author: Ingersoll, V. C.

text:
    Robert K. Matlock et al., complainants, v. Charlotte L. Matlock, defendant.
    [Determined December 5th, 1925.]
    Where a will provides that the estate shall be invested and the income paid to certain persons for their life, the corpus of the estate cannot be divided during the lifetime of them, and no bill for directions about its distribution can be entertained until the time for distribution arrives.
    On bill to construe will.

      Messrs. Avis & Avis, for the complainants.

      Mr. Lewis Starr, for the defendant.
   Ingersoll, V. C.

The court is asked to interpret and construe the will of one Robert K. Matlock.

The will in part reads:

“I give, bequeath and devise all my estate, real and personal and wherever located, to said Bradway & Matlock and the survivor of them, in trust, and for the purposes following. * * *
“And my representatives and survivor will make sale of all my real estate, save the homestead, at public or private sale, as soon after my decease as they or he may deem it advisable to my interests, together with my personal property; to mass my estate to invest the same in first mortgages on lands in this state or securities of the general government, and, after deducting commissions and charges for repairs, to pay over the whole net interest and profits in semiannual installments to my wife during her widowhood.
“After the intermarriage or death of my wife, my executors and trustees and the survivor of them, will sell, at public or private sale, the homestead and balance of personal property, add the proceeds thereof to the fund in their or his hands and pay over semiannually the net interest of said aggregate sum', share and share alike, among all my children. They, the executors and trustees aforesaid, will take care to leave the whole or aggregate of my estate intact and unbroken. But in case either of my children shall die, leaving a child or children, then it is my will that the principal of the portion of said child of mine shall be withdrawn from said aggregate by my executors and trustees and survivor of them and be paid over by them, with the interest due thereon to said child or children or guardian or guardians thereof; and it is further my will, in case any of- my said children shall die without child or children, that the principal of the portion set off or allotted to my said child shall return to and make part of the remaining whole of my estate, to be incorporated therewith and the interest thereof divided among my surviving children.”

John H. Bradway and Learning Matlock have died, and the complainant Robert K. Matlock was appointed by the orphans court of the county of Gloucester substituted trustee, and he has duly qualified.

The widow of the decedent died September 4th, 1907. A daughter Matlock died intestate and unmarried on May 30th, 1907, leaving her surviving her brothers and sisters. Learning Matlock, a son, died April 28th, 1909, unmarried, leaving a will, which was duly probated, wherein he bequeathed and devised all his estate to his surviving brothers and sisters. It is conceded by all that the present duty of the trustee is to mass and invest the estate, and to pay “over semiannually the net interest * * * share and share alike, among all my children.”

He has presently no other power or duties. He cannot divide the corpus of the estate during the lifetime of the surviving child.

Using the words of Vice-Chancellor Howell in Kellogg v. Burnett, 74 N. J. Eq. 304:

“Having thus determined that the estate is not ripe for division the duty of the court ends. This court has no jurisdiction to entertain a bill for directions about the distribution until the time for distribution arrives. It cannot be compelled to construe a will except as incident to some relief which may be afforded by a final decree, nor can it be induced to give counsel and advice to the parties generally, but only for the purpose of giving positive directions for the actions of the trustee.” Citing Hoagland v. Cooper, 65 N. J. Eq. 407; Bevans v. Bevans, 69 N. J. Eq. 1.

This is also thoroughly discussed in Ogden v. McLane, 73 N. J. Eq. 159.

The action of the court should be confined to instructions as to present duty, or the duty likely to arise under present conditions. Stewart v. Stewart, 61 N. J. Eq. 25.

The bill must therefore be held to have been prematurely filed, and must be dismissed, without costs.


source: Caselaw Access Project

author: In&EESOLL, Y. C.

license: Public Domain

text:
    C. Henry Myers, substituted administrator, etc., complainant. v. Viola Abbott et al., defendants.
    [Determined December 23d, 1925.]
    1. Where money is deposited in a bank, by and in the name of an individual and by reason of a presentation of a signed “contract of account,” the account is changed upon the books of the bank crediting said account to the original owner and another as joint tenants (if “contract of account” is valid), upon the death of one, ownership of the fund on deposit is created in the other.
    2. Testimony examined, and “contract of account” found to be invalid, because of the mental condition of the original depositor, and that it was signed without a full understanding of its import.
    On bill for injunction. On filing hearing.

      Mr. Henry 0. Burt, for the complainant

      Mr. Louis II. Miller, for the defendants.
   In&EESOLL, Y. C.

Agnes Eoy died, on November 8th, 1924. She had been in ill health for a number of years, and for some time immediately before her death boarded with Yiola Abbott; Mrs. Abbott was also acting as nurse for Miss Eoy and taking care of her generally.

Miss Eoy had been for years a factory employe, and had saved her money, so that at the time of her death she had on .deposit in the Millville National Bank a sum in excess of $2,000.

On October 20th, 1924, Yiola Abbott presented to the bank a card in the following words:

“Authorized Signatures of
Agnes Roy or Viola Abbott, 1924.
For the Millville National Bank, Millville, N. J.
We hereby agree to the rules anil regulations of the above bank. This account and all moneys to be credited to it belongs to us as joint tenants, and will be the absolute property of survivor of us; either and the survivor to draw. We do each appoint the other attorney irrevocable, with power to deposit in said account moneys of the other, and for that purpose to endorse any cheek, draft, note or other instrument payable to t'he order of the other.
Date Oct. 2,0, 1924.
Agnes Roy,
Viola Abbott.”

Together with the bank book of Yiola Eoy, and the bank being satisfied of the genuineness of the signatures (of which there is no dispute) endorsed on the account of Eoy in the books of the bank the words “or Yiola Abbott.” The account theretofore in the name of “Agnes Eoy” then appearing as “Agnes Eoy or Yiola. Abbott.”

The bank has refused to pay the check of the complainant as administrator of the estate of said Eoy, for the amount on deposit in said account, and the complainant now prays, inter alia, that “the said account may be decreed * * * to be the property of the estate of Agnes Eoy, deceased.”

This “contract of account” is in form sufficient to create ownership in the survivor. New Jersey Title Guaranty and Trust Co. v. Archibald, 91 N. J. Eq. 82.

The testimonj' is, however, convincing that the deceased was not in a mental condition, at the time she signed this paper, to properly realize the effect of such an act, nor am I convinced that she signed this “contract of account” with an understanding of its full import. There is no convincing testimony that she intended to do more than to create power in Mrs. Abbott to withdraw funds from said account for the use of Miss Roy during her illness.

I, therefore, find, as a fact, that the funds on deposit in said bank are the property of the estate, subject, however, to the payment of such amount as may be due Mrs. Abbott for board, lodging and services rendered to Miss Roy, and to ascertain what amount should be allowed her a reference to a master will be advised:


author: Ixüersoll, V. C.

text:
    Catharine Bloomer, complainant, v. Catharine Bloomer et al., executors, &c., defendants.
    [Decided December 28th, 1925.]
    Where a testator left a.fund, the income of which was to be paid to a person for life, and on the, death of the life tenant the principal should be used and devoted towards assisting the worthy poor of Ireland, such bequest is valid, and the trustees have not only the power to distribute the funds of the corpus confided to them, hut, as a necessary incident to that function, also the right to select the beneficiaries.
    On bill, &c. On final hearing.

      Messrs. Qole & dole, for the complainant.

      Mr. Peter Baches, for the defendant John E. Reardon.
   Ixüersoll, V. C.

On September 9th, 1906, James Doris died testate. His wil] was probated September 28th, 1906, before the surrogate of Atlantic county.

In said will are the following clauses:

"I give ami bequeath unto my sister Catharine Bloomer the sum of two thousand dollars absolutely, and direct that the interest or income arising from the sum of fifteen thousand dollars be given her for and during the term of her natural life, and after her death I direct that my executors hereinafter named shall use and devote the said principal of fifteen thousand dollars towards assisting the worthy poor in Ireland.”
“I direct that the income or interest arising from the sum of fifteen thousand dollars shall be paid to my sister Sarah Toner and her husband, Matthew Toner, or the survivor of them, and upon the death of both of them I direct that my executors hereinafter named shall use and devote the said sum of fifteen thousand dollars in -assisting the worthy poor in Ireland.”

Executors were appointed by said will and duly qualified.

The complainant, Catharine Bloomer,, prays:

“That a decree by this honorable court be made declaring void and unenforceable any gift, trust, bequest or legacy to the executors under the will of James Doris, deceased, to be used and devoted toward assisting the worthy poor in Ireland, and that any and all of such gifts or trusts described in the will be void for indefiniteness, unascertainability and vagueness.”
“A gift to a trustee of a sum of money, to the end that the interest be applied at discretion alleviating the wants and suffering of the deserving poor of Mount Holly, is a charity which this court will protect and effectuate.” Goodell v. Union Association, &c., of Burlington County, 29 N. J. Eq. 32.

' Likewise, where interest of a fund in trust-to be employed for “the relief of the most deserving poor of the city of Paterson * * *” Hesketh v. Murphy et al., 36 N. J. Eq. 304.

The opinion in this case by the late Chief-Justice Beasley also sets at rest the effect of the allegation in the bill, that the trust was void for the reason, inter alia, that “no tangible method of selecting the said beneficiaries in Ireland being provided for in the said will or no proper power given the executors for so choosing the worthy poor of Ireland.”

The court held that such a bequest conferred upon the trustees, not only the power to distribute the funds confided to them, but, as a necessary incident to that function, also the right to select the beneficiaries.

These eases were followed by Yice-Chancellor Learning in Hilliard v. Parker, 76 N. J. Eq. 447.

In Kitchen v. Pitney, 94 N. J. Eq. 485, a like gift for the proper and suitable maintenance of * * * bona fide residents of New Jersey was held valid.

These cases declare a trust valid where the benefits were limited to a. class in a community (Mount Holly); in a city (Paterson); and throughout the state. It must follow that such a bequest for the benefit of “the worthy poor of Ireland” must also be valid.

A decree will be advised dismissing the bill.


author: Iptgeesoli/, Y. C.

text:
    The Pennsylvania Company for Insurances on Lives and Granting Annuities, general guardian of Elizabeth Corey, complainant, v. Somers L. Doughty, defendant.
    t. The fundamental principle governing all dealings with property held in trust is that the cestui que trust is entitled to the best efforts of the trustee to further in all legitimate ways the interests of the cestui que trust, and the trustee is not permitted to have any interest in the subject of the trust antagonistic to. or in any degree inconsistent with, that of the cestui que trust, and, therefore, where there is a sale, the trustee cannot become either directly or indirectly a purchaser at his own sale.

      2. Where a trustee advertises and prepares for sale with proper care and diligence and in good faith, without entertaining the least intention or expectation of becoming a purchaser, and the property is struck off to another person, the trustee not -bidding, then there is a complete absence of any of the elements of danger to- the interests of the cestui que trust which underlie the restrictive rule in such cases, and an agreement by the trustee to purchase land, made after the property is struck off to the purchaser, is not iwdthin the letter, the spirit or the meaning of the rule.
    3. Evidence examined, and held that there was in the instant transaction no proof of any bad faith or infraction of duty by the guardian to his cestui que trust.

    On bill for relief. On final hearing.

      Messrs. En dicoil & Endicoit, for the complainant.

      Mr. W. Elmer Brown, Jr., for the defendant.
   Iptgeesoli/, Y. C.

At the time of the death of Edward M. Sweeney, he and Somers L. Doughty were the owners of certain real estate situate in Atlantic City, each holding an undivided one-half ■interest therein.

At the time of the filing of the bill in this cause, the undivided one-half interest of Edward M. Sweeney was held in equal parts by his children — John J. Sweeney, Mary Sweeney Young and George Edward Sweeney — all of whom were of age, and Elizabeth Corey, a grandchild of a deceased daughter (who held subject to the right by the curtesy of her father, Jenbs Alfred Corey), the said Elizabeth Corey, who is a minor.

The lands described in the complainant’s bill consisted of three contiguous lots described as parcels B, 0 and D in tract No. 1, and constituted a tract of land at the northwest comer of Maryland and Drexel avenues, one hundred feet in front by one hundred feet in depth.

On or about the 28th of January, 1920, the complainant, as general guardian of Elizabeth Corey, filed a petition "in the matter of the second application of the Pennsylvania Company for Insurances on Lives and Granting Annuities, general guardian of Elizabeth Corey, for the sale of infants’ lands.” Pursuant to proceeding thereunder, the said Somers

L. Doughty was appointed special guardian of said Elizabeth Corey, a minor, and was directed by an order dated April 23d, 1920, to sell all the right, title and interest of the said minor in the lands described.

Sale of said interest in parcel B was made to one Ferdinand Stadler for the sum of $100, and, after confirmation thereof by the court, a deed dated April 5th, 1921, was duly executed and delivered.

Sale of the minor’s interest in parcels C and D was made to one Joseph J. Schultz for the sum of $300, and, after confirmation bjr the court, a deed dated July 20th, 1921, was executed and delivered.

On March 16th, 1921, the said Doughty, individually, the said John J. Sweeney and Gertrude Sweeney, his wife, Mary M. Young and Louis A. Young, her husband, and George E. Sweeney, being all the remaining owners of said parcel B, conveyed all their interests therein to said Stadler for the sum of $700.

On the same dajr, the same parties conveyed to Joseph J. Schultz all their interest in parcels B and C for the sum of $2,100.

The recitals in the deed by the special guardian to Schultz substantially state the authority of the special guardian and his actions thereunder, as follows:

“Whereas, By a certain order of the court of chancery of the State of New Jersey made fin the matter of the second application of the Pennsylvania Company for Insurances on Lives and Granting Annuities, general guardian of Elizabeth Corey, for the sale of infants’ lands, docket 47, folio 586, bearing date the 23rd day of April, 1920,’ it was ordered) that Somers L. Doughty be and he thereby was appointed special guardian in said matter for said infant.
“And it was further ordered, that said special guardian sell all and singular the right and title of the said infant to the said lands in the petition particularly described at public or private sale as the guardian- should deem most advantageous for the infant, but not below a fixed price in said order provided for, and that, before executing any deeds for the said lands to the purchaser or purchasers thereof, the said guardian report to the chancellor the sale thereof in writing upon his oath, at the same time giving due notice to the Pennsylvania Company for Insurances on Lives and Granting Annuities, general guardian of said infant, and to Jenks Alfred Corey, the father of said infant, of the application for the confirmation of such sale, to the end that the same might be passed upon by the chancellor.
“And it appearing that thereafter said special guardian sold said lands and premises pursuant to said order and to the statutes in such case made and provided to Joseph J. Schultz and reported the same to the chancellor, and at the same time giving' notice to the Pennsylvania Company for Insurances on Lives and Granting Annuities, general guardian of said infant, and to Jenks Alfred Corey, father of said infant.
“And it further appearing that said the Pennsylvania Company for Insurances on Lives and Granting Annuities, general guardian, and Jenks Alfred Core}7, have filed a formal consent in writing to said sale in said cause, and that thereupon the chancellor by his decree, bearing date the 29th day of April, 1921, approved of said sale and directed a conveyance of the premises in the words following: Gt is, on this 29th day of April, 1921, ordered that the said sale and agreement be, and the same are, hereby confirmed according to the terms and conditions in said report mentioned. And it is further ordered that the said Somers L. Doughty, special guardian, execute a deed to the said Joseph J. Schultz for parcel C and parcel D of tract No. 1 upon his complying with the terms upon which the deed was to be delivered.’ ”

After Schultz obtained title he conveyed the premises to Doughty, and after Stadler obtained title he conveyed to one Bacharach, who conveyed to Dorrghty.

On August 20th, 1921-, the complainant filed its bill, averring the appointment of Doughty as special guardian, the sales made by him under such order, the confirmations thereof by this court, the several of the minor’s interests, and the conveyance from Stadler to Bacharach and from Bacharach and Schulte to Doughty;' that the money received from said land was $400, and that the reasonable value of the minor’s one-eighth interest in said land was, at the time of the filing of the bill, $750, and charging that “the transaction herein set forth, whereby Somers L. Doughty, individually, acquired the title of Elizabeth Corey, his ward, amounted to and constituted in fact and in law a fraud upon his ward, Elizabeth Corey.”

I am satisfied that the amount received by the special guardian as consideration for the sale of the lands and premises was the fair and reasonable value thereof at the date of the respective sales.

The answer of Doughty to the bill is — '

“1. The conveyance of said lands by Somers L. Doughtj', ■ special guardian, to Ferdinand F. Stadler, was made in good faith and without any connivance or scheming on their part to defraud said Elizabeth Corejg a minor. The negotiations had with said Ferdinand F. Stadler for the purchase of said land conveyed to him was conducted and arranged by one Benjamin Bacharach, a real estate agent, and said Ferdinand F. Stadler purchased said lands for the specific purpose of constructing and erecting a garage building thereon for his own personal use. Said Stadler first entered into agreement to buy said land some time about the year 1918. Said agreemeent was not in writing, but said Stadler then and there paid a portion of the purchase price agreed upon as a deposit or evidence of his good faith, and to bind the bargain. Settlement for said land could not then be had, because one George E. Sweeney, who also held an interest in said property, was a minor.
“2. Subsequently, because of the delay in making conveyance, said Stadler became dissatisfied and decided not to erect said garage building, and requested that he be permitted to withdraw his agreement to buy, and that the portion of the purchase price which he had paid be returned to him. Said Stadler made these requests to said Bacharach, the agent, and not to said defendant, Doughty. Said Bacharach then agreed to purchase from, said Stadler his interest in said property, and to assume the obligations of said Stadler s agreement to purchase same. Said Bacharach then and there returned to said Stadler the portion of said purchase price which he had paid-
“3. Defendant, Doughty, special guardian as aforesaid, not knowing of this agreement between said Bacharach and said Stadler, reported to this court that he had agreed to sell said land to said Stadler. The report of said sale was then confirmed by order of this court, as is alleged in said bill of complaint. Said Doughty,'as special guardian, then executed and delivered deed for said property to said Stadler. Subsequently, said Stadler and wife conveyed said property to said Bacharach, as is alleged in said bill of complaint.
“4. Subsequent to the conveyance of said lands from Doughty, special guardian, to said Stadler, defendant, •Joseph J. Schultz, who was then conducting a wall paper and paste business, both wholesale and retail, ivas desirous of building a warehouse for himself and for use in his said business, and being of the opinion that the property described in the hill of complaint herein was ideal for that purpose, he began negotiations with defendant, Doughty, for the purchase thereof. Defendant Schultz was advised by said defendant Doughty that a portion of the entire tract of one hundred feet by one hundred feet had been sold to said Stadler. Defendant Schultz then agreed with said Doughty to purchase the remainder of said tract providing he, Doughty, could secure the interest of said Stadler for him, the said Schultz. Said Schultz agreed to pay to Doughty, special guardian, and others having an interest in said property, the total sum of $2,400 for the remainder of said tract. That portion of the tract which had been sold to said Stadler was for the consideration of $800.
“Defendant Doughty went to said Bacharach, agent as aforesaid, for the purpose of ascertaining whether said Stadler would sell his portion of said tract, and he, said Doughty, was then advised by said Bacharach that Stadler had conveyed his interest in said property to him, said Bacharach. Previous to this, however, said Schultz had paid to said Doughty the sum of $150 on account of the purchase of all of said property. Said Bacharach agreed to sell his interest in said property for the sum of $900, which represented a profit of $100 over and above the amount he had paid therefor. When defendant Schultz was advised of this by said Doughty, he, said Schultz, gave to said Doughty the said sum of $100, which he, said Doughty, subsequently paid to said Bacharach as a part of the consideration for the purchase of his interest in said property.
“6. At the time when said Schultz agreed to purchase said property he was indebted to said Doughty, personalty, in a considerable sum of money, and without solicitation on the part of said Doughty, after all arrangements had been made for the pinchase of said land by said Schultz, he, Schultz, suggested and requested that the conveyance of said Bacharach interest in said land he made direct to said Doughty as security to him, said Doughty, for the payment of the moneys due and owing by said Schultz, as aforesaid, as well as fox certain other reasons. In accordance therewith said Bacharach then conveyed his said interest in said land to said Somers L. Doughty.
“7. The entire consideration for the purchase of said land from said Bacharach was paid by defendant, Joseph J. Schultz. Said defendant, Somers L. Doughty, paid no portion thereof, and has ever since, and does now, hold said property for said Schultz, he, the said Doughty, having no personal or individual interest therein.
“8. Said Somers L. Doughty, special guardian, then reported to this court the sale of the remainder of said tract to said defendant, Schultz, and said sale was confirmed by order of this court as is alleged in said bill of complaint. Said Somers L. Doughty, special guardian, and all .other parties having an interest in said land, then conveyed the same to said Schultz, and he, the said Schultz, paid the entire consideration therefor.
“9. Subsequently, said Joseph J. Schultz and wife conveyed said remainder of said land to said Somers L. Doughty, for the same purpose and the same reason that the conveyance of the interest of said Baeharach had been conveyed to him. Said Somers L. Doughty has ever since, and does now, hold said property in trust for said defendant, Schultz, and he, the said Doughty, has no personal or individual interest therein. lie, the said Somers L. Doughty, has paid no part of the purchase price thereof. There has been at no time any connivance, scheming or secret agreement between defendants Doughty and Schultz made for the purpose of de-' frauding said Elizabeth Corey, minor, or any other person having an interest in said property. Said transactions involving the sale of said premises have been, at all times, in good faith. Said Somers L. Doughty has at no time sought, nor is he at the present time desirous of having, any interest in said premises.
“10. Said defendant Somers L. Doughty is desirous and anxious to convey the title to said land to said defendant Joseph J. Schultz, and has heretofore been unable to do so because he has been led to believe that the circumstances or facts alleged in said bill of complaint or this answer created a defect in or cloud upon the title thereto; and said defendant Somers L. Doughty tenders himself ready and willing to make, execute and deliver such instruments as may be necessary to transfer the title of said property to said Schultz if the same can be legally done, or upon authority from or approval of this court."

The answer of Schultz, who, upon petition, was admitted as a defendant, in so far as his transactions were concerned substantially as set forth in Doughty’s answer.

The testimony supports these answers, and I find the answers to substantially set forth the facts, and I find there is no evidence that at the time of the sale or of making the report, Doughty had any intention or expectation of becoming the purchaser or owner of the property.

In man3r respects the case is similar to Voorhees v. Bailey, 59 N. J. Eq. 292, and the reasoning of Vice-Chancellor Pitney therein is applicable to this case, and no improvement can be made to his statement of the controlling principles, as follows:

“The fundamental principle governing all dealings with property held in trust is that the cestui que trust is entitled to the best efforts of the trustee to further in all legitimate ways the interests of the cestui que trust. It is the duty of the trustee to use and exercise such care and diligence in dealing with the trust estate as a prudent, sagacious man would bestow upon his own. The trustee is not permitted to have any interest in the subject of the trust antagonistic to, or in any degree inconsistent with, that of the cestui que trust. It follows from this that where there is a trust for sale, the trustee cannot become, either directly or indirectly, a purchaser at his own sale, even though the sale be at auction and so conducted as to insure the best price, and, in point of fact, the price actually paid appears to be a fair and full one. The principal reasons for extending the restrictions so far are — (1) that the trustee shall not be subjected to the least temptation to abate any reasonable efforts to procure the best price for the trust propert}'-; (2) the danger that the trustee may have become possessed, in the course of his dealing as trustee, of some secret information of fact and circumstances affecting the value of the trust property, of which he may take advantage for his own benefit, and (3) the difficulty of ascertaining whether, in fact, all proper efforts have been made by the trustee to procure the best price.
“It is at once apparent that it is of the essence of this rule that the obnoxious inconsistent position of the trustee should exist before or at the time of the sale, which period, in a sale at auction, is the moment of striking off the property to the highest bidder and declaring him the purchaser. The trustee must entertain the intention or desire to purchase before or at the moment of the sale in order to place himself in a position antagonistic to his cestui que trust.
“If the trustee advertises and prepares for sale with proper care and diligence, and in good faith, without entertaining the least intention or expectation of becoming a purchaser, and, in case of a sale at auction, does not, in fact, directly or indirectly, bid for the property, and it is struck off in good faith to another person, then there is a complete absence of any of the elements of danger to the interests of the cestui que trust which underlie the restrictive rule in question.”

The quotation from the late Justice Vredenburgh, speaking for the court of errors and appeals in Wortman v. Skinner, 12 N. J. Eq. 358 (at pp. 371, 372), is especially applicable:

“Let us first see, before considering the evidence, what this doctrine, as applied to the case before us, really is. My understanding of it is this: That if an administrator, at public or private sale, sells land to another, upon an agreement made before or at the sale, that such person shall buy or bid off, not for himself or for others, but for the administrator, that the purchase-money is to come from him, and the deeds made from him to the bidder, and by the bidder back again to the administrator, in pursuance of said agreement, then equity will set aside the proceedings as fraudulent in law. But if the purchaser bids, not for the administrator, but for himself, or for the heirs of the deceased, or for anybody else, then the principle does not apply. The rule was made from considerations of public policy, to prevent the land from being sold under value by the secret machinations of the administrator, and, therefore, such agreement and arrangement must be made and exist before and at the very instant of the sale. Any agreement made, however, soon after it is struck off by the administrator to the jmrchaser, is not within the letter, the spirit or the meaning of the rule. The rule has then had its operation upon the sale, and the land is again instantly free for all the world to purchase. The very reason for establishing the original rule requires this construction of it, otherwise it would produce the very evil it was intended to guard against, by restricting to that extent the power of the purchaser to alienate. Applying these principles to the case before us, if Cooper and Emmons, on the 2d day of July, 1825, bid off this property for the complainant, which was carried out by the subsequent execution of the deeds to the complainant, then the complainant was at that time, and has been ever since, but a trustee for the defendant, and his title is voidable in equity. But if such was not the fact — if the purchase was made on the 2d of July, 1825, not for the complainant or for his benefit, but for the benefit of Cooper and Emmons, or of the heirs of N. Skinner, and the deed from Cooper and Emmons to the complainant was by virtue of an arrangement made after the 2d of July, 1825, then there was no legal fraud in the transaction. Immediately after the property was struck off on the 2d of Juty, 1825, the complainant had as good a right to buy from those to whom the property had been struck off as anybody else, and it would then be in him fraud, neither actual nor legal.”

The testimony is that Doughty is now holding this property, not as owner, but as trustee for Schultz, and that Schulte furnished all the consideration money therefor. It is unnecessary now to determine whether Doughty holds the deed as a mortgage to secure him for moneys due him from Schulte.

Stever v. Hall, 95 N. J. Eg. 169, appears to be the latest pronouncement in saying: “There is no rule of law to prevent a trustee purchasing property from a bona fide purchaser át a trustee’s sale, so long as there was no corrupt agreement between him and the purchaser,” and cites Creveling v. Fritts, 34 N. J. Eq 134, in which Vice-Chancellor Van Eleet held: “If a sale is shown to have been fair and honest when made, and that no fraudulent purpose then existed, it cannot be overthrown by subsequent acts or purposes.”

A decree will be advised dismissing the bill.

The defendant Schultz files a counter-claim based upon the inability of Doughty to convey to him, because of the facts and circumstances alleged in said bill of complaint. This alleged cloud upon the title is based upon or “by reason of any of the circumstances or facts alleged in either the bill or answer.” The bill being dismissed, and no facts or circumstances creating a cloud upon the title being found, the counter-claim must also be dismissed.


author: Beery, Y. C.

text:
    Commercial Investment Company, complainant, v. Joseph Herman, trading as Joseph Herman Construction Company et al., defendants.
    [Heard December 2d, 1925.
    Decided December 3d, 1925.
    Filed December 11th, 1925.]
    1. Wlhere a contract for erection of a building contained a clause providing a penalty if the building were not completed by a certain day, and a provision for a bonus to the contractor if it was completed 'before that day, and also provided for an extension of time for any time lost by reason of the act, default or neglect of the owner, or strikes, the claim for which extension must be presented in writing to the architect within forty-eight hours of the occurrence of such delay, and the contractor subsequently became a bankrupt and a composition in bankruptcy was effected, those creditors who accepted the benefits of the composition are not entitled to participate in the distribution of the fund paid into court by the owner, as the balance due on the contract.
    2. Evidence examined, and held that the building was completed on December 2Sth, 1923, being thirty-two days late, and that the contractor is entitled to a credit of twenty-five days on account of a strike and conditions beyond his control which held up the work.
    3. There being sufficient funds in court, the claimants who filed stop-notices should be paid in full, and the balance paid to the contractor.
    On bill of interpleader.

      2Ir. Edward R. McGlynn, for tlie complainant.

      2Ir. Philip J. Scholland, for the defendants Joseph Herman, trading, &c., and Charles Herman.

      2I.essrs. Siff cC- Siffj for Nathan Milstein.

      2Ir. Frederick S. Rxlqer, for the defendant Elmer D. Wilson.

      Mr. Frank E. Bradner, for the Guarantee Boofing Company.

      Mr. Henry G. Pilch, for the Newark Glass Company.

      Messrs. Schwartz & Schwartz, for the Decker Building Material Company.

      Messrs. Rosing er, Mayer & Albano, for the defendants Bred S. Strebinger and Charles Strebinger, Jr., trading, &c.

      Elizabeth Blume, for the defendant B. Young & Sons.

      Mr. William K. Flanagan, for the defendant Monahan Stone Company.
   Beery, Y. C.

This is an interlpeader suit under the Mechanics’ Lien act. The defendant Joseph Herman, trading as Joseph Herman Construction Company, by contract in writing dated June 27th, 1923, and duly filed, agreed to construct for the complainant a two-story and basement mercantile building in Newark, New Jersey, according to plans and specifications of William E. Lehman, the architect. The contract provided that the whole work under the contract should be completed in four months, from July 1st, 1923. The contract price was $45,000, payable upon certificates of the architect, "seventy-five per cent, of the work done in monthly payments, balance upon completion.” The contract also contained the following provision:

“Section 13. It is hereby understood and agreed between the parties hereto that should the contract for the aforesaid building be completed before the time allotted, namely, four months from July 1st, then and in that event the contractor is to receive as additional compensation for his endeavor the sum of one hundred dollars ($100) per day for each and every day he completes his) contract before the time expressed in this agreement.
“However, should the contractor not complete the work aforesaid in the allotted time, he is then to reimburse the owner for their loss of occupancy in tlie same sum of one hundred dollars ($100) per day for each day that the building remains uncompleted after time allotted in the contract.
“It is, however, distinctly understood that should any strikes or conditions arise beyond the control of the contractors, the time is waived from this contract.”

The contract also provided that the contractor should be allowed an extension of time for any time lost by reason of the act, neglect or default of the owner or any of its representatives, but the clause of the contract containing these provisions also provides, “but no such allowance shall be made unless a claim therefor is presented in writing to the architect within forty-eight hours of the occurrence of such delay.”

The defendant contractor encountered financial difficulties, and on December 19th, 1923, an involuntary petition in bankruptcy was filed against him, and he was adjudicated a bankrupt on that day. At this time there was remaining unpaid to the contractor on account of the contract price the •sum of $11,075, plus $250 for extra work, or $11,325 in all. Prior to the filing of the petition in bankruptcy many of the subcontractors and materialmen filed stop-notices with the complainant. The total amount of claims represented by these stop-notices was $28,012.20, and, in detail, are as follows:

Decker Building Material Company ................... $3,800.00
Charles Herman ..................................... 800.00
Monahan Stone Company ............................ 3,500.00
L. Wortzel, Inc..................................... 1,900.00
C. Strebinger Sons .................................. 952.00
Newark Comp. FI. Co., Frank Ivaiser .................. 194.00
Messer & Hollé, Inc.................................. ' 220.00
Essexi Sash and Door Co............................. 2.125.05
Franklin Dumber Co.................................. 3,582.67
Newark Glass Company .............................. 3,650.00
Katclien Shaw Iron Works........................... 611.81
Offenkrantz & Mark ..................■............... 2,945.00
Elmer D. Wilson .................................... 1,000.00
Birkenmeier & Kuhn Co............................. 415.80
Nathan Milstein ..................................... 990.00
R. Young & Sons . .'.................................. 875.75
Guarantee Roofing Co................................ 479.52

A composition was effected in the bankruptcy proceedings and all of the above-named claimants, with the exception of Charles Herman, Monahan Stone Company, C. Strebinger Sons, Messer & Hollé, Incorporated, R. Young & Sons and Guarantee Roofing Company, having claims aggregating the sum of $6,827.27, filed claims in the bankruptcy proceedings, received the dividends in the composition to which they were respectively entitled, and are, therefore, barred from any participation in the fund in the hands of the complainant, the owner.

Notwithstanding the financial difficulties, the contractor finally completed the work under the contract, but I find as a fact from the evidence submitted that the work was not completed until December 28th, 1923.

The bill of complaint in this cause was filed on September 19th, 1921, and all of the claimants who filed stop-notices were made parties defendant; but, in addition to the six claimants last above named, only four of the other defendants, namely, Nathan Milstein, Elmer D. "Wilson, Newark Glass Company and Decker Building Material Company, are pressing their claims here. These four claimants having accepted the benefits of the composition as indicated above, I hold are not entitled to participate in the distribution of the fund here.

The complainant claims that because of the delay in the completion of the building under this contract, and in view of the provisions of the thirteenth clause of said contract above recited, there is due to the defendant contractor only $5,075, which sum he offers to pay into this court.

Aside from the question as to which of the stop-notice claimants are entitled to participate in the fund here, which I have already disposed of, the only remaining question at issue is the amount which is due to the contractor from the complainant, and that amount is dependent upon the date upon which the building was finally completed, and the construction of the thirteenth clause of the contract.

The defendant contractor, while admitting the work under the contract was not completed within the time specified in the contract, claims that it was fully completed on November 3Otlp, 1923, and that because of strikes affecting the steel work, and because of delay of the owner (the complainant) in the selection of face brick, he was prevented from completing the job sooner, and was, therefore, entitled to an extension of time equal to the delay in completion, and is therefore not liable to any deduction from the contract price under the provisions of section 13.

The last architect’s certificate was dated November 30th, 1923; was for $8,000, and, with previous certificates, amounted to the sum of $33,925, which showed a balance of the contract price, plus extras, in the hands of the owner of $11,325. It will be noted that this certificate, and previous certificates, show a sum slightly in excess of seventy-five per cent, of the total contract price. No final certificate was ever issued by the contractor, but under date of January 5th, 1924, the contractor wrote the complainant to the effect that on the day previous “we find that the building at the southwest corner of Court and Broad streets is complete in every respect.” The architect testified, however, that this did not indicate that the building was not complete before that time, as inspection might not have been made immediately upon completion.

The defendant Joseph Herman and his son, Samuel Herman, who was in active charge of the job in conjunction with his father, both testified that the job was complete in every detail by December 1st, 1923. The witness Walker, who represented the architect and who actually inspected the work during its progress, and who made daily reports thereon to his superior, first testified that the building was “commercially” completed about the middle of December, 1923, later fixing the date as December 22d, 1923, and still later, on cross-examination, on being shown the architect’s certificate dated November 30th, 1923, concluded that the building was “commercially” completed by November 30th, 1923. He qualified his testimony, however, by stating that this work was done about two years ago, and that his recollection might not be entirely accurate, but based his final testimony concerning completion on November 30th, 1923, on the architect’s certificate. The defendant Milstein, who was employed by the defendant contractor as a mason foreman, testified that all of the mason work was completed about November 12th or 15th, and that the whole job was completed within g few days thereafter. Mr. Strebinger, plumbing contractor, testified that he completed his work a day or two before December 1st; that at that time he went through the building; that he left the water for the entire building turned on; that the heat was on and that he thought the job was practically complete at that time, although he did not make any inspection. Mr. McCann, of the Monahan Stone Company, testified that his contract was completed on October 26th, 1923, and that he thought the whole job was about ninety per cent, complete at that time, but that the plastering had not been commenced and that the trim was not in. Mr. Young, who had the contract for the interior marble work, testified that his work was completed before December 1st, and that it looked to him as though the building was practically complete at that time, although he made no inspection. Charles Herman, the painting subcontractor, who is also a son of the contractor, testified that he finished his work on November 30th or December 1st, and that the job was complete then.

Mr. Dornbush, secretary of the complainant company, testified that the building was not completed until January 3d or 4th, 1924; that on December 1st, the date when the defendant contractor claimed the work was completed, there was practically nothing completed; no radiators in the building ; the heating pipes had not been connected to the heating plant; no painting done, and that no painting was begun until January 1st, and that the boiler was not tested until late in December, after Christmas.

Mr. Cohen, the president of the complainant company, testified that on December 1st, 1923, the building was about seventy-five or eighty per cent, complete; that at that time there were no radiators on the job; the water pipes and drain pipes had not been set; painting not completed; heating plant not in operation, and that the heating plant was not tested until after Christmas.

When the witness Walker was on the stand I was not inclined to place much reliance upon his testimony, because of his apparent uncertainty. At that time he did not have with him his daily reports of inspection, but they were later produced, and an inspection of these reports indicates to my mind that he was testifying truthfully, and that his recollection, as first expressed, was practically correct. This testimony was to the effect that the job was “commercially” complete about the middle of December, and that it was fully completed the latter part of December.. These reports are quite illuminating, and convince me that the job was finally completed on December 28th, 1923, and I so find. Eurther comment on the testimony of the various witnesses with respect to this point is, perhaps, unnecessary, except that I may say that, because of the apparent interest and extreme positiveness of some of them, I place very little credence in their testimony.

It would appear, therefore, that if, under the terms of the contract, the building was to have been completed on November 1st, 1923, that it was actually completed fifty-seven days late, or on December 29th, 1923. The question remaining to be determined, therefore, is, to what, if any, deduction from the contract price because of this delay the complainant owner is entitled.

As already stated, the defendant contractor claims that all of the delay in the completion of the contract was due to strikes in the steel trade and to delays caused by the owner. With respect to the delay claimed to be the fault of the owner on account of his failure to select face brick, that may be disposed of by stating that under the seventh clause of the contract any claim for allowance for such delay should have been presented in writing to the architect within forty-eight hours of the occurrence. No such claim was presented, but, even though such claim had been presented in writing, I feel that the testimony would warrant me in refusing to allow the contractor any extension of time on this account.

With respect to the delay caused by the steel strike, the testimony of different witnesses varies. The witness Walker, who, by the way, was the complainant’s witness, and whose testimony I, therefore, consider binding on the complainant, testified that the delay caused by the steel strike was, approximately, three or four weeks, and that the defendant contractor was entitled to an allowance of a month’s time on account of this and other delays for which he was not responsible. Mr. Katehan, the steel contractor, testified that his work was delayed by the steel strike and because of the inability of the steel manufacturer to fill his order promptly for about four weeks. On the other hand, Mr. Cohen and Mr. Dornbush, officers of complainant company, testified that they knew nothing ■ about any steel strike; that no claim for an extension of time on account of such delay had been presented, and that the defendant contractor was not entitled to any extension on that account. The witnesses, Joseph Herman, Philip Herman, Samuel Herman and Nathan Milstein, all testified to a conversation which they alleged to have been had between the defendant contractor and Cohen, Dornbush and another official of the complainant company, in which the complainant agreed to an extension of time on account of the steel strike. This is denied by both Cohen and Dornbush. As indicated above, however, I place very little reliance on the testimony of any of these witnesses on this point. I am convinced that some conversation with reference to this point was had between the parties, but I am unable to determine its purport. In the view I take of the matter, however, this is immaterial. It appears that on August 13th, 1923, the defendant contractor wrote to the architect stating that for the past three weeks the job had been delaj^ed on account of steel deliveries and asking for an extension of time on that account. It appears that no formal written extension was given to the contractor, but, as I read the contract, the contractor was not obliged to make a claim for such extension in writing, nor was any ■written extension from either the architect or the owner necessary. The right to the extension on this account is given to the contractor in the thirteenth clause of the contract, and that clause requires no written claim and no formal written extension.

An inspection of the daily inspection report cards made to the architect by the witness Walker indicates to me that the first report of any delay on account of steel work was on August Gt-h, 1923, and that this delay continued until August 30th, 1923. This is a period of about twenty-five days. It will be seen, therefore, that when the witness Walker testified to a delay of, approximately, a month on account of the steel, and when the witness Katchen testified to a delay of about four weeks, both testifying from their recollection, and without records, they were pretty nearly correct. I am of the opinion, therefore, that the contractor should be allowed an extension of time equal to twenty-five days on account of delays due to strikes and conditions beyond his control. This would, therefore, require completion of the contract on November 26th, 1923. The contract was not actually completed until December 28th, 1923, a delay of thirty-two days.

An examination of the contract, and particularly of section 13 thereof, indicates to me that the provisions of that section are entirely reasonable and as binding upon one of the parties thereto as the other. I have no doubt that if the job had been completed before the expiration of the time limited in that contract, the contractor would have claimed the additional compensation provided in that clause, and I feel that, under the circumstances of this case, the owner is now entitled to the benefits of that section, and, indeed, this is not seriously contested by the defendants.

I find, therefore, that the complainant is entitled to a credit on the contract price of $3,200, which, deducted from the amount of the contract, plus the cost of extra work, will leave a balance of $8,125, plus interest from December 28th, 1923, to date of payment, due to the contractor.

The aggregate amount of the stop-notice claims here allowed being $6,827.27, it appears, therefore, that the fund is sufficient to pay all of these claims in full and still leave a small balance for the contractor. I will therefore advise a decree directing the payment of these six claims in full and in the order of the giving of the stop-notices, which is not in dispute, and the payment to the contractor of the balance remaining after payment of these claims, and in accordance with these conclusions.


author: Bbbby, V. C.

text:
    Supreme Lodge of the World, Loyal Order of Moose, a corporation, et al., complainants, v. Improved, Benevolent and Protective Order of Moose et al., defendants.
    [Decided December 17th, 1925.]
    1. A corporation, though not formed for pecuniary profit, may have the unfair use of its name enjoined to protect its property rights.
    2. Where this court has decided a case involving exactly the same issues as the case sub fudice, such decision is controlling.
    3. Benevolent and Protective Order of Elks v. Improved Benevolent and Protective Order of Elks of the World, 205 N. Y. 459, approved and followed.
    On bill, &C.

      Mr. Philip J. SchoLlwnd, for the complainants.

      Mr. William B. Brandon, for the defendants.
   Bbbby, V. C.

The bill in this cause is filed by the Supreme Lodge of the World, Loyal Order of Moose, and also one of the local New Jersey Moose lodges, against the Independent, Benevolent and Protective Order of Moose, Liberty Lodge, No. 4, and some of the individuals comprising that lodge, to restrain the use by the defendants of the name “Moose’” the Moose emblem, ritual and titles of officers, which are similar to the emblem, ritual and titles of officers of the complainant lodges.

It appears from the testimony and other evidence submitted in the cause that in 1922 there was organized in Newark, New Jersey, a lodge known as the Independent, Benevolent and Protective Order of Moose, Liberty Lodge, No. 4. That lodge was composed entirely of members of the colored race. An action was then instituted by the present complainants against that lodge, and the cause was heard by Vice-Chancellor Ingersoll, sitting in this court, and resulted in a decree against the defendant, in accordance with the prayer of the bill. This decree prohibited the use of the name “Moose,” the Moose emblem, ritual and other insignia by the defendant lodge.

Immediately thereafter some of the -members of the original lodge organized another lodge known as Independent, Benevolent and Protective Order of Reindeer, and other members of the original lodge, which was a defendant in the action referred to, proceeded to organize the lodge, which is now the defendant in this cause. This defendant obtained its charter from the supreme lodge of the same name, which is chartered under the laws of ‘the State of New York. It appears by the charter of the defendant lodge that the name “Moose” is a part of the name employed by the defendant organization: that the emblem of the defendant lodge is an almost exact replica of the emblem of the complainant organization; that the titles of the officers of the defendant lodge are practically the same as those of the complainant organization. It also appears from the testimony that the defendant lodge has never really functioned as a lodge, because at the time the preliminary injunction in this cause was issued sufficient funds had not been gotten together to purchase from the supreme lodge, the parent lodge, the necessary rituals and paraphernalia. One of the officers of the defendant lodge, however, testified that it was the intention of the defendants to use the badge, a replica of which appears on the charter, and to use the ritual and other paraphernalia to be supplied to it by the supreme lodge. It appears from the testimony on both sides that the members of the complainant organizations and. the members of the defendant lodge are known generally as “Moose.” Testimony and exhibits have also been offered on behalf of the complainants indicating the purpose of that organization, and the ritual, badges and paraphernalia used by them, and it appears also that the complainants adopted the name “Moose” as a component part of their corporate name in 1881. and have used it continually since that time, and, as applied to lodges, exclusively in this state until the organization in 1922 of the lodge which was enjoined by this court as above mentioned; that there are now over six hundred thousand members of Moose lodges organized under the jurisdiction of the complainant Supreme Lodge of the World, and that these members are commonly known as “Moose,” and that the subordinate lodges exist all over the United States and in other parts of the world; that they have become well and favorably known to the public by the name “Moose,” and have established a large good-will and enjoy the respect and confidence of the general public under that name; that they own millions of dollars’ worth of property, both real and personal, and that there is established as one of the subsidiary organizations of this order an institution at Moose Heart, Indiana, which is benevolent in its character, and that all members of the Moose lodge are entitled to the benefits of that organization. Complainant lodges and their associates are composed entirely of members of the Caucasian race, while the members of the defendant lodge are, in fact, composed entirely of members of the colored race, although it is claimed there is nothing in the constitution of the defendant organization to prevent a member of the Caucasian race becoming a member of this lodge.

I feel that in this case I am bound by the decision of Vice-Chancellor Ingersoll in the suit above referred to, in which he advised a decree in favor of the complainants. Exactly the same issues were there involved as here, and, except for the fact that it appears from the file in that case that the decree was entered by default, I should not feel called upon to cite any further authorities. The issues in the instant case, however, were fully tried out before me in open court.

In Cape May Yacht Club v. Cape May Yacht and Country Club, 81 N. J. Eq. 454, it was held that a corporation, though not formed for pecuniary profits, may have the unfair use of its name enjoined to protect its property rights — that is, its corporate entity, membership, its popularity and influence, and all that goes with them, of which the name is merely the badge. I think it is clearly established by the evidence in this case that the complainants have extensive property rights, good-will, &c., because of which they are entitled to the protection of this court. The same principle here involved has been frequently before our courts. See International Silver Co. v. Rogers, 66 N. J. Eq. 119; State Council, Jr. O. U. A. M. of New Jersey, v. National Council, Jr. O. U. A. M. of North America, 71 N. J. Eq. 433, as examples of the application of this principle

A case on all fours with the case sub judice, the decision in which I believe to represent the general law in this country, is Benevolent and Protective Order of Elks v. Improved, Benevolent and Protective Order of Elks of the World, 205 N. Y. 459; 98 N. E. Rep. 756. In that case the Benevolent and Protective Order of Elks sought to restrain the defendant, Improved, Benevolent and Protective Order of Elks of the World, from the use of its name, or any name of which "Elks” formed a component part. The defendants were members of the colored race, and the court held that the complainant was entitled to an injunction restraining the defendants from the use of what the court considered a misleading corporate name, and also held that the fact that the complainant was not carrying on any trade or industrial or financial business which could be injuriously affected by the use of such name, was immaterial.

The following pertinent language is used in that opinion:

“The chief practical effect of the present judgment is to compel the defendant to adopt another name which contains no reference to the ‘Elks.’ Its organization is not interfered with, and it may continue to exercise all its functions just as before. If its members desire the name of an animal there is a long list of beasts, birds and fishes which have not yet been appropriated for such a purpose. It is only the virtual misrepresentation that they are ‘Elks’ that is complained of here.”

This language may be very easly paraphrased to apply to the case sub judice. I am of the opinion that the complainants are entitled to an injunction in accordance with the prayer of the bill, and I will advise a decree in accordance with these conclusions.


text:
    Ellis H. Franklin and Nettie M. Franklin, his wife, complainants, v. Sigmund Welt, defendant.
    [Heard December 14th, 1925. Submitted December 29th, 1925.
    Decided January 2d, 1926.]
    1. A memorandum of a contract for the sale of land complies with the statute of frauds, though it does not in terms state an agreement to sell, if from a consideration of the whole memorandum it may be gathered that it was the intention of one party to convey, and the other party to purchase.
    2. Parole evidence is admissible to identify land mentioned in a contract of sale.

      3. Where an agreement of sale is not acknowledged by the wife of the vendor, a deed executed by her is sufficient evidence of her willingness to convey.
    4. Where there is no agreement in a contract for sale of lands that a mortgage existing on the lands shall remain, the fact that the mortgagee will not permit the mortgage to remain is no bar to a decree for specific performance.
    5. An incorrect recital in a deed as to the office where the map of the property is filled does not invalidate the deed.
    On bill for specific performance. On final hearing.

      Mr. John P. Lloyd, for the complainants.

      Mr. Lawrence L. WeltcheTc, for the defendant.
   Beery, Y. C.

The bill in this canse is filed by the complainants, as vendors, for the specific performance of a written contract for the sale of land in Elizabeth, New Jersey, to the defendant. The contract is in the following form:

“Elizabeth, N. J.
March 16, 1925.
Received from Sigmund Welt one hundred [$100] dollars on account of purchase price of property known as No. 331 Franklin St., Elizabeth, N. J. Purchase price to be $5,000.
Balance of $4,900 in cash on or before ninety [90] days, when a warranty deed will be delivered free and clear of all encumbrances.
Taxes, water rents, fire insurance to be adjusted as to date of passing of title.
We further agree to pay a commission of $175, same to be paid to Sigmund Welt, Kelly & Colgan and P. Whelan, agents.
[Signed] Ellis H. Franklin [l. s.]
Witness—
Nettie M. Franklin [l. s.]
Leo P. Kelly
Sigmund Welt [l. s.]
P. A. Whelan”

The defendant, by his answer, denied making the contract and then set up, but not by way of a separate defense, that the porch roof of the premises, the subject of the sale, encroached on and over the adjoining premises, and that by reason thereof the complainants were unable to convey in accordance with the agreement of sale.

There was annexed to the answer a notice of a motion to strike out the bill on grounds which may be summarized as follows:

1. That the alleged agreement is insufficient to charge the defendant under the statute of frauds.

2. That the alleged agreement is incomplete and uncertain, in that the property is not described with sufficient exactness and that it contains no promise by defendant to pay the purchase price therein mentioned.

3. That the agreement is unenforceable because not acknowledged by complainant Nettie M. Franklin, who is a married woman.

4. That the bill does not show a willingness and an ability on the part of the vendors to perform.

At the hearing, the motion to strike out was denied, but counsel for defendant, desiring to submit a memorandum of authorities on the legal points, was permitted to do so.

The evidence submitted at the hearing showed conclusively that the defendant, in company with his agent, Kelly, sought out the complainants at their home, 331 Franklin street, Elizabeth, New Jersey, and after somewhat lengthy negotiations induced them to sell their home to Mm at the agreed price of $5,000 cash. Either the defendant or his agent, I do not recall which, thereupon prepared the agreement of sale which was immediately signed -by both the complainants and the defendant, and the defendant gave the complainants his cheek for $100 on account of the purchase price. A short time prior to the date fixed for settlement the complainants, through their agent, wrote the defendant, advising him that they would be prepared for settlement on the day fixed by the agreement, either at their agent’s office or at that of the defendant, leaving it to him to choose the place of settlement. Tin's letter was received by the defendant, but he made no reply thereto. On the day fixed for settlement the complainants attended at their agent’s office, and after remaining some time executed and acknowledged a deed of conveyance of the property, the subject of the sale to the defendant, and left it with their agent for delivery to the defendant upon payment of the balance of the purchase price. The defendant did not appear for settlement and thereafter refused to accept the deed, claiming that he had only an option and did not contract to buy the property. No objections to the title nor on account of encroachments were offered at that time as 'a reason for refusing to make settlement. The deed mentioned above, executed and acknowledged by both complainants, was offered in evidence at the trial, and both complainants then tendered-themselves ready and willing to perform. The encroachment complained of in defendant’s answer consisted of an overhang of about two inches over the edge of the roof, or what might more properly be called a wooden awning over the steps at the side entrance of the house adjoining the complainants’ property. This roof or awning was about the same width as the door. The “encroachment” had been entirely removed at the time of the hearing. The defendant claimed that it was a part of the agreement of sale that a mortgage of $1,250 then on the property should- remain at the settlement. I find as a fact that this was not so. The defendant also contended that no place of settlement being fixed in the agreement of sale it would be presumed that the place intended was on the property which was the subject of the sale, and that the vendors had no right to fix any other place for settlement, and that an attendance by them at the office of their agent was not a compliance with the terms of the agreement, and that, therefore, the complainants themselves were in default. While passing no comment on this peculiar proposition, it is sufficient for me to say that the suggestion of the vendors of their agent’s office as the place of settlement was acquiesced in by the defendant by his silence after the receipt of their letter. I am of the opinion, therefore, that the complainants are entitled to a decree unless there is some legal obstacle based upon the points above summarized, and I will consider those-points in their order:

1. A memorandum of a contract for the sale of land complies with the statute of frauds, though it does not in terms state an agreement to sell, if from a consideration of the whole memorandum it may be gathered that it is the intention of one party to convey and the other party to purchase. Wollenburg v. Rynar, 96 N. J. Eq. 38.

"If there be a written memorandum or note of the agreement, and this be signed by the party to be charged, the statute is satisfied. Ten Eyck v. Saville, 64 N. J. Eq. 611.

Certainly, the contract here in issue complies with all the requirements of the law as announced in these cases. But even if this were not a complete written contract, it is a sufficient memorandum of an oral agreement to satisfy the statute of frauds. Celenando v. Blazejewski, 98 N. J. Eq. 45.

There was ample evidence at the trial to establish the terms of the contract of which this writing might be held to be a memorandum. Indeed, I think the defendant’s own testimony, or'at least his testimony in connection with that of his own witnesses, was sufficient to establish a complete contract which would not materially vary in its terms from the contract alleged in the bill of complaint. There is therefore no' legal obstacle here to the enforcement of this contract.

2. The property is described in the agreement as “property known as No. 331 Franklin street, Elizabeth, N. J.” Also, it appeared that the contract was drawn on the premises after a complete inspection of the property by the defendant. There was then and is now no dispute as to the identity or extent of the property which was described. But parol evidence is admissible to identify land mentioned in a contract of sale. Wollenburg v. Rynar, supra; Bateman v. Riley, 72 N. J. Eq. 316.

In Price v. McKay, 53 N. J. Eq. 588, the description in the written contract was “a lot on Bramhall avenue, No. 470,” and this was held sufficient, although no town, city or county was named. A description merefy as a certain number on a certain street, the contract being dated at a certain town, isi sufficient. 25 R. C. L. 221 § 19; Kilday v. Schancupp, 91 Conn. 29; 98 Atl. Rep. 335; L. R. A. (1917A) 151.

In such a ease the place at which the contract bears date is assumed to be the place in which the land is located. Mead v. Parke, 115 Mass. 413. If the description used is sufficient for a devise by will it is good. This is a sufficient test. Price v. McKay, supra; Riley v. Hodgkins, 57 N. J. Eq. 278.

A promise by the defendant to pay the purchase price is fairly inferrable from the writing. Wollenburg v. Ryner, supra. But if there is any uncertainty in this contract because of the omission of any term therefrom, the defendant cannot take advantage of such omission. He, or his agent in his presence, prepared the contract and he is responsible for its in completeness, if it is incomplete. Krah v. Wassmer, 75 N. J. Eq. 109.

The contract is not void for uncertainty.

3. It is true that the agreement of sale is not acknowledged by the wife. But she is one of the complainants here, tenders herself ready and willing to perform and has already executed and acknowledged a deed of conveyance of the property to the defendant which he may have. There is now no lack of mutuality. Richards v. Green (E. & A.), 23 N. J. Eq. 536; Krah v. Wassmer, supra.

The deed already executed and acknowledged by the wife is sufficient evidence of her willingness to convey. Krah v. Wassmer, supra; Hulmes v. Thorpe, 5 N. J. Eq. 415; South Jersey Furniture Co. v. Dorsey, 95 N. J. Eq. 530; Luczak v. Mariove, 92 N. J. Eq. 377.

Under these circumstances, the fact that the wife did not acknowledge the contract will not bar specific performance.

4. The bill tenders performance by the complainants. The deed, executed and acknowledged, as above mentioned, was tendered at the trial. The objection on the point of willingness and ability to perform is based almost entirely on the existence of the $1,250 mortgage hereinabove referred to and which defendant claims the mortgagee will not permit to remain. I have already held that there was no agreement that this mortgage should remain. Complainants allege in their bill that it was optional with the defendant as to whether this mortgage was to be paid or assumed by the defendant at settlement. There was nothing shown at the trial which indicated that the defendant could not accept a conveyance of the property and assume the mortgage. But when the attention of complainants’ solicitor was directed to the fact that there was no reference to this mortgage in the written contract, he elected to stand on the written contract. But as I find that there was no agreement that this mortgage should remain at the settlement, the fact that the mortgagee will not permit the mortgage to remain after settlement is no bar to specific performance.

The defendant now requests that he be permitted to reopen his case in order to show that the deed which has been tendered incorrectly described the property which is the subject of this suit, and that, therefore, he is not safe in accepting the deed as the title thereunder would not be marketable. This contention is based upon the fact that the deed describes the property as “lot No. 33 on block No. 36 as laid down on a certain map entitled ‘Map of the New Manufacturing Town of Elizabethport, N. J.’ (which map is on file in register’s office of the county of Essex),” whereas the map to which reference is made is, in fact, filed in Union county instead of Essex county. The incorrect recital of the filing of the map does not invalidate the deed. The map' is in existence and filed in the proper office. If necessary, the deed may be reformed by this court so as to correctly recite the filing of the map.

I will advise a decree.for the complainants.


author: Berry, Y. C.

text:
    Irving Berk and Fannie Berk, complainants, v. Isquith Productions, Incorporated, body corporate, et al., defendants.
    [Decided December 10th, 1925.]
    1. Where an original mortgage is usurious, that taint follows a later mortgage substituted for it.

      2. The defense of usury is personal to the debtor, and, while he lives, no other person can interpose it except with his consent and concurrence.
    3. Where one purchases land expressly subject to a usurious mortgage, and is allowed a credit of the amount of the mortgage on the purchase price of the property, he is estopped from pleading the defense of usury.
    4. Whenever a subsequent holder of a title to lands subject to a usurious mortgage stands quoad hoc in the shoes of the mortgagor, he may set up the defense of usury.
    5. Where a mortgagor executes a usurious mortgage and then conveys the lands covered by the mortgage expressly subject thereto, and thereafter acquires title to that land by deed reciting that the conveyance is subject to the same mortgage, the defense of usury is still available to the mortgagor, and he is not estopped from interposing that defense by the surrender of his bond.
    6. The defense of usury being personal to the debtor, it is available to the mortgagor whenever he is a defendant in a suit to foreclose the usurious mortgage, irrespective of the capacity in which he appears as defendant, unless and until the usurious contract has been purged of its taint, or he has expressly waived his rights under the Usury act.
    On bill to foreclose. On motion to strike out answer.

      Messrs. Quinn, Parsons & Bor emus, for the complainants.

      Mr. Irving Siegler, for the defendant Benjamin Staw.
   Berry, Y. C.

The bill in this canse is filed to foreclose a mortgage for $11,000, dated June 8th, 1925, and payable June 13th, 1925, from the defendant Benjamin Staw to the complainants. The mortgage covers certain property located at Shrewsbury, Monmouth county, New Jersey. The bill alleges that on June 8th, 1925, the date of the mortgage, the defendant Benjamin Staw executed a second mortgage in the sum of $5,650, covering the same property, in favor of the defendant Ivajay Corporation; that on June 9th, 1925, said Staw conveyed. the mortgaged premises to the defencTantt Isquith Productions, Inc., in fee; that on June 8th, 1925, the day before it acquired title, Isquith Productions, Inc., mortgaged said land to the defendant Staw for $20,000. This mortgage, dated one day prior to the date of the deed from the defendant Staw to the defendant Isquith Productions, Inc., was recorded on June 13th, 1925. The defendant Staw, the mortgagor, is made defendant in this suit as third mortgagee. The bill alleges a1 default in the mortgage and contains the usual prayer in foreclosure suits.

• To this bill only the defendant Staw answered, and decrees pro confesso have been entered against the defendants Isquith Productions, Inc., and .Kajay Corporation.

The defendant Staw denies the indebtedness for which the bond mentioned in the bill is alleged to have been given, admits the execution of the mortgage, but denies that the interest of the defendant Isquith Productions, Inc., or his own interest, is subject to the lien of that mortgage, and denies that there is anything due on the mortgage. He also sets up three separate defenses — first, that on June 9th, 1925, the day on which he conveyed the mortgaged premises to Isquith Productions, Inc., that company reconveyed the property to him, and that h'e is now the owner thereof in fee-simple; second, the defense of usury; third, an executory contract extending the time of payment of the mortgage. Complainants’ motion to strike is directed to the whole answer and is based upon three grounds — first, that the defendant Staw took title to the mortgaged premises subject to the foreclosure; second, that the defendant Staw is estopped from setting up the defense of usur}r, and third, that the agreement to extend the time of payment of the mortgage is void.

For the purposes of this motion, the facts set up in the answer must be taken as admitted by the complainants, and it is quite apparent, therefore, that, so far as the motion is addressed to what might be called the general answer, it must be denied.

It is equally plain that the first separate defense, standing alone, would not avail the defendant (Chancery Act § 58; 1 Comp. Stat. p. 432), but as the same facts are repeated in the second separate defense, and as they may be available to the defendant in connection with that defense, I shall refuse to strike out the first separate defense.

The motion as directed to the defense of usury is based on more substantial ground, although I am convinced that even on this ground the motion cannot prevail.

The answer sets up that the mortgage, which is the subject of this foreclosure suit, was executed and delivered in substitution for two prior mortgages, one of $8,000 and one of $3,000; that the $3,000 mortgage was tainted with usury and that the total proceeds of the two mortgages, for which the $11,000 mortgage was substituted, was $9,575, the difference, or $1,475, representing the usurious exaction of the mortgagee. Of course, if the original obligation for which the $11,000 mortgage was substituted was usurious, the taint of usury follows the substituted mortgage, and that defense, if now available to the defendant, may be interposed here. Taylor v. Morris, 22 N. J. Eq. 606; Trusdel v. Dowden, 47 N. J. Eq. 396; Kobrin v. Hull, 96 N. J. Eq. 41.

It is contended by the complainants, however, that upon the conveyance of the mortgaged property to Isquith Productions, Incorporated, by the defendant Staw, his grantee was thereupon estopped from setting up the defense of usury, inasmuch as the deed of conveyance by which this property was conveyed contained the following provision:

“Subject, however, to a mortgage in the amount of eleven thousand ■ [$11,000] dollars covering said premises held by Irving Berk, now a first lien against the said premises and subject further to a mortgage in the amount of fifty-six hundred [$5,650] and fifty dollars covering said premises held by the Kajay Corporation, now a second lien against the said premises, both of which said mortgages are hereby assumed by the party of the second part hereof as a part of the consideration for this conveyance.”

And, also, that the grantee of Isquith Productions, Incor-. porated, notwithstanding that grantee is the original mortgagor Staw, is also estopped from setting up the defense of usury. Certified copies of the deeds from Staw to Isquith Productions, Incorporated, and from Isquith Productions, Incorporated, to Staw were offered in evidence on this motion, and the above-quoted clause appears in the deed from Staw to Isquith Productions, Incorporated, and the following clause appears in the deed from Isquith Productions, Incorporated, to Staw:

‘‘Subject to a mortgage in the sum of eleven, thousand [$11,000] dollars, now a first lien against the said premises, subject further to a mortgage in the sum of fifty-six hundred and fifty [$5,050] dollars, n03V a second lien against the said premises, and subject further to a mortgage in the sum of t3venty thousand [$20,000] dollars, no3v a third lien against the said premises.”

The complainant concedes, however, that the defendant Staw, as mortgagor, notwithstanding these conveyances of the mortgaged property, would have the right to interpose the defense of usury here, because of his liability on the bond for a deficiency; but in view of this admitted right, the complainant on this motion brings the bond secured by the mortgage into court and tenders it to the defendant-mortgagor and waives any claim thereon for deficiency.

It is well settled that the defense of usury is personal to the debtor, and that while he lives no other person can interpose it except with his consent and concurrence. 27 R. C. L. 282 § 83; DeWolf v. Johnson, 10 Wheat. (U. S.) 367.

It is equally well settled that where one purchases land expressly subject to a usurious mortgage and is aUwed a credit of the amount of that mortgage on the purchase price of the property, he is estopped from pleading the defense of usury. 27 R. C. L. 288 § 89; Lee v. Stiger, 30 N. J. Eq. 610; Scull v. Idler, 79 N. J. Eq. 466; Brolasky v. Miller, 9 N. J. Eq. 807; Conover v. Hobart, 24 N. J. Eq. 120; Trusdell v. Dowden, 47 N. J. Eq. 396.

In Trusdel v. Bowden (at pp. 398, 399), Vice-Chancellor Van Fleet said:

“The doctrine is undoubtedly thoroughly well settled that the purchaser of the equity of redemption in.premises covered by a usurious mortgage, who takes title subject to such mortgage, cannot set up the defense of usury (Brolasky v. Miller, 1 Stock. 807, 813; Dolman v. Cook, 1 McCart. 56, 83; Conover v. Hobart, 9 C. E. Gr. 120, 123; Lee v. Stiger, 3 Stew. Eq. 610, 611; Pinnell v. Boyd, 6 Stew. Eq. 600, 602); but this doctrine does not at all rest on the theory that the taint, by the conveyance, has, as between the original parties, been purged from the mortgage; on the contrary, the fact is the taint as to them still exists in all its original force, but the doctrine rests on this foundation: that the purchaser by taking title subject to the mortgage, and retaining out of the price he agreed to pay sufficient money to pay the mortgage, places himself in a position where he cannot allege usury without attempting to keep back part of the money which he agreed to pay for the mortgaged lands. Having retained enough of the purchase-money to pay the mortgage, under a promise that he would apply the money to the payment of the mortgage, it is plain that if he were allowed to make the defense of usury, and should make it successfully, he would defraud both his grantor and the mortgagee. He would be permitted to speculate on a violation of law that had done him no harm, and to keep back money to which he has no right whatever, and to do so in direct violation of his promise. To prevent this, equity says that he shall not make the defense of usury, but it says so, not because the mortgage has been purged of its taint, but because he kept back enough of the purchase-money to pay the mortgage under a promise that if the money was left in his hands he would pay the mortgage debt; This is the foundation on which the doctrine just mentioned rests, and it has no other.”

It clearly appears, therefore, that the defense of usury would not be available here to the defendant Isquith Productions, Incorporated, but a more serious question arises in considering the availability of this defense to the defendant Staw.

Usurious contracts are prohibited by our statute. 4 Comp. Stat. p. 5704. That statute was enacted for the benefit of the necessitous borrower, and it is because such statutes have uniformly been enacted for his benefit that the defense of usury has been held to be a personal defense. In Trusdel v. Dowden, supra, it was said “that the parties to a usurious contract can do nothing which will have the effect to validate it, so as to deprive the debtor of his right to defend on the ground of usury, except by expunging its usurious element,” and also (at ¶. 899), “but this doctrine does not at all rest on the theory that the taint by the conveyance has, as between the original parties, been purged from the mortgage * * *; on the contrary, the fact is the taint as to them still exists in all ils original forced (Italics are mine.) In that case a subsequent mortgagee-defendant, whose mortgage was expressly subject to a prior usurious mortgage, was permitted to set up the defense of usury.

In Scull v. Idler, supra, the court said:

“This inability of one who purchases the mere equity of redemption to set up the defense of usury against the foreclosure of a mortgage subject to. which the purchase was made, is not based upon the idea that the taint of usury has been purged by a conveyance in which the mortgagor has recognized the usurious mortgage as valid; the defense of usury may still be available to the mortgagor.” See, also, Ahrens v. Kelly, 89 N. J. Eq. 586.

While it is quite clear that a mere stranger cannot set up usury in avoidance of a mortgage to which he is neither party nor privy, the defense may be set up by anyone claiming under the mortgagor and in privity with him, and as a general principle it may be stated that whenever a subsequent holder of a title to lands subject to a usurious mortgage “stands quoad hoc in the shoes of the mortgagor,” he may set up this defense. Brolasky v. Miller 9 N. J. Eq. 807.

The right of a borrower to recover usurious interest paid, and that of the defense of usury in a suit on a usurious contract, may be assigned (Van Pelt v. Schauble, 68 N. J. Law 638; Weitz v. Quigley, 88 N. J. Law 617); and in a suit for the foreclosure of an usurious mortgage against a grantee taking expressly subject to the mortgage, the defense of usury may be pleaded with the consent of the mortgagor. Stephens v. Muir, 8 Ind. 352; 65 Am. Dec. 764; Harper v. Middle States Loan Co., 55 W. Va. 149; 46 S. E. Rep. 817; and see, generally, 47 Cent. Dig. "Usury,” §§ 386, 391; 25 Am. Dig. (1st Dec. ed.), and 22 Am. Dig. (2d Dec. ed.), subject “Usury.”

It is urged by the complainant that the defendant Staw appears as a defendant in a dual capacity — first, as the owner of the equity of redemption, and that as such he is estopped from setting up the defense of usury, and second, as the obligor on the bond; and that, if the bond is surrendered, the defense of usury is no longer available to him, the argument being that his liability on the bond for a deficiency constitutes the only reason for permitting him to advance the defense of usury, and that as the complainants’ offer of the surrender of the bond removes this liability, the defense fails because the reason ceases to exist.

While it appears in most of the New Jersey cases that his liability on the bond is advanced as a reason for permitting a defendant-obligor to interpose the defense of usury, after a conveyance by him of the mortgaged premises, I apprehend that the fundamental reason for the defense lies in the illegality of the usurious contract which the legislature has denounced; and that so long as the person for whose benefit the Usury act was enacted is a defendant in the foreclosure suit, it matters not in what capacity he appears as defendant, and. that until the usurious contract has been purged of its taint, or until the personal right of the mortgagor to recover the usurious exaction, or his right to interpose the defense of usury has been expressly waived or relinquished, the rights secured to him by the act still obtain in all their original force.

It is not contended here that the original usurious contract has been purged of its taint, as, of course, it has not, but only that the defendant Staiv is estopped by the two conveyances to which he was a party from setting up this defense. The first conveyance was not a waiver nor a purgation of the usurious element of the contract as between the mortgagor and mortgagee. “The taint as to them still exists in all its original force.” The defense of usury is not inherent in the land which is the subject of the usurious mortgage. It is perhaps true that, as between the mortgagor and his grantee who took expressly subject to the usurious mortgage, the mortgaged land was primarily dedicated to the payment of the mortgage; but this contract of dedication, if it may be so called, was made for the benefit of the mortgagor-grantor and not for the benefit of the mortgagee, The parties to this contract of dedication could at any time revoke that dedication and change their relations with respect to this conveyance. This they have done by a reconveyance of the land to the mortgagor. Staw is now a defendant, not only as obligor on the bond, but also as mortgagor, and I am of the opinion that the defense of usury is available to him. The same result, in a similar case, has been reached by the New York court of appeals. See Knickerbocker Life Insurance Co. v. Nelson, 78 N. Y. 137.

In that case Nelson executed a usurious mortgage to the insurance company and then conveyed the mortgaged premises to Leinbeck expressly subject to the mortgage. Leinbeck conveyed to Watkins, also subject to the same mortgage. Foreclosure proceedings were brought against Watkins, and, after issued joined, he conveyed to Nelson, the original mortgagor, who then applied to be made a party defendant, and, on being admitted, set up the defense of usury. It was held that such defense was available to him notwithstanding his conveyance expressly subject to the mortgage.

It will be noted, however, that in the instant case the defendant Staw is made a defendant in the capacity of a subsequent mortgagee, and, under the decision in Trusdel v. Dowden, supra, the defense of usury is available to him as such.

The motion as directed to the second separate defense will therefore be denied.

With respect to the motion as directed to the third separate defense, it appears that the complainant is in a rather anomolous position. This defense sets up an agreement by the defendant Staw to pa}*- the complainants $500 for an extension of the term of the mortgage to June 13th, 1926, said sum to be paid on September 8th, 1925. The foreclosure suit was instituted before that time. The contract, therefore, appears to be executory. The apparent basis of this motion is that the executory contract is a usurious one, and the complainants are, therefore, in the position of objecting to the defendant Staw setting np a defense of usury while claiming for themselves the benefit on this motion of the usurious character of the executory contract for an extension of time for the payment of the mortgage. While, ordinarily, this court will not lend its aid to either party to enforce a usurious contract while it remains executory (Jones v. Trusdell, 23 N. J. Eq. 554), under the circumstánces of this case, I deem it my duty to refuse to strike out this defense, believing that I should let it stand for what it is worth. The motion to strike out the answer will therefore be denied.


author: Bekky, Y. C.

text:
    Louis Kuskin and Harry Rotberg, complainants, v. Milton Guttman et al., defendants.
    [Heard September 29th, 1925. Submitted October 12th, 1925.
    Decided October 15th, 1925.]
    1. On a motion to strike out a bill, the facts alleged in the bill, and those only, must be considered as admitted for the purpose of the motion.
    2. Where the parties to a contract for the sale of land make it an essential part of their agreement that it bs embodied in a formal written instrument, the matter remains in fieri until the written agreement has been delivered. This court cannot make a contract for the parties, and, if their negotiations are incomplete, must leave them where it finds them.
    On motion to dismiss bill of complaint.
    Mr. Robert H. McCarter, Mr. Joseph E. Strieker and Mr. I. Benjamin Qlueckfield, for the motion.

      Mr. Edivard R. McGlynn, opposed.
   Bekky, Y. C.

This matter comes before me on a motion to strike out the bill of complaint filed herein, 'which prays specific performance of an alleged contract of sale of land, copy of which is attached to the bill and is on the following form:

“August 12, 1925.
Received from John A. Boelime, five hundred [$500.00] dollars, deposit on purchase price of Nos. 509-511 Ocean Ave., Bradley Beach, Monmouth County, New Jersey.
Purchase price $38,500, payable as follows:
Deposit .............................. $500.00
Cash Aug. 20, 1925 .................... 1,500.00
On Nov. 1, 1925 ...................... 3,000.00
Balance on Bond and Mortgage, as per agreement of sale to be drawn on August 13, 1925, subject to approval of purchaser.
Lea Solomon.
Milton Guttman.
John A. Boehme.
Witness
H. W. Mehrtens
In consideration of one dollar and other valuable considerations to me in hand paid I hereby assign to Kuskin & Rotberg all my rights in the above property.
John A. Boehme.
State of New Jersey, \ County of Monmouth, Í s
On this 14th day of August, 1925, appeared before me Henry W. Mehrtens,. who, being duly sworn, deposes and says that lie saw Lea Solomon and Milton Guttman sign the within agreement and heard them acknowledge that they signed and delivered the same as their voluntary act and deed for the uses and purposes therein expressed.
I-I. W. Mehrtens.
Sworn and subscribed to this 14th day of August, 1925.
E. R. McGlynn,
Master in Chancery of New Jersey.”

The motion is based upon the ground that the alleged contract is not complete, and that, in fact, no legal contract ever existed between the parties. It appears from the copy of the alleged contract quoted above, and which is dated August 12th, 1925, that a formal contract was to have been entered into on, the following day. It also appears that whatever rights John A. Boehme had under the alleged contract were, on August 12th, 1925, assigned to the complainants in this suit. The complainants allege that the defendants Guttman and Solomon failed to keep an appointment made for them on August 13th, 1925, for the purpose of executing the formal contract. By whom this appointment was made is not disclosed,' nor does it appear from the bill that the defendants ever assented thereto. On August 14th, the complainants, assignees of John A. Boehme, had the origina] written contract proved by the subscribing witness and caused it to be recorded in the clerk’s office of Monmouth county, and at that time learned that a short time previous on the same day a deed from the defendants Guttman and Solomon, conveying the property to the defendants Morris Greenberg and Pearl Greenberg, had been recorded in said clerk’s office.

A motion to strike out a bill takes the place of a demurrer under the old practice, and on such motion the facts alleged in the bill of complaint, but those only, must be considered as admitted for the purpose of the motion.

There are no material facts alleged in the bill other than those above recited. Paragraph 8 of the bill, however, contains the charge that the conveyance from the defendants Guttman and Solomon to the defendant Greenberg was “for the express purpose of hindering, delaying and defrauding these complainants.” This is the only charge of fraud contained in the bill, and the facts alleged in the bill are insufficient to support this charge. The allegation is a mere conclusion, to arrive at which, from a consideration of specific facts alleged, is the province of the court. Fraud is therefore not to be taken as admitted by the defendants.

I feel that my decision on this motion should be governed by the case of Bettcher v. Knapp, 94 N. J. Eq. 433. In that case the court held, “where the parties to a contract for sale of lands make it an essential part of their agreement that it be embodied in a formal written instrument, the matter remains in fieri until the written instrument has been delivered.”

See, also, the very recent case of Kudtz v. Busch, 3 N. J. Mis. R. 389, a case very similar to the case at bar.

Other cases to the same effect are Moore v. Galupo, 65 N. J. Eq. 195; McKibben v. Brown, 1 McCart. 19; 2 McCart. 498; Wharton v. Stoutenberg, 35 N. J. Eq. 266; Donnelly v. Currie Hardware Co., 66 N. J. Law 388; Jersey City v. Brown, 32 N. J. Law 504; Trenton and Mercer County Traction Corporation v. Trenton, 90 N. J. Law 378; affirmed, 91 N. J. Law 719; Mente & Co. v. Heller, 123 Atl. Rep. 755; Domestic Telegraph Co. v. Metropolitan Telephone Co., 39 N. J. Eq. 160; Potter v. Hollister, 45 N. J. Eq. 508.

Complainant in his brief alleges that the failure of the original parties to the proposed sale to execute a formal contract was due to the fault of the defendant vendors, and invokes the rule that “where there is a fraudulent omission to have an agreement reduced to writing, which induces an irretrievable change of position, equity will grant relief,” citing 5 Pom. Eq. Jur. {Jlh ed.) 5085.

It is not necessary to consider the application of this rule, however, as this charge of fraudulent omission is dehors the record. Many other statements are contained in complainants’ brief which, if contained in the bill of complaint, might be considered as a basis of fraud; but on an application of this kind the court cannot consider any facts not alleged in the bill.

An inspection of the alleged contract, which is merely a receipt and acknowledgment that certain negotiations for the sale of land have been had between the parties, indicates too plainly for argument that there was no completed contract. The “agreement of sale to be drawn” was expressly “subject to approval of purchaser.” From this it would appear that the mind of the parties had never met. This court cannot make a contract for the parties, and, if their negotiations are incomplete, must leave the parties where it finds them.

The motion to strike out the bill will be granted.