author: Kalisch, J.

text:
    William S. Meeks, complainant-appellant, v. Mary M. Bickford, defendant-respondent.
    [Decided May 19th, 1924.]
    1. "Where one executes a quit-claim deed to lands in which the grantor had no interest, such deed conveys nothing to the grantee, and is a nullity.
    2. A court of equity Avill give to a quit-claim deed the effect of a deed of bargain and sale only when the intention of the releasor, coupled with an interest in the property, for Avhieh a A'aluable consideration has been paid, is established by proof.

      3. Where one who has conveyed property afterwards executes a quit-claim deed therefor to a third person, the grantor cannot be presumed to have had an intention to convey the same premises to two different persons, as such conduct would be fraudulent, and fraud is never presumed, but must be proved.

      On appeal from a decree of the court of chancery advised by Vice-Chancellor Bentley, dismissing complainant’s bill of complaint.

      Messrs. Wall, U.aighl, Carey & Ila-rlpence, for the appellant.

      Mr. Pierre F. Coolc, for the respondent.
   The opinion of the court was delivered by

Kalisch, J.

The complainant filed his bill, under' the statute, in the court below, to quiet the title to certain uncultivated and wild lands in the borough of Norwood, in the county of Bergen. The case discloses that these lands had been conveyed to him by three separate deeds of bargain and sale, in May and September, 1914-, by Juliet 0. Smith, a resident of Kansas, for a valuable consideration, and that he neglected to put them on record in the Bergen county clerk’s office until the 19th day of April, 1918. During that interval, on October 11th, 1916, the complainant’s grantor, Juliet 0. Smith, executed a quit-claim deed in the State of Kansas for the same lands, theretofore conveyed by her to the complainant, to the defendant, Mary M. Bickford. Her acknowledgment of the deed was taken before a notary public of that state.

The validity of the quit-claim deed is first attacked upon the ground that there was no proper proof that a notary public was authorized to take an acknowledgment of a deed in the State of Kansas, hence the acknowledgment was a nullity, and its subsequent recording by the defendant’s brother in Bergen county could not operate to give it any legal effect. We think there was proof that the notary who took the acknowledgment was authorized by the laws of Kansas to take the same, contained in the certificate of the county clerk of the district of Shawnee county, appended to the acknowledgment and which certified that the notary was duly commissioned and sworn and duly authorized to take the acknowledgment. This was a substantial compliance with the twenty-third section of the act entitled “An act respecting conveyances,” Supp. 1911, 1915, Comp. Stat. pp. 408, 409, and we agree with the views expressed by the vice-chancellor in that regard.

lYe need not stop to consider the question mooted whether or not the defendant took her deed with notice or knowledge of the complainant’s prior conveyance by reason of the fact that the complainant had posted on the land after he had purchased it, a notice containing the words: “Ho trespass.” Since we have reached the conclusion that the decree in this case must be reversed for a more fundamental reason. 1’t must be conceded that at the time Juliet Smith executed the quit-claim she had no interest whatever in the lands mentioned in the deed. The language of the deed is, “Has remised, released and forever quit-claimed, to the said party of the second part and to her heirs and assigns all those tracts or parcels of land,” &c. The deed contains no covenants of any kind whatsoever. The release is made subject to all liens of every nature, and unpaid taxes; and. the habendum clause, in the following language: “To have and to hold the above-mentioned and described premises with the appurtenances, unto the party of the second part, her heirs and assigns forever.” This language in the deed, under the facts of this case and the law applicable thereto, did not operate to transform the character of the quit-claim deed into one of bargain and sale. The fact that at the time Juliet Smith executed the quit-claim deed she had no interest whatsoever in the lands quit-claimed cannot be successfully controverted in face of the three conveyances made by her to the complainant for the same lands, at least two years prior to her executing the quit-claim deed to the defendant. The vice-chancellor held in substance that the three conveyances made to tlie complainant were void, as to the defendant, under the fifty-fourth section of the act entitled “An act respecting conveyances” (2 Comp. Stat. p. 1553), which providés, in substance, that every deed, &c., shall until duly recorded be void and of no effect against all subsequent bona fide purchasers for valuable consideration, not having notice thereof, whose deed snail have been first duly recorded, provided that such deed shall be valid and operative, although not recorded, except as against such subsequent purchasers, because the complainant’s deeds were not recorded until more than a year and a half after the quit-claim deed was executed and recorded.

In order to bring the defendant’s quit-claim deed within the operation of the provision of the statute it was essential that it should, appear that Juliet Smith had some interest in the lands which she could lawfully convey or release to the defendant.

Under the facts, as they appeared in the court below, Mrs. Smith had no interest, either present or contingent, in the property, and, therefore, could not lawfully conve.y any.

An examination of the cases dealing with the topic under discussion will show that a court of equity will interfere and give the effect of a bargain and sale deed to one of quitclaim where it.appears that the releasor had an interest in the land and intended to convey such interest to the releasee. This interest may be a contingent one. But there must he an interest which the releasor may lawfully convey and it must also appear that a valuable consideration was paid therefor.

The case of Havens v. Seashore Land Co., 47 N. J. Eq. 365, relied on in respondent’s brief as supporting the contention that the quit-claim deed operated as a bargain and sale deed, does not do so in fact. What Vice-Chancellor Van Fleet held in that case was that a deed of quit-claim was sufficient to pass all the estate that the grantor could lawfully convey by bargain and sale deed. And this learned jurist, at page 371, said: “When the granting clause of a deed is silent as to the estate intended to be conveyed, resort may be had to the habendum to ascertain the intention of the grantor in that regard. It cannot be used either to enlarge or diminish the estate specifically defined in the granting clause, for if it is repugnant to that clause it is void, but if that clause is either silent or ambiguous, then the habendum becomes the standard by which the estate granted must be measured.” He cites with approval, at page 372, the language of Judge Harr, who said: “An}r -instrument which shows that a title w'as meant to be given in return for value received [will be] equally effectual with the most formal deed.”

In many states quit-claim deeds are dealt with by statute similar to the one of the State of Massachusetts, whose statute provides that such a deed shall be sufficient to pass all the estate which the grantor could lawfully convey by deed of bargain and sale. 3 Washb. Real Prop. 311.

Exceeding care, therefore, must be taken, before accepting decisions of sister states on the subject in question to ascertain whether or not such decisions are founded upon some statutory regulation. In Hew Jersey we have no statute relating to the matter. We are, therefore, to be controlled by what has been so forcefully and wisely expressed by Yiee-Chaneellor Yan Fleet in the^Havens Gase, above cited, by the intention of the grantor to be ascertained from the instrument itself or from the circumstances surrounding the transaction. For it is only with the aid of a court of equity, in a course to accomplish a just and equitable result, that the intention of the releasor, coupled with an interest in the property, for which a valuable consideration has been paid, that that court will give to a quit-claim the effect of a deed of bargain and sale.

With the undisputable facts that Juliet Smith had conveyed all her right, title and interest to and in the property to the complainant; and that when she made and executed the quit-claim deed to defendant for the same premises she had no more interest in the same than an utter stranger, it is incomprehensible how it can be said, in the absence of any proof, with any show of reason that it was her intention to convey to the defendant property which she had previously conveyed to the plaintiff. For if it was the intention of Juliet Smith to convey the same premises to the defendant which she had previously conveyed to the plaintiff, she was guilty of fraudulent conduct. The court will not presume 'fraud. Fraud must be j>roven. The making of the release is consistent with' the notion that a representation might have been made to Mrs. Smith that she had an interest in the property which she had not disposed of, and hence the making of a quit-claim deed would be quite natural. As she had no interest she could not lawfully convey any. The quitclaim deed was a nullity.

There being no testimony or circumstances from which the court below could reasonably have inferred that it was the intention of the releasor of the quit-claim to convey the premises already conveyed to the complainant, to the defendant, the defense to the complainant’s suit íot relief failed.

Moreover, it is quite significant that neither of the two brothers, who testified on the behalf of their sister, made the slightest suggestion that he did not have knowledge of the complainant’s rights before the quit-claim deed was made to their sister; and what is more significant is the fact that the defendant did not take the witness-stand to testify as to the Iona, fides of the transaction.

The views herein expressed tend to the conclusion that no interest in the lands in question passed by the quit-claim deed to the defendant, and that the defendant does not come within the provisions of the fifty-fourth section of the act respecting conveyances, supra,, as a tona, fide- purchaser for value of said lands.

Counsel for respondent, in his brief, says, that the question of the validity of the quit-claim as a defense was abandoned by the counsel of complainant in the court below. The record does not show this. It does appear, in the opinion of the vice-chancellor, that he held that the giving of the quit-claim deed to defendant gave the defendant a better title than the plaintiff had, for the reason the plaintiff had failed to record his deed until after the deed of quit-claim was recorded. The vice-chancellor could not have decided that the defendant had the better title unless he passed upon the question of the dona fides of the transaction, and there is nothing in the opinion which declares that the appellant abandoned any of the questions raised.

The decree is reversed, with costs, to the end that the complainant may be decreed to have a perfect title to the lands in question and that the defendant has no title or interest therein.

For affirmance—Lloyd—1.

For reversal—The Chiee-Justice, Trenchard, Parkek, Minttjrn, Kalisch, Black, Katzenbach, Campbell, White, Gardner, Van Buskirk, Clark, McGlennon, Kays—14.


source: Caselaw Access Project

license: Public Domain

text:
    Ella Stagg, complainant-appellant, v. Kathryn F. McCann, individually and as administratrix ad prosequendum of the estate of L. Lloyd McCann, and New York, Susquehanna and Western Railroad Company, defendants-respondents.
    [Argued March 7th, 1924.
    Decided May, 1924.]
    1. The court of chancery has no jurisdiction to interfere with the-pleadings and procedure of a common law court.
    2. Where one applied to the common law court to be made a party to a suit in that court, which' application was refused, and then filed a hill in equity praying an injunction to restrain the prosecution or settlement of the action in disregard of the complainant’s alleged' rights, such bill should be dismissed for want of. jurisdiction of the eomt of chancery.
    3. Key v. Paul, 61 N. J. Law 133, approved and followed.

      On appeal from a decree advised by Vice-Chancellor Lewis dismissing complainant’s bill of complaint, whose opinion is reported in 95 N. J. Eq. 53.

      Messrs. Kent & Kent (Nathaniel Kent, of counsel), for the appellant.

      Mr. Edward F. Merrey, for the respondent Kathryn P. McCann.

      Mr. Edward A. Marlcley, for the New York, Susquehanna and Western Bailroad Company.
   The opinion of the court was delivered by

Kalisch, J.

Kathryn P. McCann, widow of the L. Lloyd McCann, deceased, brought her action in the supreme court, - under the “Death act,” against the New York, Susquehanna and Western Bailroad Company, to recover the pecuniary loss sustained by her, by reason of her husband’s death, which she alleged in her complaint was the result of negligence on part of the defendant railroad company. In .her complaint, filed in the supreme court, she named herself as tlie sole person under the “Death act” entitled to recover, notwithstanding the fact that the decedent left him surviving his mother, with whom he was living at the time of his death. Thereupon, the complainant, mother of the decedent, applied to a justice of the supreme court for an order directing Kathryn McCann to insert the name of the complainant in her complaint, filed in the supreme court, as one of the next of kin for whose benefit, also, the action should be prosecuted by the administratrix, Kathiyn McCann. The justice refused to grant the application. Thereupon, the complainant filed her bill of complaint in the court of chancery praying for an injunction to restrain the administratrix from prosecuting her action against the railroad company and to restrain the railroad company from eompromising or settling the action in disregard of the complainant’s rights; and that the administratrix be directed and ordered to amend her complaint in the New Jersey supreme court,, so as to show that the complainant is one of the heirs and next of kin of the decedent.

The learned vice-chancellor dismissed the bill of complaint, after a consideration of the merits, upon the ground that the bill disclosed no equity.

The facts set -forth in the bill of complaint fail to disclose any jurisdiction in the court of chancery to deal with the matter. Giving to these facts their normal significance and weight in favor of the complainant, they show nothing more than an attempt to obtain the interference of a court of equity with the pleadings and procedure of a common law court, without any proper basis, which course cannot be tolerated. The hill should have been dismissed upon the ground of lack of jurisdiction, in that the complainant had a complete remedy at law.

Section 4 of the new Practice act provides: “Subject to rules, all persons claiming an interest in the subject of the action and in obtaining the judgment demanded, cither jointly, severally or in the alternative, may join as plaintiffs, except as otherwise herein provided.”

Section S provides: “The court may determine the controversy as between the parties before it, where it can do so without prejudice to the rights of others; hut where a complete determination cannot be had without the presence of other parties, the court may direct them to be brought in. Where a person, not a party has an interest or title which the judgment will affect, the court, on application, shall direct him to be made a party.”

The complainant, in the present case, did apply, as already pointed out. to one of the justices of the supreme court for the order in question, and that application having been denied, the proper course for the complainant to pursue was to apply to the court itself, according to Key v. Paul, 61 N. J. Law 133.

In Van Hoogenstyn v. Delaware, Lackawanna and Western Railroad Co., 90 N. J. Law 189, Mr. Justice Swayze, speaking for this court (at p. 190), said: “The proper practice is pointed out in Key v. Paul, 61 N. J. Law 133,” and further on, at the same page, continued: “The deprivation of a review does not necessarily follow feince there is an appeal from the single justice to the court in banc in one of its parts under Key v. Paul.” It follows, therefore, as a matter of course, that if the court in banc, in the present case, had also refused complainant’s application, the matter being one involving a substantial right to which she laid claim, she would, under the cases of Eames v. Stiles, 31 N. J. Law 490; Defiance Fruit Co. v. Fox, 76 N. J. Law 482; Knight v. Cape May Sand Co., 83 N. J. Law 597, be entitled to an appeal to this court.

As the case is improperly here, by reason of the improper procedure, in applying to the court of chancery for relief, which court had no jurisdiction of the matter, we express no opinion on the merits of the controversy between the parties. The decree below, dismissing complainant’s bill, must be affirmed, but solely upon the ground that the court of chan-' eery was without jurisdiction of the cause.

For affirmance—The Ci-iiee-Justice, Tkenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon—14.

For reversal—None.


author: Black, J. Whtttí, J.

text:
    John Dale McGill et al., complainants-respondents and appellants, v. The Trust Company of New Jersey, respondent-appellant; Alexander T. McGill and Eleanor A. Mayer, defendants-counter claimants, respondents and appellants.
    [Submitted November term, 1923.
    Decided May 19th, 1924.]
    1. A contingent power of testamentary appointment given in a codicil to the daughter of the testator, to bequeath a share of the estate “to any of my blood relations she may select,” does not create a contingent estate or interest in such share in the blood relations.
    2. The words “blood relations” in this will are limited, in a legal sense, to “next of kin.” They include only relations by blood, and not connections by marriage.
    On appeal from the court of chancery, advised by Vice-Chancellor Buchanan, whose opinion is reported in 91¡. N. J. Eq. 657.

      Messrs. Hopkins <£• Herr, for the complainants.

      Messrs. Fish & Fish and Messrs. Besson, Alexander & Stevens, for the defendant the Trust Company of Hew Jersey. .

      Mr. Merritt Lane, for the defendant Alexander T. McGill.

      Messrs. Osborne, 0 ornish & Scheck and Mr. Thomas Fleming Walsh (of the Hew York bar, on the brief), for the defendant Eleanor A. Mayer.
   The opinion of the court was delivered by

Black, J.

The bill of complaint in this case was filed by the grandchildren of Dr. John T. McGill, deceased. One object and purpose of the bill was to obtain a construction of his will and a codicil thereto. The will is dated June 17th, 1907. The codicil is dated October 10th, 1911. Dr. McGill, the testator, died November 28th, 1912. A further purpose of the bill, also, was to require the performance of certain duties by the defendant trust companjq which was appointed executor and trustee under the will. These latter questions however, were not considered or passed upon by the court of chancery and are not involved in the present appeal. The case was heard by Vice-Chancellor Buchanan. He advised a decree, on which twelve propositions were adjudged, from which all the parties to the suit filed appeals.

Our examination and consideration of the record, a reading of the opinion of the learned vice-chancellor, the elaborate briefs filed by the counsel for the respective parties, lead us to the conclusion -that the decree should be affirmed, with a modification in two respects. We are satisfied with the conclusions reached in the court of chancery, which are contained in the final decree, and numbered 1, 2, 3, 5, 6, 6-a, 7, 8, 9, 10, 11 and 12. In numbers 9 and 10, it is held that by virtue of the provisions of the codicil, the testator’s children, Alexander and Eleanor, were invested in severahy, with the equitable remainder of the whole estate, subject to the preceding life estates. But this is evidently a mere verbal mistake by the draftsman of the decree. We agree that they are so seized, but not by virtue of the provisions of the will. They are so seized because of the fact that the testator made no valid disposition of that estate, his disposition being in violation of the rule of perpetuities. Our consideration of number 4, in which it is adjudged the children of Alexander, the complainants, have a contingent estate or interest in the Eleanor share, because of the fact that they were members of the class designated as testator’s “blood relations,” with a preference to “his immediate descendants,” under the contingent power of testamentary appointment given to lr.s daughter Eleanor, leads us to the conclusion that this is untenable. It is too remote. They have no such contingent interest. An apt illustration was suggested, which clearly indicates this. If the power in the will had authorized Eleanor to dispose of this share of the estate by her will to-such religious, charitable or educational institutions of the Presbyterian Church as existed in the United States, as she might select, it would hardly be seriously contended that all of the institutions thus designated could be said to have such a contingent interest in the testator’s estate, which would entitle them to file a bill for the construction of the will.

It is quite true the words “blood relations” in this will are limited in a legal sense to “next of kin.” They include only relations by blood, and not connections by marriage, not even a husband or a wife. Supreme Council of Chosen Friends v. Bennett, 47 N. J. Eq. 43; Ibid. 563.

The decree of the court of chancery is affirmed, with the modifications indicated in this opinion.

Whtttí, J.

(dissenting from the affirmance of the sixth paragraph of the decree).

If I thought it legally allowable (under a sort of cy pres theory that if the testator’s intention cannot be carried not' we should carry out something as nearly like that intention as possible), I should be glad to see the court change the express terms of this testator’s will so that the age of vesting of corpu,s in Alexander’s children should be twenty-one instead of twenty-five years. Surely, that would come much nearer what the testator intended than does the changing of the trust “until twenty-five years o£ age” into a trust for life, the gift at twenty-five of the corpus fading out of the picture because cf its illegality. But I do not think it is within the proper function cf the court to change the terms of the testator’s will from twenty-five years to twenty-one years, thereby making a new will for him.

Por a like reason I do not see my way to agree with the sixth paragraph of the decree1, whereby, in place of the trust for maintenance and education of Alexander’s children until twenty-five years oí age, there is created a trust for such children for life, because of the fact that the gift of the corpus to such children at twenty-five years is void. I could unite in upholding the trust until twenty-five as separable from the gift of the corpus, although I think to do1 so would overrule Hewitt v. Green, 77 N. J. Eq. 345, and Graves v. Graves, 94 N. J. Eq. 268, but, further than this, I do not see my way to> concur.

I agree that Alexander’s children have no present standing as possible testatmentary nominees of Eleanor.

Bor affirmance—None.

For reversal—Parker, White—2.

For modification—Ti-ie Ciiiee-Justice, Trenciiard, Min-turn, Kalisch, Black, Katzenbaci-i, Campbell, Van Bus-kirk, Clark—9.


author: Black, J.

text:
    E. Heller & Brothers, Incorporated, complainants-appellants, v. Mabel Dillon, an infant, &c., defendants-respondents.
    [Argued March 7th, 1924.
    Decided May 19th, 1924.]
    1. The Factory act (P. L. 1904 v■ 3-52, as amended by P. L. 1914 pp. 523, 525 § 7; 1st Supp. Oomp. Stat. of N. J. p. 851) provides, no minor under the age of sixteen years shall be employed, permitted or suffered to work at laundering machinery. Held, fraud, misrepr resentation as to the infant’s age, or mistake, are not defenses to an action under the statute, to recover damages, either in the courts of law or in a court of equity.

      2. A bill was filed in the court of chancery to restrain the collection of a judgment recovered under the statute, for its violation, on the ground of fraud and misrepresentation as to the age of the infant at the time of the employment. A rule to show cause containing a restraint was issued at the same time. On the return of the rule, it was discharged on the ground of lack of equity. Held, this was proper, and the decretal order is affirmed.
    On appeal from a decree of the court of chancery.

      Messrs. McDermott, Enright & Carpenter, for the appellants.

      Messrs. Kent & Kent, for the respondents.
   The opinion of the court was delivered by

Black, J.

The complainant’s bill was filed to restrain the collection of a judgment recovered in the supreme court. The plaintiff was an infant under sixteen years of age. She was employed by the complainant in violation of the Factory act. Upon filing the bill a rule was obtained from a vice-chancellor, requiring the defendants to show cause why an injunction should not issue, restraining them from taking any steps to collect, or from selling or assigning the judgment, until the final hearing of the cause. The rule also contained a restraint until the further order of the court. Upon the return of the rule to show cause, Vice-Chancellor Fielder discharged, for want of equitjq the rule to show cause. From that order this appeal was taken.

The facts are quite fully and clearly stated in the conclusions filed by the learned vice-chancellor. The meritorious question involved in the case turns upon the proper construction of the Factory act (P. L. 1904 p. 152, as amended by P. L. 1914 pp. 523, 525 § 7; 1st Supp. Comp. Stat. of N. J. p. 851), which provides, no minor under the age of sixteen years shall be employed, permitted or suffered to work at certain enumerated occupations or in certain enumerated positions, among which, “launclcring machinery” is included. The record shows that Mabel Dillon, the defendant, who was under sixteen years of age, was so employed and injured while working at laundering machinery in violation of that statute. The construction of this act is no longer an open question in this court. The statute was examined and applied in the case of Feir v. Weil, 92 N. J. Law 610. In that case this court said, the statute was passed by the legislature in the exercise of its police power, primarily for the protection of child life, as being beneficial to the state. [Neither fraud nor misrepresentation as to the infant’s age, or mistake of the parties, are defenses to an action brought to recover damages arising out of a violation of the statute. The principle of that case was re-examined by this court and reaffirmed in the case of Volpe v. Hammersley Manufacturing Co., 96 N. J. Law 489; 284 Fed. Rep. 75. So, likewise, m the supreme court. Lesko v. Liondale Bleach, &c., Works, 98 N. J. Law 4; Dillon v. E. Heller & Bros., 122 Atl. Rep. 595. The infant is not chargeable with contributory negligence or with having assumed 'the risks arising out of such employment. She is not affected by the provisions of the Workmen’s Compensation act. Lesko v. Liondale Bleach, &c., Works, supra. The infant is not estopped, by the misrepresentation of her age, from instituting an action to recover damages against the employer for negligence. Ibid. The complainant’s bill charges fraud and misrepresentation as to the age, on the part of the infant defendant, in procuring the employment in violation of the statute. It also charges that she is estopped by reason of such fraud and misrepresentation from recovering the judgment in the supreme court against the defendant; therefore, further action. on the judgment should be restrained. But, as stated above, such are not defenses to the action in the law courts nor can .they be defenses in a court of equity. The mandate of the statute is that no minor under the age of sixteen years shall be employed, permitted or suffered to work at laundering machinery. There is no middle ground. The prohibition is absolute. The courts must enforce the provisions of the statute as written. It is no province of the courts to supervise legislation. Douglass v. Board of Chosen Freeholders, 38 N. J. Law 216. Such defenses to the action cannot be entertained either in the courts of law or in a court of equity.

We think the result reached by the learned vice-chancellor in discharging the rule containing the restraint was proper and for the reasons stated above. This view of the case renders it quite unnecessary to discuss or express any opinion upon the other mooted questions. The order of the court of chancery discharging the rule to show cause is affirmed.

For affirmance — The Chief - Justice, Trenchard, Parker, Minturn, Black, Katzenbacii, Campbell, Lloyd, White, Gardner, Yan Buskirk, Clark, MoGlennon—13.

For reversal—Hone.


author: Katzenbach, J.

text:
    Esther E. Voorhees, complainant-appellee, v. Martha L. Christie and James H. Christie, defendants-appellants.
    [Submitted March 25th, 1924.
    Decided May 19th, 1924.]
    A woman, eighty-eight years of age, transferred to a niece, money and mortgages aggregating $8,000 out of an estate of $11,000. The niece claimed that the transfer was made in consideration of past services, and an agreement upon the part of herself and husband to board and care for her aunt during the remainder of her life. After remaining for over three years in the home of her niece, a bill was filed in the court of chancery by the aunt for an accounting upon the claim that the transfer was to secure the payment of $40 per month for board and care—Held, upon a review of the evidence which showed that the aunt at the time of the transaction was well in body, alert in mind, and 'was advised by a reputable member of the bar as to the nature and consequences of her act, that the transaction was a lawful contract, and the executors of the aunt’s estate were not entitled to an accounting.

      On appeal from a decree of the court of chancery.

      Messrs. Morrison, Lloyd & Morrison (Mr. William J. Morrison, Jr., of counsel), for the defendants-appellants.

      Mr. Henry Smith (Mr. Addison P. Rosenhrans, of counsel), for the complainant-appellee.
   The opinion of the court was delivered by

Katzenbach, J.

This is an appeal from a final decree of the court of chancery, which adjudged that money and the proceeds of certain mortgages assigned by the complainant to one of the defendants, Martha L. Christie, constituted a trust fund, to which the complainant was entitled, and for which the defendants should account.

The complainant, Esther E. Voorhees, was in the year 1918 a widow, eighty-eight years of age, childless, and living alone. She was ill. She was not possessed of sufficient strength to do her household work. She required a servant and a nurse. She had the means but was apparently too penurious to provide for her own comfort. The defendant Martha L. Christie was a niece of Mrs. Voorhees. Prior to he marriage to James H. Christie she had lived with her aunt and her aunt’s husband. Por twenty years she had been their housekeeper. She was a good cook and a tactful nurse. After her marriage to Mr. Christie, Mrs. Voorhees had called upon her niece in emergencies. Mrs. Christie had responded and had nursed her aunt through illnesses. In 1918 Mrs. Voorhees owned a house worth $2,500 and mortgages and money aggregating $8,500. In the spring of 1918 she became ill. Mr. and Mrs. Christie, who lived about two blocks from Mrs. Voorhees, carried to Mrs. Voorhees her meals. Mrs. Christie attended to the household work .and ministered to her aunt. When she grew better Mrs. Voorhees executed a will which left the residue of her estate, after making bequests of $1,100, to Mrs. Christie. This will was made in May, 1918. In July of the same year Mrs. Yoorhees went to the home of the Christies and soon thereafter was completely restored to health. In 1906 Mr. and Mrs. Yoorhees had instituted a law suit against the Christies to recover, the value of a house and lot which they had conveyed to Mrs. Christie. Mrs. Christie had thought it was a gift. The suit proceeded to final judgment. The outcome of the suit was unfavorable to the Christies. A judgment was entered against them which they paid. This was undoubtedly a considerable factor in the Christies determining to have the matter of compensation for the board and care of Mrs. Yoorhees definitely settled, when in the summer of 1918 Mrs. Yoorhees had recovered her health and had become an inmate of the Christie home. There was also a feeling upon the part of the Christies that the will might be altered by Mrs. Yoorhees, or her property given to others during her life. In other words, the Christies did not trust Mrs. Yoorhees. This feeling resulted in Mr. Christie telling Mrs. Yoorhees that she would either have to arrange to provide the compensation promised his wife or find some other place to live. The result of this conversation was the transfer in September, 1918, by Mrs. Yoorhees, of mortgages1 and cash, amounting to $8,000, to Mrs. Christie. The house and $500 were retained by Mrs. Yoorhees. The Christies’ understanding and later version of the transaction was that the money and securities transferred to them was compensation for past services and for the care and board of Mrs. Yoorhees during the remainder of her life. The agreement was not' in writing. It was not necessary that it should be to make it legal. After this transaction, Mrs. Yoorhees lived with the Christies until January 31st, 1922, when she' left. In November, 1921, 'Mrs. Yoorhees sustained a bad fall. This, apparently, affected her mind. She became somewhat childish. In the early part of 1922 she filed the bill of complaint in this case, alleging that the transfer was for the purpose of securing to Mrk. Christie $40 per month for her board. Her testimony was taken. She died, however, before the decision was rendered. The suit was revived by her executors. The conclusions of the learned vice-chancellor treated the case as one of a voluntary gift made by a woman of advanced years who was at the time ill and under the domination of the donees which stripped her of the bulk of her estate without having at the time the benefit of any efficient independent advice as to the nature and extent of the transfer. The appellants contend that the transaction was a contract by which Mrs. Yoorhees secured for the remainder of her life a good home and kind care; that she had independent legal advice at the time of the transfer; that she was at the time of the transfer and agreement in good health, sound mind, and fully comprehended what she was doing and the benefits she was obtaining, and that she was not under their control and domination.

This is a fact case. In such cases much weight is given in this court to the conclusions of the vice-chancellor who has heard the case, as he is in a better position to judge of the credibility of the witnesses by hearing from their lips the testimony which is given and watching their demeanor on the witness-stand. In the present case, however, we feel constrained to differ in the result reached by the vice-chancellor. We think the preponderance of the evidence supports the theory of the Christies that’the transfer of the cash and mortgages was the consideration of a contract to support and care for Mrs. Yoorhees during the remainder of her life, and in part to compensate Mrs. Christie for the care she had already bestowed upon Mrs. Yoorhees in nursing her to health. This view is based upon the fact that Mrs. Yoorhees, although advanced in years, was at the time mentally keen and alert, was completely restored to health, was desirous of being under the care of Mrs. Christie and of enjoying the comforts of the Christie home, and was willing, if not eager, to enter into a contract, to secure these advantages. Before making the transfer she was advised by Mr. Mabie, a lawyer of standing in the community, who testified that Mrs. Yoorhees not only was ad'vised of the nature and consequences of her act, but fully comprehended it. This is further evidenced by the making of another will after the transfer in which she made no mention of the $8,000, but disposed of the property retained by her and made a son of the Christies an executor of the will. The board and care received by Mrs. Yoorhees in the Christie home were worth much more than $40 a month. For over three years the benefits of the contract were accepted by Mrs. Yoorhees without a protest. It was only when her mind became impaired by the injury, or senility, or both, that she expressed any dissatisfaction with the arrangement she had made. Having received the advantages of the contract it seems to us that it is inequitable to oblige the other party to the contract to surrender the consideration. While courts should be zealous in scrutinizing transactions of this nature and of preventing those in a dominant position from obtaining or accepting gifts from the ill and aged who are stripping themselves of the whole or greater part of their estate, as stated in the leading cases of Slack v. Rees, 66 N. J. Eq. and Post v. Hagen, 71 N. J. Eq. 234, yet, within limits, an aged person should be permitted to contract for her support and care during the remainder of her life and the party with whom the contract is made, where the evidence shows that the transaction is understood and there has been no fraud or over-reaching practiced should be protected in the retention of the consideration which has induced the contract. Often an aged person can secure more comfort and care by such a contract than if the money were retained and expended from time to time.

The decree of the court of chancery is reversed, with costs, with directions that a decree dismissing the complainant’s bill be entered.

For affirmance—Mihturh—1.

For reversal—The Chief-Justice, Trefchard, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardxeü, Yah Buskirk, Clark, McGlehhoh, Kays—13.


author: Kays, J.

text:
    Caledonian Insurance Company, complainant-appellant, v. North Dutch Reformed Church, defendant-respondent.
    Submitted March term, 1924.
    Decided May 19th, 1924.
    1. The fact that other companies carrying insurance on the same building as complainant settled, with defendant at a higher comparative figure than the amount in dispute between the complainant and defendant is not sufficient ground for holding against the complainant, as complainant has a right to stand upon its own policy of insurance.
    2. The court will not remove an umpire appointed by the court of common pleas and selected by appraisers to act with them in adjusting a loss between insurer and insured where no evidence is introduced to substantiate the ’daim of one of the parties that the umpire is incompetent.
    3. In such a case, where no fraud is alleged or proved against the umpire and one of the appraisers who made the award, the court will not remove the umpire or set aside the award.
    4. Where the insured has sustained a loss, and an award has been made by an umpire duly appointed and one of the appraisers, in accordance with the terms of the .policy, the court will not weigh the technicalities of the method of arriving at the award and making the appraisal, when the appraisers and umpire were admittedly competent and no injustice or fraud has been committed.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Church, whose opinion is reported in 95 N. J. Eq. 496, and also in 2 N. J. Adv. R. 143, &c.

      Messrs. Lum, Tamblyn & Colyer (Mr. Ralph E. Lum, of counsel), for the complainant-appellant.

      Messrs. Osborne & Astley, for the defendant-respondent.
   The opinion of the court was delivered by

Kays, J.

The bill in this case was filed foi the purpose of attacking an award of an umpire appointed by the court of common pleas of Essex county, who was appointed to act with appraisers named by the complainant company and the defendant in connection with a loss by fire, sustained by the defendant.

On December 27th, 1922, the defendant, North Dutch Reformed Church of Newark, was damaged by fire. The property of the defendant was insured for about $160,000 in fourteen insurance companies, which, as usual in such cases, were liable pro rata for the loss in proportion to the amounts respectively written by them. The complainant company had on February 7th, 1922, insured the church property, including the Sunday school buildings and fixtures, as indicated in a policy of insurance, for a sum not exceeding $13,883.39. The complainant company and the defendant could not agree upon the loss, and, in accordance with the provisions of the policy, entered into what they termed an appraisal agreement on March 26th, 1923. By virtue of this agreement the insurance company appointed one John W. Clark to act as its appraiser and the defendant appointed one John Enstice to act as its appraiser. Under the agreement the two appraisers were to select a competent, disinterested person to act as umpire. The two appraisers were unable to agree upon a person to act as such umpire, and upon the application of the defendant, the court of common pleas of Essex county appointed such umpire under an act of the legislature entitled “An act to provide for the regulation and incorporation of insurance companies, and to regulate the transaction of insurance business in this state.” Comp. Stat. p. 2863 § 79. The order of the court of common pleas appointing such umpire was made on April 20th, 1923. On April 23d, 1923, the same umpire, so appointed by the court of common pleas, Oakley W. Cook, was also appointed by the two appraisers, John W. Clark and John Enstice, by a writing sighed by said appraisers.

On. April 23d, 1923, the appraisers met and proceeded to estimate and appraise the loss, item by item. Their differences were submitted to the umpire. The umpire made investigation of the items in dispute, and on May 3d, 1923, the appraisers and umpire appeared to have met and the umpire reported that he was ready to make his award. The umpire signed Ms award and made the value $252,000 and the loss $152,423. TMs award was also signed by the appraiser appointed by the defendant.

The- complainant was dissatisfied with the award and filed a bill in the court of chancery asking to have the award set aside and the umpire removed. The grounds of attack were that the- umpire and appraiser for the defendant made the award without due consideration with the appraiser appointed by the insurance company, and that the award, although allowing deduction for depreciation, did not deduct depreciation in determining the loss and damage; that the award was not itemized; that the award did not separate and itemize the damage to the church and the damage to the Sunday school, and that the umpire was of insufficient experience, incompetent and unskilled. The vice-chancellor held that the points raised by the complainant were not well taken. He laid stress on the fact that thirteen other insurance companies wMch carried insurance on the buildings in question had settled with the defendant at a comparatively higher figure than the amount in dispute in this case, which fact seemed to prove that the award was reasonable.

We are of the opinion that the fact that thirteen other insurance companies had settled with the defendant cat a higher comparative figure than the amount in dispute in this ease is not sufficient ground for holding against the complainant, as the complainant had a right to stand on its policy of insurance. On the other hand, there seems to be nothing either in the bill itself or in the evidence which shows'any fraud was practiced upon the complainant. Actual fraud must be alleged and proved. Chancery rules 1923, rule Ho. 46. This same rule appears in 1st Supp. Comp. Stat. 1911, 1915, p. 130, rule No. 33; Davis v. Davis, 55 N. J. Eq. 37, &c. The court cannot weigh the experience and competency of an umpire lawfully appointed by the court and under the policy of insurance, as was Mr. Cook. The insurance company cannot complain that its appraiser was not sufficiently consulted, if the award appears to be an award of the umpire upon questions which were in dispute between the appraisers, as appears in this case. We can see no reason for the separation and the itemizing- of the damage to the church and Sunday school, as the policy covered both, and was not apportioned as between the two. An award made as this was made will not be set aside unless.there is clear proof of injustice done to the complainant. The evidence in this case, as we view it, fails to disclose, as has already been stated, any actual fraud, and also fails to disclose any injustice to the complainant.

We are further of the opinion that the allowance of counsel fee of $500 to the defendant was fair and reasonable, and should be allowed.

The bill, therefore, was properly dismissed because of the insufficiency of the allegations in the bill itself and also for the insufficiency of proof to sustain the allegations therein made.

Eor the reasons stated the decree appealed from will be affirmed, with costs.

For affirmance — The Chief - Justice, Trekcitard, Parker, Minturn, Iyaliscii, Black, Katzenbaoii, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon, Kays—15.

For reversal— None.


author: Clark, J.

text:
    John Redzina, complainant-appellant, v. Provident Institution for Savings in Jersey City et al., defendants-respondents.
    [Decided May 19th, 1924.]
    1. State jurisdiction by statutory proceedings against absent defendants is permitted by the fourteenth amendment only in cases where the action against such defendants affects property whose situs is within the state exercising such jurisdiction.
    2. The right of one depositor in a joint savings account against the bank, has no situs in New Jersey which would sustain the service by publication of a hill by the other co-depositor to try title to the fund deposited.
    On appeal from the court of chancery.

      Mr. Adolph Wolman (Mr. Maximilian T. Rosenberg, of counsel), for the complainant-appellant.

      Messrs. Insley, Vreeland & Declcer, for the defendants-respondents.
   The opinion of the court was delivered by

Clark, J.

This is an appeal from the court of chancery. The legally significant facts disclosed by the bill, answer and proofs are undisputed. On February 3d, 1919, a savings account was opened in the Provident Institution for Savings in Jersey City, one of the defendants herein, in the joint names of John Redzina, the complainant in this action, and of Eva Redzina, his wife, the other defendant. At the time of this deposit a depositor’s pass-book, No. 180145, was issued by the institution. It does not appear from the printed ease that any form of depositor’s pass-book was offered in evidence at the hearing before the vice-chancellor. It seems to have been admitted at the argument in this, court, however, that complainant’s deposit book was in the usual form for a joint account and permitted either of the joint depositors or the survivor to draw against the account. Article 8 of the by-laws of the defendant institution provided that—

“Deposits and dividends shall be drawn out only by^tke depositors in person, or by their written order, or by some person legally authorized, and only upon the production of the depositor’s book that such payments may be entered therein, and all payments to persons who present the deposit book shall be valid payments to discharge the bank and its officer.’”

At the date of the deposit and until August 3d, 1921, these depositors lived in Jersey City. John Redzina works for the Erie railroad, and now maintains that the savings from his wages constitute all of the money at any time deposited in defendant institution. On August 3d, 1921, Eva Redzina left her husband’s house. She'has not been seen or heard from since that date and her present whereabouts is unknown to her husband. Ever since her departure, the depositor’s pass-book has been missing. He, in his testimony, accounts for his inability to produce this book on the various and inconsistent theories that his wife had hidden, destroyed- or still has the book in her possession.

In these circumstances, and after unsuccessful demand upon the bank for the payment of the balance on deposit in account No. 180145, John Redzina filed a bill in equity against the Provident Institution for Savings and against his wife, Eva Redzina. No attempt was made to serve the latter personally by leaving any process at her husband’s residence. She has, however, been served by publication as provided for in section 12 of the Chancery act (P. L. 1902 p. 514), in the case of defendants out of, or not found within, the state. Hpon her failure to appear, a decree pro confesso was made and filed in accordance with the procedure authorized in section 14 of the same act. P. L. 1902 p. 515.

The Provident Institution for Savings, on the other hand, has answered, declaring its willingness to pay the balance, standing in the joint names of John and Eva Redzina, to whatever person or persons the court of chancery may find are equitably entitled thereto. In pursuance of this willingness, they ask leave to pay the money to the clerk of the court of chancery.

The learned vice-chancellor considered that the courts of New Jersey had no jurisdiction to determine the ownership of this fund. As the offer of the defendant bank to pay was conditional upon an affirmation of the question, the bill was necessarily dismissed.

Counsel for the complainant do not seem to have questioned the right of the bank to place the funds in the hands of the court. It is not necessary for us, therefore, to consider whether this can be done by way of interpleader or because of the terms of the contract of deposit. As a matter of practice, since complainant has made his wife a party, the bank’s answer is, in legal substance, a counter-claim by way of inter-pleader. G. P. Farmers Coal and Supply Co. v. Albright, 89 N. J. Eq. 283. It may be that Mrs. Redzina’s right to draw against the joint account and her probable possession of the evidence—i. e., the pass-book—necessary to exercise such right, subject the bank to the danger of a suit by her. National Bank v. White, 93 N. J. Eq. 109. Moreover, the contract of deposit requires production of the pass-book. Unless the court will relieve the depositor of its terms, the bank’s refusal to pay is, of course, justifiable on this ground. It seems to us doubtful whether, in the facts of the case at bar, can be found the reasons underlying the relief given to a depositor in a case where his pass-book has been lost or destroyed. Cosgrove v. Provident Institution for Savings, 64 N. J. Law 658, 657.

That the., jurisdiction of the courts of a state depends upon physical power is fundamental. McDonald v. Mabee, 248 U. S. 90. So, a party resident beyond the confines of a state cannot be required to come within its borders and subject his personal controversy to its tribunals, even upon receiving notice of the suit at the place of his residence. To hold otherwise woxxld be a fxxtile attempt to extend the authority and control of a state beyond its own territory. Baker v. Baker, Eccles & Co., 242 U. S. 394. Conversely, a state and its courts have power and jurisdiction over all things, tangible and intangible, whose situs is within its physical limits. Coe v. Errol, 116 U. S. 517. Our law “hears before it condemns,” and therefore considers it contrary to the first principles of justice to hold one bound by a judgment who has not had such opportunity. Pennoyer v. Neff, 95 U. S. 714; Grannis v. Ordean, 234 U. S. 385. The adoption of the fourteenth amendment (1868) established these principles of private international law (conflict of laws) as law for all of the states. Smith v. Colloty, 69 N. J. Law 365, 371. Thereafter the assertion of the invalidity of a state court’s judgment in violation thereof was made a matter of federal right. Baker v. Baker, Eccles & Co., supra.

Personal notice in cases where an individual’s whereabouts is unknown is, of course, impossible. Litigation affecting such a one’s property might resxxlt in its withdrawal from commerce unless this requirement were in some way modified. Presumably, all of us keep in touch with what goes on in the place where our property is located. The courts have accordingly held that we are apprised of any claims with respect thereto if reasonable means—such as publication in the local newspapers—are taken to make the matter public at such place. Arndt v. Griggs, 134 U. S. 316. It follows, then, that where there is a res within the borders of the state, against which a judgment in rem or quasi in rem may be taken, the constitutional requirements, both of notice to parties and of power in the courts, are met. Pennington v. Fourth National Bank of Cincinnati, 243 U. S. 270.

Some of the state courts have decided that our allegiance to our state, equally with our property therein, furnishes a basis for jurisdiction, and have permitted personal judgments against absent citizens. Bickerdike v. Allen, 41 N. E. Rep. (Ill.) 740; Mabee v. McDonald, 175 S. W. Rep. (Texas) 676. In McDonald v. Mabee, supra, Mr. Justice Holmes held that service by publication upon a party absent from the state, and not intending to return thereto, although technically domiciled therein, was not sufficient to support a personal judgment against him. He felt that publication was not the substituted service most likely to result in his receiving actual notice of the litigation and was not, therefore, “substantial justice.” This made it unnecessary for him to pass upon the fundamental question of jurisdiction, suggested by the decisions in the state courts above referred-to. While Mrs. Redzina may be said to be technically domiciled in New Jersey, that being the state of her husband’s residence, her actual residence is unknown, and service by publication, as it is the only legally practical way, would seem to be a reasonable means of giving her notice. This point does not seem to have been presented to the court below and we are, therefore, precluded from expressing our views upon the question left open by the United States supreme court, in McDonald v. Mabee, supra.

Counsel following, no doubt, although not citing, the suggestion of Vice-Chancellor Pitney, in Skillman v. Weigand, 54 N. J. Eq. 198, halve drawn their bill on the theory that Mrs. Redzina was only an agent authorized by her husband to draw his money from the bank. If such were the case, the agency could be revoked without resort to the courts. An agent, to collect, stands in no legal relationship to the person from whom the collection is to be made, but, obviously, the contrary is true of a depositor in a joint account. New Jersey Title Guaranty and Trust Co. v. Archibald, 91 N. J. Eq. 82.

Mrs. Redzina has, then, some legal interest in the funds of a savings institution whose banking house is within the state. If that interest has its situs in New Jersey, we have seen that our courts have jurisdiction in the premises. A savings bank depositor’s interest in the fund deposited may conceivably be either tangible or intangible personal property. If we hold it to be the former, an insuperable objection to finding its situs in New Jersey arises from the nature of a savings bank’s assets. The court’s desire to give a name to the undoubtedly fiduciary character of the managers of a savings bank has led them to use the language of trusts. Williams v. McKay, 40 N. J. Eq. 189; Barrett v. Bloomfield Savings Institution, 64- N. J. Eq. 425, without, we think, intending to apply, to the full extent at any rate, the legal attributes of a strict trust. However that may be, the cases do not declare that a savings bank depositor is the owner of any particular part of the funds of the bank. In fact, the contrary view has been expressed. Chester v. Halliard, 36 N. J. Eq. 313. .Equally, the idea of proportionate ownership in the common fund by savings bank depositors, set forth in Hannon v. Williams, 34 N. J. Eq. 255, is in terms opposed to their dominion over any particular portion of such funds.

It is common knowledge, and the proofs in this case are not to the contrary, that among the investments of a savings bank are included bonds of foreign corporations and deposits in banks outside of the state. Clearly, to establish their situs with the state involves a finding that the situs of a debt is at the domicile of the creditor. This is contrary both to well-established authority and to the contention of counsel for the complainant. Since, either on the theory of trust or of proportionate ownership, the absent defendant can share only in the assets of the bank generally and not in any particular part thereof, he is, therefore, legally entitled to property whose situs is without the state..

On the other hand, if we regard a savings bank depositor’s interest as intangible and a chose in action against the bank, it is immaterial in what jurisdiction the latter has its actual assets. The determination of the situs of the chose in action would, in that case, depend upon two considerations—first, is there an analogy between a stockholder in a corporation and a proportionate owner of the funds of a savings bank? If there is, the doctrine of Amparo Mining Co. v. Fidelity Trust Co., 75 N. J. Eq. 555, is applicable and the courts of Hew Jersey would have jurisdiction over the absent depositor in the same way as that case held them to have jurisdiction over an absent stockholder. We do not, however, think that there is any such analogy.

The reason for jurisdiction over the latter lies in the fact that the stockholder’s interest in the legal entity (the corporation j arises as part of the scheme of the creation by the state of such entity. In other words, his ownership relates directly to a stock book, provision for which is made by the law under which the corporation is created. P. L. 1896 pp. 290, 292; C. C. Langdell in 11 Har. L. Rev. 536; In the case of a depositor in a savings bank, his right against the bank arises quite apart from any affirmative action of the state creating such bank. It is not dependent upon anything done or left undone upon the books of the bank. They are merely useful as evidence to define and limit the extent of the liability and corresponding right.

Second. If we adopt the view that a savings bank and its depositor are debtor and creditor (Chester v. Halliard, 36 N. J. Eq. 313), is the situs of a debt at the 'domicile of the debtor bank in this state, and, accordingly, within the jurisdiction of our courts ? Upon this question, many and widely divergent opinions have been expressed. In the case of things having spatial qualities—i. e., tangible things—the power of control and location coincide. In the case, however, of a debt, which is a mere forced relation between parties,

and is incapable of location or actual situs (see National Fire Insurance Co. v. Chambers, 53 N. J. Eq. 468), it would

seem that control must be obtained by making use of the relation. It must depend, therefore, upon jurisdiction over both, and not one of the parties to the debt. 3 Beale Sum. Con. L. 507; Mahr v. Norwich U. F. Insurance Co., 127 N. Y. 452; 28 N. E. Rep. 391. Only the court which has both the debtor and creditor before it can compel a release from the creditor and an assignment of the action of the creditor. Prof. Beale, in 27 Harv. Law R. 107. Only that court, then, has, in our opinion, the effectual control referred to in our cases as a prerequisite to jurisdiction. Elmendorf v. American Combustion Co., 80 N. J. Eq. 461.

The cases in the United States supreme court have not, perhaps, adopted the principle suggested above to what might be considered its logical extent. Thus, they permit jurisdiction over a debt by publication against the absent creditor, at the domicile of the debtor where it is sought to found administration (Cunnius v. Reading School Dist., 198 U. S. 458), or for purposes of taxation. Blackstone v. Miller, 188 U. S. 189 (inheritance tax); Liverpool and Globe Insurance Co. v. Orleans Assessors, 221 U. S. 355 (property tax), and in escheat; Security Savings Bank v. California, Advance Opinions of the United States Supreme Court 1923-1924 p. 119. The even temporary presence of the debtor has been held to be sufficient to allow garnishment of a debt. Harris v. Balk, 198 U. S. 215, although here the illogical requirement of actual notice to the principal debtor seems to be insisted upon. Harris v. Balk, supra. Nevertheless, that court refuses jurisdiction where, as in the case at bar, it is sought to try title to and decide whether or not the absent defendant is the owner of the credit made the basis for the action. New York Life Insurance Co. v. Dunlevy, 241 U. S. 518.

Service by publication is based upon the convenient assumption that the public keeps in touch with what is published in the newspapers in the places where its interests are. We question the propriety or justice of extending this theory further to include as well the newspapers of the domiciles of debtors. These, even in the case of institutions, are subject to change without regard to the wishes or knowledge of creditors.

Both on principle and precedent, therefore, we conclude that the learned vice-chancellor correctly determined that the due process clause of the federal constitution stands as a barrier to the assumption of jurisdiction over the absent defendant.

The decree should be affirmed.

For (affirmance—The Chief-Justice, Trenchard, Mintfrn, Black, Katzenbach, Gardner, "Van Bitskirk, Clark—8.

For reversal—Parker, Kalisch, Campbell—3.


text:
    William G. Kelso, complainant below, appellant, v. Anna L. Kelso, defendant below, respondent.
    [Decided May 19th, 1924.]
    In the normal relation of the contracting parties to a future marriage, the man occupies the dominant position, and, in the absence of evidence that this relation has been reversed, a completed gift made by him to his fiancee cannot be revoked at his option, even though it plainly appears to have been improvident]y made, and without the benefit of competent, independent advice.
    On bill, &e. On appeal from the court of chancery, advised by Vice-Chancellor Bentley, whose opinion is reported in 95 K. J. Eq. 5J/4-

      Messrs. Ziegener £ Lane (Mr. Harry Lane, of counsel), for the appellant.

      Messrs. Seufert £ Elmore (Mr. William M. Seuferi, of counsel), for the respondent.
   The opinion of the court was delivered by

Clark, J.

'Phe facts presented by this appeal from the court of chancery are simple, and perhaps not unusual. Complainant is a widower, sixty-seven years of age, and the father of five grown children, with the youngest of whom, an unmarried daughter, he made his home after his first wife’s death in 1921. For the greater part of his life he has been a shoe salesman, and at the time of this suit and for several years prior thereto he has sold shoes in Jersey City and Newark for a New York firm. His earnings in his business have netted him as much as $150 in a day, and even at the present time he averages $25 a week. ' Kelso confesses to excellent bodily health, and we find no suggestion in the record that his mental powers are not on a par with his physical. In fact, an even cursory reading of his own testimony would negative such an inference were it seriously put forward.

In these circumstances, complainant meets in the social activities of his lodge and of his church, a middle-aged lady, Mrs. Anna Toone, to whom he is greatly attracted. She is ostensibly a widow, and has three young children. He pays court to her and his affections, he believes, are reciprocated. After she has accepted him, she confesses that an impediment to their marriage exists in the person of a living husband, from whom she is separated, but not divorced. Complainant offers to pay the expenses of removing this obstacle and restoring his fiancée to the unmarried state. His offer is accepted and they, together with the children of Mrs. Toone, adjourn to Reno, Nevada, for this purpose.

In the meantime, complainant’s children seem to have become aware of the proceedings of their parent, and decide to take a hand in them. Accordingly, they send to Mrs. Toone, at Reno, a telegram, which rather more than strongly suggests that their father is under some moral obligation to them. This communication, as might have been anticipated, has just the opposite of the desired effect on Kelso. In order to rehabilitate himself in the estimation of his bride-.to-be and possibly also as a challenge to the binding force of the mysterious moral obligation, he promptly returns east and transfers to Mrs. Toone all of his property, only excepting therefrom, in his own phraseology, “his shirt.”

There is some perhaps not unnatural conflict in the accounts of the interviews preceding this transaction. The lady claims that it was done without her knowledge. The gentleman, on the other haird, implies, if he does not expressly say, that -in no other way could he both soothe her feelings, which have been rudely outraged by the conduct of his family and, more important still, obtain her consent to go on with the marriage.

After the divorce is procured, the present complainant and defendant are married, and set up housekeeping. Follows, and very'" soon, disillusionment and, subsequently', litigation. Kelso is now asking the court of chancery to assist him in recovering from his wife all of the real estate he com eyed to her, as he claims, only because of the undue influence which she exercised upon him. We consider the law applicable to such a situation clear, and to have been correctly stated by the learned vice-chancellor below.

We shall deal at some length with the presumptions, if any, arising out of the confidential relationship which exists between two persons who are engaged to be married. Apart from this, the only influence to which complainant was subjected arises from the implication in his account of his conversations with Mrs. Toone, following the threatening telegram she received from the Kelso family. If he is to be believed, she threatened to withhold from him her hand and person, which he admittedly greatly desired, unless she received all, or substantially all, of his worldly possessions. As to this, it is sufficient to say that complainant can hardly expect a court of chancery to assist him in withdrawing from such a bargain because of an alleged failure of consideration, due to the unhappiness of the ensuing marriage. Not, at any rate, in a day and civilization when the purchase of wives is no longer looked upon with favor.

It was very- strongly pressed upon the court below, and is now earnestly argued in this court, that the complainant was not, before stripping himself of his property', in receipt of proper and competent, independent advice. For that reason, it is said, his gift can now be revoked. Slack v. Rees, 66 N. J. Eq. 447. We shall assume, as did the vice-chancellor, that Kelso’s conferences with his lawyer did not include the giving and receiving of such advice. We shall further assume that complainant’s present earning capacity' does not lift him out of the condition of improvidence required by the cases before the gift can be attacked for lack of such advice. Siebold v. Zieboldt, 93 N. J. Eq. 327.

The courts of this state have followed the English authorities and consequent!)' have gone to greater length in setting-aside gifts inter vivos for lack of independent advice than has been the prevailing rule in this country. 14 Am. & Eng. Encycl. L. 1013. Where certain confidential relationships between individuals exist, undue influence is presumed in cases where one of them, by reason of a gift of property to the other, faces the choice of becoming a charge, either upon the public or upon the gratitude of the donee. This presumption can be rebutted only by a showing that the donor was the recipient of competent, independent advice, both as to the legal effect and the worldly consequences of his act. Post v. Hagen, 71 N. J. Eq. 234.

Because of our presumed knowledge of the law, the courts of equity halve not seen fit to extend their relief to mistakes of law, as well as to mistakes of fact. Pom. Eq. Jur. 852, 842. As an exception to this somewhat harsh rule, they do, however, set aside a transaction- if the mistake of law be made by a person whose relation to the person benefiting thereby is a confidential one. Pom. Eq. Jur. 848. In cases of a party’s misunderstanding of the legal effect of his voluntary transfer, independent advice is of probative value on the question of whether any mistake of law was made rather than as evidence to rebut any presumption of undue influence.

In the class of cases, of which the one at bar is typical, the donor is misled by no misunderstanding of the law or of facts which formed the basis for his action, but because of a mistake in economic judgment, plus misplaced confidence in human nature, or, more particularly, in the nature of a particular human. The unwisdom of placing- one’s entire economic future in the hands of another person, at any rate until we achieve perfection, is obvious. Because of this, the courts have found that the will of a person taking such action must have been overpowered in cases where he is within the range of an influence which might have so affected him, and unless he has had the benefit of the judgment of a disinterested third party, to counteract such influence.

It is clear, however, that the influence of one person over another is found only in certain positive acts or in certain types of confidential relationships between them. Lord Justice Fletcher-Moulton, in Coomber v. Coomber (1911), 1 Ch. 729, observed that although the relationship between himself and his errand'boy was a confidential one, it did not follow that the latter had any influence over him. As influence, in term, implies that dominance has been achieved, it can only be presumed in relationships where one party occupies a dominant position towards the other.

Such dominance may arise from the facts of age, sex, the condition of mind or of body, or even of pocketbook of either of the parties, or from the customs of the particular civilization in which they live. A combination of certain of these factors without more, indicates a relation in which normally one of the parties occupies a dominant position. So it is in the relaton of parent and child. James v. Aller, 68 N. J. Eq. 666. On the other hand, either the bodily or mental condition of a father may reverse the original relation and make his child the dominant one of the two. Coffey v. Sullivan, 68 N. J. Eq. 296.

In the case of Fretz v. Roth, 70 N. J. Eq. 764, this court refused to set aside a gift by a husband to a wife, in the absence of proof that the normal relation, in which the husband occupies the dominant position, had been reversed. It may be that as social conditions continue to change, an analysis of the normal relation between husband and wife will lead us to hold that neither one of the two occupies a dominant position. E'Ven a holding that they are on a parity would not, of course, lead to a different result in so far as the doctrine we. are now considering is concerned. To decide differently in the case of parties who are under contract of marriage would be, it seems to us, to find the reason for our former decision in the ancient theory that a woman becomes the chattel of her husband. We prefer to hold that the husband’s position in the family is based rather upon the characteristics of his sex and the customs of our civilization than upon his legal rights as a husband. These conditions arise immediately upon the agreement of a man and woman to enter the state of matrimony.

This being so, it only remains to consider whether there has been proof that the original relation has been reversed because of other factors in, for instance, the bodily or mental condition of complainant or defendant. As we have said, no facts have been brought to our attention which reflect in any way upon Kelso’s mental or bodily vigor. -The evidence, in fact, is to the contrary. • In that posture of the case the complainant has failed to establish that the conveyance of his real estate and mortgages was a result of the undue influence of the lady to whom he was engaged at the time when that took place.

The decree will be affirmed.

For affirmance — The Ciiiee - Justice, Trenci-iard, Parker, Minturn, Tyaliscii, Black, Katzenbacii, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon—14.

For reversal—None.