text:
    Peoples Building and Loan Association of Ridgefield Park, New Jersey, appellant, v. Isaac Vaniewsky et ux., respondents.
    [Submitted December 6th, 1915.
    Decided March 6th, 1916.]
    1. Where a judgment in an action to enforce a mechanic’s lien claim, in which the holder of a mortgage is a party, adjudges that the mortgage is a lien prior to the lien claim, and in terms declares that the judgment is subject to the mortgage, it is a determination of the priorities of the liens under section 24 of the Mechanics’ Lien act (3 Comp. Stat. p. 3309), the truth of which the lien claimant is estopped to deny, in proceedings taken to foreclose the mortgage especially, if relying on the verity of the judgment, the mortgagee has applied to a part of the principal secured by the mortgage in payment of a debt for material furnished for and actually used'in the erection of a building, on the mortgaged premises, although such application be made after the entry of the judgment. The priorities established by the judgment cannot be assailed in a collateral proceeding where the court in which the judgment was entered had jurisdiction to determine all questions of priority between the parties to that record.
    2. The purchaser at a sheriff’s sale in satisfaction of the purchaser’s judgment, which by its terms is subject to a mortgage, is estopped to deny that he bought subject to it; the adjudication in his action having established the priority of the mortgage subject to which the property was sold, he cannot dispute the priority when called upon to pay the mortgage.
    On appeal from a decree of tlie court of chancery advised by Advisory Master Charles H. Hartshorne.

      Mr. William J. Morrison, Jr., for the appellant.

      Mr. Baymoncl P. Wortendyhe, for the respondents.
   The opinion of the court was delivered by

Bergen, J.

The complainant, a building and loan associátion, is seeking to foreclose a mortgage given after the commencement of a building on the mortgaged premises but duly recorded before defendant filed his lien claim. The mortgage was given to secure the sum of $2,800 to be advanced, according to the oral agreement of the parties, as the erection of the building progressed: from this amount $140 was deducted as a premium and two payments aggregating $1,726 were made on account of principal before the lien claim was filed, making a total of $1,866.

August 4th, 1913, the complainant gave to the mortgagor its check for the balance due, and she endorsed and delivered it to the counsel of complainant, who, September 19th, paid out of it $750 to a materialman who had furnished materials for the construction of the building, and on September 23d, 1913, he paid to the complainant the balance he had in hand towards interest and fines due to it. The contest in this case relates to the disbursement of this balance, and the advisory master to whom the cause was referred to hear and advise the chancellor what decree should be made, advised that the lien claimant was entitled to priority as to the $750, and that the balance paid on account of interest and fees was not applied towards the erection of the building, and therefore not an advance which it was entitled to make and to that extent the mechanic’s lien was also prior to the complainant’s mortgage.

The question raised by this appeal is whether the defendant is entitled to priority to the extent of the amount retained by complainant for interest and fines, and also to the $750 paid on account of materials used in the construction of the building to a person other than the defendant, because it was paid after defendant had obtained a judgment on his lien claim. We do not deem it necessary to determine the question whether the mortgagee may lawfully pay out of the mortgage fund the debt of a materialman who has furnished materials used in constructing the building in preference to one who has filed a mechanic’s lien claim and reduced it to judgment, because the case can be disposed of for reasons not based upon nor involving that question.

The defendant filed a mechanic’s lien claim against the mortgaged premises April 9th, 1913, and at that time all of the money the mortgage was given to secure had been actually paid for the material except the last payment of $934, no question being raised concerning the previous payments. The judgment was entered September lltli, 1913,

“generally against the builder and specially against the lands and building in complaint described, subject to the lien of the mortgages of the Peoples Building and Loan Association of Ridgefield Park, N. X, and Carl Ilallberg respectively.”

The proceedings leading to this judgment are not shown in the present record, but in the title of the cause under which the foregoing judgment was entered the complainant was a defendant as mortgagee, as provided by the statute (3 Comp. Stat. p. 3307 § 23), which requires that

“Suit shall be commenced by summons against the builder and owner of the land and building, and every person holding a mortgage of record against the property affected by said claim, whose mortgage would be cut off by a sale under said claim.”

Section 24 provides,

“and any defendant mortgagee may have a further plea that said lien claim is subject to such mortgagee’s lien, and the judgment in any such case shall determine the priority of the liens of the plaintiff and each of said defendants.”

This court held in Culver v. Lieberman, 69 N. J. Law 341, that the purpose of this statute was to settle in a single suit the liens of all persons who have any interest in the property, and to determine, among other matters, “what mortgage encumbrance is upon each piece of property and the priorities between the mortgagees and the plaintiff’s special judgment.” In determining “what mortgage encumbrance” there is on a property, the court must of necessity ascertain the amount which is entitled to priority, for if it be assumed that the amount cannot be inquired into, then the real priorities could not be ascertained. In the present .ease, the building was commenced, and part of the lien claimant’s material furnished, before the mortgage was recorded, and it would have been “cut off” by the sale if not protected by section 15 of the act which gives priority to such a mortgage to the extent of the money actually “advanced and paid by the mortgagee and applied to the erection of any new building upon the mortgaged lands” if recorded before the filing of a lien claim.

Under these conditions the presumption must be that when the judgment was entered in the suit brought by the lien claimant, the defendant in this cause, adjudging that such judgment was subject to the lien of complainant’s mortgage, that the trial court found that it was subject to the entire sum for which the mortgage was given. This judgment was entered September 11th, 1913, and was not appealed from by the present defendant, and thereupon the counsel of the mortgagee, on September 19th, 1913, paid the $750 to a materialman on account of his claim for material furnished and used in the erection of the building. Under these circumstances the judgment plaintiff is estopped from now denying the force and effect of the judgment entered by him, and relying upon which the complainant applied the balance in hand towards the payment of an unsatisfied claim for materials used in the erection of the building. The natural effect of the act of the defendant in procuring a judgment to be entered in his favor subject to complainant’s mortgage, in an action where the court had jurisdiction to determine priorities, and in which the complainant was a party asserting the priority of its mortgage, would be to induce the complainant to believe that its mortgage was a prior lien, and if it acted on such inducement, so that if the plaintiff in that suit be permitted to deny the truth of-the judgment record the complainant must suffer harm, such plaintiff will be estopped such denial. Mutual Life Insurance Co. v. Norris, 31 N. J. Eq. 583. It was the duty of the plaintiff in the judgment record to know that the effect of the judgment was to make the entire mortgage a lien prior to the judgment, and he is presumed to know that the complainant would so treat it and could safely do so. The land embraced in the mortgage was sold in execution of the judgment by the sheriff of the county of Bergen, and purchased bjr plaintiff therein for fifty dollars, who now contends that the judgment was not subject to the entire mortgage, but to only a part thereof upon the ground that more than a year after its entry, and the. application of the balance of the principal of the mortgage for the pajnnent of materials actually used in the construction of the building, the judgment was amended by a rule allowed by the court which did not open the original judgment but ordered

“that said order as amended be further amended so as to read as follows * * * that said judgment is subject to the mortgage (of the complainant) to the extent of the sum of eighteen hundred and sixty ($1,860) dollars actually advanced thereon at the time of the trial, and also to the extent of such further moneys advanced thereon, not in excess of the principal thereof as shall be adjudged by a competent court to be entitled to priority over the said lien and the judgment thereon.”

What the original amendment was does not appear in this record, but the above order, even if the court had the power to amend the judgment so long after its entry, which we are not to be considered as conceding, could not, and did not change the status of the parties which resulted from their previous conduct based upon the original judgment.

In addition to this the attempted amendment does not conform to the requirement of the statute because it does not determine the respective priorities in the action brought to settle that question, but leaves a part of it to be settled by some other tribunal, a situation which the statute does not provide for or contemplate. The original judgment was entered in conformity with the statute, and determined the respective priorities of the liens and it has not been expressly vacated or set aside, nor impliedly altered by this inefficacious order which did not adjudge the issue as directed by the statute requiring that, “the judgment in any such case shall determine the priority of the liens of the plaintiff and each of said defendants,” and this the amended order does not do. The fact that the order was made by consent does not confer on the court jurisdiction to enter a judgment in violation of tlie statute under which the plaintiff in that action was proceeding, for if not authorized by law, it was a nullity. It thus appears that the defendant purchased the land at a sale made in satisfaction of a judgment which a court having jurisdiction of the parties and the subject-matter had adjudged was subject to complainant’s mortgage and he must be assumed to have bought with knowledge of the legal status established by his judgment, and also that the complainant had a right to rely upon the adjudication that its mortgage was a prior encumbrance to the judgment and did not require protection at the sale, and the effect of the decree appealed from is to relieve him from the payment of a part of the purchase price which' he, in effect, agreed to pay for the property, by reducing the mortgage of the complainant to the extent of $931. To permit this would produce an inequitable result. Warwick v. Dawes, 26 N. J. Eq. 548; Camden Safe Deposit Co. v. Citizens Ice Co., 71 N. J. Eq. 221. It is urged in respondent’s brief that the sheriff gave notice before the sale that the property was offered subject only to a mortgage indebtedness of $1,860, but there is no proof of this; a paper purporting to be a notice of some character, was offered, objected to and withdrawn, and the offer not renewed, so we have no knowledge of its contents, but if such notice was read, it would have had no effect because the sheriff could not thereby alter or modify the judgment of the court and thus change the adjudged priority of the complainant, there being no proof that complainant was represented at the sale, or had knowledge of the alleged notice. It is not necessary to pass upon the recitals in the sheriff’s deed to the defendant as they are not binding on the complainant who was not a party to it. The complainant is entitled to a decree adjudging that the whole amount of the principal of its mortgage and interest is due and payable less any payments made by the mortgagor on account thereof, and that the defendant, Isaac Yaniewslry, holds the title to the mortgaged premises, which he acquired by sale thereof under his judgment, subject to the ¡payment thereof.

The decree will be reversed, with costs.

For affirmance—None.

For reversal—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Terhune, Heppenheimer, Williams, Taylor—14.


source: Caselaw Access Project

author: Kalisch, J.

license: Public Domain

text:
    New Jersey Title Guarantee and Trust Company, complainant, v. Richard Fay Parker, executor, &c., et al., defendants-respondents, and Katherine F. Junkin, defendant-appellant.
    [Argued June, 1915.
    Decided November, 1915.]
    1. Appellant, who married the testator under an oral antenuptial agreement that she should receive one-third of the income from securities during the testator’s life and the whole of the securities at his death, divorced the testator within ten years after marriage. The antenuptial agreement, which was validated by subsequent written instrument, reciting that appellant should receive the securities in case she kept her promise to become testator’s wife, was made in the State of New York, where the marriage was celebrated.—Held, that appellant was not entitled to the securities merely upon celebrating a marriage with the testator, but was bound to remain his wife unless justified- in divorcing him under the laws of New York, and, where she procured a divorce in a foreign state on a ground not authorized by the laws of New York, she was not entitled to the securities.
    2. In such case, where the laws of New York recognized only one ground for absolute divorce, while the State of Missouri, in which appellant secured a divorce, recognized numerous grounds, there is no presumption that appellant secured her divorce on the sole ground, recognized in the State of New York.
    3. The law of the state where the antenuptial agreement was made and the marriage was celebrated will govern the rights of the parties.
    On appeal.from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 84 AT. J. Eq. 851.

      Mr. J. Boyce Smith, Jr., Mr. William B. Oglesby and Mr. Arthur S. Barnes (of the New York bar), counsel on the brief, for the appellant.

      Messrs. Uartshorne, Insley & Lealce, for the respondents.
   The opinion of the court was delivered by

Kalisch, J.

The New Jersey Title Guarantee and Trust Company, as complainant, filed a bill of interpleader in the court of chancery for the purpose of having determined whether Richard Fay Parker, the executor of Henry M. Parker, deceased, or Katherine F. Junkin, was entitled to receive from the complainant certain securities which had been deposited by the decedent during his lifetime with the complainant. The bill set out that under the will of Henry M. Parker, Catherine Fay Parker, Elizabeth Parker and Rose Parker, infant children of Henry M. Parker, the executor, were legatees. The defendants were ordered to inter-plead. The infant defendants, by their guardian ad litem, the executor, and Katherine F. Junkin, answered the bill:

After a final hearing of the cause, Vice-Chancellor Howell advised a decree in favor of the executor and the infant children and against Mrs. Junkin. From this decree Mrs. Junkin has-taken an appeal to this court.

On the 17th day of June, 1903, Katherine Bailey (now Jun-kin) married Henry Parker, since deceased, in New York, where both were domiciled. A few dajrs before their marriage, at- the place of their domicile, they entered into a verbal agreement, by the terms of which the prospective husband agreed that one-third of the income of the securities deposited with the trust company should go to his wife after their marriage, and that at his death the entire lot of securities should go to her.

This verbal agreement was, subsequently, in 1909, as hereafter stated, reduced to writing by Mr. Parker, and was subscribed by Jiim, and under the decisions of the State of New York, it appears that the legal effect of the writing was to take such verbal agreement out of the operation of the statute of frauds and to vitalize it. Ward v. Hasbrouck et al., 44 App. Div. 32; 60 N. Y. Supp. 391, 393; Helios Upton Co. v. Thomas, 96 N. Y. App. Div. 401; affirmed, 184 N. Y. 585; Young v. Ingalsbe, 208 N. Y. 503.

On the 4th day of June, 1903, the intended husband made a deed irrevocable in its terms of. the securities to the complainant trust company, which deed was acknowledged June 11th, 1903, and which provided by the third clause thereof, that upon his death the securities deposited in trust with the trust company shall be paid over and distributed b3r the trust company as he shall by his last will and testament provide, and, in the event that he shall die intestate;, to1 distribute the trust fund created by him among such persons as would be entitled to receive the same under the intestate laws of the State of New York, and he had died intestate and a citizen and a resident of that state.

At the time when he left the trust deed with the trust company he verbally directed the company, and which direction, in 1905, was confirmed by him, in uniting, to pay one-third of the income of the securities to his prospective wife, which the company did until his death, which took place on the 14th day of March, 1914.

Before marriage the intended husband showed to his prospective wife his will, leaving his entire estate to her, and Mrs. Jim-kin admits that at that time she had knowledge of the trust deed and its contents.

In 1909, the testator, his wife and her mother were living in Florence, Italy. His wife left Mm and came to the United States. Shortly after her arrival in this country she had the instrument prepared, embod3’ing the terms of the verbal ante-nuptial agreement, and sent it to her mother to get it executed by Mm. He did execute, it, and his wife, after having received it back from her mother, continued to absent herself from him, and, in 1912, obtained a divorce in the State of Missouri. In March, 1913, she married her present husband, Mr. Junkin. After the divorce was obtained the testator made a will on the 12th of Februa-jy, 1913, by which he left all his estate to his brother Richard as executor for the benefit of his, Richard’s, children.

Mrs. Junlrin claimed the securities by virtue of the verbal ante-nuptial agreement confirmed by the testator’s writing of 1909, and the will made in her favor by the testator before her marriage to him. The executor relied on the last will of the testator, but failed to set up explicitly the New York statute of frauds.

Vice-Chancellor Howell held that the testator by the trust deed made by him in 1903 parted with all control of the property, and thought that tin's was decisive of the rights of the parties claimants, since under the trust deed the testator was free to make as many wills as he chose, and the last would control. While we agree with the views of the learned vice-chancellor in his construction of the trust deed and its legal effect, it is not decisive of the question involved.

The real question is, Was there a valid contract to make a will in Mrs. Junkin’s favor?

For, if there was such a valid contract by reason of the effect given to the instrument executed by the testator in 1909, then equity will enforce it, unless it appears that Mrs. Junlrin has by some act of her own committed a substantial breach of it which in law would disentitle her to enforce it.

For the purposes of this case we may proceed upon the assumption that the antenuptial agreement is valid, by reason of the subsequent writing reciting the terms of it under the laws of the State of New York, the place where it was made, nevertheless, we cannot close our eyes to the important fact that the fundamental consideration of the contract, in so far as Mrs. Junlrin is concerned, is that she will be a wife to her intended husband so long as he does nothing which will entitle her to separate from him under the law of the state in which they were residents at the time the contract was made, and where the marriage took place, provided they continued to be residents of such state. If she cuts asunder the marriage bond for a reason not recognized, by the laws of New York, then, according to equitable principles founded in good morals and common sense, she ought not to be permitted to claim any benefit from his estate which was expressly intended to come to her as widow after his death.

The appellant seeks to have the antenuptial contract treated as if it were transformed into a unilateral undertaking by the husband immediately after the marriage ceremony was performed.

The argument made by the appellant is that, so far as Mrs. Junkin was concerned, she performed her part of the contract when she married the testator, and, upon the happening of that event, she became entitled to the benefit of the contractual provisions in her favor. Carrying out this proposition to its logical sequence, it amounts to this: That as soon as the marriage ceremony was performed, Mrs. Junkin became in law the wife of Mr. Parker, the testator, and therefore had the option to turn away from him the next moment thereafter and refuse to live with him, for, according to her theory, the insistence is that by marrying Mr. Parker she had fully performed her undertaking—her marriage to him being the basis and consideration for her intended husband’s undertaking, and, therefore, he was irrevocably bound to carry out the provisions of the antenuptial contract.

But a plain reading of tire contract forbids any such construction of it. The husband did not settle absolutely his property on his wife. The settlement he made was a conditional one. A situation is therefore presented here different from the case where the provisions of the marriage settlement have been fully executed. By the terms of the contract Katherine Bailey was to become Henry M. Parker’s wife, not for so long a time as it pleased her to remain his wife, but during the term of her natural life, unless he predeceased her. This is made clear by the language employed in the contract, and which is as follows:

“Two-thirds of the income thereof to be paid to me during the term of my natural life, and one-third of said income during such period to said Katherine F. Bailey in event that she should keep her promise to become my wife.”

, Bearing in mind that the marriage of Mrs. Junkin to Mr. Parker was only a part performance by her of her obligation under the antenuptial- agreement, and that the marriage itself imported reciprocal duties on part of the husband and wife, at least, to this extent, that she should remain his wife, the burden was cast upon her to show that the separation from him and dissolution of the marriage whereby she ceased to be his wife was due to his conduct.

For the undertaking of the husband by which she was to receive the benefits mentioned in the antenuptial agreement, read in the light of its natural meaning, was, as has already been pointed out, not only that she should become his wife, but that she should remain such, and, in case of his death, taire as his widow. This brings us to a consideration of her testimony relevant to this topic. She testified that she left her husband in 1909; that she obtained a divorce from' him in the State of Missouri, where she had never lived with her husband, in 1912. No record of the divorce was produced and her testimony on that point appears to have been objected to. There was no competent proof that she had obtained a divorce from Mr. Parker. But taking it for granted that she had, it nowhere appears’in the record that it was obtained by her upon a ground recognized as a valid ground for divorce in the State of New York, where the antenuptial contract was made, or the state of which husband and wife were residents at the time.

Under the laws of the State of New York, adultery is the only matrimonial offence for which an absolute divorce may be obtained by the party offended against. Under the laws of the State of Missouri, where the appellant obtained her divorce, there are eleven statutory grounds for absolute divorce, among which are: adultery; desertion for one year; indignities rendering condition intolerable; habitual drunkenness for one year ; husband becoming a vagrant; cruelty, &c.

Upon the argument it was urged by the appellant that it was to be presumed that the divorce was obtained on a ground recognized by the laws of the State of New York as a valid one in that state. But this, apparently, cannot be so. For,-as has already been pointed out, there are in the State of Missouri various grounds for absolute divorce, and therefore there is no substantial reason why there should be any presumption that it was for adultery rather than for desertion, vagrancy or for any of the ■other grounds mentioned by the Missouri statute.

We think the general legal rules governing contracts are applicable to the facts of the present case, and therefore will be applied. It is a universally recognized legal doctrine that in the absence of anything appearing in the contract to the contrary, the parties to it will be presumed to have contracted in reference to the law of the place where the contract was made.

The antenuptial agreement having been made in New York, and the marriage having taken place where the rights and obligations arising out of these contracts, in that jurisdiction, must be held to have been within the contemplation of tire parties, it follows, therefore, as a corollary, that the parties contemplated that their marriage relation should continue until legally dissolved for some cause recognized as a valid ground for its dissolution by the laws of the State of New York or some other jurisdiction selected by them as their place of residence.

Therefore, when it appeared by the testimony of Mrs. Junkin, without any further explanation that she left her husband in 1909 and obtained a divorce from him in 1912, and married her present husband, Mr. Junkin, in 1913, it was incumbent upon her to show, in order to entitle her to the benefit of the provisions of the antenuptial agreement, that she had in good faith performed her part of the marital obligations arising out of the marriage or was prevented from so doing by the testator’s act. From the record, as it appears before us, Mrs. Junkin failed to perform her part of the antenuptial agreement, which was a condition precedent to her being entitled to have the testator make a last will of all his estate in her favor. For this reason the decree will be affirmed, with costs.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kálispi-i, Black, Vredenburgh, White, Terhune, Heppeni-ieimer, Williams, Taylor-—15.. .

For reversal—None.


text:
    The National Bank of Slatington, complainant-respondent, v. Joseph Massopust, defendant-appellant.
    [Submitted December 6th, 1915.
    Decided March 6th, 1916.]
    1. The legal rule is that where a debtor has fraudulently made a sale or assignment of his property with intent to hinder, delay and defeat a judgment creditor in collecting his debt, such judgment creditor may file a bill in equity to have such sale or assignment set aside, even though the vendee or assignee be a purchaser for full value. But in order to succeed, the judgment creditor must not only prove that the judgment debtor made the sale or assignment for the purpose of hindering, delaying and defeating the collection of the judgment, but also that the vendee or assignee of the property participated in such fraudulent intent, or at the time such sale or assignment took place, had brought to his notice facts and circumstances from which the fraudulent intent of the vendor or assignor was a natural and legal inference.
    2. This legal rule, however, is to be applied in such a manner that it will not conflict with another well-settled rule, namely, that a debtor, may prefer one creditor over another.
    3. The question whether a debtor in failing circumstances can dispose of all of his property by voluntary assignment, either absolutely or by way of pledge, for the benefit of certain creditors to the exclusion of others, has never been doubted by the courts of this state,
    4. No design to defraud creditors will be presumed from the mere fact that a debtor in failing circumstances has sold his property for the purpose of preferring certain creditors over others, although such a transaction may, in conjunction with other facts and circumstances, be a potent factor in determining whether or not there was such a fraudulent design existing in the mind of the debtor at the time he made the conveyance; but, if the facts and circumstances are consistent with an honest purpose, the mere fact that the creditor left out is prevented from collecting his judgment is not sufficient to raise the inference of fraud.
    5. Evidence Held insufficient, either to show that the judgment debtor’s design at the time he conveyed his property was to defraud the judgment creditor, or that the grantee of the deed of conveyance participated in such alleged fraudulent design, even if it existed.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell.

      Mr. August G. Streitwolf, for the appellant.

      Messrs. Beékrnm & Spencer, for- the respondent.
   The opinion of the court was delivered by

Kalisch, J.

The respondent, a judgment creditor of one Charles Seel, filed its bill in the court- of chancery asking that a certain deed of conveyance made by Charles Seel of certain premises, previously owned by him, to the appellant, Joseph Massopust, be set aside and declared null and void, and that the premises be sold under an execution issued upon its judgment free from such encumbrance. ,

The ground upon which this relief was asked for, as stated in the bill, is that the deed of conveyance made by Seel to the appellant was without any consideration and with intent to defraud the respondent.

On the 19th day of May, 1915, two weeks after the cause had been heard, and after the vice-chancellor had rendered his opinion on the facts before him, the complainant asked for and obtained leave to amend its bill and charge therein that the appellant was knowingly a participant in a fraudulent scheme of the judgment debtor, and in collusion with him to prevent the respondent from collecting its debt and to defraud it.

The issue presented by the pleadings at the time of the hearing before the vice-chancellor was whether or not the premises in question were conveyed by Seel to the appellant without any consideration being paid therefor. The amendment allowed and made after the cause-was fully heard and decided by the vice-chancellor imported a new and vital issue into the case upon which the appellant had a right to be heard and offer proof. But, as this view would necessitate that the cause be remitted to the court below to take further proof, and since we have arrived at a different result, dispositive of the case from that reached by the vice-chancellor, we prefer to dispose of it on its merits.

From the proofs in the cause it appeared that in.November, 1910, the respondent commenced an action in the Middlesex circuit court against ‘ Seel, on a promissory note made by him for the sum of $900 to one Sam Caskie, which note came into the hands of the respondent, but under what circumstances is not disclosed by the evidence; that Seel pleaded a defence to the action, and that it was not until September 8th, 1914, that respondent obtained a judgment against Seel for the amount of the note, with interest and costs; that on the 24th day of July, 1914, nearly two months prior to the judgment, Seel had conveyed to the appellant the premises in question, which consisted of two lots, a dwelling-house and a little workshop- in the- rear, for $6,-000, subject to a mortgage of $2,000 and an assessment of $279.36, which were considered part of the consideration money, and received a check from the appellant for the sum of $3,-760, which Seel deposited to the credit of the- bank account of Charles Seel & Sons, of which he was a member. It further appeared that checks were drawn by the firm against the proceeds of the check received from the appellant in payment of liabilities of the firm to its creditors. Seel gave as a reason for selling the property that the firm was hard pushed for money by its creditors, and that in order to save it from failure and ruin he sold his property.

After the deed was delivered by Seel to tire appellant, the appellant demised, August 1st, 1914, the premises conveyed to him to the firm of Charles Seel & Sons for three years, at a yearly rental of $480, payable in equal monthly installments, which rent appears, by receipts in evidence, to have been paid with regularity from August 1st, 1914, by Seel & Sons to a real estate firm, of which the appellant was a.member; Seel after the sale continued to use the premises for a dwelling and workshop-. It also appeared that the appellant knew that there was a litigation between the respondent and Seel over a note. On this branch of the case the appellant testified:

“Mr. Seel told me that he had this suit on, but he thought he was going to win the suit and' that the National Bank of Slatington had more security already than was really due them on the note.”

And then again: “Why, Mr. Seel told me it was an accommodation note and he was to receive slate for that note according as he needed the slate.” The appellant was then asked:

“Q. Now, at the time he came to you, did he make you a proposition of $6,300 for this property; did he say anything about the litigation at that time?
“A. Well, I asked him, I says, ‘How are you making out with the Bank of Slatingtonhe says, ‘The case is about over and they have got more security than they have outstanding;’ * * * he said, ‘He never thought that they could get a judgment against him.’ ”

The appellant admitted that he made no further investigation and said that he relied on what Seel had told him. The appellant further admitted that Seel and he had been on intimate terms of friendship for twenty-five years.

Upon this state of the case the learned vice-chancellor concluded, as follows: “Massopust (the appellant), on the witness-stand, admitted that he knew about the litigation which was pending between the complainant and Seel over the $900 note mentioned in the pleadings. The judgment was entered in September for lack of an adequate defence. Pending the suit, and in the July previous, Massopust took his title. He paid what appears to have been a fair price for the property; at least, the price that he paid is not questioned; but after he took his deed he retained Seel in possession arid gave him a lease at $40 a month under which Seel still holds possession of the premisos, using the same as his dwelling place and workshop. I think there is no doubt that Massopust knew aboiit Seeks intention, and, this being the case, the transaction must fall.”

The above remarks followed a declaration in the opinion of the vice-chancellor, that the facts of the present case resembled very much those before this court in Tantum v. Green, 21 N. J. Eq. 364, and were within the legal rule there declared.

While we agree with the vice-chancellor that the law, as declared in Tantum v. Green, supra, was applicable to the facts and circumstances of the present case, we are unable to find in them such a similarity to those developed in Tantum v. Green, supra, as to justify a similar finding.

The legal rule to be extracted from Tantum v. Green, supra, is that where a debtor has fraudulently made a sale or assignment of his property with intent to hinder, delay and defeat a judgment creditor in collecting his debt, such judgment creditor may file a bill in equity to have such sale or assignment set aside, even though the vendee or assignee be a purchaser for full value. But in order to succeed the judgment creditor must not only prove that the judgment debtor made the sale or assignment for the purpose of hindering, delaying and defeating the collection of the judgment,, but also that the vendee or assignee of the property participated in such fraudulent intent, or at the time such sale or assignment took place had brought to his notice such facts and circumstances from which the fraudulent intent of the vendor or assignor was a natural and legal inference.

This legal rule, however, is to be applied in a manner so that it will not conflict with another well-settled rule in this state that a debtor may prefer one creditor over another.

Thus, in Essex Chosen Freeholders v. Lindsley, 41 N. J. Eq. 194, Vice-Chancellor Van Fleet said: “A debtor has a right to prefer one or more of his creditors over the others, and, so long as he exercise this right honestly, his acts, whether the preference be created by sale or pledge, are unimpeachable.”

And, in Muchmore v. Budd, 13 N. J. L. J. 25, the late Chief-Justice Depue, sitting in the Essex circuit, said: “The question is, whether a debtor in failing circumstances can dispose of all of his property by voluntary assignment, either absolutely or by way of pledge, for the benefit of certain creditors to the exclusion of others. This right has never been doubted by the courts of this state.” See same ease, affirmed by this court, in 58 N. J. Law S69.

Furthermore, it is obvious that in many cases the natural result of a preference of one creditor over another will be to hinder, delay and oftentimes defeat the collection of a claim of a creditor left out.

Allusion is made to this legal situation for the purpose of demonstrating that no design to defraud creditors will be presumed from the mere fact that a debtor in failing circumstances has sold his property for the purpose of preferring certain creditors over others. Such a transaction may, in conjunction with other facts and circumstances, be a potent factor in determining whether or not there was such a fraudulent design existing in the mind of the debtor, at the time he made the conveyance. But if the facts and circumstances are consistent with an honest purpose, the mere fact that the creditor left out is prevented from collecting his judgment, is not sufficient to raise the inference of fraud.

In the present case, Seel was engaged in a litigation with the respondent for four years concerning his liability on the note which it held. His testimony was that he firmly believed that he had a valid defence to the action on the note. At any rate, it appears that the respondent permitted the cause to slumber four years before bringing it on for trial. If tire case was a plain one and without defence the long delay in bringing it to trial, and reducing the note to judgment while Seel was the owner of property sufficient to pay the claim, is a strong circumstance corroborative of SeePs statement that he believed that he had a valid defence to the note and would win in the end. Furthermore, if it was SeePs intention to defraud the respondent, he had abundant opportunity during the pendency of the law suit to encumber or dispose of it. Seel testified that it was only when •other creditors were pressing him that he appealed to the appellant, a friend of twenty-five years’ standing, who had the means and ability to purchase the property, to buy it. It was the most natural thing for Seel to apply to a friend for aid. The vice-chancellor found that the price paid for the property was a fair price for it, and the evidence shows that the proceeds received by Seel from the sale went into the firm account of Seel & Sons and disbursed in the payment of creditors of the concern. All this had occurred about seven weeks before the respondent obtained its judgment. We think, therefore, that the facts did not justify the inference drawn by tire vice-chancellor that it was SeePs design at the time he conveyed his property to the appellant to defraud the respondent.

But even if it were assumed that there was proof sufficient to warrant an inference that the debtor’s design at the time he conveyed his property to the appellant, was to fraudulently defeat the respondent from collecting its claim, the proofs fall short of establishing that the appellant participated in .such alleged fraudulent design or that at the time of such sale the appellant had brought to his notice facts and circumstances from which the fraudulent intent of the debtor was a legal and natural-inference:

The vice-chancellor thought that because the appellant knew of the law suit between the respondent and Seel, the appellant was put upon inquiry. As there was nothing more brought to his notice than there was an old law suit over a note pending between Seel and the respondent, and which Seel told the respondent that he expected to-win, it is difficult to conjecture what further particular inquiry the appellant was under legal obligation to malee. It is fairly within the common experience of. eveiyone, that as a general thing each party to a law suit expects to win. Lawyers undertake the cases of their clients to that end.! It would be most unfortunate for the business world if, because of the fact that there was a law suit pending against a business man, that, therefore, a purchaser who bought property of him, with knowledge of such law suit, bought at the peril of having his title to the property invalidated, unless he interviewed the vendor’s creditor or his lawyer as to the probable outcome of the litigation, and was guided by the- information thus obtained. There was nothing unnatural on the part of the appellant to accept in good faith the statement made by Seel that he would win his cause, in view of the fact that the respondent had failed to bring it on for trial during a period of four years. Nor do we attach any significance to the fact that the appellant subsequently made a lease of the premises’to Seel & Sons for three years, and that the premises were being used as a dwelling and shop as theretofore. There is no claim made that the rent reserved is not a fair rental value of the property. Further, it is undisputed that the rent has been punctually paid, to the firm of which the appellant is a member, by Seel & Sons, each month since August 1st, 1914.

We think it was the most natural thing for the appellant to have done, after having bought the property of Seel, in order to aid Seel to pay the creditors of Seel & Sons, and to help save the business of the firm, to permit the firm to remain at a fair rental value at its accustomed place of business.

The decree of the court below will be reversed and the record remitted with direction that the bill of complaint be dismissed, with costs.

For affirmance—None.

For reversal—The Chiee-Justice, Garrison, Swayze, Trbnchard, Bergen, Minturn, Kalisch, Black, White, Terhune, Heppenheimer, Williams; Taylor—13.


author: Terhune, J.

text:
    George Wilbur Frost, petitioner-respondent, v. Dorothy Campbell Frost, defendant-appellant.
    [Submitted November 30th, 1915.
    Decided March 6th, 1916.]
    1. A husband, charging his wife with adultery, in full possession of all the proofs bearing upon the situation, continuing to occupy the same bed with her, engaging from time to time in marital intercourse, will be precluded from enforcing his remedy on the ground that he had condoned the offence.
    2. To establish the charge of adultery in the absence of positive proof, the probabilities must be such as to enable a reasonable and just man in the exercise of his discretion to draw a satisfying inference of the defendant’s guilt.
    On appeal from a decree of the court of chancery advised by Advisory Master Charles V. D. Joline.

      Messrs. Kates & Burling, for the respondent.

      Mr. David H. Ooff, for the appellant.
   The opinion of the court was delivered by

Terhune, J.

The petition in this case was filed by the husband, charging his wife with adultery committed with one Sidney D. Jones, at No. 909 Spruce street, Camden, N. J., on August 14th, 1914, and divers others days of July and August, 1914, and also with an unknown man at Clenienton, N. J., on October 21st, 1914.

The advisory master held that the defendant committed adultery with one Sidney Jones at No. 909 Spruce street, in the-city of Camden, on or about the 14th day of August, 1914, and that she also committed adultery with one Jesse P. Ware, at Clementon, in the county of Camden and State of New Jersey, on or about the 21st day of October, 1914, and that the petitioner had not condoned either of said offences.

The testimony is confined to the charge in the petition that the defendant committed adultery on the two specific days named. Two questions are involved :

First. Were either or both of the offences committed?

Second. If so, were either or both condoned?

We will deal with the offences charged in the order of their alleged happening, and in taking up what occurred on August 14th, it seems proper to consider the second question first, i. e., whether the offence, if committed, has been condoned, for if there has been a condonation, the petitioner is precluded from enforcing his remedy, and we are relieved from passing upon the guilt or innocence of the defendant.

The parties to this suit were married in 1910. No children were born of the marriage. They seem to have lived together contentedly until August 14th, 1914. On that day petitioner, a paperhanger' by trade, on returning home about four p. m., found Jones with his wife in the sitting room upstairs. The defendant introduced Jones to her husband by a false name, claiming that he was her cousin, Charles Opperman. The husband was suspicious, and after the departure of the visitor, he accused his wife of deceiving him, arid at the same time threatened to pack up his effects and leave. She thereupon admitted that the visitor was not her cousin Opperman, but a man by the name of Jones, that he had been in the house for over two hours; that there had been no undue intimacy between them, and while not acknowledging guilt, promised she would be true and faithful in the future. After the above incident, with the exception of the finding by the petitioner on the first Monday in September, 1914, of several postal cards signed by Jones, and one or two casual meetings on the public streets, J ones, so far as the testimony discloses, dropped out of the lives of the parties. On the night of August 14th, that is to say, on the very night of the day that the advisory master found that the defendant had committed adultery with Jones, the petitioner appears to have decided to forgive or overlook his wife’s guilt or indiscretion, whichever it may have been, for according to his own admission, he occupied the same room and bed with her. In fact, he further admits that without interruption he continued to occupy the same house, room and .bed with her up to November 12th, 1914, and that during all this period, while in full possession of all the knowledge bearing upon the situation, including the visible evidence of his own eyes, a knowledge which placed upon him full responsibility for his subsequent acts, he admits that without interruption he slept with his wife and had from time to time sexual intercourse with her up to November 6th, 1914.

The law applicable to the facts proved in this case is thus stated by 2 B'ish. Mar. ,& D. § 86 (6th ed.) :

“Where the husband comes into possession of the fact and proof that his wife committed adultery, then if he has marital intercourse with her, the law presumes that he condoned the offence, and refuses him divorce.”

The above is the well settled law of this state; therefore, in dealing with the first offence charged in the petition we find that the husband, having admitted that he did have marital intercourse with the defendant after he came into possession of all the facts and proofs relating thereto, thereby condoned the offence, and is consequently precluded from enforcing his remedy. Marsh v. Marsh, 13 N. J. Eq. 281; Rogers v. Rogers, 67 N. J. Eq. 534.

This brings us to the second allegation in the petition, that the defendant committed adultery with an unknown man" who subsequently turned out to be Jesse P. Ware, at Clementon, Camden county, N. J., on or about the 21st day of October, 1914.

The testimony discloses that on the 10th of October, 1914, petitioner employed a detective agency to watch his wife. On the 21st day of October one of these detectives, William Miller by name, saw the defendant leave her home about ten o’clock in the morning and take a car destined for Clementon. As soon as she boarded the car she met Ware, with whom she undoubtedly had an appointment. The couple occupied the same seat until the car reached Clementon. We gather from the testimony that at this terminus there is a park containing a grove, lake, picnic grounds, and beyond, some woods. Following the uncorroborated testimony of the detective, it appears that on alighting from the car the couple walked through the park in the direction of the woods; that upon their looking back at him, the detective discontinued his observations, returned to a restaurant for the purpose of telephoning for other members of the detective staff, and having telephoned, he again took up a position of watchful waiting in the front of the restaurant; that.soon after twelve o’clock he noticed the couple coming from the park, standing for awhile talking on a small bridge, and then shortly after twelve board a car for Clementon. On reaching Broad street, at Spruce street, Camden, the defendant left the ear, while Ware continued on.

The defendant, in giving her account of this occurrence, states that for some time prior thereto she knew her husband was having her watched by detectives; that she was angry and accused him of it; that he disclaimed any knowledge of the fact that she was being watched, and said if any one was watching the house or her, to call up the city hall .and have them arrested; that the Bible was brought down from upstairs and her husband took an oath on it that he positively had no one watching her; that after- this oath which the husband does not deny taking, the detectives continued to follow her; that .upon-the suggestion of her sister she determined to give her husband some real cause for complaint; that some time previous-she had been introduced at, the Camden ferry by a Mrs. Wise.to a man named Ware; that subsequent to the introduction she- had on one occasion again met-him casually.at the .ferry and-.-talked with him a few minutes; that on the morning of this affair Ware called her over the telephone and asked her how she would like to take a little trolley ride out to Clementon; that considering this was a good time to find out whether men were actually watching her, she met Ware on the trolley, rode with him as far as Clementon, went with him through the picnic grounds over to the lake, where there was a table; that they sat at this table talking, watching two men fishing until it was about time to return; that all the time they were-where they could be seen by the men on the lake; that there was no underbrush, and nothing to prevent all their actions from being observed; that they never entered the woods, nor were they guilty of any wrong doing; that they remained at Clementon about an hour, taking the twelve o’clock trolley back to Camden; that they separated at Spruce street, and from that time she, defendant, has neven seen or communicated with Ware.

A careful examination of the case does not disclose any material difference between the testimony of the detective and that of the defendant and Ware. The proof shows that this couple remained in this public park or grove, other men being present, in the middle of the day, for a period of abo-ut one hour, and there the proof, so far as it affects the guilt or innocence of the defendant, ends. There is no question that the defendant’s ideas of her marital obligations were of a low order; that some of her acts were wrapped in suspicion; that for the sake of what she seems to have regarded as a simple diversion she was willing to jeopardize her reputation for virtue; but these patent characteristics do not preclude her from having the probabilities of her guilt or innocence weighed in a judicial scales unswayed by heat or prejudice in the determination of her legal rights.

In this connection, the question sought to be determined is this: Conceding her conduct most censurable, in the absence of all evidence of a positive character, can we from the meagre proofs before us draw a reasonable and satisfying inference of this wife’s guilt, based upon a theory, that knowing she was being constantly watched by detectives in her husband’s employ, she proceeded by trolley to a park frequented by and open to the public, and that there, in the middle of the day, knowing she was liable to either casual or prearranged observation, in the open, cohabited with a man for whom she had no affection, with whom there had been no previous familiarity, no correspondence, no compromising situations, no secret meetings, in fact, with a man she had never been out with before or since?

“To establish the existence of adultery, the circumstances must be such as would lead the guarded discretion of a reasonable and just man to that conclusion. It must not be a rash and intemperate judgment, moving upon appearances that are equally capable of two interpretations.

• “The facts proven must be such as cannot be reconciled with probability and the innocence of the parties.” Berckmans v. Berckmans, 16 N. J. Eq. 143.

We accordingly find that while it is apparent that the defendant in this case laid herself open to the gravest suspicions, the proofs do not warrant the conclusion that she actually surrendered her virtue, and this finding leads to a reversal of the decree below.

For affirmance—None.

For reversal—The Chief-Justice, Garrison, Swayze, Trenciiard, Parker, Bergen, Minturn, Kalisch, Black, White, Terhune, Heppenheimer, Williams, Taylor—14.


author: Williams, J.

text:
    Lizzie S. Sandford et al., executors, &c., of William M. Sandford, deceased, complainants-respondents, v. Agnes M. Wellborn et al., defendants-appellants.
    [Submitted December 6th, 1915.
    Decided March 6th, 1916.]
    1. The opening of a decree in chancery, entered by default, rests in the discretion of the chancellor, and a refusal to open such decree will not be reviewed by this court where there is no abuse of such discretion shown, and it is not the result of mistake or imposition practiced on the court of chancery.
    2. Notice to the defendant of an application for the issuing of an alias execution in a foreclosure case is not required if such application be made within six years of the entry of the decree.
    On appeal from a decree of the court of chancery.

      Mr. Warren Dixon, for the appellants.

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

Williams, J.

This is an appeal from an order made by the chancellor as advised by Vice-Chancellor Griffin. No opinion was filed in the court below, which necessitates the setting out of the facts in detail.

The defendants, Agnes M. Wellborn and Charles E. Wellborn, her husband, executed a bond and mortgage on lands in Somerset. county to William M. Sandford, complainants’ testator, dated July 1st, 191.1, to secure the payment of $10,000 in three years, with interest at six per cent, per annum, payable semi-annually. The bond contained the usual thirty-day-interest-default clause and a tax-default clause. Six hundred dollars was paid in advance for interest to July 1st, 1912; on May 24th, 1913, $300 was paid for six months’ interest due January 1st, 1913. William M. Sandford'died December 30th, 1912, and the complainants qualified as his executors January lltli, 1913. On September lltli, 1913, a bill was filed to foreclose the mortgage, charging that six months’ interest, became due July 1st, 1913, and that defendants had defaulted in payment thereof for more than thirty days, and that complainants

“have elected and do hereby elect that the entire principal sum is now due and payable, together with all arrearage of interest, and that the entire principal sum so due and owing is the sum of $10,000 with interest from January 1st, 1913.” ■

The default in payment, of taxes was not charged, although the proofs show that there was clearly default in this also. ■

Process of subpoena, with ticket, was duly issued and served on the defendants, and on October 25th, 1913, a decree pro confesso was entered. On November 7th, 1913, a master reported that no part of the principal money had been paid, and that no interest had been pa\d since January 1st, 1913, and that by reason of the thirty-day-interest-default clause tire entire principal of $10,000, and interest from January 1st, 1913, amounting to $511.17, had become due the complainants, the bond and mortgage having been produced, and the affidavit of William M. Sand-ford, Jr., taken. Final decree was entered November 8th, 1913, and on November 24th, 1913, execution was issued. This was held a short time by complainants’ solicitors upon request of tire defendant, Charles É. Wellborn, who said that be expected to make arrangements in a few days to settle the matter’, but, upon learning that a large amount of taxes was due, he was notified on December 24th, 1913, that unless the taxes were paid the property would be advertised for sale. About this time $333 was received from an insurance company for a fire loss on the mortgaged premises, and Wellborn again promised to settle the matter in a few days and requested that the execution he held, which was done until January 15th, 1914, when the execution was sent to the sheriff, who advertised the property for sale. At the request of Wellborn the sale was adjourned from week to week to March 30th, 1914, when a portion of the mortgaged premises was sold for $2,800, and a release was given by the complainants, their solicitor, William R. Coddington, Esq., receiving $2,120; the defendants’ solicitor, James L. Griggs, Esq., retaining $680 to pa}f taxes past due.

Mr. Coddington requested of Mr. Griggs a statement showing how the $2,120 should be applied, and a few days later received from Mr. Griggs the following:

“Whereas, I have this day sold to John M. Halloclt a strip of land covered by the mortgage and decree of the complainant in the above-entitled matter for the sum of twenty-eight hundred ($2,800) dollars;
• “And Whereas, the sum' of six hundred and eighty ($680) dollars has been retained by my attorney, James H. Griggs, for the purpose of paying the taxes due and unpaid against said premises, leaving a balance of the purchase price of twenty-one hundred and twenty ($2,120) dollars:
“Now, Therefore, I, Agnes Wellborn, do hereby authorize and request William M. Sandford, Jr., the executor, to distribute said $2,120 in the following manner, that is to say:
“Interest on said mortgage to April 1st, 1914.... $417 00
“Tax costs .................................. 137 83
“Sheriff’s fees ............................... 99 82
“To W. It. Coddington for services............ 50 00
“To J. T. Vail on account of his claim........ 115 35
“To James L. Griggs, my attorney............ 100 00
“To the executor of Wm. M. Sandford, deceased
complainant ............................... 1,200 00
“And this shall be your sufficient authority for so doing.
“Given under my hand this thirtieth day of March, nineteen hundred and fourteen.
“Agnes M. Wellborn, [l. s.]
“Signed, sealed and delivered in the presence of Chas. E. Wellborn.”

It is claimed by the appellants that this was not executed until December 20th, 1914, but the proofs clearly show that it was executed a few days after March 30th, 1914, and the confusion probably arises from the fact that there is another statement, hereinafter referred to, dated December 20th, 1914. It will be noted that the payment of $417 for interest to April 1st, 1914, with the payment of $333 received from the insurance money, making $750, would be the exact amount of interest from Jan-nary 1st; 1913, the date fixed in the master’s report, and is an admission by defendants that at the time the bill was filed interest was in default as claimed therein.

Mr. Coddington was informed by Mr. Wellborn and his solicitor at this time that there was a prospective purchaser for the balance of the property, and was asked to have the execution returned unsatisfied so as to avoid further adjournments and costs, and the entire amount due would be paid in a few weeks. The execution was accordingly returned by the sheriff into court endorsed “Apr. 21, 1914, returned unsatisfied at request of solicitors.”

The balance of the property was not sold by the defendants and nothing more was paid on tire5 decree. A petition for an. alias execution was filed October 9th, 1914, and on that day an alias execution was issued for $9,119.87 ($8,800 for balance of principal due; $50 for insurance premium paid, and $269.87 for interest from April 1st, 1914, to October 5th, 1914), directing the sheriff to sell the balance of tire mortgaged premises. The property was again advertised to be sold, November 16th, 1914. At the request of defendants, adjournments were made from week to week; the defendants claimed that a payment of $300 interest had not been credited, and that this was paid by check through tire bank at Dunellen, New Jersey, but the check was not produced in evidence. About November 24th, 1914, in the office of Mr. Griggs, this matter was discussed by counsel of both parties, and Mr. Coddington testifies that Mr. Griggs promised that if the sale should be adjourned to' January 4th, 1915, the amount claimed to' be due would be paid on or before that date, or that, in the event of failure to pay tire same, there would be no objection made to the sale taking place; that he informed Mr. Griggs that he did not care to have the accusation made that interest had been paid the complainants, when the same had not, and that, if .the sale was postponed, an agreement must be executed by defendants embodying in said agreement the pledge to pay said money on or before January 4th, 1915, or make no further objection to the sale, and that Mr. Griggs immediately dictated to his stenographer the following agreement:

“Whereas, execution in the above-entitled matter has been issued to the sheriff of the county of Somerset and the premises described therein are now advertised for sale;
“And Whereas, Agnes H. Wellborn and Charles E. Wellborn, her husband, two of the defendants in said matter and owners of said property are desirous of having said sale postponed from week to week to January fourth, nineteen hundred and fifteen.
“Now, Therefore, in consideration of said adjournments being made, we the said Agnes M. Wellborn and Charles E. Wellborn, her husband, do hereby agree to and with the complainants to pay the amount due mentioned and specified in said execution, together with interest and costs on or before January fourth, nineteen hundred and fifteen, and in case we fail to make said payment as herein provided (said sale being adjourned from week to week to said date), and in that case we consent that the sheriff of the county of Somerset proceed to sell the said premises as in said execution directed, and in consideration of the premises we hereby admit that the amount claimed to be due as specified in said execution is correct.
“Witness our hands and seals this twentieth day of December, a. d. nineteen hundred and fourteen.
“Chas. E. Wellborn, [l. s.]
“Agnes M. Wellborn, [l. s.]”

The sale was adjourned to January 4th, 1915, and on that day defendants paid $800 on account of the principal, and under promises of defendants that balance would be paid in a few days, sale was adjourned from week to week. On March 11th, 1915, the defendants presented a verified petition in this cause, praying that the said decree in foreclosure be opened; that they have leave to answer the bill; that the master’s report lie set aside, and that the sheriff might be restrained from selling the mortgaged premises. Upon filing this petition the chancellor allowed an order to show cause and restrained the sheriff from making sale of said lands until the further order of the court. On September Yth, 1915, an order was made dismissing the petition of defendants, vacating the order to show cause, and removing the restraint from the sheriff, and it is from this order that this appeal is taken.

The appellants contend that this order was made upon the affidavits presented, without the hearing of witnesses on the allegations of the petition and without affording a.n opportunity of cross-examination of witnesses. Whether the chancellor will, open a decree after enrollment is a discretionary matter ; thé disposition of the matter summarily, on affidavits, after full argument, as in the present ease, is in accordance with chancery practice.

It is also contended that upon the return of the execution unsatisfied, April 21st, 1914, with $8,800 due for principal and interest paid to April 1st, 1914, the parties, pending litigation, had entered into a new or different agreement affecting the subject-matter of the suit, from that set out in the bill of complaint, which agreement estopped complainants from proceeding under the original decree. From an examination of the proofs it is clearly evident that the complainants returned the execution, not with the intention in any way as a settlement of the decree, but to avoid the expense and trouble of adjournments while waiting for the defendants to keep1 their promise to pay the balance due in a few weeks. It is true that one of the complainants wrote, on June 1st, 1914, to the defendants that “the mortgage we hold against your Weston farm, which now stands at $8,800, will be due July 1st, 1914. You are hereby notified to pay said mortgage in full on or before July 1st next,” but he had written, on .May 16th, 1914, “can you advise me definitely as to when the mortgage I hold on your farm will be paid off, or have all the sales fallen through?” There is no doubt that he was referring to the promises of defendants to pay in a few weeks, from tire sale of the property by them, at the time the execution was returned, and his reference to “mortgage” was intended to refer to the .amount due in the decree.

In Hudson Trust Co. v. Boyd, 80 N. J. Eq. 267, the chancellor says: “Now, the mortgage is very effectually continued when merged into a decree of foreclosure, which can be enforced by execution at any time within twenty years (on notice to the defendant after the lapse of six years), and, under the terms of the decree, the defendants are not foreclosed of the equity of redemption until the premises are actually sold by virtue thereof. In fact, when merged into a decree the debt which before was one by specialty becomes one of record.” The defendants cannot contend that the return of the execution “unsatisfied” was a satisfaction of the decree, and that the mortgage thereby became in existence with $8,800 due, for principal, with interest from April 1st, 1914.

We think the contention of the complainants is the proper one, and the intention was by returning the execution “unsatisfied,” to rely on their decree for security with the right to issue an alias execution, if necessary. The proofs do not bear out the statement of Mr. Griggs that, as he understood the matter, at the time of the payment of $1,200, as set out in the agreement of March 30th, 1914, the balance “should remain as a. permanent investment, to be secured either by the decree or a new mortgage.” This is denied by Mr. Coddington, who says that at this time he was informed by Mr. Wellborn and Mr. Griggs, his attorney,

“that they had a prospective purchaser for the entire balance of the tract, at a good price, which would enable them to pay off the entire mortgage, and asked deponent to have execution returned unsatisfied so as to avoid further adjournments and costs, and that the amount would be paid in a few weeks.”

The proofs appear to bear this out, for thereafter the complainants were pressing1 for payment until the new execution was issued. But even if it is admitted that the parties entered into a new agreement, as claimed, which would estop the complainants from proceeding with the original suit, the defendants are estopped by their own signatures in the agreement of December 20th, 1914, as to any claim that the time of payment was extended or the amount stated in the execution is wrong, and by agreeing therein to pay the debt and consenting to-a sale. The mere fact that a payment was made after the first execution was issued would not require a new decree, answer and adjudication, before an alias could be issued; it is merely a matter of calculation. As to a portion of the lands having been released, it was quite proper to limit the execution to the part remaining unsold.

It is objected that no notice.was given of the application for the alias execution. Section 88 of the Chancery act of 1902 (P. L. 1902 p. 539) provides:

“Execution may issue, without a revival of the decree, at any time within twenty years from the date of such decree; provided, the parties to the decree, or those of them during whose lives execution may now issue without a revival, be then living; and provided further, if more than six years have elapsed since the entering of the decree, a special order of the court shall be necessary before the execution issue to be made upon ten days’ notice to the defendant of the application therefor, and proof to the satisfaction of the court of the amount remaining due upon the decree.”

The conditions of the present case did not require notice to be given.

The appellants also contend that at the time of filing the bill to foreclose, the principal was not due, as the interest was not overdue. This depends upon whether a payment of $300, which defendants claim was made in December, 1912, was in fact made. The only testimony to support this is the affidavit of Charles E. Wellborn, who swears that in December, 1912, he desired to borrow $2,000 additional from Mr. William M. Sand-ford, and went to his residence with Mr. William Yon Seidlitz, whose farm he had just sold, with Mr. James T. Yail, and was closing up> the matter; that he obtained from Yon Seidlitz the money to pay Mr. Sandford, and they entered the residence and met Mrs. Sandford, who told him that Mr. Sandford had suffered another stroke, but suggested that he could see him for a few moments and directed him to the room where he was lying in a bed-chair; his secretary, or chauffeur, was present, who pushed his chair a little nearer the window and then left the room; that he explained the nature of his business and handed out $300 in bills, which Mr. Sandford received and then said he could not make the additional loan of $2,000, but might do so if he got better; that said $300 was part of $500 paid to him by Yon Seidlitz on that day for a commission; that said Yon Seidlitz is now out of the state, but deponent expected to produce him in a short time, and is now endeavoring to get in touch with him. No affidavit was produced from Yon Seidlitz, or from James T. Yail, whom he mentioned.

Mrs. 'Lizzie S. Sandford, widow of William M. Sandford, swears that her husband died December 30tb, 1912; that, for several months prior to his decease, he had been failing in health; that, during the month of December, 1912, he was unable physically to transact business; that he did not pretend to or attempt to transact business with anyone during that month, unless deponent or some other member of the family were present; that, as to the statement of Charles E. Wellborn, that he called at the home of said William M. .Sandford, in the month of December, 1912, and paid to said William M. Sandford the sum of $300 in the presence of one William Von Seidlitz, she is positive that neither Mr. Wellborn or said Mr. Von Seidlitz was at the home of William M. Sandford during the month-of December. 1912; that she was home with her husband during the entire month, and that, had Mr. Wellborn and Mr. Von Seidlitz been there, she would have known it; that her said husband was confined to his bed nearly all the time during the entire month of December; that the said William M. Sandford had had several strokes of paralysis, and that he was paralyzed during the month of December, 1912, that it was physically impossible for him to help himself, and required the assistance of his wife or nurse whenever he was moved about -the room, which was seldom done; during the entire month of December, 1912, the said William M.' Sandford was physically unable to work or to move about the room without assistance; that her position in the care of her husband was such, during the month of December, 1912, that had the said Charles E. Wellborn or William Von Seidlitz been to the house, she would have seen them, and known; that for a year or more prior to the death of her said husband, her husband was unable to alone attend to his business affairs; that he kept his papers at Ms home, and that she, whenever they were required, would go to the safe and procure the papers and take them to her husband, and transact whatever business was necessary to be transacted.

Joseph Dunlap swears that he was. employed as chauffeur for Mr. Sandford from January 20th, 1911, to January 20th, 1913; that he has had read to him the affidavit of Charles E. Wellborn; that he was the only chauffeur, or secretary, in Mr. Sandford’s employ during the period he was there; that during the month of December, 1912, Mr. Sandford was seriously ill, and, in the opinion of deponent, physically unable to transact any business; that as to the statement of Charles E. Wellborn, contained in said affidavit, that he, with Mr. Von Seidlitz, called at the residence of Mr. Sandford, and came into his bedroom while he, deponent, was seated therein, is not true; that he was not in Mr. Sand-ford’s bedroom, or in any room, in the residence‘of Mr. Sand-ford during tire month of December, 1912, or at any. other time, when Mr. Wellborn and Mr. Yon Seidlitz, or either-of them, were present.

William M. Sandford, Jr., swears that Charles E. Wellborn was not at the house of William M. Sandford in December, 1912, and never paid $300 to cover interest from July 1st, 1912, to January 1st, 1913; that at that time his father was physically incapacitated and unable to transact any business without assistance; that he could not dress himself, or move from his bed without assistance; that he was confined to his home and bedroom, but that, occasionally, he was moved to the adjoining room, with the assistance of his wife, nurse, or other liiembers of his family; that, at that time; and for a long period prior to said time, he has personally looked after the business óf his said father, would go to his father’s home almost every evening, and transact whatever business required to be transacted; that had the said Charles E. Wellborn been at the home of his father during said month of December, 1912, with one William Yon Seidlitz, as alleged by said Charles E. Wellborn, deponent would have known of said visit; that deponent never saw or heard of a party by the name of William Yon Seidlitz until he read the affidavit of petitioner.

We have examined carefully the testimony of Mr. Wellborn in this cause; he attempts to prove another payment of $300 for interest by a check on the Dunellen bank, but the cheek is not produced. Mr. William E. Coddington swears that the statement of Charles E. Wellborn, that $333 was not credited on the bond until late in the fall of 1914, is unirue, and his statement that there was credit on said bond of $300, under date of January 16th, 1914, is unirue, said bond had been in Mr. Codding-ton’s possession since the filing of the bill; that the statement of Mr. Wellborn as to how the moneys paid by Hallock for the portion of the premises released from the lien of said mortgage were to be paid, is untrue. Statements as to the master’s report not being on file in Trenton were, to say the least, careless, as the report was no doubt on file at the proper time, and still is, as appeal's by the endorsements thereon. In our opinion, his testimony should be given little, if any, credence; and the evidence clearly shows that the principal of the mortgage was due at the time of filing the hill, by reason of default in interest.

It is well settled that the court of chancery lias discretionary power, even after enrollment, to open a. regular' decree obtained by default for the purpose of giving the defendant an opportunity to make a defence on the merits, where he has been deprived of such defence, either by. mistake or accident, or by the negligence of his solicitor. This has been expressly determined in this court in Day v. Allaire, 31 N. J. Eq. 303, 315. In this case an answer was interposed by the, defendant and testimony taken, but her solicitor abandoned the case without, her knowledge, omitting and refusing to take testimony of several material witnesses, and did not present the; evidence taken or argue the case before the chancellor; in that sense the decree was taken by default. In the case sub judice there was no surprise, the subpoenas were duly served, and that of one of the defendants, J ames T. Vail, was acknowledged by his solicitor, who was also solicitor of appellants; there was no merit as appears from the proofs; and there was no neglect on the part of defendants’ solicitor, as he informed defendants of every step taken, and each action was with their concurrence.

Tn Embury v. Bergamini, 24 N. J. Eq. 227, it was held that a decree by default, after an enrollment, would be opened “for the purpose of giving the defendant an opportunity to make a defence, where such defence is meritorious and he has not been heard in relation thereto, either through mistake, accident or surprise.” In the present case, -the defence is not meritorious and the defendants have not been prevented from being heard either through mistake, accident or surprise.

A final decree will not be opened to let in a defence, where, from the evidence submitted, it appears that the evidence to sustain such defence would be insufficient to overcome that on which the decree was founded. Morris v. Hinchman, 32 N. J. Eq. 204.

In Miller v. Mild, 11 N. J. Eq. 25, it was held that the court will open a decree obtained by surprise, but not where a party has had notice of the suit and has had an opportunity of making his defence, and has neglected doing so.

In Williams, Jr., v. Lowe, 79 N. J. Eq. 173, it was held .that “whether or not a final decree shall be opened is discretionary in the court of chancery and where an order refusing to open a decree was neither an .abuse of such discretion nor the result of mistake or of any imposition practiced on that court, this court will not review such order for. the mere purpose of substituting its discretion for that of the court of chancery.”

The order refusing to open the decree in the case sub judice was neither an abuse of such discretion nor the result of mistake or of any imposition practiced-upon the court below.

Our conclusion is that the appellants have not shown themselves entitled to open this decree for the purpose of making a defence on the merits; the proofs do not show a meritorious defence, nor have they been deprived of such defence by mistake, accident or surprise, or by neglect of their solicitor; to permit them to do so would be to put a premium, not only upon carelessness and laches, but upon lack of honesty and the avoidance of the obligations of a written paper admitting that what they now claim as to payment of interest is false; nor has there been shown any abuse of the discretionary power of the court below in refusing to open the decree. The order dismissing the petition of' defendants, vacating the order to show cause, and removing the restraint from the sheriff, is affirmed, with costs.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenci-iard, Parker Bergen, Minturn, Kalisch, Black, White, Teri-iune, I-Ieppenheimer, Williams, Taylor—14.

For reversal—None.


author: Per Curiam.

text:
    John H. Warren et al., complainants-appellants, v. James A. Warren et al., defendants, Thomas Warren et al., defendants-respondents.
    [Submitted December 6th, 1915.
    Decided March 6th, 1916.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. 346.

    The bill states that by deed dated March 16th, 1844, Richard Warren, in consideration of natural love and affection for his wife Susan and his children Richard, George, William, Emeline, John, Robert and Mary, and of the sum of fifty cents, did grant, bargain, sell and convey unto Frederick Knighton certain described lands in the county of Merc'er, together with the buildings, * * * hereditaments, &c.
    “In trust nevertheless that he, the said Frederick Knighton, his heirs and assigns shall and will permit the said Susan D. Warren, Richard H. Warren, George W. Warren, Emeline Warren, John H. Warren, William Warren, Robert D. Warren and Mary Warren and the survivors of them to possess and enjoy the same and receive the rents, issues and profits thereof, and to rent the same to any tenant or tenants, for their own separate use, and the use of the survivors of them. And in further trust that upon the joint request of the said Richard Warren, Susan D. Warren, Richard II. Warren, George W. Warren, Emeline Warren, John II. Warren, William Warren, Robert D. Warren and Mary Warren or of the survivors of them to convey the same in fee-simple to the said Richard Warren, his heirs, or, heirs-at-law according to the laws of the State of New Jersey for the time being.”
    The bill further states that no other children were born to said grantor; that the said wife and children possessed and enjoyed the described lands after the making of the deed, and upon the death of any of them the survivors continued in the enjoyment of the property; that the said wife and children as well as the trustees are all dead, and that no new trustee has been appointed. The bill contains further statements showing who are the descendants of said children and the heirs-at-law of said original grantor (all of whom appear to be parties either complainant or defendant) and pray the appointment of a trustee or trustees in the place of said Frederick Knighton, deceased, and that such trastee or trustees be directed to convey the legal title to the lands in question to the heir¿-at-law of said Richard Warren (the grantor) or that such title be vested in said heirs by decree of the court, according to their several interests, and for further relief. To this bill there was a demurrer on the ground that complainants have an adequate remedy at law; that the bill does not show any trust now existent or capable of being enforced, or for the execution of which a trustee should be appointed, and that no trust was created by said deed, and if created, has terminated, and the interests of the parties themselves are not cognizable or determinable in equity.
    The cause was heard by Vice-Chancellor Learning, who filed the following memorandum;
    “I am convinced that the averments of the bill disclose that this court is without jurisdiction to either execute the trust or appoint a trustee for that purpose.
    “Should it be assumed, as contended by complainant, that the words of inheritance as used in the deed in question were adequate to convey the fee, and that the duty of the trustee to convey upon the joint request specified in the deed rendered the trust, which but for the existence of that duty would have been a simple trust, a special trust and thereby removed it from the operation of the statute of uses, it yet seems clear that upon the death of all persons who were by the terms of the deed authorized to execute the ‘joint” request'-' the trust became a simple trust and equally subject to the operation of the statute of uses. Lew. Tr. *686. In whom the fee then vested would be a question to be determined by the courts of law.
    “I entertain the view, however, that the words of inheritance used in the trust deed cannot be pi’operly construed as creative of a fee in the trustee. The words of inheritance occur only in that part of the instrument which directs the trustee to permit tlie life beneficiaries to possess and enjoy -until the decease of the survivor, and when considered in connection with the entire instrument suggest no intention to create an estate of greater duration either in the trustee or the beneficiaries. It is urged that the performance of the duty of the trustee to convey to the donor upon the joint request referred to in the deed contemplates a conveyance of the fee; but the conveyance, if required, would necessarily arise during the continuance of an estate pur aider vie and would require the existence of no greater estate to support it. I am satisfied that at the decease of the surviving life beneficiary the trust estate terminated.
    “I will advise a decree allowing the demurrer.”

      Messrs. Wescoit & Weaver, for the appellants.

      Mr. Gilbert Collins and Mr. Charles B. Bradley, for the respondents.
   Per Curiam.

The decree of the court of chancery is affirmed, for the reasons ■stated in the memorandum opinion of Vice-Chancellor Learning.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Ivalisch, Black, White, Teri-iune, Heppenheimer, Williams, Taylor—14.

For reversal—None.


text:
    Maggie Watson et al., respondents, v. David Magill, appellant.
    [Submitted July 6th, 1915.
    Decided March 6th, 1916.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.

      Messrs. Bergen & Rickman, for the respondents.

      Mr. Lewis Starr, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion hied in the court below by Vice-Chancellor Learning.

For affirmance—Swayzb, Trenchakd, Bergen, Kalisch^ Black, White, Teehune, Williams—8.

For reversal—Ti-ie Chief-Justice, Garrison, Parker, Min-turn, Vredenburgi-i, Heppenheimer, Taylor—7.


text:
    Pauline Sternberger, respondent, v. Berthold Sussman, appellant.
    [Submitted December 6th, 1915.
    Decided March 6th, 1916.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 69 N. J. Eq. 199.

      Mr. J. Bayard KirTcpatrick, for the respondent.

      Messrs. McDermott & Enright, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Stevens.

For affirmance—The Ciiiee-Justice, Garrison, Swayze, Trenci-iaru, Parker, Bergen, Minturn, Kalisci-i, Black, White, Heppeni-ieimer, Williams, Taylor—13.

For reversal—None.


text:
    Lillian R. Shotwell, respondent, v. Laura H. Shotwell, appellant.
    [Submitted December 6th, 1915.
    Decided March 6th, 1916.]
    On appeal from a decree of the prerogative court advised by Vice-Ordinary Stevenson, whose opinion is reported ante ¶. 101.

      Messrs. Roe, Runyon & Auienreith, for the respondent.

      Mr. Edward L. Erice, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Ordinary Stevenson.

For a-ffM-mance—Ti-ie Ci-iiee-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisoh, White, Terhune, I-Ieepeni-ieimer, Williams, Taylor—13.

For reversal—None.


text:
    Adolphine Ostergaard, respondent, v. Saren Christian Ostergaard, appellant, and Hans Krogh, intervening defendant.
    [Argued November 24th, 1915.
    Decided March 6th, 1916.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes.

      Mr. Peter A. Peterson, for the appellant.

      Mr. Adrian Lyon, for the respondent. -
   Per Curiam.

This is an appeal from a maintenance order of the court of chancery made at the instance of the.wife against the husband because of his desertion. The defence set up by the husband as justifying his desertion, is adultery by the wife with one Hans Krogh, the intervening defendant. This is denied, and the vice-chancellor has found as a fact that the wife was not guilty of the adultery charged.

This finding we think was not only amply justified, but was the only one possible under the evidence. Not only has the husband failed to prove any act of adultery by his wife, but, as it seems to us, he has failed to prove any act by her which justified a serious suspicion on his part of her fidelity.

The decree is affirmed.

For affirmance—Ti-ie Chiee-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kaliscit, Black, Vredenburgh, White, Teriiune, Heppeni-ieimer, Taylor— 14.

For reversal—None.


text:
    Jesse J. Lever, respondent, v. Mary Esther Lever, appellant.
    [Submitted December 6th, 1915.
    Decided March 6th, 1916.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. SJfi.

      Mr. Henry W. Lewis, for the respondent.

      Messrs. Babcock & Champion, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance—The Chief-Justice, Garrison, Savayze, Trenchakd, Bergen, Minturn, Kalisci-i, Black, White, Teriiune, Heppeniieimer, Williams, Taylor—13.

For reversal—None.


text:
    Ellen F. Holly et al., appellants, v. David M. Kellogg, Jr., et al., respondents.
    [Argued November 22d, 1915.
    Decided March 6th, 1916.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported ante p. SOI.

      Mr. Samuel Koestler, for the appellants.

      Messrs. Guild & Martin> for the respondents. /
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Stevens.

For affirmance—The Chibe-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisch, Black, Terhune, Williams, Taylor—12.

For reversal—None.


text:
    Franklin Society for Home Building and Savings, respondent, v. John T. Thornton et al., appellants.
    [Submitted December 6th, 1915.
    Decided March 6th, 1916.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. 37.

      Mr. Nathan H. Pendergast, for the respondent.

      Messrs. Jacob Willard De Toe & Edgar A. Be Toe, for the appellants.
   Per Curiam.

The decree is affirmed. The reasons are stated in a similar case between the same parties No. 9 of this term.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Terhune, Heppenheimer, Williams, Taylor—14.

For reversal—None.


text:
    In the matter of Alfred B. Cosey.
    [Argued November 16th, 1915.
    Decided March 6th, 1916.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 84 N. J. Eq. 843.

      Mr. Nelson B. 'Qaslcill, for the motion.

      Mr. Thomas S. Henry, opposed.
   Per Curiam.

The motion to dismiss the appeal is denied for reasons which sufficiently appear in the opinion filed in the matter of Hahn ante p. 510.


text:
    In re will of Mary Brengel, deceased.
    [Submitted December 6th, 1915.
    Decided March 6th, 1916.]
    On appeal from a decree of the prerogative court advised by Vice-Ordinary Griffin, whose opinion is reported ante p. 487.

      Mr. Alexander Simpson, for the proponent-appellants.

      Messrs. Melosh & Morten, for the caveators-appellees.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Ordinary Griffin.

For affirmance—-Tiie Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisoh, Black, White, Teri-iune, Herpeniieimer, Williams, Taylor—14.

For reversal—None.


text:
    Martin B. Bloomer, appellant, v. Charles N. Fowler et al., respondents.
    [Submitted December 6th, 1915.
    Decided March 6th, 1916.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell.

      Mr. Abe J. David, for the appellant.

      Messrs. Godding & Oliver, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed, in the court below by Vice-Chancellor Howell.

For affi-mance—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Teri-iune, Hbppeniieimer, Williams, Taylor—-14.

'For reversal—None.


text:
    Compagnie Universelle, complainant, v. United States Service Corporation et al., defendants.
    [Argued November 29th, 1915.
    Decided March 6th, 1916.]
    On appeal from a decree of tlie court of chancery advised, by Vice-Chancellor Stevens, whose opinion is reported in 8J¡ N. J. Eq. 60k. ■

      Messrs. Pitney, Hardin <£• Skinner, for the complainant.

      Messrs. McCarter é English, for the defendants.
   Per Curiam.

The order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Stevens.

For affirmance—The Chief-Justice, Garrison, Sway,ze, Trenohard, Parker, Bergen, Minturn, Kalisoh, Black, White, Terhune, Heppenheimer, Williams, Taylor—14.

For reversal—None.


text:
    Laura Biggar Bennett, appellant, v. James Piatt, executor et al., respondents. James McConnell and Willis Biggar, appellants, v. James Piatt, executor et al., respondents.
    [Argued November 22d, 1915.
    Decided March 6th, 1916.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported ante p. JrS'6.

      Mr. Charles 0. Hendrick, for the complainants-appellants.

      Mr. Gilbert Collins, for the defendants-respondents.
   Per Curiam.

The decree is affirmed, for the reasons given by Vice-Chancellor Griffin. We regret that we must add that the brief filed in this court by counsel for the appellants is of such a character as to deserve severe rebuke. It contains reiterated aspersions upon the character of eminent counsel who appeared below for the respondents, that are unwarranted by anjrthing in the case. We appreciate the feeling that probably prompted counsel for the respondents in this court to pass it by, but we cannot permit a brief of that character to go unnoticed. It will be suppressed and not preserved with the printed record of the case and the respondents’ brief.

For affirmance—Tite Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Kalisch, Terhune, Williams, Taylor—10.

For reversal—None.


text:
    Ida Katherine Baker, respondent, v. Ramon Van Arnum Baker, appellant.
    [Submitted December 6th, 1915.
    Decided March 6th, 1916.]
    On appeal from a decree of the court of chancery advised by Advisory Master Charles H. Hartshorne.

      Mr. Addison Fly, for the respondent.

      Mr. James 17. Miller, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed* in the court below by Advisory Master Hartshorne.

For affirmance—Ti-ie Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Terhune, Heppeni-ieimer, Williams, Taylor—14.

For reversal—-None.


text:
    Frank H. Aumack et al., appellants, v. George M. Dorrance et al., respondents.
    [Argued November 18th, 1915.
    Decided March 6th, 1916.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Baches.

      Mr. Thomas P. Fay, for the appellants.

      Messrs. Gashill & Gashill, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court of chancery by Vice-Chancellor Baches.

For affirmance—This Ci-iiee-Justice, Garrison, Swayze, Trenci-iard, Bergen, Kalisch, Black, ' White, Terhune, Heppenheimer, Williams, Taylor—IS.

For reversal—Minturn—1.