lord Mansfield was treated as expressing the same idea as the definition contained in 18 Vin. Abr. § 8, tit. “Relation ” and such was the view expressed by Chief-Justice Ewing in the supreme court in Den v. Steelman, 10 N. J. Law (5 Hal.) 193. The principle was applied in the court of errors and appeals in Jacobus v. Mutual Benefit Life Insurance Co., 27 N. J. Eq. (12 C. E. Gr.) 604, where a mortgage recorded before delivery was held to become effectual as against lien claims for labor, &c., upon a building commenced after the mortgage was recorded, but before it was delivered; and this was said to be upon the doctrine that deeds, when delivered, have operation by relation as of a time prior to delivery, if it be necessary to effect the intention of the parties, and be required for the advancement of justice, and Mr. Justice Depue, in delivering the opinion of the court, points out that the equity of the mortgagee was plainly prior to the equity of the lien claims.

But the question before us differs materially from that discussed and decided in the matter last cited. In this case there was a decree for the sale of real and personal property to raise money to satisfy a mortgage encumbrance. It was not a decree of strict foreclosure, which is said to be an alienation, but it was a decree for sale, and the defendants were not foreclosed by such a decree until sale. Pearman v. Gould, 42 N. J. Eq. (15 Stew.) 4. The sale is to be made by an officer of the court, and must be confirmed by the court, and the title passes by a deed executed by the officer.

As was said by Chief-Justice Ewing, in Den v. Steelman, supra, with respect to sheriffs sales under common law judgments in this state, the execution and delivery of the deed of the sheriff is the substantial part. In the language of Lord Mansfield, all the rest of the transaction must relate thereto, and the chief-justice distinguished the cases in which the doctrine of relation was properly applied, such as where the person making the conveyance has an estate in the lands, from those eases where the conveyance is made by one having no estate but only a power. In such eases, he held that an estate does not pass until all the acts requisite thereto are completed, and from the last to the first there is no relation so as to sustain an intermediate transfer. The reasoning of the chief-justice is entirely applicable to the case of the delivery of a deed by a sheriff to effectuate a sale made by him under a decree of this court, and I should not have the least difficulty in adopting the view that the sheriff’s deed delivered to Carr on the 17th of September, had no relation to the sale on the 4th of June, so as to entitle him to the rents and profits intermediate between the sale and the delivery of the deed, except for the fact that Mr. Justice Depue, in delivering the opinion of the court of errors and appeals, in Morse v. Hackensack Savings Bank, 47 N. J. Eq. (2 Dick.) 279, expressed the view that a sheriff’s deed, when delivered, had a relation back to the time of the sale of which it is the consummation, and he cited, in support of that doctrine, the case of Jacobus v. Mutual Benefit Life Insurance Co., ubi supra.

But an examination of the ease of Morse v. Hackensack Savings Bank clearly shows-that the view thus expressed was wholly unnecessary to its decision. The doctrine of that case was this: that although heirs-at-law took an estate which was alienable, devisable and descendible, and liable to be seized and sold, in lands respecting which their ancestor had, by will, given power •to his executors to sell, yet that a purchaser, under execution, of the estate of an heir would be devested of the estate purchased, whenever the power of sale was exercised, and the purchaser, under the power, would become seized, under the devisor, of a title paramount to the title of the heir by descent. It is obvious that, in the view thus expressed by the court, it was immaterial whether the deed of the sheriff which was claimed to pass the title of an heir-at-law, passed that title as of the date of sale or as the date of the delivery of the conveyance.

I have therefore reached the conclusion that Carr, the purchaser, acquired by the delivery of the deed no right in the rents received from the receiver’s lease prior to the 17th of September. Whether he can enforce the payment of rents accruing thereunder after the 17th of September might, perhaps, be questioned, but it seems conceded by all the counsel that he is entitled to the rents between that date and October 8th, when the lease terminated. The evidence as to the rental value for that period is meagre, but it also seems to be conceded that at the rate of $20 a day, testified to by one of the experts, the sum of $420 would be due to the purchaser. That sum should be paid out of the amount attributable to the real estate in the above calculation.

When that sum is deducted, there will remain a residuum of the rents received by the receiver, which are attributable to the real estate, and the whole of the rents which are attributable to the personal estate.

The proceeds of the sale of the real estate by the sheriff was sufficient to pay the prior encumbrance of the complainant, and to produce a surplus of over $40,000, which was applied upon a subsequent mortgage held by one Charles R. Myers. The sum thus applied, did not, however, pay the whole amount due him, but left unpaid a considerable sum. The remainder of the fund in the receiver’s hands should be next applied to the unpaid claim of Myers upon his mortgage. As the remainder is composed of money derived from the real estate and money derived from the personal property, I think that each part of the remaining fund should contribute to the payment of Myers’ deficiency in proportion to its amount. The reason for this is, that there is one subsequent encumbrance covering the real estate alone, and there are subsequent encumbrances covering the real estate and which are also claimed to cover the personal property. Whether the remaining rents attributable to the personal property are properly to be applied to the Myers deficiency (if there remain any deficiency after the application of the rents attributable to real estate) will be considered hereafter.

If the rents attributable to real estate and applicable to the payment of the deficiency on the Myers mortgage, when so applied, leave a surplus to be applied to subsequent encumbrances, then the next encumbrance to which it should be applied is the judgment upon a mechanics’ lien which, though subject to the Myers mortgage, is, by the judgment of the circuit court, a prior lien to the three next succeeding mortgages. At all events, the lien claim thus put in judgment is entitled to be next paid, but it must be paid from the fund raised from the rents attributable to the real estate alone. If there then remain some part of the rents attributable to real estate, it must be applied to subsequent encumbrances.

One of the subsequent encumbrances is a mortgage covering the same real and personal property, and, perhaps, other personal property, which was executed to one Edward B. Showell, for the benefit of a firm called Showell & Fryer. The interest of the mortgagee in this mortgage does not seem to be affected by the judgment upon the lien claim. Showell was made a party to the lien proceeding, but it was afterward discontinued as to him. The mortgages of John Wanamaker, Samuel E. lleers and Walter R. Lewis, who were made parties to the lien proceeding, were expressly adjudged therein to be subject to the lien claim.

In behalf of Showell, it is contended that the lien claimant ought to have made him a party to the lien proceeding and procured a judgment fixing the priority of the lien and his mortgage, under the provisions of the Mechanics’ Lien act, supplement of 1884 (2 Gen. Stat. p. 2072), and of the revised Mechanics’ Lien act of 1898 (P. L. 1898 p. 547), which require the summons to be issued against every person holding a mortgage of record against the lands which would be cut off by a sale under the lien claim. His insistence is that by the discontinuance of the proceeding as to him, and the failure to include in the judgment a fixing of his priority, his mortgage has been advanced above those of Wanamaker*, Heers and Lewis, which were expressly adjudged to be subject to the lien claim.

I am unable to agree with the view contended for, or with the conclusions sought to be drawn therefrom, viz., that his mortgage thereby was within the doctrines of Clement v. Kaighn, 15 N. J. Eq. (2 McCart.) 47, and Hoag v. Sayre, 33 N. J. Eq. (6 Stew.) 552. The legislation which now requires a mórtgagee, whose mortgage would be cut off by a sale upon a lien claim, to be made a party to the lien claim proceeding, does not prescribe what will be the effect of a failure to do so. It does not advance the omitted mortgage over the lien claim or over other mortgages. It results that the contention made in behalf of the Showell mortgage cannot avail the mortgagee. If any of the fund attributable to the real estate remains after payment of the lien claim, the surplus should be applied to the three mortgages of Wanamaker, Keers and Lewis, in order of priority, which will doubtless exhaust the whole of that part of the fund.

The only question remaining is as to the disposition of so much of the fund as was raised by the lease of the personal property. By a cross-bill in the foreclosure of Myers v. Ramsey, and in other modes, all the mortgages are attacked with respect to their being liens upon personal property. The contention is that they were not recorded in the manner required by law. I think that every one of the mortgages in question has failed, to become a lien as against other mortgagees or purchasers in good faith.

The mortgage of Charles B. Myers was recorded as a real estate mortgage on October 11th, 1900. The affidavit to the chattel mortgage was made October 15th, and it was recorded on October 29th, 1900. The affidavit did not truly state the consideration of the mortgage, and the mortgage was not recorded within a reasonable time.

The mortgage of John Wanamaker was recorded as a real estate mortgage on October 15th, and although the affidavit was made on the same day, it was not recorded as a chattel mortgage until October 20th, 1900. This affidavit was made by an attorney-at-law, who was the attorney of Wanamaker, and he declares therein that the true consideration of the mortgage was for goods, wares and merchandise sold and delivered by Wanamaker to Rebecca Ramsey. It would seem that his knowledge must necessarily have been acquired from information derived from others. The attorney, when called as a witness, admitted that the only knowledge he had of the transaction was derived from a conversation with an agent of Wanamaker. Besides, the mortgage was not recorded as a chattel mortgage within a reasonable time.

The mortgage of Keers is defective as a chattel mortgage because, although the affidavit was taken upon the 15th of October, it was not recorded until the 31st of October, 1900.

The mortgage of Showell and Fryer is also defective because, although dated December 15th, 1900, and recorded as a real estate mortgage on January 19th, 1901, the affidavit thereto was made December 3d, 1902, and it was recorded as a chattel mortgage December 8th, 1902. Graham Button Co. v. Spielmann, 50 N. J. Eq. (5 Dick.) 120; S. C., 50 N. J. Eq. (5 Dick.) 796; Roe v. Meding, 53 N. J. Eq. (8 Dick.) 350; Dunham v. Cramer, 63 N. J. Eq. (18 Dick.) 151; Watson v. Rowley, 63 N. J. Eq. (18 Dick.) 195; Knickerbocker Trust Co. v. Penn Cordage Co., 65 N. J. Eq. (20 Dick.) 181.

This review indicates that every one of these mortgages fails to be effective as against bona fide purchasers or mortgagees in good faith. But they are effective as against Mrs. Ramsey. It is suggested in the briefs that the Hotel Shelburne Company may hold the personal property in the hotel as a purchaser free from these mortgages. But it appears that the deed from Mrs. Ramsey to the Atlantic Title Company, trustee, dated July 12th, 1891, gave notice of these mortgages as being encumbrances on the personal property in question. The deed from the Atlantic Title Company, the trustee to the Hotel Shelburne Company, recites the former conveyance as the source of the title conveyed, and therefore the hotel company became a purchaser with like notice.

It follows, therefore, that the mortgages are effective also against the purchaser from Mrs. Ramsey, and they stand in the order of the priority of date so far as they affect personal property. Whatever remains of the fund raised from the rents of the personal property must be distributed among them until it is exhausted, in the order of such priority.

The opinion thus expressed disposes of the other case above named, arising upon the bill of Charles R. Myers and the cross-bill attacking the various mortgages, and a decree in that case would be made upon the lines of this opinion. As Myers’ claim may be wholly discharged by the distribution in this cause, there can be no action taken or decree made with reference to the personal property, none of which appears to have been sold.

As this appears to be analogous to an application for surplus money in court, I think the costs of the proceeding should be taken from the fund before distribution is made.


text:
    Sylvan G. Bushey v. The National State Bank of Camden et al.
    [Argued December 19th, 1906.
    Decided April 16th, 1907.]
    Mortgages were made to 14. D., who was president of a national bank, lo secure, moneys due to that bank. 14. L.-filed a bill to foreclose them, and did not make the bank a party thereto. A decree of foreclosure followed, and upon the fieri faeias thereon issued the sheriff exposed the mortgaged premises to sale, and the complainant in this cause bought three of the mortgaged tracts. These tracts had been sold for taxes, and certificates of sale had been issued which the bank had acquired by assignment, and was proceeding to obtain declarations of sale thereon. On bill to enjoin the bank from enforcing the certificates—Held, (1) that the mere fact that the bank had not been made a party to the foreclosure exhibits no equity to sustain the relief sought; (2) if the bank (if made a party to the foreclosure) would have been compelled to bring in its claim under the tax sales, to be enforced with the mortgage debt, an equity might arise thereon, but as the bank acquired its claim, not by redemption under notice from the purchasers, but by an assignment of the rights of .the purchasers, which gave a prior lien on the lands, it would not have been compelled to bring them into the foreclosure; (3) the claim that a solicitor of this court, attending for the bank at the foreclosure sale, made representations to the complainant in this cause before he purchased which estopped the bank from enforcing against him the rights it acquired by the assignments of the certificates of sale is not made out by proofs.
    On bill for relief.

      Mr. Ralph 17. E. Donges, for the complainant.

      Mr. Edward Dudley, for the defendants.
   Magie, Chancellor.

The purpose of this bill is to procure a decree declaring null and void certain certificates of sale of lands for taxes assigned to and held by the National State Bank of Camden, and an injunction restraining the defendants from assigning said certificates, or proceeding to collect the sums due thereon, or from applying for a deed in fee-simple for the lands named in said certificates.

The case has been brought to hearing upon the bill, answer and replication, and a stipulation of the parties that the affidavits annexd to the bill and the affidavits annexed to the answer shall Ire considered and treated as depositions in the cause.

From these affidavits there are certain facts appearing without contest. On the 10th of Juty, 1903, the complainant, Bushey, bought from the sheriff of Camden county three tracas of land which were exposed by the sheriff to public sale. The sale was made upon a fieri facias issued out of this court, and the writ was issued upon a decree in a cause in which Heulings Lippincott, one of the defendants, was complainant, and Aaron Ward and his wife were defendants. That bill was filed for the foreclosure of two mortgages given by Aaron “Ward to Heulings Lippincott, and Aaron Ward and his wife were the sole defendants so far as appears. The mortgages were made by Ward to Lippincott, not for any indebtedness clue to Lippincott, but to secure the National State Bank at Camden money owed to it by Ward, and the mortgages were made to Lippincott because he was the president of the bank. While the mortgages were outstanding, and before the bill to foreclose them was filed, the mortgaged lands, including those bought by complainant at sheriff’s sale, had been sold for taxes. Some of them had been bought by the city, and one tract by a third person. The sale was under the Martin act, and certificates were duly issued to the purchasers. The bank purchased and took assignments of all the certificates affecting complainant’s land before the bill to foreclose the mortgage was filed. It was about to apply, or had applied, to the city for a deed for said lands.

It further appears that, at the time the lands were exposed to sale by the sheriff, some conversation occurred between the complainant and a solicitor of this court, who appeared at the sale in behalf of the bank. What the conversation was is a matter. of contest. The complainant and the solicitor disagree in their recollection of it, and there is no other evidence of what was said by the parties to the conversation.

It is first suggested that the foreclosure proceeding was defective, in that the National State Bank of Camden, for whose use the mortgages were held, should have been made a party thereto. The complainant, however, having bought the lands under the .decree made in that cause, -and having taken the sheriff’s deed, after the sale had been confirmed without objection from the defendants in that cause, or from him as a purchaser, cannot, in this collateral way, object to the proceedings therein, or found any equity upon the supposed error in the foreclosure. If the defendants in that cause might have objected to its being proceeded with in the absence of the bank, the cestui que trust of Lippincott (Tyson v. Applegate, 40 N. J. Eq. (13 Stew.) 305, and Johnes v. Outwater, 55 N. J. Eq. (10 Dick.) 398), they presented no objection and the cause went to a decree. Complainant’s purchase on the fieri facias, issued on the decree, conferred on him the title which Lippincott had acquired by the mortgages, and the title of the mortgagors who made them. Boorum v. Tucker, 51 N. J. Eq. (6 Dick.) 135; Wimpfheimer v. Prudential, &c., Co., 56 N. J. Eq. (11 Dick.) 585; Champion v. Hinkle, 45 N. J. Eq. (18 Stew.) 162. If tlie bank were setting up any claim under the mortgage taken by Lippincott for its benefit, doubtless, upon the facts shown, that the sale produced all that was secured thereby, which presumably has been paid to it, an injunction against the presentation of that claim would be allowed. But the mere fact that the bank was not a party to the foreclosure does not present any equitable ground for relief.

But the contention is that if the bank had been made a party, it would have been obliged to put in and enforce in that proceeding the rights which it had acquired under the assignments of the certificates of sale, and that it was inequitable to so conduct that cause as to omit the claim which the bank had in that respect.

If the complainant had sought relief from his contract to purchase, or opposed the confirmation of the sale, the existence of an outstanding lien not affected by the foreclosure proceedings would not have justified relieving him from his obligation. The lien of the taxes and the sales thereunder could have been discovered from the public records. A purchaser at a judicial sale who neglects to acquire such information, and deliberately assumes the hazard of buying in ignorance, must bear the consequences of his negligence. Hayes v. Stiger, 29 N. J. Eq. (2 Stew.) 196.

It is obvious that the contention now under consideration will have no force unless the bank, if made a party to the foreclosure suit, would have been compelled to set up therein its interest as an assignee of the tax certificates.

When taxes are unpaid a municipality may enforce the lien which is given to that burden upon the land, by a sale under the provisions of the sixth section of the Martin act, which seems to be yet substantially in force. The purchaser at a sale for taxes may give notice of the sale to the mortgagee holding a mortgage upon the lands, and the mortgagee may, thereupon, redeem the lands by paying to the treasurer of the city for the use of the purchaser the sum paid by the purchaser, with interest. 3 Gen. Stat. ¶. 3372 § 415. By the eighth section of a supplement to said act, approved April 18th, 1889, a mortgagee who redeems land sold for taxes may retain a first lien thereon for the amount paid to procure the redemption, with lawful interest, and the payment of other taxes afterward assessed thereon. 3 Gen. Stat. p. 3381 § 442.

By the second section of a supplement to the same act, approved May 23d, 1890, a redeeming mortgagee is given power to enforce a lien acquired by the redemption by any appropriate proceedings which the section provided may be instituted and maintained, either independently of, or before, or in connection with the proceedings to enforce the mortgage. 3 Gen. Stat. p. 3383 § 449.

Under this legislation it is plainly open to question whether, if the bank in the case under consideration had been notified by the purchasers of the mortgaged premises at the sale for taxes, and had redeemed the property, it would not have been compelled, if made a party to the foreclosure, to enforce its claim in connection therewith.

But this was not the transaction which occurred. It does not appear that any notice whatever was given to the bank, and the bank did not, in fact, redeem under the provisions above referred to. On the contrary, the bank proceeded to acquire the title or interest which the purchasers at the tax sale had acquired, and which was represented b3r the certificates of sale held by them. The city was the purchaser of some of the tracts. By the provisions of a supplement, approved April 16th, 1891, the city was expressly authorized to become a purchaser at a sale of lands for taxes, the same as any other purchaser, and the certificate of sale is to be made to the city, and the mayor, in behalf of the city, may cause the notice otherwise required to be served on the owners and mortgagees of the land purchased, and the city may be entitled to a deed in the same manner as an3r other purchaser, if the lands are redeemed from the sale. 3 Gen. Stat. p. 3384 § 453. By a supplement, approved March 23d, 1895, the certificate of sale issued to any city for lands thus bought may be assigned to any person. 3 Gen. Stat. p. 3390 § 485. By the provisions of the further supplement, approved March 16th, 1893, an assignee of a certificate of sale given under the acts may give notice to the mortgagees and owners and acquire the title to the lands and receive a deed therefor in the same manner as if the assignee had been the original purchaser at the tax sale. 3 Gen. Stat. p. 3389 § 478.

It is to be noted that, although the sheriff’s sale in this case was made after the passage of the act for the assessment and collection of taxes, approved April 8th, 1903, the provisions of the sixty-sixth section of that act prevented its operation on taxes previously in default, for the act was expressly declared to take effect only on the 20th of December, 1903.

Under the above provisions, it is obvious that the bank acquired by the purchase and assignment of the certificates of sale of the mortgaged lands a lien which was superior to the lien of the mortgage in which it had an interest. If the bank had been a party to the foreclosure proceedings, it need not have included the lien thus acquired in its demand for relief. If it had been made a party defendant and had answered claiming a prior lien, it might have been dismissed from the case, and probably would not have been required to present its claim except for the purpose of redemption. As the holder of a prior lien claim which, if made a party to the foreclosure proceeding, the bank would not have been obliged to enforce therein, no equity arises because the bank was not made a party.

It is further contended that the assignments of the certificates of sale to the bank vested no property or interest in it, because of the limitation on the power of national banks, contained in the legislation of congress. It is conceded that a national bank may acquire property of this sort to protect debts due to it.

As it appears in this case that the bank, as a cestui que trust in the mortgage made to Lippincott, held an interest in the lands in question, and as it is proved that the bank purchased the certificates of sale and procured their assignment to it for the purpose of protecting its mortgage interest, I deem it free from any doubt that the bank lawfully acquired such interest as was passed to it by the assignments.

It is lastly contended that the solicitor who attended this sale in behalf of the bank procured complainant to purchase the three tracts by the representation that if complainant bid for them a certain amount all claims of the bank would be discharged. The contention is that the bank is now estopped from setting up a claim which it then held. The solicitor, in giving an account of the interview, testified that the conversation related only to the claims which were the subject of the sale; that the fieri facias and a statement made therefrom were before the parties, and that any assertion that the bids would cover the claims, related to the claims contained in the fieri facias, and which were calculated with interest and costs. If the complainant insists that the solicitor’s language went further than to represent the amount of the claims for which the sheriff was selling, I think he has failed to establish that by proof. If, however, that was the impression made upon his mind, and he chose to rely upon it as an assertion that the amount bid, made up of amounts in the decree with interest and costs, would discharge all claims of the bank, he encounters these insuperable difficulties: there is no proof that the solicitor was authorized by the bank to act for it with respect to any other claims than those which were contained in the decree procured by Heulings Lippincott, the bank’s trustee; and in the next place, the sheriff’s deed can only convey the interest of the parties in the mortgage. What that interest is, and to what prior liens it may be subject, an intending purchaser is supposed to discover by searching in the proper place of record.

Upon the whole case I think the complainant fails to disclose an equity to have the decree which he seeks, or aziy germane decree upon the subject-matter made.

The bill will be dismissed.