author: Stevens, V. C.

text:
    The New Jersey State Dental Society v. The Dentacura Company.
    [Decided October 28th, 1898.
    Filed October 31st, 1898.]
    1. Where at the meeting of a dental association an original essay was read, which was afterwards handed, with other essays, to a representative of a magazine of dental literature, but was not published, and a third person procured a copy from one connected with' the magazine and used extracts as an advertisement, without the authority or permission of the society — Held, that the manuscript was the exclusive property of the society and could not be used against its consent for such purpose.
    2 The burden of showing that a manuscript has been dedicated to the public is on the party so asserting.
    3. A report of the committee of an incorporated dental society, in the nature of an original essay on the care and preservation of the teeth, was read at the annual meeting of the society, which accepted it for the purpose of putting it on file tp later discuss it. — Held, that the mere fact that the report was read in the presence of auditors not excluded from the meeting without showing further that those auditors had not paid a fee as exhibitors or otherwise, or that the general public was “invited” to be present, does not constitute a dedication of the report to the public, so as to permit its publication by an exhibitor at the meeting, who had heard it read.
    On bill.

      Mr. Halsey M. Barrett, for the complainant.

      Mr. Edward A. Day, for the defendant.
   Stevens, V. C.

The complainant, an incorporated society, filed its bill against the defendant to restrain the publication of extracts from a report made by a committee of the complainant. The report is an original essay on the care of the teeth and the best means of preserving them. Among other things it deals with the subject of tooth-powders and pastes, and in several passages commends the paste made by the defendant. The report, signed by five dentists, members of the society, was read at a meeting thereof held at Asbury Park in July last. After having been read it was, in the language of the bill,

‘then discussed and on motion accepted by the society, and * * * handed by its chairman to the secretary, to be retained by him as the property of and a part of the records of said society and said meeting.”

The report, with other reports and papers of the society, was afterwards handed to a representative of a magazine of dental literature known as “ Items of Interest,” published monthly in New York. The report in question has not been published in this magazine. It still remains in manuscript.

Application was made by a representative of the defendant company to an officer of the complainant company for a copy. Failing to get it from him, he procured a copy from a person connected with the magazine and then proceeded to use extracts from it as an advertisement of the paste “Dentacura.” It is not pretended that either the copy was procured or the advertisement made by authority or permission of the complainant. On this branch of the case there can be no doubt. The manuscript was the exclusive property of complainant, and neither it nor extracts from it could, against complainant’s consent, be used to advertise the wares of defendant.

The defendant, however, grounds his case principally on certain facts appearing in the answering affidavit of Mr. Lathrop, general manager of the Dentacura company. After deposing that he (Lathrop) was invited by the complainant to make an exhibit of his wares at the meeting, which he and other exhibitors did, he paying $12 for the privilege, he proceeds as follows ;

“And deponent further says that the several sessions of the said annual meeting were open and public, and that the general public was admitted thereto, and many hundreds of people outside of the dental profession were in attendance, and that the proceedings of the society, the reading of essays and the reports of committees were conducted in the presence of the general public, and that the report of the committee mentioned in said bill and hereafter mentioned was read openly at said meeting and in the presence of the outside public, and that many persons not connected with the society were present when the said report was made”

It is not distinctly averred that Mr. Lathrop was one of the persons who was in attendance when the report was read. As he swears, however, that he attended the annual meeting of 1898, I will assume that he actually heard the report. The defendant’s insistment is that the reading at this meeting was a publication and that the report, or its contents, thereafter became public property, which everyone was entitled to make such use of as he saw fit.

The law respecting the ownership of literary property is entirely settled. It is thus stated by "Vice-Chancellor "Van Fleet, in Aronson v. Baker, 16 Stew. Eq. 366: “The right to literary property is just as sacred and just as much entitled to the protection of the law as the right to any other kind of personal property. * * *. The established rule defining the rights of the owner of such property may be stated as follows: Every new and innocent product of mental labor which has been embodied in writing or some other material form, while it remains unpublished, is the exclusive property .of its author, entitled to the same protection which the law throws around the possession and enjoyment of other kinds of property.”

That the manuscript and its contents were, in the first instance, the exclusive property of complainant does not therefore admit of doubt. The question in dispute is whether they have been so published as to have become the property of the public. As defendant does not pretend to claim by private transfer to itself, it must show title in the public, of which it is, a member. The burden of proof is on the defendant. It must show affirmatively that what was once the complainant’s has now become common property. In this I think it has failed. Mr. Lathrop says that the report was read in the presence of the public and that many persons not connected with the society were present. But who these persons were and under what circumstances they attended does not appear. They may have been, consistently with the facts stated, exhibitors who paid a fee, in which case they would stand much in the position of persons admitted to a theatrical performance or a lecture, on payment of a fee. In such case there is no dedication of the play or lecture to the public generally. Tompkins v. Halleck, 133 Mass. 32; Palmer v. De Witt, 47 N. Y. 532; Abernethy v. Hutchinson, 3 L. J. Ch. 209; Caird v. Sime, 12 App. Cas. 326.

There is no averment that a public meeting was called to hear the report read. There, is no averment that the general public were by any formal act of the society or its officers invited to be present. All that is fairly deducible from Mr. Lathrop’s statement is that at the regular annual meeting, some persons, not members, were not excluded from its sessions; in other words, that its doors were not closed upon them. Caird v. Sime, supra, was much relied upon by defendant’s counsel. It was the case of a professor of a ■ public university who delivered lectures to students, one of whom took notes which he attempted to publish. Lord Halsbury applied as the test of decision, the nature of the lecture, the circumstances of its delivery and. the object with which it was delivered. In the course of his judgment he says, “whether the limitation of the right (i. e., the right of some person other than the lecturer or preacher) arises from implied contract or from the existing relation between the hearers and the author, it is intelligible that where a person speaks a speech to which all the world is invited, either expressly or impliedly, to listen, or preaches a sermon in a church, the doors of which are thrown open to all mankind, the mode and manner of publication negative any limitation.” The reason must be that the speech is spoken or the sermon preached directly to what he calls all the world,” and that they are intended, primarily, for the benefit of all the world. But the decision in that case was that the professor’s lecture was not primarily intended for the benefit of all the world, but for the benefit of the students only, although, indirectly, all the world might ultimately reap the benefit. ■

It seems to me that the case in hand presents a situation similar in principle. The report was read not to or for the benefit of the public generally, but to and for the benefit of the society. It was “accepted” not by the public, but by the society. It was a professional essay intended, primarily, for professional men. The views embodied in it might or might not be approved by the members of the society at large. Now, to assert that the mere reading of this report to the society by the committee (and they had no authority to report to anyone else) in the presence of certain outsiders, was a dedication of it by the society to the public, seems to me to be unreasonable. The members of the society would not, as men imbued with the scientific spirit, be likely to stamp with their approval views or assertions which they had not as yet had the opportunity to test or consider. The circumstances of the delivery and the object in view rather rebut than sustain the inference of a dedication. Furthermore, the society did not approve the report. All they did was to accept it for the purpose of putting it on file and then to discuss it. They came to no determination as to its merits. They neither approved nor disapproved it. How, then, can we fairly infer from what took place an intention to make public with a view to the public benefit, ideas and conclusions which they were not then prepared to endorse ? The mere presence of auditors is not, according to the cases, a decisive test. If it should be held to be, then any person present at a corporate meeting, by the mere sufferance of the corporators, could thereafter publish its proceedings against their will for his own pecuniary profit, if he could only in some unauthorized way get possession of a copy of them, or could by an effort of memory recall them. Taking the facts to be as we find them stated in the affidavit of Mr. Lathrop, proof of dedication is therefore lacking. But more than this, Mr. Lathrop swears in a subsequent passage that he has been informed

that it was the intention of the officers of the said society to disregard the recommendations of the said committee in its said report, and not at any time to publish said report or any extracts therefrom relating to Denticura, * * * and that this deponent has endeavored to obtain permission from said society to quote from said report, hut that the officers of said society refuse entirely to permit this deponent and his said company to make use in any form of said report, even so far as to announce that in said report Dentieura was recommended.”

Here is affirmative evidence of an intention not to publish.

The complainant is entitled to a preliminary injunction. I may add that the case is now before- me on ex parte affidavits only, and that all that is decided is that on these affidavits defendant has failed to show a title in himself or in the public.


source: Caselaw Access Project

license: Public Domain

text:
    Ellis S. Van Wart v. Sarah Ann Van Wart.
    [Decided December 12th, 1898.
    Filed December 13th, 1898.]
    A wife’s desertion is not obstinate, within the statute providing that a divorce may be decreed for willful, continued and obstinate desertion for two years, unless persisted in against the effort or influence of the husband to bring it to an end. The amount of effort or concession required to be shown will vary with the particular circumstances of the case.

      Mr. William D. Snow, for the petitioner.

      Messrs. Marnell & Fallon, for the defendant.
   Stevens, V. C.

It seems to me plain that the desertion in this case, though it may have been willful, was not “ obstinate.” It was not persisted in against the effort or influence of the husband to bring it to an end. Obstinate persistence on the part of the wife was wanting because the advances or concessions which the husband, as a just man, ought to have made to terminate it, were also wanting. Such advances and concessions were the prerequisite of any obstinate persistence against them.

I have, in thus stating the matter, followed the language of Bowlby v. Bowlby, 10 C. E. Gr. 406, a case affirmed by the court of appeals for the reasons given by Vice-Chancellor Dodd, and a case, too, which seems to me to express more accurately than any other in our reports, the true meaning of the word “ obstinate ” as used in the statute, which provides that divorce may be decreed for willful, continued and obstinate desertion for the term of two years.”

In considering what effort or concession must be made in any given case, the conduct of the parties toward each other must be considered. It is obvious that more effort and concession will be required of one whose conduct actually produces or contributes to produce the desertion than of one who is blameless. If the party deserted is not in fault and effort to induce the deserting party to return would probably prove unavailing, it need not be shown. Trall v. Trall, 5 Stew. Eq. 231. In general it may be said that that desertion is to be adjudged obstinate which has resisted such effort or concession as the party alleging desertion ought, under the particular circumstances of the case, to have made to bring it to an end.

Applying this rule to the facts of the present ease, while it must be admitted that the defendant’s conduct in leaving the petitioner cannot be justified, it must also be admitted that the petitioner was not without fault himself. The manner in which he dismissed his wife’s boarder, and, after a short absence on her part, his hasty publication in the local newspapers of a notice that he would not be responsible for her debts, must have been offensive to her and must have tended to influence her subsequent action in leaving. On the day of her departure he stood by without asking her to stay. Under these circumstances, according to the cases, it was the husband’s duty to make a bona fide effort to induce his wife to return. Cornish v. Cornish, 8 C. E. Gr. 208; Bowlby v. Bowlby, supra; Meldowney v. Meldowney, 12 C. E. Gr. 329; Taylor v. Taylor, 1 Stew. Eq. 207; Rittenhouse v. Rittenhouse, 2 Stew. Eq. 274; Belden v. Belden, 6 Stew. Eq. 94; Schanck v. Schanck, 6 Stew. Eq. 364; Herold v. Herold, 2 Dick. Ch. Rep. 210; Chipchase v. Chipchase, 3 Dick. Ch. Rep. 549; S. C., 4 Dick. Ch. Rep. 594. Her desertion could not become obstinate until this effort was made. But he made no effort whatever. After she had gone they met two or three times on friendly terms. On one of these occasions they dined together at the house of a mutual friend. Neither then nor at any other time did the petitioner suggest a reunion. If the evidence does not indicate that'the separation was agreeable to both parties and existed by the tacit consent of both parties, it at least shows that the husband did not by word or act seek to put an end to it by any advances on his part.

The petition should be dismissed, with costs.


author: Stevens, Y. C.

text:
    Bruce S. Keator v. Rebecca Brown and Lida Brown.
    [Filed January 18th, 1899.]
    Where a tenant in common executed a contract for the sale of the property in her own name, and also, but without authority, in the name of her co-tenant, and the co-tenant repudiated the act, performance by the signing tenant may be specifically enforced as to her interest on payment of her share of the price.

      Messrs. Haioldns & Durand, for the complainant-

      Mr. David Harvey, for the defendant.
   Stevens, Y. C.

I think, on the proofs, the complainant is entitled to a decree for specific performance against Rebecca Brown.

The case is this : Rebecca and her sister Lida were tenants in common of a bouse and lot in Asbury Park. Rebecca, in her sister’s absence, entered into a written agreement to sell, with the assignor of the complainant. She signed, without authority, her own and her sister’s name, supposing that her sister would ratify her act. This her sister refused to do.

The case appears to come within the rule of law stated in Young v. Paul, 2 Stock. 401, and Lounsbery v. Locander, 10 C. E. Gr. 554. In the latter case Mr. Justice Depue says: “The general doctrine in equity is that * * * on a bill by fhe purchaser a vendor will be required to allow compensation in case he is able to make title for a part but not for the whole, if the purchaser consents to accept part performance with such compensation.”

I can see no good reason for refusing to apply this rule to the present case. There is no doubt as to what interest Rebecca has and as to how much of the purchase-money she is entitled to. Each of the sisters owns an undivided half and each is entitled to one-half the price. The rule is of much easier application to the case in hand than to many of the decided cases.

It was argued that it would be inequitable to compel Lida Brown to become tenant in common with a stranger. This objection is of little weight. A tenant in common may always dispose of his interest and thus bring about a similar situation. If Rebecca had separately contracted to sell her undivided share the court would undoubtedly compel her to perform her contract either with or without the concurrence of her co-tenant, and the same result follows in all those cases in which performance is decreed ey-pres with compensation in respect of a title defective because of some outstanding interest.

Indeed, the case is hardly one of compulsory performance cypres as to Rebecca. The court is not obliged to re-adjust the terms of the contract as to her. It only compels Rebecca to do just what she agreed to do as to her interest. She owns an undivided half, and it is this which it is decreed that she must convey. She gets exactly the price that she bargained for, and that she would have received had her sister ratified. It would be hard to find a case in which the rule would operate more equitably.

The bill, however, does not ask for performance against Rebecca alone. On the facts therein stated, no' such performance can be decreed. It should -be dismissed against Lida Brown, with costs. If the complainant desires to amend he may apply on notice.


author: Magie, Chief-Justice.

text:
    The Security Trust and Safe Deposit Company, complainant and respondent, v. The New Jersey Paper Board and Wall Paper Manufacturing Company, defendant and appellant.
    [Filed March 6th, 1899.]
    1. When a mortgage, to secure the payment of the principal of certain bonds at a specified day and the interest thereon according to the provisions of coupons attached to the bonds, contains a covenant that at a fixed time after default in the payment of interest and after demand the principal shall become immediately due and the bonds and coupons are payable at a designated place, default in the payment of interest, within the meaning of that covenant, will result from the non-payment of the coupons, although not presented at the designated place and payment demanded.

      2. Qucere. Whether, if money had been provided at the designated place, so that coupons presented would have been paid, a court of equity would enforce the agreement that the principal should become due upon such default.
    On appeal from a decree advised by ’Vice-Chancellor Reed. (No opinion.)

      Mr. David J. Pancoast, for the appellant.

      Mr. Thomas E. French, for the respondent.
   The opinion of the court was delivered by

Magie, Chief-Justice.

The attack on this decree, which is for the foreclosure and sale of mortgaged premises, is made upon a single ground. The contention is that the principal sum secured by the mortgage and included in the decree was not due at the time the bill to foreclose was filed or when the decree was made.

Whether the principal had become dué'or not depends on the law applicable to the following facts: The mortgage was made to respondent to secure the payment of one hundred bonds of $1,000 each and the interest thereon. Each of the bonds acknowledged an indebtedness to bearer of $1,000, payable at the banking-house of respondent on June 5th, 1905, with interest, payable semi-annually, on the presentation and surrender of annexed coupons at said banking-house. The coupons contained the mortgagor’s promise to pay the semi-annual interest at that banking-house.

The mortgage contained an express covenant by the mortgagor to pay the respective holders of bonds the principal thereof on the day or days specified, at the place designated, and the interest thereon at the place and in the manner appointed for the payment thereof.

It also contained a covenant thus expressed, viz.:

“ That if default shall be made in the payment of the interest on said bonds or any of them or any part thereof for the period of one calendar month next after becoming due as aforesaid, and after demand for the payment thereof, the whole principal sum of each and all of said bonds issued as aforesaid and all unpaid interest thereof, as well after as up to the time of such default, shall at once become due and payable as fully and absolutely as if the aforesaid time appointed for the payment of the principal sums of said bonds had arrived.”

The interest due December 5th, 1896, June 5th and December 5th, 1897, had not been paid and no money for its payment had been placed with the mortgagee, either on those dates or at any other time. The holder and owner of all the bonds made demand in writing for the payment of the unpaid interest, which demand was not complied with. More than one calendar month thereafter he notified respondent of the default and requested it to foreclose the mortgage, which it accordingly proceeded to do.

These were the facts disclosed by the proofs and it is now contended that a decree that the principal sums named in the bonds had become due and payable could not rightly be made thereon, because it was not shown that, either at the time the interest was payable or subsequently when the written demand was made or at any other time, were the coupons representing that interest presented at respondent’s banking-house and offered to be surrendered on payment. The insistment is that, in the absence of such presentation, there was no default within the covenant above recited.

The case indicates that this objection was not brought to the attention of the learned vice-chancellor who heard the cause and advised the decree, and this doubtless accounts for our not being furnished with the reasons for the decree.

No objection on the part of the respondent has been interposed to our consideration of the question thus presented and it is deemed advisable to consider it. In doing this we may presume that the point now made was not in the mind of counsel who represented appellant at the trial below, and it is not intended to concede that a point claimed to be fatal to the right to a decree may be deliberately withheld from the attention of the trial court or permitted to pass sub silentio, and then be presented on.an appeal so as to require us to try the cause as in the first instance, and without the benefit of the deliberate opinion of the trial judge to which we are entitled by the constitution.

Our consideration of the question argued has led to the conclusion that the decree was rightly made.

It is to be observed that the bonds in question do not contain the agreement that the principal shall become due upon default of payment of interest. That appears in the mortgage alone. But when it appears that such instruments are executed simultaneously and in respect to the same transaction and they refer to each other, as is the case here, the terms of each are qualified by applicable provisions of the others and a stipulation of this sort in the mortgage becomes part of the obligation of the bonds. 2 Jones Mort. § 1179; Waples v. Jones, 62 Mo. 440; Schoonmaker v. Taylor, 14. Wis. 313.

It is settled in this state that an obligation for the payment of money at a specified place creates, not a conditional liability dependent upon presentment and demand of payment at that place, but an absolute liability to pay generally. In an action at law upon such an obligation presentment for payment at the place named therein'need neither be pleaded nor proved. Adams v. Hackensack Improvement Co., 15 Vr. 638.

The bonds in question would therefore have become due on June 5th, 1905, without presentation at the banking-house at which they were payable, and thereafter an action at law could be maintained thereon.

In like manner the coupons attached to the bonds became due at the respective dates at which they were payable without presentation at the banking-house at which they also were payable, and thereafter an action at law could have been maintained thereon.

In any such action the fact that money to pay the obligations had been provided at the designated place could be interposed not as a complete but as a partial defence. Adams v. Hackensack Improvement Co., ubi supra.

If the obligation of these coupons could thus be enforced in an action at law, it is obvious that their non-payment was a default in the payment of the interest such as was contemplated by and contained within the covenant in question.

Had it appeared that money for the payment of these coupons had been provided at the banking-house named, so that, upon presentation, they would have been paid, another question would have been presented. In decreeing the foreclosure of mortgages which have become due by default in payment of interest under such a stipulation, the court of chancery enforces agreements respecting the time of payment of principal, intended to secure the prompt payment of interest, which the parties are competent to make and which it is not inequitable to enforce. Baldwin v. Van Vorst, 2 Stock. 577; Fisk v. Spring, 6 C. E. Gr. 175; Ackens v. Winston, 7 C. E. Gr. 445. But when the default has been brought about by fraudulent or inequitable conduct on the part of him who seeks to take advantage of it, the court will not enforce the agreement. McCotter v. De Groot, 4 C. E. Gr. 72; S. C., 4 C. E. Gr. 531; Wilson v. Bird, 1 Stew. Eq. 352.

It is, however, established by the proofs in this case that no money was provided for the payment of the coupons in question, and therefore the effect of such provision need not be considered.

The decree must for these reasons be affirmed.

For affirmance — The Chief-Justice, Depue, Van Syckel, Dixon, Garrison, Lippincott, Gummere, Ludlow, Collins, Bogert, Nixon, Hendrickson, Adams, Vredenburgh — 14.

For reversal — None.


author: Van Syckel, J. Garrison, J.

text:
    H. B. Anthony Shoe Company, complainant and appellant, West Jersey Railroad Company, defendant and respondent.
    [Argued March 25th, 1898.
    Filed December 30th, 1898.]
    1. Where the abutting owner of land on a street owns the fee to the middle of the street, he may maintain a hill to enjoin an unlawful erection on the street in his front.

      2. Where he does not own the fee of the street, he cannot maintain a suit to restrain a nuisance which injures him only in a right enjoyed by him as one of the public.
    3. Under ordinary circumstances where there is no special injury to the complainant, and where the remedy by indictment is sufficient to abate the nuisance, and to restore to the public use the entire highway, equity will not interfere even on behalf of the public.
    On appeal from a decree advised by Vice-Chancellor Pitney, who delivered the following opinion :
    The complainant is an abutting owner on the west side of a street called Seventh street, in the city of Camden, along a portion of which runs, longitudinally, the West Jersey railroad. He says this railroad company has laid an additional track, on the west side of its previous track, and immediately in front of his premises, which are on the west side of Seventh street, in such a manner as to interfere seriously with the approach to his premises. And it seems to .me that the facts, as shown, support the allegation that the additional track does interfere so seriously with the approach to his premises that if his right in the premises were perfectly clear this court would enjoin the defendant company.
    I have remarked already, in the course of the argument, that this is an action brought in a court of equity not to enforce an equitable right, but to protect a party in the enjoyment of a strictly legal right, on the ground that the remedy for the infringement of that right is inadequate at law. There is a large and familiar class of cases where this court does interfere to protect a party in the enjoyment of a purely legal right, and if 'the complainant’s right here was perfectly clear, and well settled at law, my impression is that it would be a case within that class. But in order to bring him there it is perfectly well settled that his right must be clear at law, and this court interferes only in those cases where the right is clear at law. That doctrine was established in the case of Prudden v. Morris and Essex Railroad Co., 4 C. E. Gr. 387; S. C. on appeal, 5 C. E. Gr. 530, followed by the case of Higbee v. Camden and Amboy Railroad Co., 4 C.

      E. Gr. 277, and in numerous cases since, and, although the propriety of its application in the Prudden Case has been seriously doubted by judges and members of the bar, yet the principle laid down has never been impugned and is as old as the occasion of the exercise of the jurisdiction now asked for.
    Now the question is, whether the complainant’s right is clear at law. And it arises in this wise: Somewhere in the forties the property here in question belonged to two brothers named Cooper, or one of them, who was the original proprietor of land in the neighborhood of the city of Camden. They laid it out in streets, on paper, and made a grant to Hart and McCurdy, describing the land which they granted as running to the centre of Seventh street, as proposed.
    Later, Hart and McCurdy divided that land by a deed between them, or by some partition proceedings, in which Seventh street is laid down on a map, and the property here in question came to be owned by Mr. Hart by a grant which recognized, as between Hart and McCurdy, the existence of Seventh street and located it with substantial accuracy; • but at that time it had never been used or opened as a street, had never been fenced or traveled as a street, but was a part of an unreclaimed common. In 1854 the West Jersey railroad was built from Camden to Salem and Cape May, and its centre line was laid along what the parties believed to be, and what I take for present purposes to be, the true centre line of this paper street called Seventh street. At that time it had never been accepted by the public, never been used by the public, never been recognized by the city of Camden as a street, and was purely a paper street, and, so far as actual dedication goes, it was limited to the grantees. As between all the grantees of Hart and McCurdy and anybody that they had conveyed to in the same way, it was binding between them. But the public had acquired no interest or right in it. So far as the evidence goes, it seems to me that no irretrievable step had been taken on the part of the owners by reason of which they could not have withdrawn the street from the public, so far as dedication was concerned.
    In 1854 the West Jersey Railroad Company took proceedings to condemn a strip twenty feet wide on the west side of the centre line of this Seventh street and the centre line of their road, as located and on file in the office of the secretary of state, according to law, for the use of their railway. • They got an award of commissioners in the ordinary way, and that ¿ward of commissioners' was' accepted by Mr. Hart, who was the then owner of this particular block of land, and he gave a deed to the railroad company, which is dated on the 9th of September, 1854. It recites the award of the commissioners and then witnesseth that Mr. Hart, in consideration of $525, did “grant, bargain, sell, release and confirm unto the said party of the second part, their successors and assigns,” the land in question,
    “together with all the privileges and appurtenances to the same belonging ; to have and to hold unto the said party of the second part [that is, the railroad company] for the use of the said railroad company for and during the continuance of the said railroad, to their only use, benefit and behoof forever.”
    It is claimed by the complainant that this deed must be construed in connection with the award of the commissioners, which was only of a right of way. I expressed the opinion during the argument that that was probably so. I shall adhere to that, although I am not at all sure that the right of the railroad company was not increased by that grant over and above what they got by the award of commissioners. I am not sure that it was not a conveyance of the fee, and I am not sure that I am right in not so holding; but for present purposes I do not think it necessary for me to determine the question whether or not that deed did increase the right of the railroad company. At that time, by the consent of Mr. Hart, who is the grantor of the complainant, in whose shoes the complainant stands, the railroad company had a right, under that deed, to build an ordinary railway on any part of that strip, and nobody could gainsay them. I am also of the opinion that they might have fenced it in, because I think it is well settled that a railroad company may fence in their right of way.
    Although under the decision of the supreme court in Taylor v. Long Branch Railroad Co., 9 Vr. 28, affirmed in the case of
      Hibernia Railroad, Co. v. De Camp, 18 Vr. 518, they acquire ■under their award only an easement, yet the exercise of the ■easement is so nearly exclusive of the true owner, that they have a right to fence it in. But I do not consider that as absolutely necessary to be decided in this case. They did not fence it in, nor did they occupy the whole with their tracks. They laid a single track, the centre line of which was the centre line of Seventh, street as supposed, and was the easterly line • of the twenty-foot strip conveyed by Hart to them, the railway track occupying, as I suppose it did, some eleven or -twelve feet, one-half of which — six feet — was on the right of way conveyed by Hart, and that left about fourteen feet which they did not actually occupy, nor did they fence it in. That • condition of things continued until about the year 1875, less than twenty years before this bill was filed. At that time the population of Camden began to extend in that direction ; buildings were put up in the neighborhood, and people began to build ■ on the west side of Seventh street, and the complainants, in the year 1880, purchased their present lot from Hart’s grantee, .and then built the building and devoted it to the use of a large factory; and other buildings were put up on each side of it and .along Seventh street about that time. Then the public began to use not only that portion of the original laying out of Seventh •street which was west of the twenty-foot strip conveyed by Hart to the railroad — a strip about eighteen feet, I think, from fifteen to eighteen feet wide — between the twenty-foot strip and the building line — the public began to use not only that fifteen ■or eighteen feet, but also the fourteen feet belonging to the railroad company included in the grant and not used by it, making a strip about thirty feet wide, which constituted, practically, Seventh street. That went on for about fifteen years. Then the railroad company wanted to occupy their right of way by .another track, and they attempted to do so, and attempted to fence it in, and some difficulty and dispute arose — suits—and both parties appealed to the common council, and finally in December, 1891, the common council passed an ordinance allowing the railroad company to lay a track on this fourteen-foot strip — the westerly side of the twenty-foot strip. The common council put conditions upon it, and the only conditions they put upon the railroad company were that where another street crossed it, a crossing for vehicles should be made by the railroad company. The railroad company accepted that formally, by vote of its board of directors, and thereby they became entitled, so far as the common council could entitle them, to lay that track in the ordinary way excepting where streets crossed the tracks, where they were to put in planking. Now, the property of the complainants is about half way between two cross streets, so that they do not have any benefit from that condition. The common council did not see fit to put in their ordinance a condition ■that between the street crossings this additional track should be provided with intermediate planking so that the public could cross. They only made the condition that it should, for that space, be on a level with the street.
    The complainants say that that act of the common council could not give the defendant a right to lay that track". They say, notwithstanding our grantor nearly forty years ago made a deed to the railroad company for the building of a railroad in the ordinary way, yet this court will now impose upon them a condition, viz., that they shall plank it, so that complainants can drive over it.
    Now, that depends upon whether they have a legal right— whether their legal right in the premises has been invaded. And I am entirely clear in my mind that up to the time the public began to use it they could not have had any such right. They had granted it away — it had been taken by condemnation proceedings — and they had given a deed confirming those proceedings, and there was no condition put therein that the railroad should be so built that a wagon could drive lengthwise over the ties, and the whole thing must be taken and construed in view of what is the general knowledge of the court as to the way in which railroads are built. They are ordinarily built with the ties on top of the ground and the rails spiked on top of them, which leaves it in a rough condition, so that a vehicle cannot pass over it.

      The railroad company once had that right by-deed, as against these complainants, and if they have lost it they have lost it by reason of what has occurred within the last fifteen or twenty years. They had not lost it up to that time. These complainants say that that part of the defendant’s strip is a public street — that it has become such — and that they have a particular interest in having a right to go over that part of the street in getting access to their building, and are thereby particularly injured, over and above the public at large. That right complainants’ grantor gave away with his deed — when he gave his deed. That right he lost then. Have the complainants acquired it by the fifteen or seventeen years’ permissive use by the company in the way I have mentioned ? They have permitted the public to use it, and they have permitted these buildings to be built. That is the only ground that I can see that these complainants can go upon.
    Mr. Justic ■ Depue, in the Prudden Case, 5 C. E. Gr. 541, uses this language:
    “ Where a person entitled to a right in the nature of an easement encourages another, though passively, to acquire title and expend money on the assumption that that right will not be asserted, he will not be permitted in a court of equity to assert his right to the prejudice or injury of those who have been encouraged, by his acquiescence, to expend money on the faith that his right will not be exercised to defeat just expectations upon which such expeditures had been made. Where such acquiescence is continued for a period of twenty years, or even less, in a court of equity his right will be extinguished by estoppel.”
    There the railroad company had acquired by condemnation or by deed — acquired by deed from McFarlan — land on one side of the street up to the middle line, and Prudden owned the land on the other side, and the railroad company had occupied only a portion of their land and had allowed the public (just exactly what the West Jersey Railroad Company did here) to use a portion of what was their right of way. The court said that Prudden, by standing by and not objecting to the railroad using this strip, had acquiesced in it. But they never did use this strip at all. This part they had allowed the public to use, and had put no railroad track on it; but when Prudden came into a court of equity and asked for an injunction the court refused it on the ground that he had acquiesced in their general use of it as a railroad, and when met in my argument by the fact that they had permitted this particular strip to lie open to the public and let the public use it for more than twenty years the answer was-that the Tact that they had a grant for a railroad there, but had not used the whole of it, but had used a part of it — that the use of that part was notice to Mr. Prudden that some day or' other they would need to use the other part, and that he had acquiesced in that and thereby lost his remedy. That seems-paradoxical, the way I have stated it. But that is the kind of acquiescence that Mr. Justice Depue said in a court -of equity would bind Mr. Prudden. But it seems to me, with great deference, it should have bound the railroad company just as much there in favor of Prudden as the use here would bind the railroad company in favor of Hart’s assigns. There Mr. Prudden had no legal title to the part of the highway that the company was going to use; here the complainants, under a strict construction of that deed, have no title to the part of the highway which the railroad company used. There the railroad company had allowed the part that they proposed to use to lie open to use by the public for more than twenty years; here the railroad company has allowed the public to use this strip for less than twenty years. And there Prudden applied for an injunction enjoining the company from laying the track; here the complainants apply for an injunction enjoining the company from using their track unless they put in planking so that they can drive over it.
    Next comes the Higbee Case. There the chancellor refused the injunction when the common council had given permission to build a railroad station right in the street and right on the land that Higbee owned, and he did it on final hearing. He said it was not perfectly clear that the court would hold that Higbee did hold title to the land to the middle of the street; his title did not go there by the calls of his deed, and the rule after-wards established, in the case of Salter v. Jonas, 10 Vr. 469,
      that the title went necessarily to the middle of the street, in the absence of anything to the contrary, had not been established at that time, and therefore Higbee’s right was not clear, and the chancellor would not grant the injunction.
    The Higbee Case, as well as the Prudden Case, seems to stand in my way, unless I can say that the fact that the railroad company allowed that strip to be used for less than twenty years by the public and allowed houses to be built along that street gave those people a right — a well-settled legal right — to have it so continued, or, if a railroad be built upon it, to have it built in such a way that the public could ride over it in wagons. I do not think the right is clear. I think it is very doubtful, indeed, and to be in doubt about that question is to be resolved in this case.
    I will advise a decree dismissing the bill.

      Mr. Thomas B. Harned, for the appellant.

      Mr. Joseph H. Gasldll, for the respondent.
   The opinion of the court was delivered by

Van Syckel, J.

The complainant in its bill alleges that it is the owner of land abutting on the west side of Seventh street, in the city of Camden, upon which there is a shoe factory, and that the defendant company has laid and is using four separate parallel tracks on the said street in front of its premises, whereby complainant is practically excluded from the use of the street. The bill denies the right of the defendant to maintain its tracks in the street, declares they are a nuisance and prays that the defendant may be enjoined from the further appropriation of the highway to its uses.

The facts presented by the case are these:

Richard M. Cooper, in his lifetime, owned in fee a large tract of land embracing what is now called Seventh street and lands lying on both sides of it, also including th'e premises now owned by the complainant. In 1845 the executors of Richard M. Cooper conveyed to Hart and McCurdy a portion of the said tract lying on the southerly side of what is now Seventh street, in which deed Seventh street is described as a “ proposed street.” "With the exception of this language in the executors’ deed of 1845, there is nothing in the case touching the question of dedication of the street by the Coopers, and therefore, at the time of the conveyance to the defendant company hereinafter stated, there is no evidence to establish a dedication by the Coopers of the half of Seventh street owned by them.

In 1847 Hart and McCurdy divided the lands which they had acquired by the deed of 1845, each conveying to the other. In said deeds they described the land conveyed as running along Seventh street, but the street at that time had not been opened to the public or used as a street.

In 1854 the defendant company built its railroad, and its centre line was laid along the centre line of this paper street called Seventh street.

The railroad company took proceedings to acquire this land, on which their tracks were laid, by condemnation. Commissioners were appointed, who, by their report dated September 11th, 1854, awarded to McCurdy, the owner of the fee, the sum of $525. This sum was accepted by McCurdy, who, by his deed dated September 19th, 1854, conveyed to the railroad company, in fee, the one-half of the land embraced in what is now called Seventh street, being the strip of land on which its tracks are laid. Hart also made a like conveyance to the railroad company by deed of even date with that of McCurdy to the railroad company.

The complainant derives its title to the lot abutting on Seventh street from Hart and McCurdy, but by a conveyance long subsequent to the deed to the railroad company.

The railroad company, therefore, is the legal owner of the fee of that part of Seventh street on which the premises of the complainant abut, and the title of the complainant extends only to the exterior line of the highway.

When Hart and McCurdy, in their deeds to each other, described the land conveyed as running along Seventh street, there had been no dedication of the half of that street which was owned by the Cooper estate; as to that estate, it was only a “ proposed street.”

Dedication is a question of intention, and the owner is not concluded until his .purpose to surrender his land to the public use is clearly manifested.

At the time Hart and McCurdy made partition they knew that so far as the Cooper estate was concerned it was a proposed street only.” Speaking for myself, I entertain grave doubt whether an intention should be imputed to them to dedicate their half of the street irrevocably to the public before there was a dedication by the Coopers of the other half.

It is not necessary, however, to decide that question. The case can be disposed of on another ground, in accordance with a well-settled doctrine in equity.

Assuming that the defendant company has laid its railroad tracks in the public highway without authority and that they constitute a public nuisance, the complainant cannot successfully maintain this suit.

Where the injury complained of is an erection in front of complainant’s property and he owns the soil in the street upon which it is built, the injury is to his individual rights and not as part of the public, and the suit must be instituted in his name.

In this case, as has been before shown, the complainant has no title to the soil in the street in front of his premises or to any part of it. His injury, in legal contemplation, is not different in character from that which every other citizen sustains.

The complainant’s right to pass upon the street is that, and that only, which may be exercised by every other individual.

A suit cannot be maintained to restrain a nuisance which injures the complainant only in rights enjoyed by him as one of the- public. In such case an information must be filed for the public in the name of the attorney-general on behalf of the state, and it makes no difference as to the remedy that the individual would be much more inconvenienced by the nuisance than many others. Higbee v. Camden and Amboy Railroad Co., 4 C. E. Gr. 277.

Ia cases of nuisance it is well settled that a complainant cannot acquire a stable footing in a court of equity without showing some special injury to himself distinct from that done to the public at large. Allen v. Board of Freeholders, 2 Beas. 68; Van Wagenen v. Cooney, 18 Stew. Eq. 25; Halsey v. Rapid Transit Co., 2 Dick. Ch. Rep. 380; Township of Raritan v. Port Reading, 4 Dick. Ch. Rep. 12.

Under ordinary circumstances, where there is no special injury and where the remedy by indictment is sufficient' to abate the nuisance and to restore to the public use the entire highway, equity will not interfere. State v. Morris and Essex Railroad Co., 3 Zab. 360; Freeholders v. State, 13 Vr. 263; Attorney-General v. New Jersey Railroad Co., 2 Gr. Ch. 136; Higgins v. Mayor, &c., 4 Halst. Ch. 309.

The decree of the court of chancery dismissing the complainant’s bill should therefore be affirmed.

Garrison, J.

(concurring).

I do not think that the court of chancery was called upon to settle any legal question in order to decide the controversy submitted to it. If it be assumed that the railroad company has the fee in Seventh street, and that the complainant has no estate or interest therein, the equitable question still remains, viz., the exercise of the co-ordinate easements of the railroad company and of the public in Seventh street. The regulation of conflicting easements is exclusively a chancery power. Therefore, I cannot agree with the majority of the court upon the question of jurisdiction.

I cannot, however, vote to reverse the decree. While it may be clear that the controversy between the railroad use and the public use presents a case for equitable cognizance, it is not perceived that any private right of the complainant is involved, neither is it clear how he can stand upon or assert the public right.

The complainant’s private rights are greatly curtailed by the fact that Hart, who was a common grantor and source of title, conveyed Seventh street, eo nomine, to the railroad company, which thereby took a fee that destroyed the presumption that Hart’s abutting property ran to the centre of the street. To this abutting property the complainant succeeded. It is, therefore, difficult to find in it any private right to question the railroad use. If, on the contrary, the complainant must stand on the public right, it is not seen how that is drawn in question in a suit to which no one representing the public or even the municipality is a party. In accordance with these views, I vote to affirm this decree, and am authorized by Messrs. Justices Dixon and Collins to say that their votes rest upon a-similar view.

For affirmance — Depue, Van Syckel, Dixon, Garrison, Lippincott, Gummere, Ludlow, Collins, Bogert, Nixon, Hendrickson, Adams, Vredenburgh — 13.

For reversal — None.


author: Van Syckel,- J.

text:
    William M. Davis and James D. De Witt, complainants and respondents, v. Edward Piggott, Catharine Paxton and David Cressman, administrators, &c., et al., defendants. Appeal of David Cressman, administrator, &c., appellant.
    [Filed May 20th, 1899.]
    1. A first mortgagee, with notice that there was a subsequent mortgage on part of the same premises, released that part of the mortgaged premises not covered by the subsequent mortgage. At the time the release was executed the then holder of the second mortgage agreed, in writing, with the first mortgagee, that he should give the release, and stipulated that the first mortgage should be first paid out of the unreleased part of the mortgaged premises. After this agreement and release, the holder of the second mortgage assigned it to Davis, who had no notice of the agreement made by his assignor. — Held, that the lien of the first mortgage upon the unreleased lands was unimpaired by the release, and that it is entitled to priority of payment over the second mortgage.
    2. The rule in regard to latent equities cannot he invoked for the purpose of advancing the assignee of a mortgage to a position better than that he occupies according to the record; its only application can be to prevent him from being dislodged from the position he apparently holds according to the record.
    3. When he enters upon inquiry into facts outside the record, he must.stand where all the equities place him.
    On appeal from a decree ad.vised by Vice-Chancellor .Reed, whose opinion is reported in 11 Dick. Ch. Rep. 634.

      Mr. Joseph M. Roseberry, for the appellant.

      Mr. Osiris R. McConnell, for Davis.
   The opinion of the court was delivered by

Van Syckel,- J.

Kaniper owned one hundred and eighty-one acres of land. In 1863 he gave a first mortgage on the whole tract to Cress-man for $2,000. In 1875 he gave a mortgage to De Witt for $600.

In 1876 Kaniper sold one hundred and eleven acres of the tract to Piggott.

Piggott gave a mortgage on the one hundred and eleven acres to Kaniper for $2,000.

All these mortgages were duly recorded.

In June, 1877, Kaniper assigned his mortgage to Lawall.

In December, 1877, Cressman executed to Kaniper a release of the seventy acres (which Kaniper still owned) from the lieu of the Cressman mortgage.

This release was recorded December 15th, 1877.

At the time the release was executed an agreement in writing was signed by De Witt and Lawall consenting to the making of the release, and stipulating that the Cressman mortgage should be first paid out of the unreleased tract of one hundred and eleven acres.

Piggott also consented in writing to the making of the release.

The agreement of De Witt and Lawall was not recorded.

After this release Lawall assigned his mortgage to Davis, who had no notice of the arrangement made with Cressman.

Davis filed his bill to foreclose, making Cressman a party-defendant.

The decree appealed from gives the Davis mortgage priority over the Cressman mortgage on the one-hundred-and-eleven-acre tract.

The vice-chancellor bases his opinion upon the case of Vredenburgh v. Burnet, 4. Stew. Eq. 229, affirmed in this court without an opinion in 7 Stew. Eq. 252.

It is not necessary to consider either that case or the later case of Hoagland v. Shampanore, 10 Stew. Eq. 588. If it be conceded, as asserted in Vredenburgh v. Burnet, that the assignee of a second mortgage takes it free from latent or secret equities created by the mortgagee in favor of third persons, the order of priority in this case will not be affected by that rule. That doctrine in regard to latent equities cannot be invoked for the purpose of advancing the assignee of a mortgage to a position better than that he occupies according to the record its only application can be to prevent him from.being dislodged from the position he apparently holds according to the registry. The utmost that Davis can claim is that the question of priority shall be settled in accordance with the record.

The record showed that Cressman held the first mortgage, and that he released the seventy acres.

The equity which entitles a subsequent mortgage encumbrancer to the benefit of a release executed by a first mortgagee arises only when the first mortgagee gives the release with knowledge of the existence of the subsequent mortgage and if the release is executed without notice of existing equities on the part of the subsequent encumbrancer, the first mortgagee is not responsible for the consequences of his act, nor is the lien of his mortgage in anywise impaired. The recording of the subsequent mortgage will not operate as- constructive notice of its existence to the prior mortgagee. Blair v. Ward, 2 Stock. 119; Ward v. Hague, 10 C. E. Gr. 397; Vanorden v. Johnson, 1 McCart. 376; Hoy v. Bramhall, 4 C. E. Gr. 564.

The situation disclosed by the record when Davis took the assignment of the Lawall mortgage was that Cressman held the first mortgage, and that he had executed a release of a portion of the premises mortgaged to him. There was nothing upon the record to charge Cressman with a knowledge of the existence of the subsequent mortgages, aud therefore Davis had no right to presume from the record that the priority of the Cress-man mortgage was in any respect impaired by the release. The title which, according to the record, Davis acquired to the Lawall mortgage was a title subject to and subsequent to the Cressman mortgage. He is now claiming not to be protected against latent equities for the purpose of preserving the status which the record gave him, but he is seeking to set up latent equities to better that position. It was necessary for Davis, in order to displace the Cressman mortgage, to go outside of the record and prove such a state of facts as would change the order of priority presented by the record.

Cressman, having the first mortgage on the one hundred and eighty-one acres, could not, with notice of the De Witt and Lawall mortgages, release the seventy acres and at the same time retain his priority on the unreleased part, because he would thereby impair the security of the holders of those mortgages and do them an injury.

It appears in the proofs that Cressman did release with knowledge of the existence of the subsequent encumbrances, but it also appears that he took the precaution to go to De Witt and Lawall and obtain their consent in writing that he might execute the release without affecting his priority on the unreleased land. All the parties to be affected by the release agreed that it should be given, and they could not recede from their stipulation.

Davis had a right to resort to proof aliunde to show that the order of priority apparent upon the record should not prevail, but when he entered upon that inquiry he was required to stand where all the latent equities placed him.

It would be manifestly inequitable to permit Cressman’s priority to be impaired in contravention of the agreement with Lawall.

If Davis desired to occupy a position different from that indicated by the record, he could have made inquiry of Cressman and of Lawall as to the circumstances attending the release.

The decree of the chancellor advancing the Davis mortgage over the Cressman mortgage should be reversed, and a decree should be made in conformity to this opinion.

For reversal — The Chief-Justice, Depue, Van-Syckel, Dixon, Garrison, Lippincott, Gummere, Ludlow, Collins, .Bogert, Nixon, Hendrickson, ¿Vdams,Vredenburgh — 14.

For affirmance — None.


author: Dixon, J.

text:
    Mary E. Kirkhuff, complainant and appellant, v. George Kerr et al., defendants and respondents.
    [Filed March 6th, 1899.]
    When legal process has been fraudulently abused and a title to property has 'been thereby obtained which the court of law cannot restore, a court of equity ■will intervene and afford such relief as may be necessary to undo ther wrong . and secure a legitimate use of the process.
    On appeal from a decree advised by Vice-Chancellor Reed, ■who delivered the following opinion :
    I am convinced that the attachment proceedings were instituted in New Jersey surreptitiously and for the purpose of getting a judgment against Mrs. Kirkhuff without her knowledge and therefore without a contest. While the action in the Philadelphia court was still pending and while the validity of this ■very account was in issue, the proceedings in New Jersey were commenced and consummated. No notice, I am satisfied, was ever sent by the attorney of Mr. Kerr to Mrs. Kirkhuff of the existence of the attachment suit. The suit was initiated with no purpose of extending any knowledge of its existence to her. Dr. Kerr knew, when he filed his affidavit to secure his writ of attachment, that his claim was contested and that it then was actually in suit in another jurisdiction.
    As to a part of the claim, namely, the $150, the evidence is strongly in the direction that it never had an existence; that the deed of the property was made for the repayment of the sum of $100 which his wife had borrowed, and if it was a claim, it was not his claim, but was a claim due to his wife.
    In respect to the other matters set up in the affidavit, they are all such as should be settled only by trial.
    The conversation between the doctor and Mr. Hood, and particularly the letter of July 5th to Dr. Kirkhuff, were calculated, and, I think, designed to lull Dr. Kirkhuff into a false belief that the set-off had been abandoned. But assuming all this, the difficulty I see in affording the complainant any relief is that she has not exercised that degree of vigilance which entitles her to come into this court and successfully ask its aid. The sale of the complainant’s land under the judgment in attachment occurred, as already stated, on June 17th, 1886. The bill, as already stated, was not filed until September 26th, 1893. Over seven years elapsed before any step was taken to undo the work of Dr. Kerr in causing the sale of her property. The excuse offered by the complainant is that she was not aware of the fact that the property had been sold away from her until the year 1892. Of course, if this be a fact, then she is not in laches, but I am unable to resist the conclusion that she is mistaken in this position. She says that she received information of the sale from Mr. Cowl, a minister, who .had visited Lavallette. Mr. Cowl visited Lavallette, according to the testimony of Mrs. Fleck, in the summer of 1887, as the guest of her father and mother. Mrs. Fleck says that she visited Lavallette every summer, and she never saw Mr. Cowl there at any other time than the one mentioned. If it be true that this was Mr. Cowl’s only visit, it was quite unlikely that he did not convey to the complainant, until five years later, the information that he had received upon that visit. But the most persuasive feature in the transaction is that Mrs. Kirkhuff seems never to have made any inquiry about the property after 1888 until about the time she filed her bill. She never visited Lavallette during that interval. She had already sued Dr. Kerr to recover the $200. She could not, therefore, have depended upon his friendship to look after the property without further request, and without any accounting during these seven years. Personally she paid no attention whatever to the property. Neither directly nor indirectly does she seem ever to have inquired whether it was rented, and, if so, who was receiving the rents. Whether it was standing empty, or was out of repair, whether the taxes were paid, she seems never to have inquired. This was certainly a remarkable course of conduct, if she still supposed she owned the property. It is only consistent with the fact that she had been informed that it had been sold away from her. If she was informed of that fact in 1887, and I think she was, then her delay in filing her bill exhibited such laches as to preclude her invoking the equitable assistance of this court at this late day. In the meantime, in this as in most instances of such delay, the property has been sold, a witness has died, and it is almost impossible to place the parties in statu quo.

    I will advise a decree for the defendants, but without costs.

      Mr. Isaac W. Carmichael, for the appellant.

      Mr. Samuel A. Atkinson, for the respondents.
   The opinion of the court was delivered by

Dixon, J.

We think the circumstances of this case show quite clearly that the defendant Kerr used the attachment proceedings to effectuate a purpose which was in violation of the duty owed by him to the complainant.

Before instituting those proceedings he had acted for the complainant in taking charge of her real estate at Lavallette, and without notifying her distinctly that he gave up that trust, he issued the writ of attachment upon a claim which he then had in litigation with her in Pennsylvania, prosecuted it to judgment and by virtue thereof caused the complainant’s title to that real estate to be transferred to his own agent and trustee, Deibert, the other defendant. This he did surreptitiously, not only omitting to inform'the complainant of the pendency of his suit, but designedly concealing the matter when honesty and candor dictated that he should communicate it to her. Evidently his object was, not that he might collect what he considered due him, but that he might through her ignorance obtain her property for himself at whatever sacrifice of her interest he could bring about.

This was a fraudulent abuse of legal process against which a court of equity may properly give relief, the court of law being unable to reach the title thereby acquired. Tomkins v. Tomkins, 3 Stock. 512; Herbert v. Herbert, 4 Dick. Ch. Rep. 565; 3 Pom. Eq. §§ 1364, 1365.

Ve do not think the complainant’s delay in filing the bill is such as to disentitle her to equitable aid. Being led by Kerr’s settlement of the suit pending in the Pennsylvaia court, to suppose that he had abandoned the claim there presented as a set-off, and having no reason, to suspect that he could make any attack upon her property at Lavallette, no laches could be imputed to her in his favor, because of any inattention she might find it convenient to permit with respect to that estate; The evidence does not satisfy us that she had notice of his hostile proceedings until the year 1892, and in the interval between that and the filing of the bill, September, 1893, there was not sufficient lapse of time or change of conditions to operate as a bar.

Our conclusion is that Kerr and Deibert should convey to the complainant so much of said Lavallette property as is still held by either of them,, and that Kerr should account to her for the fair value of so much as either of them has conveyed, unless within thirty days after notice of the decree Kerr files in the Ocean circuit, a written consent that the judgment in attachment be opened and the complainant let in to defend; if he so consents, then the same accounting should be ordered, crediting Kerr therein with the amount of the judgment, if any, which he may recover in the attachment suit, and upon payment to him of the balance, if any, found due to him on the accounting, the same conveyance should be decreed. In the meantime the defendants should be enjoined from conveying and encumbering the property.

The decree dismissing the bill should be reversed and a decree should be entered as aforesaid.

For reversal — The Chief-Justice, Depue, Van Syckel, Dixon, Garrison, Lippincott, Gummere, Ludlow, Collins, Nixon, Hendrickson, Vredenburgh — 12.

For affirmance — None.


text:
    The Cumberland Lumber Company et al., complainants and respondents, v. The Clinton Hill Lumber Manufacturing Company, defendant. George W. Ketcham and William S. Ketcham, Jr., stockholders of said defendant company, appellants.
    [Filed March 6th, 1899.]
    1. Where a corporation is insolvent and its business is ended, the subscribers for, or holders of, its unpaid stock are assessable for only so much of what is unpaid on the stock as will satisfy the claims of corporate creditors and meet the expenses of winding up its affairs.
    2. An order for such an assessment may be made- by the court of chancery in the suit wherein the corporation was' adjudged to be insolvent, and when so made its propriety cannot be questioned in suits brought against the stockholders for its enforcement.

      3. Such an order is the result of an exercise of judicial power, and therefore should be made only after a reasonable opportunity has been afforded to the stockholders to be heard on the matter.
    4. On appeal to this court, matters which do not appear to have been adjudicated m the court below and which are not complained of in the petition of appeal, will not be considered.
    On appeal by stockholders in the defendant corporation from an order advised by Vice-Chancellor Emery. (No opinion.)

      Mr. FranJt F. Bradner, for the appellants.

      Mr. James E. Sowell, for the respondents.
   The opinion of the court was delivered by

Dixon, J.

On bill filed 'in the court of chancery by the Cumberland Lumber Company and others against the Clinton Hill Lumber Manufacturing Company, the latter corporation was on May 23d, 1895, adjudged to be insolvent and Thomas N. McCarter, Jr., was appointed its receiver, with the usual powers and duties under the act concerning corporations, approved April 7th, 1875.

On June 17th, 1895, the receiver presented to the court a petition, setting forth that two claims against the corporation had been proved before him, one by Strieby, Sprague & Company for $2,643.22, the other by the Cumberland Lumber Company for $715.79 ; that there were no funds or property in his possession with which to pay the same, and that there were no assets except the unpaid subscriptions for capital stock, of which William S. Ketcham had received forty shares, William S. Ketcham, Jr., had received forty shares and George W. Ketcham had received two shares, of the par value of $100. He therefore prayed that he might be allowed to levy an assessment upon each of the said subscribers for the full amount of their subscriptions, to pay the debts of the corporation and the expenses of the receivership.

The said three persons named as subscribers being ordered to answer the petition, did so by their joint and several answer filed June 22d, 1895. In their answer they allege various matters by way of defence, but on November 17th, 1895, the court, without replication and without proofs, ordered the receiver to assess, call and collect the whole amount of the unpaid subscriptions, the order being made without prejudice to the right of said persons to any defence which they may have to any action legal or equitable brought against them on such levied stock subscriptions. From this order the defendants below have appealed, the only ground of complaint mentioned in'their petition of appeal being that the order directs an assessment on the stockholders for the whole amount of their subscriptions. The subject of that complaint seems to have been the only matter-decided in the court below, and therefore that alone can properly be considered here. Penn Mutual Life Insurance Co. v. Semple, 11 Stew. Eq. 575.

We think this order is wrong, because it is not based upon any determination of the amount required to meet the purpose in view.

When the business of a corporation has been abandoned and the corporation is insolvent, subscribers for or holders of its stock, not paid for, haye no further obligation with respect thereto than to pay so much’ of what is unpaid on the stock as will satisfy the claims of corporate creditors and meet the expenses of winding up its affay-s. Scovill v. Mayer, 105 U. S. 143, 156; Wetherbee v. Baker, 8 Stew. Eq. 501, 506; Hood v. McNaughton, 25 Vr. 425, 427; Gen. Stat. p. 910 § 5; P. L. of 1896 p. 284 § 21.

The proper tribunal to ascertain the amount necessary for these purposes is a court of equity, since courts of law have no procedure adapted to the marshaling of assets and liabilities requisite in such a calculation. The ascertainment may be made on a petition filed by the receiver against the stockholders in the suit wherein the corporation was adjudged to be insolvent, for it seems to be settled that a stockholder is so far an integral part of the corporation that, in the view of the law, he is to that extent privy to those proceedings; and when in such a suit an assessment on the stock has been ordered by the court to meet corporate liabilities, and an action is brought against a stockholder to collect his quota, he cannot there question the propriety of the assessment. Hawkins v. Glenn, 105 U. S. 319; Hood v. McNaughton, 25 Vr. 425.

In the former case it was also held that the lack of notice to the stockholder individually would not deprive the assessment of its conclusive character against him in the suit brought to enforce it. This, however, does not necessarily imply that a court of equity, when asked to order such an assessment, should not see that the individual stockholders have a reasonable opportunity to be heard on the application. On the contrary, these decisions indicate that the order is the result of an exercise of judicial power, and therefore that it should be made only in observance of those rules which are designed to insure the administration of justice.

Our conclusion is that it was the duty of the court below to determine judicially, before ordering an assessment, what proportion of the unpaid subscriptions would probably be needed to meet the liabilities, and to confine the levy accordingly.

The order appealed from should be reversed, and as the necessary data for a new order are not before us, the cause should be remitted to the court of chancery for furthér proceedings according to equity.

For reversal — The Chief-Justice, Depue, Van Syckel, Dixon, Lippincott, G-ummere, Ludlow, Collins, Nixon, Hendrickson, Adams, Vredenburgh — 12.

For affirmance — None.


author: Gummere, J.

text:
    Margaret J. Seeburger, petitioner and appellant, v. William Seeburger, defendant and respondent.
    [Filed March 10th, 1899.]
    Condonation of acts of adultery is no bar to a suit for divorce based upon such acts, where the pardoned party and the co-respondent have afterwards resumed their illicit intercourse.
    On appeal from a decree advised by Vice-Chancellor Pitney. (No opinion.)

      Mr. Herbert Boggs, for the appellant.

      Mr. Chaunoey G. Parher, for the respondent.
   The opinion of the court was delivered by

Gummere, J.

The decree appealed from divorced the respondent from his wife for her adultery with one Michael Kane. The proofs offered in support of the charges contained in the petition for divorce leave no doubt of the correctness of the conclusion reached by the learned vice-chancellor on this branch of the case.

It is contended, however, on the part of the appellant, that the evidence in the case makes it equally plain that the respondent connived at the illicit relations existing between her and Kane, and so is not entitled to the relief granted to him by the court of chancery.

A recital of any portion of the proofs is unnecessary. It is enough to say that our examination of them has satisfied us that although the respondent was cognizant of the fact that adulterous relations existed between the appellant and her paramour and that he continued to live with her as his wife after acquiring such knowledge, still he was not a consenting party to her infidelity.

Nor does the fact that his continuance of his marital relations with her after learning of her unfaithfulness was a condonation of the adultery afford any reason for disturbing the decree. This is so not because (as the fact is) the appellant failed to set it up in her answer as a bar to the relief sought by her husband, for that difficulty could be overcome by directing the filing of a supplemental answer. The impediment is more stubborn. Condonation, even of repeated acts of adultery, is always conditional, the condition being that the pardoned party will in the future treat the other with conjugal kindness and especially will refrain from a repetition of the offence forgiven. In this case the condition was broken by the continuance of the adulterous intercourse of the appellant with her paramour, and the condonation thereby revoked.

The decree appealed from should be affirmed.

For affirmance — The Chief-Justice, Depue, Van Syckel, Dixon, Garrison, Lippinoott, Gummere, Ludlow, Collins, Bogert, Nixon, Hendrickson, Adams, Vredenburgh — 14.

For reversal — None.


text:
    Joseph Tate, complainant and respondent, v. Frank S. Field, Mary C. Haynes and William S. White, defendants and appellants.
    [Filed March 14th, 1899.]
    When a mertgagor in possession has committed waste upon the mortgaged estate, by the removal of a building erected thereon, the measure of the mortgagee’s loss is not the value of the building after severance, but the diminution in the value of his security.

      On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 12 Dick. Ch. Rep. 53.

      Mr. Francis J. Swayze, for the appellants.

      Mr. Samuel J. MacDonald, for the respondent.
   The opinion of the court was delivered by

Gummere, J.

The bill in this case was filed to foreclose a mortgage given by a corporation, the Powerville Eelt Roofing Company, to the complainant, on property near Chatham, in Morris county. It alleges that the mortgaged premises were conveyed by Goodell, receiver of the Powerville Eelt Roofing Company, to Gerrit ¡Smith, who acted as the agent or attorney of Eield, Haynes and White; that Smith, Eield, Haynes and White tore down a building which had been erected on the mortgaged premises, and removed it to premises owned by them near Boonton, and erected it thereon. It then charges that the removal of the building “ very greatly impaired the security of your orator’s said mortgage,” and prays, in addition to the usual prayers of a foreclosure bill, that Smith, Eield, Haynes and White may be decreed to return and restore the building to the mortgaged premises in the same condition as it was at the time of its removal, or to pay to the complainant the deficiency on the sale, “or that in default of such payment the said building be sold to pay the same.”

There was a decree of foreclosure and sale, together with an adjudication that the complainant was entitled to compensation for the waste set out in the bill of complaint. On the hearing, had for the purpose of ascertaining what sum the defendants should pay by reason of the waste, the vice-chancellor applied the rule which governs as between tenant for life and remainderman where waste has been committed by the former, and decreed that the appellants should pay to the respondent the full value to the defendants of the building removed — which he ascertained to be $400 — with interest from the date of its removal.

We do not think that the right principle was applied by the vice-chancellor in ascertaining the extent of the defendant’s liability.

The position of a mortgagor in possession of the mortgaged estate bears no analogy to that of tenant for life. The mortgagor in possession is, in equity, the owner of the estate, and may exercise all acts of ownership, even to the committing of waste, provided he does not diminish the security and render it insufficient. Kerr Inj. § 81; Coggill v. Millburn Land Co., 10 C. E. Gr. 90.

And not only is there no analogy between the position of a mortgagor in possession and that of a tenant for life, with reference to waste committed, but the rule for the admeasurement of damages is different. In the case of the former the measure of damages is the diminution in the value of the mortgage security. Jackson ads. Turrell, 10 Vr. 329; Schalk v. Kingsley, 13 Vr. 32.

But notwithstanding that an erroneous principle was adopted, in ascertaining the amount to be paid by the defendants for the waste committed, we think that the sum which, by the decree, they are ordered to pay, is not excessive. The proofs on the part of the complainant were to the effect that, under favorable circumstances, the materials in the building might be worth, to a contractor or builder, after severance from the land, half of its original cost, viz., $360; and it was largely upon this testimony that the vice-chancellor based his finding of the amount for which the defendants were liable. Witnesses were called by the defendants to disprove the accuracy of this estimate, and they place the value- of the materials in the building at a less sum. An examination of all the testimony on this subject, however, does not satisfy us that the conclusion of the vice-chancellor, in accepting as accurate the valuation of $360, was erroneous. Taking the materials in the building after its removal to have been worth the sum named, it may fairly be assumed that the value of the mortgage security was diminished by more than that amount by the waste; for the total value of the mortgaged premises before the waste was committed was not merely the value of the land without the building plus the. value of the materials in the building. It will not be denied that, as a general rule, a building adds to the worth of the premises upon which it is erected more than the amount which could be obtained for the materials in it after it was torn down; and we find uothing in the facts of this case which differentiates this particular property from other improved real estate, so far as elements of value are concerned. Assuming the worth of the materials, after severance from the realty, to be as determined by the vice-chancellor, we think that on all the facts we are justified in concluding that, by the removal of the building, the value of the mortgage security was diminished at least to the extent of $400.

The decree below should be affirmed, but without costs to either party.

For affirmance — The Chief-Justice, Depue, Van Syckel, Dixon, Garrison, Lippincott, Gummere, Ludlow, Collins, Adams, Bogert, Hendrickson, Nixon, Vredenburgh — 14.

For reversal — None.