text:
    Frances Marion Sarson v. John Sarson.
    [Decided July 16th, 1908.]
    Petitioner’s father, with whom petitioner and defendant lived as husband and wife, forbade defendant the house until he could support his wife, whereupon defendant left, telling petitioner he would send for her just as soon as he could support her. The parting between petitioner and defendant was affectionate, but not so with her father. Within two to four weeks thereafter, defendant wrote petitioner a friendly letter, and subsequently wrote two others, to none of which petitioner replied, on the advice of her father. — Held, not to show desertion by defendant.
    On petition for divorce.

      Mr. Henry II. Fryling, for the petitioner.
   Stevens, V. C.

This is an undefended suit for divorce on the ground of desertion. The parties were married on September 25th, 1901. The desertion is alleged to have occurred on June 17th, 1905, and the suit was begun on July 9th, 1907. It seems to me that on no reasonable view of the evidence can it be said that the desertion began on or prior to July 9th, 1905. The parties were, when they were separated, living at the home of Mr. Fowler, the wife’s father. According to his and the petitioner’s account, the defendant had lost his position and was addicted to drink. In June, 1905, Mr; Fowler told him that he would have to do something to support himself; that he (Fowler) wasn’t going to take care of him any longer. He left two weeks thereafter. The parting of husband and wife was friendly; the parting with the father was “sulky.” It is evident that there was a quarrel. Mr. Yan Nalts testifies that defendant told him, in the course of a conversation had in July, 1907, that when he left, his father-in-law told him “not to come back until he had made good.”

After leaving the defendant wrote four letters: the first (which is not produced) from two to four weeks after the separation; the second, February 11th, 1906; the third, June 17th, 1906, and the last, July 1st, 1907. The three produced are friendly in tone, and the one of February 11th i§ especially so.

On her examination before the master the petitioner testified that she had lost the first letter. On her-examination in open court she said that she had no recollection of losing any letter; that she thought that her counsel had them all.- The omission to produce this letter is unfortunate. Written so soon after the separation, it would, in all probability, have thrown considerable light upon the attitude of the parties at that time. Anyone having much experience in the trial of this class of cases knows how important it is to have the correspondence, and particularly the letters written about the time of the separation. Such letters are, in general, a far more reliable index of the then situation than the oral evidence of the parties, and failure to produce them always gives rise to a suspicion that if produced they would not bear out the verbal statements.

The petitioner’s testimony taken before the master not being entirely satisfactory, she was examined in open court. She then testified that she and her husband parted on friendly terms and that it was agreed (in the words of the witness) “that he would send for me just, as soon as he could support me.” It is more than likely that he considered himself forbidden the house. He did, however, write within two or three weeks from the time of leaving. She says the general trend of this letter was that things were looking better for him and that he hoped soon everything would be all right again. Now, one would have supposed that, in view of the friendly parting, petitioner would have answered this letter with words of encouragement, but she says that she talked the matter over with her mother and father and that they thought it was wise not to write; that she did not write, and that she has never written. The situation, then, was this: He was obliged to leave the house; he wrote to her and she refused to answer his letters or to communicate with him in any way. How this could be desertion on the part of the husband I do not quite understand. The separation, certainly, was not, in the first instance, willful on his part, for he was compelled to leave bjr his father-in-law, and it was not obstinate in the sense that it was persisted in, against the efforts of the deserted party to bring it to an end. It is,true that it has been held by our court of errors and appeals that a woman is not required to make such advances and concessions as a man is. The woman may be passive and yet deserted. It has, however, never been held that she may not only be passive, but that she may also repel the advances to her, and, refusing communication with her husband, still assert that the separation is against her will.

In no view of the case could the mere act of leaving the father’s house be regarded as a desertion, for the wife says that when he left it was agreed that he would send for her as soon as he could support her.

Whether after the husband had had a reasonable time to obtain re-employment and to establish a new home, the situation underwent a change, I need not decide for it is obvious, that even if we leave out of view the conduct of the wife, a reasonable time had not elapsed prior to the beginning of the statutory period of two years.

The master in his report refers to Coe v. Coe, 68 N. J. Eq. (2 Robb.) 157. That case differs from this in two important particulars. In the first place, the husband left his wife of his own accord. In the second place, in the language of the vice-chancellor, “the attitude of the wife was not that of acquiescence in her husband’s prolonged absence and neglect.”


source: Caselaw Access Project

author: Stevens, V. C.

license: Public Domain

text:
    Sarah F. Crocheron v. Dudley D. Fleming.
    [Decided July 23d, 1908.]
    Testatrix bequeathed the residue of her estate in trust, one share to be invested and the income paid semi-annually to complainant for life, and, if she should die either before or after testatrix and her daughter should survive her, the income to be similarly paid to the daughter for life. By a codicil she provided that on complainant becoming a “widow,” or should she be a “widow” at testatrix’s decease, the principal should be paid her absolutely for her own use, and, if she should die before her husband and their daughter should survive her, on the daughter’s attaining twenty-one years of age one-half of the share should go to her and the other one-half to others. At the execution and probate of the will complainant was the wife of A. G., but was subsequently divorced from him and married C., who died in January, 1907, after which A. G. died. —Held, that the codicil did not reqpire that complainant be the “widow” of A. G. in order to be entitled to such share of the estate so bequeathed, and that she was a “widow” within such codicil.
    On bill for the construction of a will.

      Dir. J. Dlerritb Lane, for the complainant.

      Dir. John L. Keller, for the defendant.
   Stevens, V. C.

Elizabeth A. Edge, by her last will, provided as follows:

“Seventeenth. I give, devise and bequeath all the rest, residue and remainder of my estate, real and personal, to my executors as joint tenants and not as tenants in common, in trust, to sell and convey the same and to divide the proceeds into seven equal shares and to pay over the said shares as follows
“One share to be kept invested and the income thereof paid half-yearly to my niece, Sarah P. Greene (the complainant), during her natural life, and if she should die either before or after me, and her daughter, Annie Bell.Greene, should survive her, said income to be paid half-yearly to said Annie Bell Greene during her natural life.”

She then provided that on the decease of Sarah and Annie, the share should be divided among her other nephews and nieces.

By a codicil she modified the above disposition as follows:

“As to the one-seventh share of my residuary' estate, which in said will is directed to be invested and the income thereof paid to Sarah F. Greene for her life, I direct that on her becoming a widow, or should she be a widow at my decease, the principal of said share to be paid to her absolutely for her own use, and that if she should die before her husband, and their daughter, Annie Bell, should survive her, and on Annie’s attaining the age of twenty-one years one-half of said share shall go to her and the other half to be divided among said Annie and the children then living of my other nephews and nieces above named (viz., James Dudley, Francis H., Alice E. F., Mary Louisa, and James F. Edge), equally per capita.”

At tlie time of the execution and probate of the will the complainant was the wife of Augustus Greene. She was subsequently divorced from him and she married William Crocheron. Her second husband died in January, 1907, and then Augustus Greene died.

The sole question is whether Mrs. Crocheron is a widow within the meaning of the codicil and so entitled to the principal of the above-mentioned share.

It will be noticed that the codicil contains two clauses, one of which relates wholly to the gift to. Sarah Greene and the other wholly to the gift to her daughter, Annie. They are joined by the conjunctive "and," but the particle seems misplaced. If Ave read the first' clause by itself it is perfectly plain that the event has happened upon which the payment of the principal is to be made. She has become "a Avidow.” She has not, however, become the widow of her first husband, even though he be now dead, but of her second husband. It seems to me to be an altogether unauthorized perversion of the meaning of words to assert that a divorced woman is a widow unless there is something in the contract which indicates that the word Avas used in an improper sense. The question, then, is, have the comprehensive words “a widow,” contained in the first clause, been so cut down by anything found in the second clause that they must be held to mean “widow of Augustus Greene?” The argument that they have been, rests upon the words “her husband” and “tlieir daughter.” The word “their” points very clearly to Greene as the husband referred to in the second clause, but why does it contract the generality of the expression “widow” in the first? It is, no doubt, true that the testatrix contemplated the possibility of Mrs. Greene becoming the widow of Mr. Greene, but what is there in the language used that forbids us to think that she contemplated her as becoming the widow of a second husband? Are divorces nowadays so infrequent, that no woman is ever contemplated as likely to become the widow of a second husband, although the man from whom she is divorced be still alive?

Suppose we interpolate the name Augustus Greene after the words “her husband” in the second clause and then read the two clauses; what do we find? All we find is two separate provisions, one for the mother and the other for the daughter. The one making the gift to the mother dependent upon her becoming a widow, the other making the gift to the daughter — described as being the daughter of Sarah and Augustus — dependent upon her mother’s death before her father and upon her own survivor-ship. In each clause, the person, the share and the contingency are different and apparently complete in themselves. Why add a limitation to the first that we do not find in it? If the gift to Sarah, the mother, had been made, in terms, dependent upon her surviving her husband, unquestionably the person intended would, without any help from the word “their” have been Mr. Greene, but it is the gift to Annie that is made dependent upon her mother’s death before her father. The gift to Sarah is made dependent only upon her becoming “a widow.” I think complainant is entitled to relief.


text:
    Albert E. Rademacher v. Isabelita Rademacher.
    [Decided July 25th, 1908.]
    Where a husband employs persons to procure evidence of his wife’s adultery on which to obtain a divorce, and such persons set about to procure the defilement of the wife, and by the intervention of such persons the wife is purposely induced to commit adultery, the husband has no remedy, though it is proved that he had not given any distinct orders to such persons to so act.
    On bill for divorce.

      Mr. Henry H. Dawson, for the complainant.

      Mr. Rudolph A. Braun, for the defendant.
   Stevens, V. C.

There are two charges in this ease; one of incest committed by Mrs. Rademacher with her son in July, 1907, at Irvington,, and the other of adultery committed in October, 1907, at Hoboken.

As to the first, it is admitted that on two successive nights the defendant slept with her son. They were found by the complainant and two constables in the same bed together, asleep. The defendant’s explanation is that the complainant, her fourth husband, to whom she had recently been married, had made threats that he would strangle her, and she took her son — seventeen years old — into bed with her for protection. She and the son both deny having had sexual intercourse. The crime alleged is SO' serious and so revolting that it is hard to believe the mother would have been guilty of it. I am disposed to give her the benefit of the doubt, and more especially as the bearing of the son on the witness-stand was in his favor.

As to the second, the defendant’s explanations do not seem very satisfactory. But it is perfectly plain that if the adultery was committed she was entrapped into committing it by the employes of the Gregory Detective Agency, employed by complainant for the purpose of getting evidence. One of these employes, a woman by the name of Frances Morrell, went to the house of defendant and engaged board there, ostensibly as a boarder. After she had been there a few days she invited defendant to go to New York, where they met two men, also provided by the agency, while other members of the agency followed and watched their movements. Frances, the defendant and the two men went first to a matinee, then to a drinking place, then to a restaurant and finally to a hotel in Hoboken, where the watchers broke into, the bedroom in which defendant, and her male companion were found in bed together.

While this outrageous performance does not appear to have been authorized by complainant himself, it was conducted in his interest by his agent, and I do not think he is in a position to take advantage of a situation brought about by that agent’s acts. I think the proper rule is laid down by Lord Penzance in the following passage: “In my opinion, if a husband employs a man to get evidence of adultery upon which to obtain a divorce and the man so employed sets about to procure the defilement of'the wife, and by the intervention of that man the wife is purposely induced to commit adultery, the petitioner has no right to a remedy in this court for such adultery, and I further think that the husband would have no right to a remedy, even if it were proved that he had not given any distinct orders for the purpose. * * * I decide the case on the broader ground that the petitioner cannot obtain the benefit of redress in this court for an act of adultery brought about by his own agent.” Gower v. Gower, L. R. 2 Pr. & Div. 428.

The bill should be dismissed.


text:
    Jeannette Ballantine et al., trustees, v. Alice J. Young et al.
    [Decided August 7th, 1908.]
    1. Where testator at the time of his death owned bonds having a market value in excess of their par value, which bonds became a part of a trust fund created by the will, the income of which was- to be paid to a person for life, with remainder over, the entire interest derived from the bonds belonged to the life tenant, and the trustee could not retain such an amount as would, at the maturity of the bonds, equal the premium at which they were valued at testator’s deajh, unless there was a clear indication in the will to the contrary.
    2. Where a testamentary trust fund to pay the income to a person for life with remainder over was invested by the trustee in bonds, maturing at a date certain, purchased by him at a premium, a deduction should be made from the interest received on the bonds, such as would at their maturity amount to the premium, unless there was a clear direction in the will to the contrary.
    3. Testamentary trustees had had in their hands the entire trust funds to pay the income to persons for life, with remainder to their children. A part of the funds they erroneously, but in good faith, paid to the life tenants, calling it dividends. Another part they erroneously, but in good faith, withheld from the life tenants, under the name of indemnity fund, to make good wasting premiums on bonds in which the funds were invested. The children were infants. — Held, that the trustees were entitled to recoup themselves out of the fund in their hands under the name of indemnity fund, and, if necessary, out of moneys that might become due the life tenants.
    On bill, &e.

      Mr. John O. II. Pitney, for the trustees.

      Mr. Gilbert Collins, for the infant defendants.

      Mr. l-Ienry Young, for the life tenants.
   Stevens, V. C.

This is a bill by trustees for direction in the performance of their duties under the trusts created by the will of John H. Ballantine. He died on April 27th, 1895, leaving a will which disposed of a large estate. The questions are such as have arisen between the life tenants and their children. They may be, for the purposes of this opinion, very briefly stated.

To his three sons, testator gave portions of his estate out and out. To his trustees he gave another portion, one-sixteenth, in trust for each son, reaching a certain age, his direction being

“they are to receive respectively only the interest or income during their respective lives; and, on the death of either of my said sons, the one-sixteenth part of which he was entitled to receive the interest under this clause, shall go to his child or children him surviving in equal shares."

Language substantially similar, as far as the present question is concerned, is used with respect to his daughter, Alice. She is to have “the interest and income during her life.” The principal, part by Alice’s appointment and part by the will itself, goes to her children at her death. One of the testator’s children, Robert, has died without issue. The other children are living and have children.

The testator, at the time of his death, was the owner of bonds of the Long Dock Company, which then had a market value of $1,260 for each bond of $1,000. The premium was due, in the language of the bill, “to their great security and the high rate of interest they bore.” Under a power given to retain investments made by testator

“and in order to preserve the principal of the estate against depreciation by a reduction in the value of said bonds as they approach maturity, the trustees have [I quote from the bill] set aside out of each installment of interest received from said bonds a sum sufficient, with other like installments similarly retained, to make up at the maturity of the said bonds a sum equal to the premium at which said bonds are valued and inventoried at the time of testator’s death.”

It is claimed by the life tenants that the interest thus withheld belongs to them and not to the ultimate beneficiaries, their children.

The trustees, under their powers of investment, have, since testator’s death, bought other bonds, maturing at a date certain, and where bought at a premium, they have also reserved a part of the interest. The life tenants make a similar claim to this, and the question is whether, in the case of both classes, or of either class, of borids, the retainer is justified.

As far as concerns the bonds held by the testator in his lifetime, there seems to be very little conflict among the decided Cases. It is held very generally that in the case of sirch bonds the entire interest belongs to the life tenant, unless there is a clear indication in the will itself to the contrary.

In the case of bonds purchased at a premium by the trustees, after testator’s death, the cases are in hopeless conflict. In Pennsylvania (In re Penn-Gaskill's Estate, 208 Pa. St. 346), and in some other states, it is held that the entire interest in that case, too, belongs to the life tenant, while in NeAV York, Massachusetts and Wisconsin, it is held that wasting premiums must be made good. It appears to me, on the whole, that the New York rule will, in the majority of cases, better effectuate the intent of the testator and better harmonize with the rule established in the somewhat analogous case of perishable or wasting property given to legatees in succession. VanBlarcom v. Dager, 31 N. J. Eq. (4 Stew.) 783; Helme v. Strater, 52 N. J. Eq. (7 Dick.) 591. Its rationale is thus explained (In re Stevens, 187 N. Y. 471), by Chief-Justice Cullen: “The justification for the rule is very apparent. The income on a bond having a term of years to run and purchased at a premium, is not the stun paid annually on its interest coupons. The interest on a $1,000 ten-year five per cent, bond, bought at one hundred and twenty per cent., is not $50, but a part thereof, and the remainder is a return of the principal. All large investors in bonds, such as banks, trust companies and insurance companies, purchase bonds on the basis of the interest the bonds actually return, not the amount they nominally return; nor is the premium paid on the bond an outlay for the security of the principal. All government bonds have the same security, the faith of the government; yet they vary in price, a variation caused by the difference in the rate of Interest and the time they have to run. It is urged that there is often a speculative change in the market value of a bond, amia bond may be worth more at the termination of the trust than at the time of its purchase. This has no bearing on the case. ' The life tenant should neither be credited with an appreciation nor charged with a loss in the mere market value of the bond. But apart from any speculative change in the market value, there is from lapse of time an inherent and intrinsic change in the value of the security itself as it approaches, maturity. It is this, and this only, with which the life tenant is to be charged. We therefore adhere to the rule declared in the Baker Case, that in the absence of a clear direction in the will to the contrary, where investments are made by the trustees, the principal must be maintained intact from Joss by payment of premium on securities having only a definite term to run, while if the bonds are received from the estate of the testator, then the rule in the McLouth Case prevails, and the whole interest should be treated as income. * * * It is also to be said that unless the rule in the Baker Case is to be observed, the relative rights of life tenant and remainderman would largely depend upon the favor or caprice -of the trustees, who might either buy a bond bearing a high rate of interest at a great premium and impair the principal, or buy a bond bearing a lower rate of interest substantially at par and preserve the principal intact.”

The rule thus lucidly explained is that which, in both its branches, prevails in Massachusetts. Hemenway v. Hemenway, 134 Mass. 446; New England Trust Co. v. Eaton, 140 Mass. 532; Shaw v. Cordis, 143 Mass. 443. In the dissenting opinion of Justice Holmes, in the Eaton Case, will be found a strong statement of the opposite view, but it does not appear to me to be convincing.

The question relating to the sinking fund reserved on the bonds of the Chicago, Milwaukee and St. Paul Bailroad Company is disposed of by the conclusion thus reached.

After testator’s death, the Pullman company made an extra stock dividend. It appears to be conceded by all the parties to this controversy that nearly all of it represented money earned after testator’s death. The rule of apportionment is laid down in Lang v. Lang, 57 N. J. Eq. (12 Dick.) 325, and counsel are agreed that there is no difficulty in dividing it.

The last question to be decided arises in this wise: The four original trustees supposed that dividends declared after testator’s death were income, and paid them over to the life tenants. The point came up, subsequently, in this court in Lang v. Lang, 56 N. J. Eq. (11 Dick.) 604, and Vice-Chancellor Emery held that the whole of such dividends were, in general,. income and not principal. On appeal the court of errors and appeals held otherwise. Two of the trustees, now before the court, find themselves in the situation of having paid the life tenants’ money, part of which should have been treated as principal. They ask that, if responsible for its return, they may be permitted to apply so much of the moneys, now or hereafter in their hands, belonging to the life tenants, as will make the capital fund good. They have accumulated a considerable fund to make good the wasting premiums in the case of investments made by testator. They acted in perfect good faith and in accordance with that view of the law which had been adopted by many courts. Did the trustees represent nobody but themselves, there might be the difficulty suggested by the case of Horne, 1 Ch. 76 (1905). But they represent infant cestuis que trust. These infants, not being bound bjr the statute of limitations, are in a position to claim a return of the money, both from the original trustees and from the life tenants. The present trustees, as the representatives of these infants, must have a similar right. No final account has been made or could be made. The matter stands thus: The trustees have had in their hands the entire trust fund, principal and interest; a part of it they have erroneously, but in good faith, paid to the life tenants, calling it dividends. Another part they have in good faith, but erroneously, withheld from the life tenants under the name of indemnity fund. Now it is quite inconceivable that, having money in hand which equitably belongs to the infants, they should be compelled to give up a portion of it to those who have been overpaid, and then be compelled to make good the fund out of their own pocket.

The argument may be put a little differently. The infants are substantially complainants. They say to the original trustees, you have erroneously taken money from the capital fund belonging to us and paid it to the life tenants; you have put into the capital fund money of the life tenants, to which, under the name of indemnity fund, we have no claim. We pray that you may be restrained from taking any money out of the capital fund, under whatever designation you may have put it in, unless it exceeds in amount that which we are entitled to. We have the right to insist that the fund be kept intact. That the dividends were paid out ten or twelve years ago makes no difference, for the statute of limitations does not bar us. If, having the money in hand to make good our capital, you give a portion of it to the life tenants, you commit a breach of trust.

It seems to me that the right of the infants is quite clear, and that the cases go to the length of allowing the trustees not only to recoup themselves out of the fund in hand, so far as held under the name of indemnity fund, but, also, if necessary, out of the moneys that may become due the life tenants. Livesey v. Livesey, 3 Russ. 287; Dibbs v. Goren, 11 Beav. 483; Harris v. Harris, 29 Beav. 110.

I think that the argument based upon the idea that Lang v. Lang introduced a new rule of law on the subject of the apportionment of dividends, and that Lister v. Weeks, 60 N. J. Eq. (15 Dick.) 225; 61 N. J. Eq., (16 Dick.) 675, so held, is altogether untenable. That was a case in which it was sought to remove a trustee- from office because of misfeasance. The corrrt merely held that the mistake of the trustee in paying the dividend there in question was no ground for removal. The other cases cited do not sustain counsel’s position.


author: Stevenson, V. C.

text:
    Monmouth County Electric Company v. The Township of Eatontown, in the County of Monmouth.
    [Decided October 2d, 1908.]
    1. Allegations, in a bill to restrain the entry of a final judgment and the issuance of execution thereon as to various errors of law committed by the judge trying the cause without a jury, must be disregarded.
    2. Equitable estoppels are cognizable at law and in equity, and where the conduct of plaintiff, in an action of law alleged to constitute an equitable estoppel precluding a recovery, is as capable of investigation by a jury, under the direction of the law court, as by an equity judge, the defence is available at law.
    3. A defendant, whose equitable estoppel has been erroneously disregarded by a court of law, need not take a writ of error but he may come into equity to have his estoppel recognized and tried, and thereupon the inability of the law court to take cognizance thereof is res adjudicate. between the parties.
    4. Where, in an action at law, evidence establishing an equitable estoppel precluding a recovery was presented, though not pleaded, and there was nothing to show that the court would not take cognizance of the defence and adjudicate on it, defendant could not maintain a bill to restrain the entry of the judgment against him, but his remedy was by writ of error.
    Oil motion for injunction. Heard on bill, answer and affidavits.

      Mr. John M. Enright, for the motion.

      Mr. James Steen, contra.

   Stevenson, V. C.

My conclusion is that no case is made out for a preliminary injunction.

The bill is filed to restrain the defendant from entering final judgment against the complainant in the Monmouth county circuit court, upon a finding of the judge of that court, who tried the cause by consent without a jury, and from issuing execution or taking any action or proceeding for the recovery of the amount found by the court to be due. A great deal contained in the bill appears to be directed toward the exhibition of various alleged errors of law committed by the learned judge who tried and decided the cause in the law court. All such allegations, of course, must be disregarded.

The first question is whether the complainant shows that it has an equitable defence which could not be pleaded and proved in the action at law. The only suggestion of any defence cognizable in equity is the defence of an equitable estoppel.

It is well settled that equitable estoppels at the present time, as a general rule, are cognizable at law as well as in equity. 2 Pom. Eq. 802; Ruckelschaus v. Oehme, 48 N. J. Eq. (3 Dick.) 436, 443; Kronson v. Lipschitz, 68 N. J. Eq. (2 Robb.) 367. No pretence is made that this is a peculiar and complicated case where equity ought to intervene and transfer the trial of the equitable estoppel, which, of course, involves the trial of the whole cause, from the law court to this court in accordance with the procedure which was approved by the court of errors and appeals in Society v. Lehigh Valley Railroad Co., 32 N. J. Eq. (5 Stew.) 329. The conduct of the defendant, the plaintiff in the legal action, which it is argued, constitutes an equitable estoppel prohibiting the defendant from enforcing the claim which it advanced in its law suit, seems to be extremely simple and fully as capable of investigation and comprehension by a jury under the direction of a law court as by an equity judge.

Nor is this a case where the equitable estoppel has been erroneously excluded from consideration by the law court in the mistaken belief that such defence was cognizable only in equity. Borcherling v. Ruckelschaus, 49 N. J. Eq. (4 Dick.) 340; Headley v. Leavitt, 65 N. J. Eq. (20 Dick.) 748, 755. In such case the party whose equitable estoppel has been erroneously disregarded in the law court is not obliged to take a writ of error, but may come into a court of equity to have his equitable estoppel recognized and tried, and thereupon the inability of the law court to take cognizance of the equitable estoppel will be deemed res adjudícala between the parties.

Iii the present case the 'equitable estoppel was not specially pleaded. If such a defence cannot be proved under the general issue, the complainant has merely lost its case at law because of the inadequacy of its pleadings, a predicament in which parties to law suits frequently find themselves. If, however, the complainant’s equitable estoppel was available under its pleadings in the law suit, then it follows either that the law court erroneously held that it could not take cognizahce of an equitable estoppel or adjudicated either erroneously or correctly that the equitable estoppel was not in point of fact established by the proofs. Evidence tending to establish the alleged equitable estoppel was plainly presented to the law court in this case. There is absolutely no indication in the motion papers in this cause that the learned judge of the Monmouth circuit court erroneously held that he could not take cognizance of the defendant’s alleged equitable estoppel. If the defence in question was presented to the law court by the pleadings, the presumption is that the law court held that such defence was not established. It is unnecessary to point out that this court will not review the decision of the law court in regard to that matter. The bill in describing the course of the action in the circuit court sets forth certain . contentions of the complainant before that court, one of which was that the conduct of the defendant, the plaintiff in the law court, set forth in the bill, constituted an estoppel which barred the defendant from any recovery. The bill then alleges that the court “overrules such contention in an opinion or finding” a copy of which opinion is annexed to the bill. In the opinion, or finding above referred to, the court considers the claim of estoppel and holds that it cannot be sustained for reasons which are stated. While this opinion of the law court subsequently was substituted by another, which I understand does not refer to the claim of estoppel, the fact still remains that there is no evidence in this case that if this equitable estoppel was properly presented by the pleadings and the evidence to the law court for its determination that court did not take cognizance of it and adjudicate upon it. It seems to me quite clear that if the complainant will suffer any injustice by the entry and enforcement of the judgment against it in the Monmouth circuit court, its remedy is by writ of error.


text:
    Christian Knikel et al. v. Elizabeth Spitz et al.
    [Decided October 3d, 1908.]
    1. Equity has no jurisdiction to decree fraudulent wills void.
    2. Jurisdiction of equity, when properly invoked, must be exercised in the absence of good reason to the contrary based on a definite principle of equity.
    3. In the absence of objection in limine that the remedy at law is adequate, equity will exercise its jurisdiction unless on its own motion it sees fit to remand the parties to a court of law.
    4. A bill which alleges that a will and deeds were procured by fraud, and prays that the deeds be set aside, and that the title to the lands disposed of by the deeds and will be revested in complainants as heirs-at-law of the grantor and testator, presents a case for equitable relief so far as the bill prays for the cancellation of the deeds, and, in the absence of seasonable objection on the ground that the remedy at law is adequate, equity will take jurisdiction to that extent, though a court of law in ejectment has jurisdiction to determine the validity of the will and deeds in one action.
    5. A demurrer to a bill within the jurisdiction of equity on the ground of want of equity is too indefinite to raise the objection that the remedy at law is adequate.
    6. The rule as to multifariousness in a bill in equity is based largely on considerations of convenience, especially in those cases of multifariousness which are more properly termed “misjoinder.”
    7. A bill by heirs which alleges that the ancestor was induced by fraud to execute a will and deeds, and which prays for the cancellation of the deeds, and that the title to the lands be vested in complainants as heirs-at-law, is not multifarious.
    8. A bill by heirs for the cancellation of deeds executed by the ancestor on the ground of fi;aud, which makes heirs whose interests are concurrent with those of complainants defendants without giving any reason for the failure to join them as parties complainant, is 'bad on demurrer, under the rule that all tenants in common should be joined as parties complainant unless some of them refuse to join as complain-ants, in which case they should be made defendants with a proper allegation setting forth their refusal to join as complainants.

      On demurrer to bill.

      Mr. Maximilian T. Rosenberg, for the complainants.

      Mr. John J. Fallon, for the demurrants.
   Stevenson, V. C.

The following are my conclusions:

1. The general specification of'“want of equitj'” is not sustained. The bill is filed by heirs and alleges that the ancestor made a will and also deeds of conveyance under which tile defendant Elizabeth Spitz claims title to the land which is the subject-matter of this litigation, and further alleges in effect that the ancestor was non compos mentis, and that the deeds and the will were procured by fraud, duress, undue influence, &c., and prays that the deeds may be set aside and declared null and void, and that the title to the lands may be decreed to be vested in the complainants as the heirs-at-law of their ancestor, and that the defendant in whose favor the will and deeds were made may account for rents.

This court has no jurisdiction to decree the will void. Fraudulent wills constitute the great exception to the jurisdiction of courts of equity arising from fraud. 2 Pom. Eq. § 913; Trustees v. Wilkinson, 36 N. J. Eq. (9 Stew.) 139, 141. It would seem that so much of the bill as alleges that the will was procured by fraud, undue influence or duress, and prays that the title of the complainants be established against the devisee, might have been the subject of a separate demurrer. Disregarding this portion of the bill the remainder clearly presents an equitable cause of action of a very common type.

It is true that if the complainants succeed in having the deeds set aside the defendant Elizabeth Spitz may still assert her title under the will, and that title may finally prevail in a test action in.a court of law. But the complainants have no interest in any attack upon the devise to the defendant Elizabeth Spitz in the appropriate tribunal where that matter may be tried unless they can -have these deeds declared void. They bring this suit in a court of equity invoking the full extent of the jurisdiction of the court in order to get a decree which will enable them advantageously to prosecute an action for the enforcement of their rigfiits in another court. The limitation upon the jurisdiction of this court above mentioned may be a defect in our system, and in this and in other similar cases the result may be a great increase of the extent and expense of litigation in order to determine all the controversies between the parties; still, the undoubted jurisdiction of this court, when properly invoked, must be exercised in the absence of a good reason for refraining from the exercise of such jurisdiction based upon a definite principle of equity.

2. Upon the argument of the demurrer the suggestion was made by the court to counsel for the complainants that they had an adequate remedy at law for the grievances alleged in the bill in respect of both the deeds and the will. The question for consideration is whether the jurisdiction of this court based upon fraud, while beyond all question so far as the deeds are concerned, ought to be exercised where the remedy at law is even more ample and adequate than any remedy in a court of equity. Eggers v. Anderson, 63 N. J. Eq. (18 Dick.) 264; Gnichtel v. First National Bank of Hightstown, 66 N. J. Eq. (21 Dick.) 88, 89. In this case not only must the complainants resort to an action at law in order to test the validity of the will alleged to have been procured by fraud, but in the same action they seem to have ample opportunity to test the validity of these deeds. The fraud alleged in the procurement of these deeds is plainly cognizable at law as well as in equity. It is unnecessary to consider the very narrow question, if there be one, whether in an action of ejectment a deed of real estate may be declared void on the ground of undue influence practiced upon the grantor, where there is no other feature of the case which makes the alleged defect in the conveyance classifiable as a fraud. I know of no reason why a jury in an action of ejectment may not pass on the question whether such influence was brought to bear upon the mind of the grantor as to deprive him of his free agenejg and to subject his will to the absolute control of others when precisely this same issue in respect of a devise of land not only may be but practically must be tried by a jury in an action of ejectment. Passing this question, however, the case made out in the bill against these deeds is one of gross fraud as well as duress. It is plain that a court of law in an action of ejectment would have full jurisdiction to adjudicate that these deeds are void on the ground of fraud in their execution.

If the question were an open one and properly presented now on this demurrer, no doubt an argument could be made worthy of careful consideration in favor of the proposition that while this court has jurisdiction to entertain a suit to declare these deeds void on the ground of fraud, such jurisdiction ought not to be exercised when the court is powerless'to decide the whole case —when in case the deeds shall be set aside the function of this court ends and the complainants must then resort to an action at law to determine the validity of the will — while the courts of law stand ready in a single action to determine the whole controversy over both deeds and will.

It seems to be settled, however, that the objection to the exercise of the jurisdiction of this court in a particular case based upon fraud must be made in limine. Eggers v. Anderson, supra; Krueger v. Armitage, 58 N. J. Eq. (13 Dick.) 357, 361. In the absence of seasonable objection on,the ground that the remedy at law is adequate, this court will proceed to exercise its unquestioned jurisdiction unless of its own motion it sees fit to exercise the discretionary power of remanding the parties litigant to a court of law. Varrick v. Hitt, 66 N. J. Eq. (21 Dick.) 442; Lehigh Zinc Co. v. Trotter, 43 N. J. Eq. (16 Stew.) 185, 204. The defendant by refraining at the first opportunity from raising the objection to the exercise of jurisdiction by this court, which objection, if sustained, will compel the complainant to commence his litigation over again in another court, may well be deemed to be stipulating or assenting to the proposition that the remedy a,t law is not adequate, and that therefore the complainant’s case should be disposed of by the exercise of the jurisdiction of this court.

In this case the only specification of a ground for demurrer which can possibly cover the objection under consideration is the general specification of want of equity. Inasmuch as the court has jurisdiction such a specification seems to me to be too general and indefinite. Moreover, the argument of the'demurrer made by counsel for tbe defendant did not suggest the point. The parties did not come before the court to argue such a question, and in fact it was not argued except so far as counsel for the complainant endeavored to answer the qrxestions of the court. I do not think that it would be fair to consider this possible objection to the exercise of jurisdiction in this case as presented to the court by the demurrer.

To meet the suggested difficulty in the way of the complainants’ case, counsel for complainants cites the decision of Vice-Chancellor Pitney in the case of Foth v. Ellenberger, 47 Atl. Rep. 216. That ease is substantially on all fours with the present one excepting that the case was on final hearing on bill, answer and proofs. The objection above set forth was not taken. The court held that for the purposes of that action the will "must be laid out of view,” and a decree was advised setting aside the fraudulent deed. In view of this authority and of the form of the demurrer, I have concluded that even though the proofs have yet to be taken, this court of its own motion should not refuse to exercise its jurisdiction in respect of the perfectly plain case of fraud infecting these deeds set forth in the complainants’ bill. If the complainants fail in this suit it would seem that the whole controversy between the parties will be finally settled; if the complainants succeed, it may be that the defendant Spitz will not deem it worth while to assert title under the' will. It is therefore by no means certain that the entire litigation between 'the parries in respect of this tract of land will not be conducted to a final conclusion in this court.

The complainants have a great interest in setting these deeds aside. -This court has power to set these deeds aside if the allegations of the bill in respect of them are sustained by proofs. All the reasons above indicated why this court might, in its discretion, decline to exercise its jurisdiction because of the adequate and even more complete convenient and less expensive remedy which the complainants may have in a court of law, are plainly presented upon the face of this bill. The demurrer does not even specify that the complainants have a remedy at law. The grounds of demurrer beyond the general objection of want of equity and lack of jurisdiction in this court are confined to matters of practice and procedure in courts of equity.

3. The objection that the “bill is multifarious and joins distinct and separate matters together which ought not to be united in one bill” is not sustained. The rule in regard to multifariousness in a bill in equity is based largely on considerations of convenience. This is especially true in these instances of multifariousness which more properly are termed misjoinder. Emmans v. Emmans, 14 N. J. Eq. (1 McCart.) 114.

It would be the veriest technicality to sustain this demurrer on the ground that the bill sets forth a good cause of action against the deeds, and a bad cause of action — a cause of action which might have been eliminated by a demurrer — against the will. There is no inconvenience in trying the cause of action in relation to the deeds of which this court has undoubted jurisdiction.

4. The remaining specifications of causes of demurrer may be dealt with together. The objection presented is that three parties who are heirs of the ancestor and whose interests are concurrent with those of the complainants, are made parties defendant and are not made parties complainant, and that “no reason is given for failure to join such persons as parties complainant.”

This technical objection, I think, is well taken. All these tenants in common should be joined as parties complainant under a familiar rule unless some of them refuse to join as complainants, in which case they should be made parties defendant with a' proper allegation in the bill setting forth their refusal to join as complainants. 1 Dan. Ch. Pl. & Pr. (6th Am. ed.) *190, note (a); Morse v. Hovey, 9 Paige 197.

An order will be advised sustaining the demurrer on the ground above set forth and permitting the complainant to amend his bill within twenty days after service upon his solicitor of a copy of the order, and further providing that in default of such amendment the defendant may apply on notice for an order dismissing the bill.


text:
    James A. Scrymser et al. v. Seabright Electric Light Company.
    [Decided October 6th, 1908.]
    1. An electric light station, with the necessary incidents attending its operation, is a factory, within a restrictive building covenant.
    2. Under a restrictive covenant, pursuant to a general building scheme in a residential district, excluding factories, no distinction can be drawn between manufacturing businesses in existence when the scheme was adopted and those thereafter coming into existence.
    3. If any special and restricted use of an electric light plant would alter its character as a factory, within a restrictive building covenant, the burden was on the light company to prove it.
    On final hearing on bill, answer and proofs.

      Mr. John TP. Slocum and Mr. Frank P. McDermott, for the complainants.

      Mr. Edmund Wilson, for the defendant.
   Stevenson, V. C.

This cause which long ago> I understand, ceased to contain anything of practical importance to the parties, in view of the removal of the electric light plant of the defendant company from the Monmouth Beach property, may be very briefly disposed of.

1. The complainants when the bill was filed were entitled to an injunction restraining the defendant company from continuing the common law nuisance, the existence of which, in my judgment, was fully proved. Before the defendants filed their answer the nuisance was probably abated and long ago entirely ceased when the defendant ceased to operate any plant within the limits of the Monmouth Beach tract. The form of-the in junetion, so far as it restrains a common law nuisance, will probably not give rise to dispute between counsel.

2. The only- matter remaining for determination is whether at the time of the filing of. the bill the complainants were entitled to an injunction restraining the defendant from operating their power plant for electric lighting on their lots situate within the limits of the Monmouth Beach tract. The test question is a very narrow one, viz., is or is not an electric light station with the usual equipment of boilers, engines and dynamos a manufactory within the meaning of the covenant and “scheme” which the complainants advance as the basis of this branch of their claim for relief? The covenant and scheme are all exhibited in the report of the case of DeGray v. Monmouth Beach Club House, 50 N. J. Eq. (5 Dick.) 329.

In my judgment, it is useless to go into speculative questions as to the nature of electricity or the nature of the product, if there be a product, of the electric plant which the defendant operated at the time of the filing of the bill. At different periods in the history of electrical discovery very different views have been entertained on this subject. At one time this plant might have been regarded as a manufactory of a “fluid.” More recently it might be deemed to be turning out electrons or ions. All speculation is stopped, I think, by the recent decision of the court of errors and appeals in the case of Bates Machine Co. v. Trenton and New Brunswick Railroad Co., 70 N. J. Law (41 Vr.) 684, and the cases cited in the opinion of the court delivered by Mr. Justice Garrison. This recent decision seems to me to answer tire question in regard to the character of the defendant’s plant, which has been argued in this case- in favor of the complainant. This electric light station with the necessary incidents attending its operation is, in my judgment, as clearly a manufactory within the meaning of this protective covenant as it is a manufactory within the meaning of the Mechanics’ -Lien law. If a distinction can be made in favor of the defendant in this case, I think that it should be- left to the higher court to draw such distinction.

It may be conceded that when this covenant was framed and the Monmouth Beach “scheme” was promulgated about thirty-five years ago, the “manufacture” of electricity in electric light stations was unknown. In view of the annoyance and discomforts which it was the intention of the scheme to exclude from this large residential district, no distinction can be drawn between manufacturing businesses which were in existence when the scheme was promulgated and manufacturing businesses which might thereafter come into existence.

It should be noted, I think, that no effort was made by the defendant to show that the electric lighting which the defendant proposed to effect by means of the operations carried on at its station lay wholly within the limits of the Monmouth Beach tract. The evidence, I think, indicated otherwise. However that may be, when the general character of the defendant’s plant of boilers, engines and dynamos was proved, if any special and restricted use of the plant would alter its character within the purview of the covenant, it was incumbent upon the defendant to make proof of that fact.

3. Counsel for defendant at the argument endeavored to set up as a defence an alleged estoppel on the part of the complainants. It is sufficient to dispose of any such defence to point out that it is not set up or even suggested in the answer.

The complainants are entitled to costs.


author: Garrison, V. C.

text:
    John D. Cavagnaro v. Harvey F. Johnson et al.
    [Decided September 21st, 1908.]
    Complainant was willing to pay a certain sum for land, if the owner would induce his tenant to vacate, or if complainant could make satisfactory arrangements with the tenant, the owner being willing to give a warranty deed if he sold, and on June 15th complainant wrote to the owner, enclosing a deed, which he stated would be satisfactory if executed, and that complainant would be ready to take title the first week in July, provided the tenant vacated the premises before that time. The owner stated that he was unwilling to give a general warranty deed, and that he was unwilling to compel the tenant to vacate w’ithin sixty days, hut suggested that, if complainant paid a certain sum on account, he would have the tenant vacate within that time, and thereafter the parties had a telephone conversation and agreed to meet the following week. Complainant had the purchase price during these negotiations, and was ready to make settlement for the property. — Held, that the minds of the parties did not meet upon the terms oí the sale, and there was no mutuality to the agreement, so as to constitute a completed contract.
    On final hearing on pleadings and proofs.

      Mr. David IF. McOrea and Mr. Robert L. Lawrence, for the complainant.

      Mr. Wendell J. Wright, for the defendant.
   Garrison, V. C.

(orally).

This is a bill filed for the specific performance of a contract by John D. Cavagnaro against certain defendants succeeding to the rights of Harvey E. Johnson and Ruth Johnson, his wife.

Johnson, in his lifetime, was the owner of a tract of land at Northvale in the State of New Jersey. Correspondence ensued between the parties, or their representatives, looking to the sale by Johnson to Cavagnaro of this property for the sum of $2,000, with a small sum in addition thereto to pay for the expense of passing title.

Up until the 30th of June, 1906, the general situation was that Johnson was willing to sell for $2,000, provided satisfactory arrangements could be made with the tenant who was then in the property; Cavagnaro was willing to buy for $2,000 also, provided he could either force Johnson to have the tenant vacate the property or could himself arrange satisfactorily with the tenant.

Johnson agreed that if he sold he would give a warranty deed.

On the 15th of June, 1906, the representative of the complainant wrote to the representative of the defendants that they enclosed a deed, which, if executed by Johnson and his wife, would be satisfactory to the purchaser, and that the purchaser would be ready to take title some time in the first week in July, 1906, but that it would be necessary to have the tenant vacate the premises before that time. The representative of the seller replied to this letter on the 30th of June, 1906, stating that he had received from his client, Johnson, the deed, but that it had not been executed as drawn; that Johnson was unwilling to give a warranty deed, and therefore the deed as executed contained no warranty excepting as against grantor’s acts. This letter further states that the seller, Johnson, does not wish to have the tenant compelled to move under sixty days, and suggests that if the purchaser wishes the house vacated he shoyild pay $500 on account and then the seller will have to have the tenant vacate within sixty days.

No more correspondence ensued between the parties concerning this subject-matter.

Some time about ten days or more after this letter of June 30th there is a telephone conversation between the attorneys of the seller and of the buyer. The attorney of the buyer telephoned to the attorney of the seller stating that he had not yet received any reply to his letter and he wished a date fixed for closing. He states that he is not feeling well at the time and wishes to know whether the attorney for the seller will not be coming shortly to New York City, to which the attorney for the seller replied that he would and states a time then about a week off when he would be down there. The attorney for the purchaser states that during this time he had in his hands the $2,000 to make settlement for the property.

It is contended on behalf of the complainant, the purchaser, that there was a completed contract which he is in a position to have enforced.

So far as the letters between the parties contain the terms of any contract it is perfectly clear that there was no meeting of the minds, and therefore no agreement. According to the letters the seller was to give a deed with full warranty and the property was to be vacant, this latter being an insistment of the purchaser. The seller, being unwilling to give a full warranty, reforms the deed sent him and omits from it the clause of warranty against any acts save those of grantor. He also refuses to agree to deliver the property vacant, and suggests that the tenant be allowed to remain there sixty days, the purchaser paying $500 on account and getting the property at the end of sixty days upon payment of the balance.

There is no competent evidence before me that the purchaser ever agreed to any such performance of the contract as the seller tendered or suggested that he would tender. The only occurrence after the cessation of the written communications between the parties is a telephone talk by which a time of meeting is fixed. It may have been, and probably was, the intention of the purchaser at that meeting to either accept that which the seller should offer, namely, a deed without warranty except as against grantor’s acts and a property encumbered with a tenant, or then come to new terms, but he had not agreed to do so, and there is nowhere any evidence of a meeting of the minds of these parties upon the terms of their bargain.

The mutuality 'required in these contracts is entirely lacking. If the purchaser were the defendant in this suit there is no proof of any contract which could be enforced against him, just as I do» not find any proof of any contract to be enforced by the purchaser against the seller.

This is not a case in which the terms are agreed upon and the complainant is nulling to accept such partial performance thereof as the defendant tenders with damages for the unperformed part; it is a case, as stated above, where the terms are not proven.

I will advise a decree dismissing the bill, with costs.


text:
    Harry B. Blessing v. William B. Smith et al.
    [Decided September 24th, 1908.]
    1. Transactions between a customer and a stockbroker, which involve payments by the customer for margins on orders for buying and selling stocks, pursuant to an understanding that no stock shall be delivered to the customer, but that settlements of differences of profits and losses shall be made, are “gambling transactions.”
    2. A suit by a customer against a stockbroker for an accounting of gambling transactions in the purchase of stock on margin and for a decree for the amount due, brought nearly a year after the payments for margins, if brought by virtue of the Gaming act (Gen. Btat. 1895 p. 1606 § 5), authorizing a suit for money lost, is barred by lapse of time; and if brought by virtue of section 2, authorizing the recovery of money deposited on the event of any wager, the limitation may apply by construction.
    3. A bill by a customer against a stockbroker for an accounting of a gambling transaction, alleging that the customer turned over to the broker specified sums in such transactions, shows an adequate remedy at law under the statute to recover the sums paid, and equity does not obtain jurisdiction merely because the customer is willing to permit the broker to recoup for any losses with respect to stocks actually purchased by him on the customer’s account.
    4. Where a bill, in a suit by a customer against a broker for an accounting of gambling transactions, sets forth the date and amount of each payment made by the customer to the broker in the transactions, so that the customer, if entitled to recover, is entitled to a return of the sums paid, equity does not have jurisdiction on the theory that a discovery is necessary.
    On demurrer to- bill.
    The bill in this case, which by stipulation is to be treated as filed on the 28th of April, 1908, charges that the defendants were stockbrokers, and that the complainant, between the 11th of April and the 21st of May, 1907, paid the- defendants, in four several amounts, a total of $3,250, which said moneys, it is alleged, were paid by the complainant to- the defendants as margin and as additional margin on complainant’s account with the said defendants; that he gave orders to the- defendants for the buying and selling of certain stocks; that the defendants have furnished to the complainant certain paper-writings purporting to show tiie names of the persons from whom the stocks were bought and to whom the stocks were sold on his account, but the complainant charges that the writings do- not sufficiently identify the said persons; that the defendants did not execute the orders given by the complainant, and did not in a number of instances buy and sell the stocks as directed; “that it was never intended or agreed by and between your orator and the defendants that the stocks bought by the defendants on behalf of your orator should be actually delivered to your orator, or that your orator should ever actually pay therefor, and that as a matter of fact no stocks were ever actually delivered to- your orator, nor did your orator ever actually pay therefor to the defendants, but that the arrangement between your orator and the defendants was that at the settlement a balance should be struck, based on the profits or losses as the case might be, or, in other words, simply and solely a settlement of difference, each transaction by your orator with the defendants being had on a marginal basis and the difference between the buying and selling price being charged against your orator or placed to his credit as the case might be.”
    The bill then prays for an accounting, and that the defendants may set forth each purchase and sale made by them on behalf of the complainant, with the names and dates in full and the prices, and that the amount due from the defendants to the complainant may be ascertained and decreed.
    The demurrer specifies a number of causes which I do not think it necessary to detail.

      Mr. William P. Martin, for the demurrants.

      Messrs. Wenver & Ostrom, for the complainant.
   Garrison, V. C.

It is entirely clear, under the law of this state, that the transactions pleaded in the bill were gambling transactions. Flagg v. Baldwin, 38 N. J. Eq. (11 Stew.) 219 (Court of Errors and Appeals, 1884); Sharp v. Stalker, 63 N. J. Eq. (18 Dick.) 596 (Vice-Chancellor Stevens, 1902); Van Pelt v. Schauble, 68 N. J. Law (39 Vr.) 638 (Court of Errors and Appeals, 1903); Thompson v. Williamson, 67 N. J. Eq. (1 Robb.) 212 (Vice-Chancellor Emery, 1904); Myers v. Fridenberg, 70 N. J. Eq. (4 Robb.) 3 (Chancellor Magie, 1905).

In the brief of the complainant he “concedes that his bill of complaint as drawn sets up' an action, which comes within the act to prevent gaming.”

The situation is closely analogous to that dealt with in the case of Myers v. Fridenberg, supra. If the action is by virtue of the fifth section of the act it is barred by lapse of time; if by virtue of the second section, the limitation by construction may apply thereto also, and the action similarly be barred. In any event, there seems to be a complete and adequate remedy at law and no necessity for the intervention of a court of equity.

The gravamen of the complainant’s bill is that he turned over $3,250 of money to the defendants in gambling transactions. I cannot see how, under these circumstances, there can be any question of any accounting between the parties at all. The transactions which he pleads are undoubtedly gambling transactions, and he so designates them himself in his brief. If this is so, he is entitled, under the statute, to recover whatever he put up, and there is no doubt as to what he put up and no room for any accounting with respect thereto.

The complainant endeavors to break the force of this obvious course of reasoning by suggesting that if it should turn out that the defendants actually purchased certain stocks for his account he would be willing to permit them to recoup themselves for any losses with respect thereto. This, however, is a matter of grace and not of law, and does not affect the situation in the least. The only ground upon which the complainant seeks to recover is that the transactions were prohibited, and the statute enables him to recover whatever he put up with respect to the prohibited transaction. The fact that he is willing, in the face of the law, to suffer a certain loss, or to suffer loss under certain circumstances, does not change tire legal aspect of the question involved. Under the present bill, as I view it, he pleads that he was gambling, and that he put up a certain sum of money, which he specifies, and if he proves those facts he is entitled to a return of that money. There is, as has been above stated, no occasion for any accounting whatever.

Nor could the case be saved even by a resort to- the idea that a discovery is necessary, and that equity, taking jurisdiction for that purpose, would retain it for all purposes. No discovery whatever is shown to be- necessary. The complainant sets forth the date and the amount of each payment that he made to the defendants, and if he is entitled to anything he is entitled to a return of those amounts, or the aggregate thereof, and he not only does not show the need of any discovery with respect thereto, but himself possesses the best information as to- them.

The demurrer will be sustained.


text:
    Rachel Halstead v. David Henry Halstead.
    [Decided September 24th, 1908.]
    1. A separation agreement between husband and wife is not abrogated by the institution by the wife of a suit for divorce.
    2. A separation agreement between a husband and wife is enforceable only in equity to the extent that it is just.
    3. While the law does not favor separation between husband and wife, it favors a settlement outside of court of all matters in dispute.

      4. A wife, under a. separation agreement, which binds her husband to pay to her a weekly sum in full of claims for support and alimony, and which binds her not to demand any other payment, cannot, on obtaining an order for temporary alimony in a suit by her for divorce, recover on the agreement; but she may recover thereon until such order is obtained.
    On final hearing on bill, answer and proofs in open court.

      Mr. Ralph TF. Sicinner, for the complainant.

      Mr. Archibald G. Earl, for the defendant.
   Garrison, V. C.

The parties to this suit are husband and wife, and the bill is filed for the purpose of obtaining a .decree against the defendant for money alleged to be due to the complainant by virtue of an agreement between the parties.

The agreement in question is dated June 21st, 1904, and is to be read in connection with a previous agreement between the parties.

Taken together, these agreements provide for the parties living separate, and that the defendant should pay to the complainant the sum of $7 a week in full of all claims for the support, maintenance and clothing of herself and children, she, upon her part, agreeing to receive and take the same in full satisfaction for her support and maintenance and all alimony whatever, and that she “shall not nor will at any time or times hereafter ask or demand of or from the party of the first part” (the defendant here) “any payment or allowance other than the payment or allowance last herein above provided for * * *.”

The defendant made payments under this agreement up to and including the 31st of October, 1904, and one subsequent pajunent of $7 in November of that year. On the 7th of March, 1905, the complainant commenced an action for divorce against the defendant on the ground of desertion and adultery, and on the 20th day of November, 1905, on the motion of her solicitor, an order was made in the divorce suit that the defendant pay to her for the support and maintenance of herself and children, pending the determination of said suit for divorce, the sum of $5 per week from the date of said order to the date of taking proofs.

The present demand of the complainant is for the sum of $7 per week from the 31st of October, 1904, with a credit of $7 for one payment made in November, up to the 20th day of November, 1905, and for the sum of $2 per week from the last-mentioned date to the date of the filing of the bill, or the date of the final decree, as the court might determine this question. This sum of $2 is the difference between the $7 provided for in the agreement and the $5 provided for in the order for alimony pendente lite in the divorce suit.

The defendant conterids, first, that the institution of the suit for divorce abrogated the written engagement or agreement between the parties.

It is the law of this case that it does not.

A demurrer was filed to the bill, and Chancellor Magie, in an opinion filed in this suit on the 19th of July, 1907, in overruling the demurrer, held that “the institution and continuance of that suit (the divorce suit) is not a bar to a bill to enforce the agreement for support.” That this decision of the chancellor is supported by authorities will appear from the following: 21 Cyc. 1598 9; Buttlar v. Buttlar, 71 N. J. Eq. (1 Buch.) 671 (Vice-Chancellor Garrison, 1906).

Engagements of this character, between husband and wife, must be enforced in a court of equity, because at law, the parties being incapable of contracting, a court of law does not recognize their engagements as legal, and they must therefore come into equity to enforce them. A court of equity enforces them when and to the extent that it finds that the engagement was equitable and just. The general principle and the authorities will bo found cited in Buttlar v. Buttlar, supra.

I can see no reason why this agreement should not be enforced up to and including the date when the order in the divorce suit was obtained awarding the wife temporary alimony. I do not think it should be enforced against the husband during the time that the order for temporary alimony is operative.

While the law does not favor separation between husband and wife, it does favor a settlement out of court and without resort to litigation of all matters in dispute.

The attitude that the court takes towards agreements of this nature is well expressed in the case of Galusha v. Galusha, 116 N. Y. 635.

The parties to this suit, after they separated, entered into the agreements in question. One purpose of those agreements undoubtedly was to provide a proper sum for the wife’s support and oblige the husband to pay the same, and permit him to rest in security from other importunity or demand. She engages in the agreements that she will not ask or demand of or from him any payment or allowance other than the one provided therein. By applying for temjoorary alimony she departed from the letter and spirit of the written engagement between herself and her husband. Instead of relying upon the written engagement and the remedies available to her to enforce the same, she applied to a court to fix such sum as in its discretion was proper and enforce the same by different and other remedies. I do not think it equitable to permit her to have the benefits of this other demand and, in addition, to retain in its virility the obligation of the defendant under the mitten engagements. Having, with respect to the very subject-matter, made an agreement, which as I have pointed out heretofore the law favors parties doing, she should- either have abided by that agreement, or, if she departs from it, must suffer whatever the consequences of her departure are. That she did depart from it is unquestioned. The consequences are that during the time that she was receiving the results of her other demand she cannot enforce this agreement against her husband. Whether she can or not after the final decree in the divorce suit, if that either awards her alimony or she does not apply for or secure the same, I do not determine, because it is not before me. What I do determine here is that she is entitled to the full amount under this agreement up to the time that the order for temporary alimony became operative, but that after that time she may not enforce this agreement during the operation of the order for temporary alimony.

Since the defendant had not paid what I find he should have paid, I think it proper to award costs, if, in any event, the matter was debatable and rested in discretion.

1 will advise a decree in accordance with these conclusions.


text:
    In the matter of William H. Van Horne.
    [Decided October 1st, 1908.]
    1. The “equal protection of law” required by the constitution of the United States, amended article-14, means equal security or burden under the law to all similarly situated, and the law must bear alike on all individuals, classes and districts which are similarly situated; the purpos'e of the amendment being to prevent arbitrary and capricious laws.
    2. Under its police power, the state may make regulations to protect the health, morals and safety of the people, which interfere with the conduct of the individual in relation to the public; and the legislative determination as to what is a proper subject for regulation will rarely be reviewed by the courts, but a statute which discriminates without proper basis therefor cannot be sustained under the police power.
    3. Laws 1908 (P. L. 1908 p. 875 civ. 185 § 2) makes it a misdemeanor for the manager, &c., of any theatre or place where theatrical or vaudeville performances are given, to -admit thereto children under sixteen years old, unless accompanied by a parent, &c., provided that the section shall not apply to entertainments held upon piers devoted to public entertainments. — Held, that the distinction between entertainments in theatres, &c., and on public piers was arbitrary, as making an act criminal in a particular place, which is necessarily a crime elsewhere, if a crime at all, and the section violated the constitution of the United States, amended article 14, guaranteeing the equal protection of the law.
    4. Laws 1908 (P. E. 1908 p. 875 civ. 185 § 2), making it a misdemeanor to admit children under sixteen years old to theatres, &e., but exempting from its operation entertainments held on public piers, being void because of such exemption, the entire section was void.
    On habeas corpus.

      Mr. Pierre P. Garven, for the state.

      Mr. Robert S. lludspeih, for William H. Van Horne.
   Garrison, V. C.

This is a writ of habeas corpus brought on behalf of William II. Yan Horne, who was apprehended and charged with the violation of section 2 of chapter 185 of the laws of 1908. P. L. 1908 p. 875.

The section in question reads as follows:

“2. Any person having the management or' control of any theatre or place wherein theatrical, acrobatic or vaudeville performances are given by paid* performers, or wherein any moving-picture show is given, his agents or servants, who shall admit thereto or permit or suffer to be or remain therein any child under the age of sixteen years, unaccompanied -by a parent, or guardian, or adult friend with the knowledge and consent of the parent or guardian, shall be guilty of a misdemeanor; provided, this section shall not apply to any performance given by or under the .auspices of any public or private school or any church or Sunday school, or by any charitable organization or society, nor to entertainments held upon piers devoted to public entertainment.”

The misdemeanor alleged against the prisoner was' in permitting an unaccompanied child less than sixteen years of age to be or remain in a place of amusement at 380 Jackson avenue, Jersey Cit}r, under the management and control of the prisoner, where a performance of the kind mentioned in the statute was being given.

It is claimed on behalf of the prisoner that his apprehension and detention are illegal, because that section, at least, of the statute in question is unconstitutional. It is claimed on his behalf that it violates the fourteenth amendment of the constitution of the United States in that it denies the equal protection •of the laws, and also that it is violative of section 7, paragraph 11, of the constitution of the State of New Jersey.

I have reached the conclusion that the statute is in conflict with the fourteenth amendment of the federal constitution, and is, therefore, unconstitutional, at least so far as respects the section in question.

“Equal protection of the laws” must certainly mean equal security or burden, under the laws, to every one similarly situated.

A statute to escape condemnation as infringing the rights guaranteed by this amendment, must bear alike upon all individua] s and classes and districts that are similarly situated, in a similar manner, and with uniformity; otherwise, there would be unjust discrimination, which this constitutional mandate prohibits.

The purpose of the constitutional amendment must have been to prevent that which was arbitrary or capricious, and to rerquire uniformity and equality under like conditions.

The so-called police power of the legislature which enables it to make regulations and restrictions to protect the .health, morals, safety and welfare of the people undoubtedly justifies the enactment of many laws which interfere with and regulate the conduct of the individual in his relations to tire public, and the judgment of the legislature is to be given great, if not controlling, weight as to what conduct on the part of individuals constitutes a menace to the health, morals, safety or welfare of the general public, and its determination will rarely if ever be interfered with by the courts. But this does not justify a legislative enactment which discriminates where there is no basis for discrimination.

Wherever an enactment has attempted to make that a crime in one place which by all laws of reason must be a crime elsewhere within the same jurisdiction, such attempted distinction is found by the courts to be illusory, and the act is held unconstitutional.

“Enough has been said to show the test which I find should be applied and which I have applied in determining the constitutionality of this act.

Exercising the police power of the state, which, for' the purpose of this decision, I assume the legislature is properly exercising in this instance, this act makes it a misdemeanor for owners of amusement places to permit the attendance, unless accompanied by adults, of children under the age of sixteen, at certain classes of amusements or performances, excepting such amusements or performances as are “held upon piers devoted to public entertainment.”

If any tenable reason were suggested why a certain class of amusements might be injurious to the health, morals, safety or welfare of children unaccompanied by adults if the place at which the entertainment was held was upon land rather than upon a structure extending into or over water, I would not interfere with the law enacted by the legislature containing such a distinction. I have not, however, in a long and careful consideration of this matter, been able to even state, let alone support, a reason which justifies any distinction of that character, nor has the learned prosecutor wlio appeared before me on behalf of the state been able to suggest one. Therefore, it seems too apparent to require further illumination that the distinction attempted to be made is without warrant and is arbitrary.

All of the authorities hold that under such circumstances the law is unconstitutional, and I so hold with respect to this statute, so far as respects the section in question.

It was not even suggested upon the argument that the clause excepting the entertainment upon piers could be excised and the law thus saved. No reason has occurred to me which would authorize or warrant any such treatment of the situation. The section must stand or fall as enacted.

The result of my conclusions is that the prisoner must be released from custody.


author: Leaming, V. C.

text:
    Benjamin F. Fowler v. John R. Wick.
    [Submitted July 15th, 1908.
    Decided July 30th, 1908.]
    1. Where the owner of two adjoining lots, on one of which is a house with an apparent and continuous use of 'light and air over the other lot through windows in the building, conveys the lot on which the house is erected and retains the other lot, there arises, in the absence of any express provision to the contrary, an implied grant of the right to the light and air enjoyed over the other property, which may be enforced by and against the subsequent grantees of the respective parties.

      2. A quasi easement founded on an implied grant on the conveyance of one of two adjacent lots owned by the same proprietor will not arise, unless at the time of the severance of title the lot conveyed supported a building then receiving light and air through its then existing windows which was reasonably necessary to the enjoyment of the building.
    3. Where the owner of a building had a quasi easement to receive light and,air from an adjoining lot, such easement was not abandoned or destroyed by alterations made in the windows of the main building which did not substantially change either the size or place, but the easement was terminated in so far as an annex to the building was concerned by the razing thereof and the erection of another without reference to any feature of the one destroyed, and without preservation of evidence of the situation of the old windows or doors, so that it could not now be determined whether any aperture corresponds with any previous one, either in location or office.
    4. The right of a property owner to maintain a door opening on the adjoining property previously owned by his prior grantor was lost by the destruction of the door.
    On bill for injunction. Heard on bill, answer, replication and proofs.
    Complainant seeks to enjoin defendant from erecting a build- . ing in such manner as will close up the windows and doors in complainant’s building. Defendant admits his purpose to do so, and claims the right.
    The north side of complainant’s building is adjacent to the line which separates complainant’s and defendant’s lots. Defendant’s lot is vacant, and should he erect the building contemplated no light can enter any of the windows on that side of complainant’s building, and the doors cannot be used. The right of complainant to the protection of his windows and doors is based upon the admitted fact that on April 12th, 1887, George P. Stokes owned tlie two lots now owned by complainant and defendant respectively, and on that date conveyed the lot now owned by complainant to complainant’s predecessor in title, and at the time the conveyance was made a building was on the lot so conveyed, which building was adjacent to the line between the lot conveyed and the lot reserved, and the building so conveyed contained windows and doors facing the vacant lot reserved. Defendant, who now holds under Stokes, asserts that whatever rights may have been created by the Stokes’ conveyanee to receive light and air through the windows and to use the doors referred to have since been lost by reason of the radical' changes which have since been made in the building so conveyed by Stokes.
    From the evidence it appears that the building which was on the lot at the time of severance of title by the Stokes’ conveyance consisted of what has been referred to at the hearing as a main building and an annex. The main building was two full stories in height, with an attic above, formed by an old-fashioned peaked roof, and fronted on the street, with its end — at the hearing referred to as its gable end — adjacent to defendant’s lot. The annex extended rearward and along the line of defendant’s lot and was two stories in height. In the end of the main building adjacent to defendant’s lot there was one window in the first story, two windows in the second, and one in tire third, the latter being an attic window near the peak of the roof. In the side of the annex adjacent to the defendant’s lot there were in the first story several windows (probably three) and a door, and in the second story several windows (probably three) and a door.
    In the year 1892, some five years after severance of title, radical changes were made in the building. That part of the building called the main building was remodeled, and that part called the annex was wholly torn down, and in its 'place was erected a structure corresponding, in the main, with the remodeled part of the main building. I am satisfied from the evidence that in remodeling the main building the two second-story "windows were not materially changed. Large window glasses replaced the old small ones; but the apertures for light were not materially changed as to position or size; they may have been lengthened a few inches. The room which had been lighted by these two windows was not materially changed and received all its light from these two windows both before and after the remodeling. The evidence is not entirely satisfactory touching the first-story window of the main building; but I am satisfied that in the remodeling, the new window was made to occupy very nearly the same place as the old one. The new _Avindow may have been placed somewhat nearer to the front of ■the building, and may have been greater in height; but I am convinced that the aperture which made the old window was in part, if not wholly, in the same place as that which made the new. The purpose and necessity of the old and the remodeled window referred to were the same. The old window was necessary to light the extreme rear of a long store which had no other light except from the front windows, and in the remodeled building the same storeroom was preserved and the new window afforded light for its extreme rear portion in the same manner as the old. In the remodeling of the third story of the main building no feature of the old building aves preserved.
    The annex, which Avas wholly destroyed, Avas rebuilt, with no reference whatever to the part destroyed. The apertures in the old annex which faced defendant’s lot were, at most, three AvindoAvs and a door in its first story and three windoAvs and a door in its second story. The rebuilt portion contains in its first story one single windoAAr, one double window, and one treble window, in all, the eqrrivalent of six windoAvs, and also two doors; and in its second story contains two single windows and two double AvindoAvs, and about one-half of tíre rebuilt portion is surmounted with a third story. The rebuilt portion is also about eleven or twelve feet longer than the portion destroyed. The evidence does not disclose with definiteness the interior arrangements of the old annex, and it does not appear definitely whether its rooms were supplied with light from sources other than the apertures facing defendant’s lot. No evidence has been preserved of the location of the windows in the old annex, and almost every witness who has testified has differed from every other as to the number and location, and no witness has claimed to know whether any aperture in the rebuilt portion is, in whole or in part, in the same place in which an aperture existed in the portion which was destroyed.

      Mr. Austin II. Swaclchamer, for the complainant.

      Mr. Joseph J. Summerill, for the defendant.
   Leaming, V. C.

The law of this state is well settled to the effect that where one who. is the owner of two. adjacent lots of land, on one of which is a house with an apparent and continuous use of light and air over the other lot through windows in the building, conveys away the lot on which the building is erected and retains the other lot, there arises, in the absence of any express provision to the contrary, an implied grant of the right to the light and air which have been enjoyed through the windows over the other property. In such case the grantor cannot derogate from his own grant by building on the remaining lot so as to obstruct or materially interfere with the enjoyment of light and air through those windows. The rights and obligations arising from the implied grant may be enforced by and against the subsequent grantees of tire respective parties. Sutphin v. Therkelson, 38 N. J. Eq. (11 Stew.) 318. It has been held, however, that the quasi easement founded on the impHed grant will not arise unless at the time of the severance of title the reception of light and air through the then existing windows was reasonably necessary to the enjoyment of the building. Greer v. Van Meter, 54 N. J. Eq. (9 Dick.) 270, 272. This latter view has met some criticism in this state, but appears to be the accepted law of this court. Toothe v. Bryce, 50 N. J. Eq. (5 Dick.) 589, 595. In the present case there can be no doubt but that the window in the first story of the main building and two windows in the second story of the main building were reasonably necessary to the enjoyment of the building at the time of the severance of the title. It is scarcely possible to assume that the continued presence of these windows was not in mind of the parties at the time of the sale. It is probable that the windows in the annex may also be said to have been reasonably necessary to its enjoyment, but the testimony touching the location of the windows of the annex and the relation of its windows to its interior arrangements is so vague and uncertain that it is difficult to positively assert', the fact.

Assuming that all windows in both the main building and the annex were, at the time of severance, reasonably necessary for ilie enjoyment of the property, and that the Stokes’ deed operated to create a right in the nature of an easement in favor of the property conveyed, as the dominant tenement, for the unobstructed use of light and. air through these windows passing over the property reserved, as the servient tenement, the question arises, to what extent, if any, has the right so created been lost ' by reason of the changes which have been made in the building ?

The opinion of Vice-Chancellor Reed in City National Bank v. Van Meter, on the subject of extinguishment of rights of this nature, reported in 59 N. J. Eq. (14 Dick.) 32, was adopted by the court of errors and appeals. 61 N. J. Eq. (16 Dick.) 674. It was there determined that the destruction of a building and the erection of a new one, with a window in substantially the same place, would not operate to extinguish the easement; that abandonment is a question of intent, ánd that an intention to abandon will be inferred “if the building is torn down and the locality of the old windows from delay in rebuilding or from failure to preserve evidence of their situation, cannot be proved.”

The application of these principles to the facts already stated renders it manifest that in remodeling the main building in such manner that the single window in the first story and the two windows in the second story occupied substantially the same place and performed the same duties as the pre-existing window, the right of complainant to the continued use of these windows was not lost, but in wholly destroying the rear annex and erecting in its place a new building without reference to. any feature of the one destroyed and without preservation of evidence of the situation of the old windows or doors, so that at this time it cannot be ascertained whether any aperture corresponds with any previous one either in location or office, an abandonment of fhe rights claimed under the original grant must be assumed. It follows that an injunction may issue restraining defendant from obstructing the influx of air and light through the three windows referred to in what was formerly the main building, but that defendant cannot be enjoined from building adjacent to the line opposite to that part of the rear portion of the present building which was formerly known as the rear annex.

Complainant also claims a right to the use of a door in the first story of the annex and a right of passage from it over defendant’s land. Whatever right to maintain a door he may have acquired has been lost by its destruction. At present two doors exist and neither can be ascertained to occupy the place1 of the door which was destroyed.. The claim of defendant to right of way over the land on which defendant proposes to build cannot be supported either as a way of necessity or as a right emanating from an implied grant.