author: Lewis, V. C.

text:
    Robert M. Grant v. Margaret Clara Grant.
    [Decided December 24th, 1914.]
    1. The public is a party to all divorce suits. It does not ordinarily appear by counsel, and when without counsel does not plead. This party, when thus represented by what is called the conscience of the court, never loses a right by laches; a maxim in these suits, therefore, is that a cause is never concluded as against the chancellor.
    2. Judgment by default is not favored in divorce suits, and the courts are especially inclined to interpose by opening and setting aside such a judgment and giving defendant a das' in court, so that the merits of his defence may be passed upon under such terms and conditions as to the court may seem proper.
    3. Divorce- cases are not causes in which the usual tests of surprise and merits are required to be shown in order to secure the opening of a default with leave to plead. They are not cases which concerní alone the parties, between whom the court is impartial and indifferent, but are cases to which the state is a party, whose interest the court at all times will save and protect.
    4. A decree nisi is a conditional divorce, becoming absolute only upon the happening of a prescribed contingency. Such a contingency in our state is the non-showing of cause why the decree should not be made absolute. This does not comprehend ex parte decrees only, but decrees made in litigated cases as well. Opening a default to let in a defence on the merits is quite a different thing than showing cause against making absolute a decree nisi..

      5. It is the universal practice to open a default in a divorce case, not only when a defence comes out in the evidence, but if, after the evidence is taken, the defendant desires to be heard. A defendant who comes forward and says he desires to defend a case for divorce should be given an opportunity to do so at any moment before the chancellor’s signature is actually affixed to the final decree, except where a lack of good faith on the part of the applicant is apparent, which would he the case if it clearly appeared he did not intend to answer after obtaining the right to do so, — his move being merely for delay, prompted by ulterior motive.
    6. The court of chancery has the constitutional right to deliberately consider all applications made to it, and there is not discoverable in the Divorce act, which provides for the granting of a decree of divorce nisi, any attempt to divest the court of its inherent equitable power to hold under advisement an application for opening a default beyond the time during which cause could be shown against making such a decree absolute, and which action, in effect, enables the court to suspend the force of the decree pending the ultimate disposition of the matter.
    7. Default opened upon terms: The decree nisi will be vacated only for the purpose of permitting an answer to be filed, and if defendant should be defeated on the merits then the order vacating will itself be vacated, leaving the decree nisi to stand as of the date of its entry, so that a final decree could be immediately entered, being already due in point of time. An order for this purpose may be taken at once and shall provide that the defendant answer within ten days.
    On application of defendant to open decree nisi and for leave to defend.

      Mr. Chauncey G. Parker, for the petitioner.

      Mr. Peter W. Stagg, for the defendant.
   Lewis, V. C.

This is an ex parte divorce ease. The defendant was personally served in New York with notice of an order of publication and a copy of the petition, but did not file an answer, and an order of reference was subsequently made in due course to a special master of the court to ascertain and report as to the truth of the allegations of the petitioner’s petition and his opinion thereon. The master was attended by the solicitor of the petitioner and took the depositions of witnesses produced before him, which he returned with the exhibits offered, together with his report, in which he recommended that a decree of divorce should be made pursuant to the prayer of the petition. Thereafter a decree of divorce nisi in favor of the petitioner and against defendant was entered. Before the six months’ period limited for showing cause against this decree expired the defendant asked leave to open it, to the end that she might be let in to defend the cause, denying the commission of the adultery charged against her and asserting that she consulted a lawyer after service upon her, but that he did not care to undertake the defence because she had no money with which to pay him, and that she was not aware of the fact that her husband could be compelled to provide her defence under the compulsory order of the court. This latter statement is undoubtedly untrue, as appears from affidavits submitted on this motion; and, too, her adultery appears quite abundantly proved in the depositions taken ex parte, but this is not conclusive against her on this application.

In deciding the matter under consideration it will not be necessary to review any of the numerous cases in this and other states where defaults in divorce eases have been opened even after a final decree has been pronounced. Here is a case where the divorce is not consummate, but only inchoaite. The decree nisi not having the attribute of finality.

The position of the public, in divorce cases, represented sometimes by counsel and always by the court, is well stated in 2 Bish. Mar., Div. & Sep. 663, as follows:

“The public, which we have seen to be a party in all divorce suits, occupies a unique position, sometimes embarrassing to the court. It does not ordinarily appear by counsel, and when without counsel does not plead. As against this party, when only thus represented by what is called the conscience of the court, the plaintiff is entitled to the decree on his case being duly and fully proved. But this party, unlike the others, never loses a right by laches; and so, whenever a defence comes out in the' evidence, whether alleged or not, it is fatal to the proceeding. A maxim in these suits, therefore, is, that a cause is never concluded as against the judge; and the court may, and to satisfy its conscience sometimes does, of its own motion, go into the investigation of facts not contested by pleadings.”

By reason of the public interest in a divorce case, says the same learned author (volume 2, section 669), the court should be, especially inclined to set aside a default. And in 14 Cyc. 714, it is stated that:

“Since a judgment by default is not favored in divorce suits, the courts are especially inclined to interpose by opening or setting aside such a judgment and giving defendant a day in' court so that the merits of his defence may be passed upon, under such terms and conditions as to the payment of costs and alimony as to the court may seem proper.
* * * * * * * *
“It has been said that the rule that a default will not be opened to permit a defence to be interposed which is not meritorious is not vigorously applied in divorce suits.” * * *

These are not cases in which the usual tests of surprise and merits are required to be shown in order to secure- the opening of a default with leave to plead. They are not eases which concern alone the parties between whom the court is impartial and indifferent; but are cases to which the state is a party, whose interest the court at all times will save and protect.

A decree nisi is á conditional divorce, becoming absolute only upon the happening of a prescribed contingency. 14 Cyc. 711. Such a contingency in our state is the non-showing of cause why the decree should not be made absolute.

In Bidd. N. J. Div. Pr. (2d ed., 1912), at p. 139, speaking of showing cause, it is stated :

“The common causes shown are: 1. Matrimonial misconduct of the party holding the decree. 2. Reconciliation of the parties, and resumption of cohabitation since the date of the decree. 3. Suppression at the trial of facts which are material; for if immaterial, though purposely suppressed, the decree will be made absolute; but if material, though unintentionally withheld, the decree may be rescinded.”

I think it is the universal practice to open a default in a divorce case, not only when a defence comes out in the evidence, but if, after the evidence is taken, the defendant desires to be heard. In my judgment, a defendant who comes forward and says he desires to defend a case for divorce should be given an opportunity to do so at any moment before the chancellor’s signature is actually affixed to the final decree. The only limitation I can think of would be an apparent lack of good faith on the part of the applicant, which would be the case if it clearly appeared he did not intend to answer even after obtaining the right to do so — his attempt being merely for delay prompted by ulterior motive.

Since the making of the application to open the default in this case -the six months has run out during which the statute (P. L. 1907 p. 474 § 21) permits cause to be shown against making the decree nisi absolute, and, were it not for the court holding the pending motion under advisement, the petitioner would have been entitled to, and, doubtless, would have had his final decree. But this efflux of time, under the circumstances, does hot entitle the petitioner to his final decree so as to prevent the court from efficaciously disposing of the motion to open the decree nisi. The court of errors and appeals, in the recent case of St. Vincent’s Church v. Borough of Madison, June term, 1914 (not yet reported), held that:

“A justice of the supreme court has the constitutional right to deliberately consider all applications made to him, -and it is not within the power of the legislature to limit this constitutional right so as to defeat the ends of justice, nor is there discoverable in the section mentioned any such legislative intention. If an application were made to a justice of the supreme court for the allowance of a certiorari on the last day on which it could be allowed, and, if the application presented'a question of doubt and difficulty which it was necessary for the justice to take under advisement, and if, for that reason alone, or by reason of his other judicial engagements, it was impossible for him to decide for or against the allowance until a day later than the time limited for the allowance of the writ, still it could be lawfully allowed and issued.”

So, likewise, the court of chancery has the same constitutional right to deliberately consider all applications made to it, and there is not discoverable in the Divorce act, which provides for the granting of a decree of divorce nisi, any attempt to divest the court of its inherent equitable power to hold under advisement an application for opening a default beyond the time during which cause could be shown against the making such a decree absolute, and which action, in effect, enables the court to suspend the force of the decree pending the ultimate disposition of the matter.

In my judgment, the default in this cause should be opened upon terms, as follows: The decree nisi will be vacated only for the purpose of permitting the defendant, .to answer, and if she should be defeated on the merits, then _ the'order vacating will itself be vacated, leaving the decree nisi to stand as of the date of its entry, so that a final decree could be immediately entered. An order for this purpose may be taken at once and shall provide that the defendant file her answer within ten days. With the cause thus at issue the petitioner, equally with the defendant, will be at liberty to move for a speedy final hearing.


source: Caselaw Access Project

license: Public Domain

text:
    Alexander G. White v. Sarah M. Cadmus et al.
    [Decided February 5th, 1915.]

    Where a deed is given for the sale of lands under the Martin act, the purchaser may file a bill to quiet title under the act of 1870, where his deed is attacked by defendants who refuse to proceed at law; and the defences of failure to give notice to redeem, failure to obtain an order from the circuit court for the delivery of the deed, where there are infant defendants, are attempts to attack a deed collaterally and cannot be considered, the defendants’ proper remedy being by writ of certiorari in the supreme court.
    On bill to quiet title. On final hearing on pleadings and proof.

      Mr. James Benny, for the complainant.

      Messrs. Roberson & Demurest, for the defendants.
   Lewis, V. C.

This is a bill to quiet title under the statute. The complainant has established the jurisdictional facts necessary, peaceable possession, &c., and the defendants set up certain claims which, if proved, would be perfectly good defences if this court had jurisdiction to consider them. The bill sets forth that the premises in question are part of a large tract of land, of which one Jasper Cadmus died seized, and who, by his will, devised the land to one Jasper A. Cadmus and his issue, with remainder over on failure of issue. Six lots of land, comprising a part of the premises in question, were sold by the collector of revenue of Bayonne on August 10th, 1894. At that time the persons interested were: Jasper A. Cadmus, Sarah M. Cadmus, his wife; Mary J. Dowe, wife of Elijah E. Dowe; Julia E. Wiggins, wife of Milton G. Wiggins; Agnes E. Morgan, wife of James E. Morgan; Eleanor E. Cadmus; Augustine Runyon, wife of Frank H. Runyon; Wilhelmina Scull, wife of Horace Scull; Benjamin F. Cadmus; David W. Diamond, husband of Olivia Diamond, deceased; David W. Diamond, son of Olivia Diamond, deceased; and Jasper A. Diamond, son of Olivia Diamond, deceased.

The title of the complainant is derived through a sale of the lots by the city of Bayonne under the Martin act for unpaid taxes and municipal liens, and the following are the deeds by which the complainant claims title: six deeds made by the collector of revenue of Bayonne to the mayor and council of Bayonne, all dated August 2d, 1897; and the mayor and council of the city of Bayonne gave a deed to Henry J. Chase, dated September 22d, 1897.

Henry J. Chase and wife then conveyed the said lots to Richard J. Gaddis by a deed dated October 22d, 1900.

Richard J. Gaddis then gave a deed' to Henry J. Chase and wife, dated October 22d, 1900.

Henry J. Chase and wife then conveyed to Alexander G. White, the complainant in this cause, by a deed dated September 15th, 1911.

The defendants contend that the deed is an absolute nullity, on these several grounds:

First. That there are no proofs of the publication of the advertisement to sell the lots by the collector of revenue of the city of Bayonne.

Second. That two of the owners of the lots at the date of the sale and of the proceedings to perfect the title by the city were infants, and that no guardian was appointed for them, nor was there any order made by the circuit court of Hudson county directing that a deed be delivered for the lands.

Third. Failure to give notice to redeem.

In Bogert v. City of Elizabeth, 25 N. J. Eq. 426, it was held that the charter of the city of Elizabeth was unconstitutional, and that a deed given under it must be a nullity. That case would seem to favor the defendants; but the case of Jersey City v. Lembeck, 31 N. J. Eq. 255, decided several years later, and which has never been questioned in this state, will be my authority for deciding to advise a decree in favor of the complain' ant. The complainant had no other remedy than to file a bill in this court. He could not take out a writ of certiorari, and the defendants would not. According to the defendants’ allegations, if proved, the proceedings prior to the giving of. the deed were, to say the least, extremely irregular. But the defendants are forbidden, by the fifteenth section of the Sales of Land act (Gen. Stat. p. 2982), from attacking a deed collaterally; and the Martin act, in its four hundred and seventeenth section reiterates, in effect, the same provision. Gen. Stat. p. 3373. The defendants have had a great many years in which to test the regularity of the deed, and they have totally neglected to do so. The case of Jersey City v. Lembeck indicates the true construction of the act of 1870. The court holds in that case that “it (the act of 1870) was not meant to be operative when the party in possession of lands has the means, by an ordinary proceeding at law, of testing the adverse claim that he wishes to have settled, unless, in such a state of facts as was presented in the case of Bogert v. City of Elizabeth, 27 N. J. Eq. 568, in which the pretended lien was an absolute nullity, in consequence of the law itself under which it had been taken being unconstitutional, so that the proceeding, being ultra vires, it could be fairly said that the keeping on foot of such a mere pretence was, per se, unconscionable. And, even with respect to this case, it should be borne in mind that the assessment had fully run its course, and had exhausted itself in a sale of the lands, and that such sale was, and for all time must have, continued to be a mere nullity, to which even legislation could not impart life. The decision adjudged that such a state of things was a case within the statute; it went no further. But my exposition will exclude the class of cases embracing the one now under review, because the purpose .of the act was to relieve, not persons who had the power to test the hostile claim by a direct proceeding in the usual mode, but to aid those persons whose situation afforded them no such opportunity. The inequity that was designed to be remedied grew out of the situation of a person in the possession of land as owner, in which land another person claimed an interest which he would not enforce ; and the hardship was, that the person so in possession could not force his adversary to sue and thus put the claim to the test.”

Under this decision I have no doubt that tire complainant had a perfect right to file his bill. I am likewise satisfied that the defendants’ only remedy is in the supreme court, as their defences are a mere attempt to attack the deed collaterally.

In the case of Walton v. American Baptist Publication Society, 78 N. J. Eq. 263, appears this language: “This conclusion renders it unnecessary to consider or decide whether, under the doctrine of Jersey City v. Lembeck, 31 N, J. Eq. 255, the court of chancery has, by mere force of ‘An act to quiet title,’ &c., jurisdiction to determine the regularity of a deed made by public authority in the collection of taxes.”

I think the complainant has established all the facts necessary to sustain his bill, and that none of the defences set up by the-defendants can be considered in this court.

I shall therefore advise a decree for the complainant.


author: Backes, V. C.

text:
    Marie Berg v. Arthur J. Baldwin.
    [Decided October 22d, 1914.]
    1. On a bill for the specific performance of a contract by defendant’s decedent to cancel a mortgage on complainant’s property, to which complainant was not a party, but which she claimed was for her benefit, evidence — Held not to .establish the alleged contract.
    2. On a bill for the specific performance of a contract by defendant’s decedent to cancel a mortgage on complainant’s property, to which she was not a party, where the husband of complainant was the substantially interested party and the only witness for complainant, and his testimony as to giving up certain letters to decedent as a consideration for the contract was characterized by lack of candor and by subtlety, and his conduct savored of oppression, the doctrine that a court should not enforce a claim against a decedent’s estate, supported only by evidence of the claimant, was applicable.
    3. Specific performance will not be decreed of a contract to cancel a mortgage on complainant’s realty, the consideration for which, so far as developed, was the surrender of certain letters to the deceased promisor, there being much mystery about the nature of the letters, and the possibility of their use, and suspicion of oppression in obtaining the promise, but complainant will be left to her remedy at law.
    4. On a bill for the specific performance of a promise to cancel a mortgage, where the beneficial ownership was in a company, and it was not plain that, in making the alleged promise, decedent.was the agent of such company, his estate could not be required to specifically perform.
    On final hearing.

      Mr. William E. Blackman, for the complainant.

      Messrs. Magoffin & Signor, for the defendant.
   Backes, V. C.

The complainant seeks the specific performance of a contract to which she was not a party, but which she claims was made for her benefit.

The bill alleges that the complainant was formerly the owner of a farm known as the Cleveland Farm, in Hopewell township, Mercer county, containing seventy acres (no other description), upon which there was a mortgage of $2,500; that she conveyed it to the Cleveland Farm and Dairy Company; that it was re-conveyed to her; that she subsequently sold it, and that because of the existence of this mortgage she was obliged to allow the purchaser $1,350, with interest, out of the purchase price. The bill then alleges that during the ownership of the farm by the Cleveland Farm and Dairy Company, that company gave a bond for $1,350 to the defendant, as trustee for one Joseph D. Carroll, secured by a mortgage on the farm, and recorded in the Mercer county clerk’s office (no date of mortgage or time and book of record given). The bill further sets up that while the property was owned by the complainant, the said Carroll promised

“upon consideration of an indebtedness owed by Fiss, Doerr & Carroll Horse Company [whatever that means], and in further consideration of the delivering to him hy the complainant’s husband of certain letters, that he would cancel the said mortgage or assign the same to the complainant; that the letters were delivered, but that the said Carroll did not keep his promise, and that he is now dead.”

The bill prays that the defendant, trustee, be decreed to assign the mortgage or deliver the same to the complainant to be canceled.

The answer is a simple denial of the promise. At the hearing it was stated by the defendant that he held the mortgage in trust for the Fiss, Doerr & Carroll Horse Company, and acting upon this the complainant obtained an order making that company a party defendant, although no allegation appears by way of amendment showing its interest in the mortgage. '

The company filed an answer denying the promise by Carroll.

The husband of the complainant was the only witness at the trial. From his testimony it appears that at the time of the alleged promise there was an investigation threatened, or under way, by the city of New York, of the dealings of the Fiss, Doerr & Carroll Horse Company with the city, and that the witness had some letters which he, presumably, obtained while associated with the company, which were then of interest to Mr. Carroll in defending himself. The insinuation was that they were of an incriminating character. Whether so as to Mr. Carroll or other persons did not appear. The witness said he met Mr. Carroll by appointment in New York, and gave him five letters, which the latter put in his pocket, and in company with the witness went to Tammany Hall, and there, after a conference which Mr. Carroll had with someone, he stated to the witness that he wanted the letters, and the witness replied that he would not give them up, but that he would let him have copies; that they then went walking on towards Broadway, and Carroll said to the witness:

“Charlie, I tell you what I’ll do, if you want to give me these letters. You bought a couple of horses of the company, and I will make a present of them if you will let me have them. I will not make any use of them unless I am personally attacked. You tell Mrs. Berg I am going to cancel that, mortgage.”

The witness asked that this be put in writing, but Carroll refused to go on record. The witness said that he then left for Princeton. This was all the testimony relating to the alleged bargain. There was no cross-examination, and both parties rested on it. There was no argument, and at the conclusion of the trial I announced that the bill would be dismissed, stating briefly that the words attributed to Mr. Carroll, “You tell Mrs. Berg I am going to cancel that mortgage” did not constitute a promise — an agreement to cancel the mortgage, and that they were no more than a message which the witness was to carry to his wife. Now, that an appeal has been taken, I am called upon to express my views more fully.

The proposal which Mr. Carroll made to the complainant’s husband (if made) was that if he would give up the letters, Carroll would give him a couple of horses which the witness had previously purchased from Mr. Carroll’s company. Whether this was assented to by the witness, and whether he gave up the letters, was left to inference. He did not say that he agreed to it; all that he said was that he left for Princeton. The manner in which the witness told his story impressed me very strongly that the declaration of Mr. Carroll to the witness, “You tell Mrs. Berg that I am going to caucel that mortgage,” was not a part of the proposition. Its relation and connection with the proposition was not attempted to be shown, and from all that appears it may have been only a side remark, or made after the witness had accepted Mr. Carroll’s offer to make him a present of the horses. It struck me at the hearing that if the remark was made, it was in the nature of a douceur, and not a part of the contract, if there was a contract. What Mortgage Carroll referred to the testimony leaves to conjecture. The bill disclosed that there were two mortgages on the farm, and the evidence is that the money which Mr. Carroll advanced for his mortgage was used to pay off a prior one. Whether the paid-off mortgage remained uncanceled at the time and in Mr. Carroll’s possession; which of the mortgages he had in mind, or whether there was some other mortgage or transaction, was not made to appear. Even upon the assumption that as much as the witness told was literally true, the abstract and isolated declaration of Mr. Carroll that he was going to cancel the mortgage cannot, in the absence of proof satisfactorily demonstrating its meaning, be moulded into a promise — a legally enforceable contract.

Other circumstances which influenced my judgment were left unspoken at the conclusion of the hearing. The foremost of these concerns the credit and weight to be given to the testimony of the complainant’s sole witness, her husband. The mystery about the letters; their contents; how they came into his possession; their usefulness to Mr. Carroll, and the use the witness could have made, or perhaps threatened to make of them, smattered very strongly of oppression at the time of the alleged promise. This, and the utter lack of candor in the conduct of the trial; the disinclination to exploit all of the facts, brought into the case such an atmosphere of subtlety that I could not regard the witness other than with suspicion. To all intents and purposes he was the complaining party and deeply interested in the outcome of tire suit. He was striving for a stake, for which he had no living opponent. He feared no contradiction, because the tongue of his real adversary was silenced by death. While his testimony was legally competent, I did not feel, under the circumstances, that I should accept it as true. It was absolutely devoid of corroboration by person or in circumstance, and I regarded myself as not justified in advising a decree depriving a decedent’s estate of its property upon the naked and meagre words of this very much interested person. I have since examined the books and find this view is supported by authority. Taylor, in his work on Evidence, section 965, says:

“It has sometimes been supposed that it is an absolute rule of law that a court cannot act on the unsupported testimony of any person in his own favour. But there is no actual rule of law to the effect suggested ; though a court ought to regard a claim against a dead man’s estate which is only supported by the evidence of the claimant with jealous suspicion, and neither itself act upon it nor allow a jury to do so without corroboration, and this irrespective of persons.”

The doctrine is applicable, regarding, as I do, the witness as the substantially interested party in the cause.

Moreover, it may be added that the jurisdiction of a court of equity to decree a specific performance of a contract will not be exercised in a cause having such unfavorable features as this one presents; and the complainant will be left to her remedy at law. King v. Morford, 1 N. J. Eq. 274.

There is also this obstacle to a decree in favor of the complainant. The pleadings, as they are supposed to be amended, show the beneficial ownership in the mortgage to be in the Fiss, Doerr & Carroll Horse Company. It was not claimed that in the making of the alleged promise Mr. Carroll was acting as the agent of this company, and if we should assume that he made a contract binding upon himself, the ownership of the property not being in him, he or his estate could .not be called upon to specifically perform. Public Service Corporation v. Hackensack Meadows Co., 72 N. J. Eq. 285; Clark v. New Jersey Postal Telegraph Co., 32 N. J. Eq. 15.


text:
    Capital Circle, No. 11, Brotherhood of the Union, v. Jacob Schmitt.
    [Decided November 9th, 1914.]
    1. An unrecorded mortgage is of no effect against a purchaser at an execution sale, where the judgment creditor had no knowledge of the mortgage, even though the purchaser did have knowledge of it.
    2. Where the premises covered by an unrecorded mortgage, which was executed by the owner and his wife, had been sold under an execution against the husband, the mortgagee cannot foreclose and sell the wife’s inchoate right of dower, since that right is not a subject of grant or assignment.

      Mr. John A. Hartpence, for the complainant.

      Mr. Scott Scammell, for the defendant.
   Backes, V. C.

This is a bill to. foreclose a mortgage. The mortgage was not recorded until nearly three years after its execution. In the meantime, a judgment was recorded against the mortgagor, and the mortgaged property levied upon and sold. The bill charges that the purchaser at the sheriffs sale had notice of the unrecorded mortgage. The proofs are that the judgment creditor had no notice, nor is there an averment in the bill that he liad. Unrecorded mortgages are void and of no effect against a subsequent judgment creditor not having notice thereof. Comp. Stat. p. 3414 § 22. In order that a judgment creditor may have the full benefit of the statute, the protection afforded to him is to be extended to the purchaser at the execution sale; and, even though the latter had notice, he takes the land free of the complainanfis mortgage. Sharp v. Shea, 32 N. J. Eq. 65; Condit v. Wilson, 36 N. J. Eq. 370; Paul v. Kerswell, 60 N. J. Law 273.

The wife of the mortgagor having joined in the mortgage, and her interest not having been cut oil by the sale, the question arises whether the complainant may proceed to sell her inchoate right of dower in satisfaction of its mortgage. By joining in the mortgage the wife conveyed no estate. She merely released or barred her interest to the mortgagee. Her inchoate right was not the subject of a grant or assignment. 2 Scrib. Dow. 6. An inchoate right of dower cannot be granted or transferred so as to vest in the transferee or grantee a right, in the event of the death of the husband, leaving the wife surviving, to bring either in his own name or in the name of the widow, an action of ejectment or proceedings for adjustment, or any proceeding founded on such right of dower. Even after the inchoate right becomes complete, it cannot, before being set off, be conveyed to a stranger so as to vest in him a legal estate. Fuchs v. Christie, 79 N. J. Law 14. Nor can it, before admeasurement, be levied upon and sold under an execution against her. Tenbrook v. Jessup, 60 N. J. Eq. 234; Schuhardt v. Wittcke, 76 N. J. Eq. 119; 78 N. J. Eq. 292. As nothing remains to be sold under a fi. fa. in this suit, the bill will be dismissed, with costs.

The owner, defendant, filed a cross-bill to relieve the mortgaged premises of the cloud of the defunct mortgage. This, I understand, is not resisted, in view of the opinion above expressed as to its invalidity. The defendant is entitled to costs.


text:
    Wilbur J. Adams et al. v. Lambertville Heat, Light and Power Company.
    [Submitted November 10th, 1914.
    Decided November 14th, 1914.]
    1. Evidence, on objection to'confirmation of a receiver’s sale, and on petition for resale — Held to show that a sale of an insolvent corporations’ plant, free of a mortgage of $80,000 and from several executions, for $30,500, was for a price far below its actual market value.

      2. Where a receiver of an insolvent corporation, ordered to sell its plant, sold it, free from a mortgage of $80,000, for $30,500, a price far below its actual market value, a bondholders’ committee, which before the sale had worked diligently to bring into a protective scheme all the bondholders, who were numerous and widely scattered, the addresses of a part of whom the receiver would not disclose until too late, and which at the sale, representing more than one-half of the bondholders, offered to bid $5,000 for the property subject to the mortgage, which offer would have enabled the receiver to pay all the corporation’s debts and have saved the bondholders from a sacrifice of seventy-five per cent, of their interest, such committee was entitled, as a matter of right, to an adjournment of the sale, and the sale made would not be confirmed.
    3. Where a sale is made for a fair price and in good faith, and there is no irregularity, fraud, mistake, or legal surprise, with which the purchaser is or ought to be chargeable, the subsequent offer of a higher price by another bidder is not of itself sufficient reason for refusing confirmation.
    4. Where a purchaser at a receiver’s sale, free from mortgage and judgment liens, of the plant of an insolvent corporation at a price below its actual market value was fully informed of efforts by the bondholders’ committee to have the sale ordered to be made subject to the mortgage, and of a higher bid by the committee in case of sale subject to the mortgage, made during the sale, would be assumed to have made his bid with notice of the -bondholders’ equities, and subject thereto.
    On objection to confirmation of sale and petition for resale.

      Mr. Scott Scammell and Mr. W. Holt Apgar, for the objectors.

      Mr. William J. Kraft, for the purchaser.

      Mr. Edgar W. Hunt, for the receiver.

      Mr. Linton Satterthwaite, for the mortgagee-trustee.
   Backes, V. C.

The receiver of the defendant, an insolvent corporation, sold its plant free of a mortgage of $80,000 and of several judgments against the company upon which executions were issued and levied. The order to thus sell was made, chiefly because of a conflict between the mortgage and judgment holders as to the extent and priority of their respective liens; pending the litigation of which the property of the company was likely to deteriorate in value. The mortgage referred to was executed to a trustee, to secure an issue of $80,000 of bonds, and shortly after the appointment of the receiver in June last, a committee of the bondholders was formed to protect their interest, which committee has filed objections to the sale and a petition that the property be resold subject to the mortgage. The property was struck off and sold for $30,500. The affidavits of the objectors satisfy me that this price is less than one-half of its value. It was appraised by experts of the Public Utility Commission, about two years ago, at $76,000. The physical property, exclusive of the real estate upon which the power station of the company is located, and of the franchises of the company in the city of Lambertville and in the town of New Hope, in Pennsylvania, was appraised by an expert of the purchaser at $24,185. What' the value of the real estate is he does not say, nor did he place an estimate upon the franchises. In none of the affidavits before me is it attempted to appraise the franchise, but it is a matter of common knowledge that public grants of this kind are usually the principal asset of public utility corporations, the value .of which is measurable only by the company’s earning capacity. This company was fairly prosperous until about two years ago, and even up to the time of the decree of insolvency it had earned sufficient to pay the interest on its bonds. That it became insolvent within so short a period, is charged to mismanagement and unlawful diversion of its funds. However this may be, I think it is a fair deduction, based upon the estimate of the physical property as given by the purchaser’s expert, plus the land and the company’s two franchises, that the value of the plant approximates nearly the amount of the bonded indebtedness; showing pretty clearly that it was struck off at a price far below its actual market worth. Support of this view is to be found in the offer of the bondholders’ committee to the receiver at the time of the sale, to bid not less than $5,000 in excess of the mortgage encumbrances, if the property were exposed to sale, subject to the mortgage; in effect, a bid of $85,000, of which I will now speak.

The bondholders’ committee, at the time of the sale, represented more than a majority of the outstanding bonds. The bondholders were numerous and widely scattered throughout the states. Some held bonds of only the par value of $100.

The committee worked diligently to bring them all into the protective scheme. The holders of $27,000 of these bonds were unknown to the committee, and the receiver declined to divulge their names and addresses until advised to do so by the court, but too late to be available to the committee before the sale. But, representing more than one-half of the bondholders, and to obtain further time in which to secure the co-operation of the balance and thus to enable the committee to apply to the court to allow 'the mortgage to remain undisturbed, the committee, on the day of sale, requested and were denied an adjournment, and, during the progress of the sale, offered to bid not less than $5,-000 for the property, if it were then put up subject to the mortgage. This the receiver also denied. In the objections to confirmation, and petition for resale, the committee renew the offer to bid at least $5,000; and further, that they will pay the expenses of readvertisement and will provide for the payment of interest on the bonds which matured October 1st, 1914, and further agrees to place the property in such repair that the interest of the public being served by the company will not suffer. A certified cheek of $5,000 is tendered as a guarantee. If this offer is accepted, it will result in enabling the receiver to pay all of the company’s debts, including the expenses of the receiver’s administration. These circumstances present a situation not merely of a subsequent offer by another of a higher price, for if that were the case the general settled rule would be applicable “that where the sale is made for a fair price and in good faith, and there is no irregularity, fraud, mistake or legal surprise with which the purchaser is or ought to be chargeable, the subsequent offer by another bidder of a higher price, is not of itself sufficient reason for refusing confirmation.” Morrissee v. Inglis, 46 N. J. Eq. 306; Rogers v. Rogers Locomotive Co., 62 N. J. Eq. 111; Hoffman v. Godfrey, 79 N. J. Eq. 617. Here the bondholders were diligent in their efforts to protect their property interests before the sale, and made, what is now the increased offer, at the time of the sale, and were frustrated only by the receiver’s zeal to strictly comply with the mandate of the selling order. Had the facts which were presented to the receiver been laid before the court — and it appeal's that the committee’s counsel tried, but was unable to reach the vice-chancellor who granted the selling order — the relief sought would have been granted. The exigency should have appealed to the receiver. The property was in his hands as trustee primarily for the common creditors, in whose interests the insolvency proceedings were instituted. To confirm the sale will result in a total loss to them, and a sacrifice of nearly seventy-five per cent, of the interest of the bondholders; whereas, had the receiver granted the committee’s request for an adjournment of the sale, to enable the bondholders to have excised from the selling order the foreclosure of their mortgage, all would have been saved. And, indeed, I am of the opinion that under the circumstances the bondholders were entitled to an adjournment as a matter of right. Although, as to them, the order to sell free of the lien of their mortgage was in invitum, they, to all intents and purposes, at the time .of sale, occupied the position of mortgagees in foreclosure, and as such would have been, and as constructive selling mortgagees were, entitled to have the sale postponed on request. Measured by the fruits of a sale, as then and now desired by the bondholders, the property of the receiver cestuis que trust was sacrificed by the bid he accepted, and confirmation, which would work such great hardship and injustice, will be withheld. Rowan v. Congdon, 53 N. J. Eq. 385; Porch v. Agnew Company, 66 N. J. Eq. 232; Strong v. Smith, 68 N. J. Eq. 650.

The purchaser was fully apprised at the sale of the bffer made to the receiver by the bondholders. The auction was halted when the purchase price was offered, and it was then that the offer to bid not less than $5,000 for tire property, subject to the mortgage, was made, and it must be assumed that the purchaser made his bid with notice of the inequities, and also subject to the equities of the bondholders, as they have now been laid before the court.

The order to sell will be amended, ordering a s.ale of the property subject to the mortgage lien, upon condition: that the bondholders’ committee stipulate, in writing, with the chancellor, that upon a resale they will bid at least the sum of $5,000, and as much more as will, together with the funds in the hands of the receiver, pay the costs of administration, and all of the debts secured and unsecured of the company (exclusive of the bonded indebtedness), and also the interest on the bonds which matured October 1st, 1914; that they deposit with the receiver a certified check for $5,000, as a guarantee; and that upon such sale the mortgage encumbrance, as between the receiver and the purchaser, but not as between the receiver and the bondholders, be regarded as a fixed lien upon the property so to be sold, which shall also be incorporated in the conditions of sale. This requirement is because the legality of some of the bond issue is assailed, and if the assault is successful, it is to enure to the receiver for the benefit of the stockholders. To be more explicit: The property is to be sold for $80,000 (the mortgage lien to form so much of the consideration), plus the sums above mentioned. If these conditions are not complied with within twenty days, or such further time as the court may, upon application, grant, the sale will be confirmed.


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    John McCullough, administrator, v. Annie Forrest et al.
    [Argued November 12th, 1914;
    Decided December 4th, 1914.]
    1. The act of an intestate, who had a deposit with a savings fund society, in causing her account to be changed upon its card system, and upon her pass-book, by adding the name of her sister, so that thereafter the account stood in the name of intestate or the sister, in order that the fund or the remainder of it might pass to her sister at her death, without any “donative intention,” i. e., a design presently to part with the ownership of all interest in the money, and her subsequent exclusive possession of the pass-book and absolute control over the fund, was not effective as to a “gift inter vivos,” to sustain which there must be not only a donative intention, but also, in conjunction with it, a complete surrender by the donor of all control over the thing given.

      2. Such acts were not effective as a testamentary disposition of the deposit, since to effectually dispose of property, to take effect after death, the donor must pursue the course laid down by the statute of wills.
    3. Upon a bill by an administrator to recover funds in a savings society, deposited by his intestate to a joint account, where there was a decree awarding the fund to him, no costs will be allowed against defendant bank, it being in no way responsible for the litigation.

      Mr. William M. Jamieson, for tlie complainant.

      Mr. Union Satterthwaite, for the defendant Annie Forrest.

      Mr. Scott Scammell, for the defendant the Trenton Savings Fund Society.
   Backes, V. C.

The complainant’s intestate, Mary McCullough, had on deposit with the Trenton Savings Fund Society upwards of $2,700. On March 19th, 1912, she caused her account to be changed upon the card system of the society and upon her pass-book by adding .the name of her sister, the defendant, so that thereafter the account stood in the name of “Mary McCullough or Annie Forrest.” Miss McCullough had but a single purpose in making the change, which was that the fund or chose in action, or as much thereof as remained, should pass to her sister at her death — purely a testamentary disposition. The evidence disclosed no donative intention, i. e., a design presently to part with the ownership of, or interest in, the money, but, on the contrary, it appears that after the alteration in the account was made, Miss McCullough retained the exclusive possession of the pass-book and exercised absolute dominion over the fund until her death. During that period she made one draft of a small sum which, under the by-laws and regulations of the society, was possible only by personal application and upon presentation of the passbook. The administrator seeks a recovery of the deposit as a part of his intestate’s estate, which is resisted by the sister, Mrs. Forrest, who claims it by way of a gift inter vivos. In Stevenson v. Earl, 65 N. J. Eq. 721, it was held that “in order to legalize such a gift, there must be not only a donative intention, but also, in conjunction with it, a complete stripping of the donor of all dominion or control over the thing given.” Taylor v. Coriell, 66 N. J. Eq. 262; Nicklas v. Parker, 71 N. J. Eq. 777; Swayze v. Huntington, 82 N. J. Eq. 127. The alleged gift must also fail because of its testamentary character. In order to effectually dispose of property to take effect upon death, the donor must pursue the course laid down by our statute of wills. Stevenson v. Earl, supra.

Counsel for the defence urge the case of Dunn v. Houghton, 51 Atl. Rep. 71, as all controlling. There the facts were similar to the circumstances in this case, except that the fund remained intact, and Vice-Chancellor Stevenson held that the contract by the bank with the donor and donee, manifested by the pass-book, was a legally sufficient external form to carry the gift if the donative purpose be present. From the facts in that case he found such a purpose, and upheld the gift. In Schippers v. Kemphes, 67 Atl. Rep. 1042, which is also a bank pass-book case, with an account standing in the name of the alleged donor and donee, he reiterated this doctrine, but, upon the facts, finding no donative purpose, refused to sustain the transaction as a gift, in which he was upheld by the court of errors and appeals. 72 N. J. Eq. 948.

The conclusion which I have reached does not conflict with the principle laid down in the Dunn Case, for there, as already stated, the vice-chancellor found, as a fact, a donative purpose; a result which I have not been able to reach from the evidence in this ease.

A decree will be advised awarding the fund to the complainant. No costs will be allowed against the defendants. Peer v. Peer, 11 N. J. Eq. 432.


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    Budd H. Atkinson v. Benjamin Atkinson et al.
    [Argued December 8th, 1914.
    Decided December 9th, 1914.]
    The common-law rule that the personal estate is the primary fund for the payment of debts, including mortgages on real property, descending to the heir, has been changed by Comp. Stat. p. 34&1, providing that where a mortgage has been given for the debt, all proceedings to collect the debt shall be first by foreclosure, thereby making the mortgaged property the primary fund, so that the heir is not entitled to have the mortgage paid by the administrator out of the personal assets.
    On demurrer to bill.

      Messrs. Davis & Davis, for the demurrants.

      Mr. William A. Slaughter, for the complainant.
   Backes, V. C.

This bill is filed by an heir-at-law to compel the administrator of bis- ancestor to exonerate descended lands from the lien of a mortgage made by the ancestor to secure her bond. The next of kin demur.

Under the common law, the. personal estate was the primary fund for the payment of debts, including those secured by mortgage, and the right of the heir-at-law to have his land discharged of a mortgage lien out of the personal assets was well settled. But the legislature, in 1881' enacted:

“That in all cases where a bond and mortgage has or may hereafter be given for the same debt, all proceedings to collect said debt shall be first to foreclose the mortgage;”

and further provided that any deficiency may be recovered by an action on the bond. Comp. Stat. p. 3421,

This court, in the case of Smith v. Wilson, 79 N. J. Eq. 310, held that this legislation malíes the mortgaged property the primary fund out pf which the debt secured is to be paid, and abolishes the right of heirs to be exonerated from a mortgaged debt created and owed by the ancestor out of the personal estate of such ancestor.

The demurrer will be sustained, and the bill dismissed, with costs.


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    Capitol Broom Company v. Mary L. Cook et al.
    [Submitted December 9th, 1914.
    Decided December 12th, 1914.]
    A lease contained a covenant that at the expiration of the term the lessee should have the first refusal of the premises for a further term, and that the lessor would not let the premises to any other person without first giving the lessee the privilege of renewal at the same rental that the lessor could secure from such other person. — Held, that such covenant was not an absolute option entitling the lessee at his election to a new term, but only if the premises were for rent after the expiration of the original term, and hence a sale of the premises by the lessor at the termination of the original term was not a violation of the covenant.

      Mr. Scott Scammell, for the complainant.

      Mr. Linton Satterthwaite, for the defendants.
   Backes, V. C.

The complainant is the substituted lessee of a factory building for a term of years which expired on July 1st last. The lease provides for the payment of rent in installments, and contains the usual stipulations and conditions, and concludes with the following covenant:

“It is further agreed that at the expiration of the said term the party of the second part shall have the first refusal of said premises for a hiring for a further period of five years on the same terms contained in this lease with the exception as to the amount of rent to he .paid by the party of the second part for the period of five years, viz., the party of the first part will not let said premises to any other person without first giving the party of the second part hereto the privilege of renewing this lease for a further period of five years at the same rental as she could secure from such other person.”

Shortly before the term expired, the owner entered into an agreement of sale with a third party, without making any attempt to rent the property. The complainant tendered itself ready, and is now willing, to pay the same rental as the owner could have secured from any other person, and, by the bill, seeks to compel the execution of a new lease, at that rental; contending that the covenant gave an absolute option, which, having been accepted, vests the right to a further term of five years, upon the same terms contained in the original lease, at such rental as could be secured from any other person — a fair rental —to be ascertained by the court.

The construction which I place upon the covenant does not accord with this view. It contains an option, it is true, but one that is qualified. The complainant was to have the first option, the meaning of which is defined by the language under the videlicet, and which, when read conjunctively, makes it quite plain that the agreement of the parties was that at the expiration of the lease the complainant was to have the preference of a re-letting, if the premises were to be again demised. Holloway v. Schmidt, 67 N. Y. Supp. 169. The complainant was to have the prior right over all other competitors, in the event that the premises became the subject of competition for a further hiring. The function of the videlicet, as I regard it, was to explain all that preceded in the covenant, and was not merely to furnish a measure for the ascertainment of the amount to be yielded as rent, as the complainant argues. The covenant did not, nor was it intended to, prevent the owner from exercising all acts of ownership, save that of renting without giving the complainant the first chance. It was reserved to her to occupy it herself, or keep it vacant or grant it in fee to a purchaser.

This conclusion makes it unnecessary to decide the point raised by the defence, that the option or refusal of a renewal is unenforceable because of uncertainty, in that the stipulation is that the rent was to be such as any other would-be lessee was willing to pay. The subject was strenuously and elaborately argued. The question has been disposed of both ways in other jurisdictions. Gelston v. Sigmund, 27 Md. 334; Arnot v. Alexander, 44 Mo. 25. But, from the cases I have examined, it would seem that the weight of authority is to the effect that such a stipulation involves no element of uncertainty in the contract, and that a court of equity will determine the rental agreed upon, the sum of which was left unfixed by the parties. Lister Agricultural Chemical Works v. Selby, 68 N. J. Eq. 271.

The bill will be dismissed, with costs.


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    Charles H. Huston v. Robert Boyd et al.
    [Argued December 15th, 1914.
    Decided December 17th, 1914.]
    1. A devise to testator’s wife for her support and maintenance and to dispose of as she might deem proper, the estate remaining undisposed of to pass to certain others specifically named, vested in the widow an absolute power of sale, she being entitleed to convey the land for or without a money consideration, and regardless of the result contributing to her maintenance and support.
    2. A devise of the residue of testator’s estate to his wife for her support and maintenance, and to dispose of as she might deem proper, the estate remaining undisposed of after her death to go to the children of testator’s sisters, vested a fee in the widow, under the rule that where lands are devised in the first instance in language indeterminate as to the quality of the estate from which an estate for life would result by implication, and words adapted to a power of disposal without restriction as to the mode of execution are added, the construction will be that an estate in fee is given.

      Mr. Aaron V. Dawes, for the complainant.

      Mr. Freeman Woodbridge, for the defendants.
   Backes, V. C.

Stephen Dedmond died seized of a house and lot in New Brunswick, the title of which passed under this provision of his will:

“All the rest, residue and remainder of my estate, real and personal, wheresoever the same may be, I give, devise and bequeath unto my beloved wife Ann Dedmond for her support and maintenance and to dispose of as she may deem proper. The estate that may remain undisposed of after the death of my said wife I give, devise and bequeath unto the children of my several three sisters — Margaret Winkler, widow of John Winkler, deceased; Frances McFale, widow of Aaron McFale, deceased ; Panthea Boyd, widow of John Boyd, deceased.”

The widow, Ann Dedmoncl, gave the property, by deed, to her niece Ann Williams, and she, for a valuable consideration, conveyed it to the complainant, who took it with notice. The complainant is in peaceable possession, and the prayer of the bill is to quiet his title.

The defendants are the children of the three sisters, who contend that the devise to the widow for her “maintenance and support,” coupled with the devise over, indicates an intention upon the part 'of the testator to give a life estate, with a power of sale, exercisable only for support and maintenance. The language of the will forbids the interpretation upon which this insistence rests. It gives the estate to the widow, not only for her support and maintenance, but also “and to dispose of as she may deem proper.” Viewing this provision strictly in the light of a power, the grant conferred a right of disposal without limitation. The widow was empowered to convey the estate for, or without, a money consideration, and regardless of the result contributing to her maintenance and support.

But, applying the appropriate rule of construction, settled by a long line of authorities in this state, to the provisions of the will under examination, leads to the conclusion that an estate in fee passed to the widow. Neither in express terms, nor by implication, is a life estate created in the widow, and, “as a rule of construction, the principle is entirely settled that where lands are devised, in the first instance, in language indeterminate as to the quantity of the estate, from which an estate for life would result by implication, and words adapted to the creation of a power of disposal without restriction as to the mode of execution are added, the construction will be that an estate in fee is given; but where the quantity of the estate of the taker is expressly defined to be for life, the superadded words will be construed to be the mere gift of a power of disposition.” Downey v. Borden, 36 N. J. Law 460; Tuerk v. Schueler, 71 N. J. Law 331; Wills v. Wills, 72 N. J. Eq. 782.

The complainant is entitled to a decree.


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    Mary Elizabeth Swallow v. Charles S. Swallow.
    [Argued December 29th, 1914.
    Decided December 31st, 1914.]
    1. The operation of an order for temporary alimony terminates with the entry of the final decree. Its vitality, however, survives that event.
    2. An order for temporary alimony continues down to the final decree, and may be thereafter enforced, even though the wife be adjudged guilty.
    3. An order made during the pendency of the suit, directing alimony to be paid “until the further order of the court' in the premises,” construed to mean that it was to be paid during the progress of the suit, unless in that period a superseding order was entered.
    4. Query: Can a subsequent order for permanent alimony be made to relate to the date of the final decree?
    On petition to discharge a writ of sequestration.

      Mr. James J. McGoogan, for tire petitioner.

      Mr. William M. Jamieson, for the defendant.
   Backes, V. C.

The final decree of divorce granted to the petitioner in 1905 made no provision for alimony. During the pendency of the suit, an order was made that the defendant pay to the petitioner the sum of $5 per week, until the further order of the court in the premises. The defendant defaulted. Recently he came into an inheritance, and a writ of sequestration issued, which was executed. The defendant now offers to pay the amount of alimony that accrued up to the time of the entry of the final decree, and prays that upon payment being made the writ be discharged. The petitioner insists on payment of accruements to the present time.

The operation of an order for temporary alimony terminates with the entry of the final decree. Its vitality, however, survives that event. Bishops says that it is not given as the ultimate award of justice, but as a needful step in a course of ascertaining what justice demands. In McGrail v. McGrail, 51 N. J. Eq. 537, Vice-Chancellor Green, speaking of the office of such an order, says: “It is, by its terms, limited in time to the pendency of the suit. It necessarily ceases to be operative on a final decree being entered. That result would have been reached in any determination of the cause. If the wife had been successful, it would have been necessary to provide by decree for permanent alimony; if the husband, the order, of course, would not continue.”

To the same effect is the opinion in Wood v. Wood, 7 Lans. 204, where it was held that an order for alimony was superseded by the final judgment, and that the judgment concludes the parties on the subject of alimony, as well as other matters involved in the suit, and that if the husband ought to pay future alimony, a clause to that effect should be inserted in the judgment. 14 Cyc. 760. The eases cited in Wood v. Wood are also authority for the proposition that a wife’s order for temporary alimony continues down to the final decree, and may be thereafter enforced, even though she be adjudged guilty.

In the present case, it is urged that the wife was the innocent party, and having succeeded in the divorce proceedings, and, because the alimony was directed to be paid “until the further order of the court in the premises,” it (the order) continues in full force until some substituted provision for maintenance is made, or the order is specifically abrogated. This I cannot entertain as sound. We must look to the substance, rather than to the form of the order. The .petitioner, in her petition, upon which the order was made, alleged that she was wholly destitute of the means of supporting herself, pending the suit, and prayed that her husband be required to pay her a proper allowance for her support and maintenance “until the termination of this suit.” The order granting the allowance recites that it appeared to the chancellor “that the prayer of the petition should be granted.” This, it seems to me, makes it apparent that the direction to pay “until the further order of the court in the premises,” means that the alimony allowed was to be paid during the progress of the suit, unless in that period some other order was made. Furthermore, under the doctrine hereinbefore stated, that all interlocutory orders in a cause are replaced by the final decree, satisfies the language of the order upon which the argument is based.

Upon the defendant paying to the petitioner, or into court, if she refuses to take it, all arrearages of alimony to the entry of the final decree, together with the costs of these proceedings, I will advise an order discharging the writ of sequestration.

Upon the hearing, the petitioner applied for permanent alimony, expressing herself as content with the amount allowed, pending the suit. No formal petition and supporting affidavits were presented, according to the usual practice, but this, under the circumstances, may be dispensed with. The affidavits upon which the pendente lite order was made, and those used upon this motion, are before me, and the latter disclose a greater affluence now than the defendant possessed when the first-mentioned order was made. I will grant the allowance asked, unless :

The affidavits before me show that the petitioner was ignorant of the absence of provision in the final decree for permanent alimony. She seems to have been shamefully neglected by the defendant, and I feel that he now, being in funds, ought to, if he can, be made to make amends, and I suggested to counsel the possibility of an order for permanent alimony relating to the date of the final decree. I have searched for authority, .and refer counsel to the cases of Forrest v. Forrest, 6 Duer 102; 25 N. Y. 501; Burr v. Burr, 7 Hill 207; Bidd. Div. 152, which seem to countenance this practice.

If the petitioner cares to pursue her application further, she will have to present it upon proper moving papers.


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    Lakatong Lodge, No. 114, of Quakertown, etc., v. The Board of Education of Franklin Township, Hunterdon County.
    [Argued September 22d, 1914.
    Decided January 11th, 1915.]
    1. Whether trustees take an estate in fee depends upon the requirements of the trust and not upon the insertion of words of inheritance in the deed.
    2. A deed to trustees of a charitable trust creates a legal estate in fee, although the deed to them of the trust estate contains no words of inheritance.
    3. In the absence of any scheme judicially approved, the trustees of a charity may not make a cy press application of the estate upon their own authority, even though it be desirable.
    4. Upon application for the appointment of new trustees of a charitable trust, the attorney-general is a necessary party.
    On final hearing.

      Mr. Paul A. Queen, Mr. H. Burdett Herr and Mr. Charles A. Woodruff, for the complainant.

      Mr. Willard C. Parker and Mr. George H. Large, for the defendant.
   Backes, V. C.

For the purpose of securing to the children of the vicinity facilities for a higher grade of education than the district school afforded, citizens of Franklin township, in Hunterdon county, contributed a fund which was used in the purchase of a lot of land, and the erection thereon of a two-story school house. Title to the lot was taken in 1850 from one Clifton, in the name of five men, as “'Trustees of the Franklin Education Association,” with grant and habendum, to them and “to their successors in office.” The deed contains all of the covenants of a general warranty, which run to the trustees “and their successors in office.” It is on a printed form and the words “heirs and assigns,” wherever they relate to the trustees, are stricken out. The trustees conducted an academy in the first floor of the building until 1866, when, because of financial failure, the undertaking was abandoned, and the property was turned over to the public school authorities of the district, who have ever since carried on the system of public education in the first floor of the building. Beeently, the building was condemned as unfit for school purposes, and in order to erect a new one on the site, the defendant was about to tear it down, when it was stopped by a temporary restraining order. The complainant has occupied the second story of the building as a lodge room since 1856, under a lease made to it by the trustees, for a term of five years, at an annual rental of $25; paid the rent until the year 1872, when, the bill alleges, it purchased from the trustees the title to the school house lot.

After the defendant answered, denying complainant’s title by purchase from the trustees, and in which it set up that the Franklin Education Association was a charitable trust, and that upon becoming defunct, the further performance of the trust was turned over to the public school authorities by the trustees, with the intent and effect of vesting in them the full title to, and control over, the school property, by way of dedication; the complainant procured from the heirs-at-law of Clifton, the grantor of the trustees, a deed for the school house lot, and laid claim thereto, thereunder, in a supplemental bill. This, obviously, was obtained upon the notion that because the deed to the trustees contained no words of inheritance, a life estate only passed to them, and was at an end by reason of their death. This, evidently, was also the idea of the defendant, because it filed a cross-bill, praying that the deed be reformed by restoring the words of limitation, so as to carry the fee.

On the coming in of the defendant’s answer, the temporary restraining order was continued, upon condition that the complainant try the issue of its alleged legal title, set up in the original bill, at the then next term of the Hunterdon circuit. Thereafter (the complainant having then procured the deed from the lieirs-at-law) the defendant, fearing that title under the deed could be maintained, applied for a stay of the action, which was then pending in the circuit, and for leave to file a cross-bill. Both sides have signified their willingness that the questions in dispute be decided in this court. Freichnecht v. Meyer, 39 N. J. Eq. 551.

If it were deemed necessary to reform the deed to the trustees, on the ground of mistake, ample proof of an intention to convey a fee may be discovered in the record. Before the deed to the trustees was made, their grantor agreed, in writing, to 'sell to them the land for $100, to be paid on the 1st day of May then following, and also agreed to pay one-half of the expense of surveying the land, and in the meantime to

“give sufficient possession of tlie same, to give the said trustees room to deliver stone and materials on the ground, to commence or build an academy, for which purpose they purchased said land.”

A penalty for non-performance, in the sum of $500, was stipulated. The price agreed upon was evidently the full value of the land, and from this it is a fair assumption that the entire estate was to be sold. Also, the structure to be built, and the purpose of its building, evince a futurity far beyond the lifetime of the trustees. The covenants in the deed that the grantor has good right to sell the said lands to the party of the second part and their successors.in office “forever;” that they shall at all times “forever” peaceably enjoy the premises, and that the grantor and bis heirs will “forever” warrant and defend the title of the trustees as against himself and his heirs and every other person, speak plainly the true scope of the instrument. Collectively, these facts are convincing that the absolute estate was to be conveyed, and that the words “successors in office” were substituted under a misapprehension of their legal effect. To my mind, the very use of the substituted words manifest an intent to grant more than an estate for the life of the trustees. Authority for reformation may be found in Weller v. Rolason, 17 N. J. Eq. 1; Wanner v. Sisson, 29 N. J. Eq. 141; Gale v. Morris, 29 N. J. Eq. 222. But I am of the opinion that a reformation is not essential to effect an estate in fee in the trustees. Whether trustees take an estate in fee depends upon the requirements of the trust and not upon the insertion of words of inheritance. Potter v. Couch, 141 U. S. 296. The academy, conducted by the trustees, was open to all who cared to avail themselves of its benefits, upon the payment of tuition fees. It was a public educational institution; one not run for.profit, and the trust assumed and performed by the trustees was a charitable trust in the legal sense. Stevens v. Shippen, 28 N. J. Eq. 487; Taylor v. Bryn Mawr College, 34 N. J. Eq. 101; Alfred University v. Hancock, 69 N. J. Eq. 470; Hilliard v. Parker, 76 N. J. Eq. 447; 6 Cyc. 910; 5 R. C. L. 330. And the trustees, under the deed in question, although it contained no words of limitation, took a legal estate in fee in the lands. Hopkins v. Gimshaw, 165 U. S. 342. Such trusts equity upholds and enforces by appointing trustees and, if necessary, supplying cestuis que trust. Green v. Blackwell, 35 Atl. Rep. 375. This renders abortive the efforts of the complainant, under the deed from the heirs of Clifton, and disposes of the supplemental bill.

We then must recur to the status of the complainant under the original bill. Its right to relief was there rested exclusively upon ownership under a deed alleged to have been made to it by the trustees in 1872. There is not a particle of proof in the case that such a deed ever existed, and at the hearing the complainant’s counsel confessed their inability to produce one. And with this falls the remaining structure upon which the complainant builded for relief.

A possible claim as a tenant holding over under the lease of 1857, is entirety repudiated by the complainant’s disclaimer of the landlord’s title falsely asserted under the supposed deed, from the trustees, of 1872. Hankinson v. Blair, 15 N. J. Law 181; 24 Cyc. 1353.

The bill does not count upon adverse possession, nor could this be successfully maintained in the face of the lease under which the complainant went into possession and its subsequent attornment in 1872 to the defendant, at the request of the trustees, in the absence of an adverse holding, hostile to the owner, for the period feed by law. No claim of ownership was made by the complainant until shortly before* this suit was brought.

The complainant’s bill will be dismissed, with costs.

Upon the abandonment of the academy, the trustees turned the school building over to the defendant, the public school authorities, for the carrying out of the trust, and in the doing of this, they took the course that a court of equity would have taken had application for directions been- made at that time. The defendant, in its answer, avers that this amounted to a dedication, and that the title became vested in the public. I doubt that there was a dedication, whereby the fee passed, for, in the absence of any scheme judicially approved, the trustees of a charity may not make a cy pres application of the estate upon their own authority, even though it be desirable. MacKenzie v. Trustees, 67 N. J. Eq. 652. Upon the defendant amending its cross-bill, to which the attorney-general must be made a party, I will advise a decree appointing the defendant trustee of the charity, to be applied according to the doctrine of cy pres. Green v. Blackwell, supra; Trenton v. Howell, 63 Atl. Rep. 1110. This will put the title at rest.