text:
    Richard T. Forman, administrator of Eliza Forman (née Cope), v. Georgiana Manley et al.
    1. In a suit for foreclosure by mortgagee against mortgagor and his grantee who had assumed the mortgage debt, the bill set out the conveyance from mortgagor to grantee, omitting the clause of assumption but praying a decree for deficiency against both mortgagor and grantee. Both were served with process and notice of the prayer for decree for deficiency. No defence was made and such decree was duly made against both.
    2. A deficiency arose on the sale, which the mortgagor paid and took an assignment of the decree. After a lapse of seventeen years, he moved to amend the bill by inserting the clause of assumption and for execution against the grantee. — Held, in the absence of any proof that the grantee had relied on the defect in the bill, or would be prejudiced thereby, that such amendment should be made.
    In foreclosure. On motion to issue execution on decree for deficiency.
    On the 30th of October, 1872, John J. Mickle, being the owner of certain premises situate in the county of Monmouth, mortgaged them to Eliza H. Cope to secure the sum of $2,000 in one year, with interest. Subsequently, on the 24th of February, 1874, Mickle, together with his wife, conveyed the mortgaged premises to Georgiana Manley in consideration of the sum of $4,500. This deed contained the following clause:
    “ The above-described lots and parcels of land being sold by the said party of the first part to the said party of the second part, subject to a certain mortgage dated the thirty-first day of October, 1872, given to Eliza Cope, conditioned for the payment of the full sum of two thousand dollars in one year after date, and which the said party of the second part hereby assumes the payment of as part of the purchase-money of said and described lots and interest at seven per cent, from the first day of April, 1874.” ,
    Subsequently, on September 18th, 1876, a bill to foreclose this mortgage was filed by the complainant herein, who acquired title to it as administrator of his deceased wife, the said Eliza Cope. That bill set out the bond and mortgage in the usual manner, and also, with more than usual fullness, the conveyance of the premises by Mickle, the mortgagor, to Georgiana Manley, by deed duly executed, acknowledged and recorded, but did not contain any allegation that Mrs. Manley had assumed the payment of the mortgage in the conveyance to her. The prayer, in addition to the ordinary prayer for payment or foreclosure, contained this clause:

      “And especially that if the proceeds of the sale of said premises, in your orators’ said mortgage described, shall not be sufficient to pay and satisfy to your orators all the moneys due to your orators upon the said bond and the said indenture of mortgage, that the said Georgiana Manley and John J. Mickle may be decreed by the decree of this • honorable court to pay the deficiency.”
    Mrs. Manley and John J. Mickle were both made parties to the bill, and separate sjibpcenas were issued against them severally, the one addressed to Mickle being- sent to the sheriff of Monmouth, where he resided, and the one addressed to Mrs. Manley being sent to the sheriff of Middlesex, where she resided at the time, and to- each subpoena was annexed this notice:
    “ Take notice that the above-named complainant has prayed in his bill of complaint filed in the above-stated cause, that you and others therein named may be decreed to pay any excess of the mortgage debt, in the said bill mentioned, and costs of suit, above the net proceeds of the sale of the mortgaged premises described in said bill.” [Signed by the solicitor of complainant.]
    The one annexed to the subpoena addressed to Mrs. Manley was addressed to her, and the one annexed to the subpoena addressed to Mickle was addressed to him. These subpoenas were returned by the sheriffs duly served.
    No defence was made by either of the defendants.
    In pursuance of these proceedings an ordinary decree of foreclosure and for the sale of the premises was made on the 20th of December, 1876, which contained this clause: “And in case the proceeds of such sale shall be insufficient to satisfy and discharge the said mortgage debt, then it is hereby further ordered, adjudged and decreed that said deficiency shall be made of the lands and tenements, goods and chattels of the said defendants, Georgiana Manley and John J. Mickle, as specifically prayed in the bill of complaint filed in this cause. It appearing to the court that notice that such relief was sought by said bill, has been duly served and given to said defendants according to law and the rules and practices of this court, and that a writ of fieri facias therefor do issue accordingly out of this court against said defendants for that purpose, payment of the said deficiency being hereby decreed to be made by them, the said defendants, and that the sheriff make return to this court of his proceedings by virtue of the said writ.”
    The fieri fiadas for the sale of the mortgaged premises was issued to the sheriff of Monmouth county, and he made sale thereof, and by his return showed a deficiency of $697.01.
    Upon that return the chancellor, on the 24th of July, 1877, ordered that an execution issue against the defendants, Manley and Mickle, to make that sum, with interest. An execution was issued accordingly to the sheriff of Monmouth county, endorsed that Georgiana Manley was primarily liable and John J. Mickle secondarily liable. By virtue of that éxecution, the sheriff levied on a quantity of personal property belonging to Mickle, which he returned with a levy annexed.
    Subsequently Mickle paid the amount to the complainant and took an assignment of the decree. He now moves for an execution against Mrs. Manley, upon notice to her, to which notice is annexed a certified copy of the deed containing the clause of assumption by her. The notice also provides for a motion to amend the bill by inserting the language of the assumption in the deed from Mickle to Manley.
    This motion is resisted by Mrs. Manley, on the ground that the bill does not contain any ground upon which the court could support a decree, and is therefore void as against her under the doctrine of Mundy v. Vail, 5 Vr. 4-18, and the line of cases of which that is the leader.
    In her affidavit she does not deny being served with process and with notice that the decree of deficiency was asked for, but simply says she was not aware there was any decree for deficiency taken against her, or that there was anything in the nature of a judgment against her, and she does not deny that she knew that the deed from Mickle to her contained the clause of assumption above set forth, nor does she allege that it was executed by her through inadvertence, or that the clause of assumption did not express the actual contract between the parties, or that she personally or by another examined the bill of complaint, and, finding no allegation of fact which affected her, relied upon such defect and abstained from making any defence.

      Mr. Hoisted H. Wainright, for the motion.

      Mr. Freeman Woodbridge, contra.

   Pitney, V. C.

The case presented differs from both Mundy v. Vail, 5 Vr. 418, and Reynolds v. Stockton, 16 Stew. Eq. 211, 140 U. S. 254, in that here the decree sought to be enforced is directly in accordance with the object, frame and prayer of the bill. It is “responsive to the issues tendered by the bill,” and “is not aside of the issue raised in the record.” Of the nature and extent of the demand made upon her, the defendant Mrs. Manley had full and timely notice, and she made no defence. In-fact, it affirmatively appears upon the case as now presented, that she had none upon the merits. That the complainant had a right in equity to the relief prayed for upon the facts as they actually existed, is not disputed. The sole reason urged why the decree as made should not stand against Mrs. Manley, is that the complainant’s solicitor, doubtless through an oversight of the clerk who prepared the bill, failed to set out the central fact upon which such liability rested.

It seems to me that, notwithstanding the distinction pointed out between this' case and Mundy v. Vail and Reynolds v. Stockton, the decree must be considered, for present purposes at least, as unwarranted as against Mrs. Manley. I am unable to see upon what principle it can be sustained, and such appears to have been the opinion of Vice-Chancellor Van Fleet in Consolidated Electric Storage Co. v. The Atlantic Trust Co., 5 Dick. Ch. Rep. 93. The discussion in that case leaves nothing to be said upon the subject.

Notwithstanding this radical defect, the circumstance that the decree was actually made by a court of competent jurisdiction, upon notice to the party affected, and that it has stood unchallenged all these years, cannot be overlooked. To meet the difficulty of asking a court to issue execution on an unwarranted decree, the complainant moves to open the enrollment and amend the bill. The power and duty of the court to do this in a proper case is not disputed. But Mrs. Manley makes several objections to the exercise of such power in this case.

First, she points out the great lapse of time and her ignorance that the decree had been made against her.

Upon reflection, I am unable to see how such objection can avail her. She had full notice that such a decree would be asked for, and she is fairly chargeable with the consciousness that she was liable, upon the admitted facts, to be subjected to it. She made no examination of the bill on file, and did not, so far as appears, rely upon the absence in it of the necessary allegation. She is justly chargeable with notice of the character of the decree made. Such is the rule in all cases where a' party is regularly brought into court by personal service of process, and thereby has actual knowledge of the proceedings. She had no right to act upon the notion that no such decree had been made. Moreover, it does not appear that she has since, in anywise, shaped her conduct or altered her position, one way or the other, upon the strength of her supposition that no decree had been made against her. Under these circumstances, I do not see how she is injured by the delay. She is quite as much responsible for it as is the complainant. He knew that he had a decree against both Mrs. Manley and Mr. Mickle, and it is fair to presume that he supposed that it was founded upon a proper allegation of the assumption contained in the deed from Mickle to Mrs. Manley. That such assumption should have been duly set out in the bill was as much a matter of course as that the bond and mortgage should have been so set out, and the complainant is no more chargeable with knowledge of the defect than is Mrs. Manley. They both stand in the same position in that respect.

It seems to me, then, that the complainant is entitled to the aid of the court in the way of an amendment. Such action on the part of the court is simply to do what is usual and proper in order to promote justice.

But the defendant makes the further point that the complainant’s equity has been satisfied; that Mickle, whose bond the complainant held, and against whom he had’ a decree for the deficiency, lias paid that deficiency,- and hence the complainant has no further equity against Mrs. Manley,' and that the equity to have the bill amended in the way proposed could not be assigned to Mickle, because, in paying the amount of the deficiency to the' complainant, he simply discharged his own debt. She says that the right of Mickle against her is a legal one, which he might enforce at law. Finley v. Simpson, 2 Zab. 311.

The point is thus stated in the brief:

“ The interest assigned to Mickle was a purely equitable one, given only by a court of equity to a mortgagee against a grantee, for the purpose of convenience and the saving circuity of litigation, and that as soon as that equitable remedy, whether it be the mere right or the decree itself, becomes satisfied as to the complainant and comes into the hands of the grantor, the equitable right becomes absorbed in the legal one, and he must resort to his action on the covenant. The court is here asked to give an equitable remedy, both by amendment and execution, to one whose legal right fully and completely appears.”

Mrs. Mauley’s liability to complainant was based upon the ground, quite familiar in late days, that, as between Mickle and Mrs. Manley, the latter should pay the debt to the complainant, and that Mickle stood in the position of surety for Mrs. Manley to the complainant, and hence the obligation of Mrs. Manley to Mickle to relieve him of the burden of the debt was a “ collateral obligation,” to which the complainant, as creditor-at-law of Mickle, was entitled. Klapworth v. Dressler, 2 Beas. 62. Now, that obligation, on the case shown, still exists. Mrs. Manley is still bound to indemnify Mr. Mickle against that obligation, and when he paid the deficiency to the complainant he paid Mrs. Manley’s debt as her surety, and upon the very principle upon which Mrs. Manley was liable to the complainant, he (Mickle), upon such payment, was entitled to be subrogated to the rights of the complainant against Mrs. Manley. A surety for the debt of another, who pays that debt, is entitled to be subrogated to all the rights of the creditor against the principal debtor. The precise right of the complainant against Mrs. Manley, when Mickle paid the debt, was to have the bill so amended as to justify the decree which he held against her. To that right Mickle was subrogated, and I am unable to see why he does not stand precisely in the complainant’s shoes in that respect. The execution which issued against Mickle informed him that the "decree for deficiency had been entered against Mrs. Manley as well as himself, and that she was primarily liable thereon. He, of course, must have been advised that his payment of the amount due to the complainant subrogated him to the rights of the complainant, independent of the assignment which he procured, and he was fairly entitled to rest upon the idea that he was the owner of a valid decree against Mrs. Manley, precisely as the complainant had been. The injustice of turning him, at this late day, over to his legal remedy, is manifest when we consider that probably the statute of limitations would be a bar to such remedy.

The case of Jarman v. Wiswall, 9 C. E. Gr. 267, was relied upon by defendant’s counsel on this part of his case. There, motion was made to amend a decree of foreclosure by adding a clause holding liable the party who had assigned it to the complainant with guaranty, to make up the deficiency which had occurred upon a sale of the mortgaged premises. Chancellor Runyon refused the motion on the special circumstances of that case, alleging, as one reason, that the complainant had a remedy at law against the defendant moved against. The attitude of the parties towards each other in that case was in marked contrast with the attitude of the parties here. There, the party moved against was the surety, and occupied the precise position which Mickle does here, and he was directly liable to the complainant in an action at law upon his guaranty. The principle that a surety who pays the debt is entitled to be subrogated to all the rights of the creditor, had no application.

I will advise a decree that the complainant have leave to amend the bill in the manner asked for, and that the defendant Mrs. Manley have twenty days after service upon her of a copy of the bill as amended, to answer the same, and in default of answer, Mickle may take an order for an execution against her, with costs.


source: Caselaw Access Project

author: Pitney, Y. C.

license: Public Domain

text:
    William E. Skinner, executor &c. of A. S. Boyd, deceased, v. Mary C. Christie and husband, and the Town of West Hoboken.
    1. An agreement “ to convey ” for a full consideration “ all that house and three lots of land,” is not fully performed by a simple conveyance of the premises, they being subject to the lien of unpaid taxes.
    2. Under such an agreement the purchaser is entitled to have all the encumbrances discharged out of the purchase-money.
    3. If by fraud, accident or mistake the purchaser, under such a contract, accepts a conveyance not containing any covenants, and without having the encumbrances paid, giving back a purchase-money mortgage, he will be entitled to have the encumbrances discharged out of the money due on the mortgage.
    4. Deceased orally^agreed to sell a house and three lots to defendant, free and clear of all encumbrances, and afterwards, in writing, agreed to convey “all that house and three lots” to defendant. A deed, which defendant did not see, was made and recorded. It contained no covenants. Defendant was inexperienced, and did not know the difference between deeds with and without covenants, and believed that defendant, who professed to be his friend, would draw the deed according to the understanding and agreement. Several years’ taxes were unpaid when the deed was made.' — Held, that defendant was entitled to credit for the taxes against the unpaid purchase-money.
    5. Act of March 25th, 1863, limits the lien for taxes to two years. Act of March 27th, 1874, incorporating a certain town, provided that a tax lien on real estate shall “remain a lien thereon until paid.” — Held, that the latter provision superseded that contained in the general act.
    Final hearing on pleadings and proofs.
    This is an ordinary bill to foreclose a purchase-money bond and mortgage given by the defendants, Mrs. Christie and her husband, to complainant’s testator upon the conveyance of the mortgaged premises by the latter to the former. They are dated May 1st, 1890, and their due execution and delivery are not disputed. The amount secured is $5,500, payable in five years, •with interest payable semi-annually, with the usual clause making the principal fall due upon failure to pay interest.
    Three semi-annual payments of interest were made, and for failure to meet the fourth payment, which fell due May 1st, 1892, this bill was filed December 12th, 1892.
    The defence is set up by combined answer and cross-bill, which was, at the hearing, amended by making the “ Town of West Hoboken,’; in which the premises are situate, party defendant. The municipality appeared and answered. The complainant replied to the defendants’ answer and cross-bill, but did not plead to the answer of the municipality, and upon those pleadings the cause was tried. The understanding, however, was that the matters set up in the answer of the municipality were put in issue by the complainant.

      Mr. John JAnn, for the complainant,

      Mr. Frederick Frambach, Jr., for Mrs. Christie.

      Mr. Augustus A. Rich, for West Hoboken.
   Pitney, Y. C.

The defence of Mrs. Christie is that, at the date of the conveyance by Boyd to her, the premises were subject to the lien of' arrears of taxes for upwards of ten years, amounting to' nearly $800 besides interest; that such lien was well known to Mm Boyd, but not to her or her husband; that the property was contracted to be sold free and clear of encumbrance; that Mm Boyd declared them to be so at the time of the sale; that his conduct and treatment of her and her husband was fraudulent in that he concealed the existence of this lien for unpaid taxes,, and managed to induce her to accept a deed for the premises, without any covenants against encumbrances.

The facts, as they appeared at the hearing, are as follows:

Prior to 1879 the premises were owned by, and taxed to, oneMundorf, and were subject to a mortgage held by Mr. Boyd. This mortgage was foreclosed by Mr. Boyd, and he became the--owner under foreclosure sale by deed dated October 16th, 1879. Nevertheless, Mundorf retained possession of the property for .some time, and the premises continued to be assessed to him until 1885, when they were first assessed to Mr. Boyd, and continued to be so assessed until 1892, when they were assessed to Mrs. Christie. The only taxes which have been paid since 1876 are those of 1883, paid apparently by Mundorf, and those of 1885, paid apparently by Mr. Boyd, and those of 1890, paid by Mrs. Christie. The arrearages, up to and including 1889, amount to $755.64, besides cost of sales, and interest at seven per cent. The property has been sold for taxes several times, viz., on March 14th, 1881, for the taxes of 1877 and 1878, and again on the 8th of May, 1889, for the taxes of 1886 and 1887, and again, after the sale to Christie, on the 5th of June, 1892, •for the taxes of 1888 and 1889, and at each sale was bid off by the town treasurer.

For some time before the fall of 1889 the premises had been in the hands of Mr. Galbraith, a real estate agent, for sale. The price asked by Mr. Boyd was $7,000, but .Mr. Galbraith was unable to get a purchaser, because, as he swears, the price was too high, and he so told Mr. Boyd. This witness fixed the value of the property at $5,500 in its then condition.

In the winter of 1889-90, Mr. Boyd expended $360, and, perhaps, something more, in repairs upon the property, and placed it in the hands of Mr. Jahl, a real estate agent, for sale. There is a dispute as to the price he directed Mr. Jahl to ask for it. Mr. Baptist, the builder who made the repairs, and who introduced Jahl to Mr. Boyd, swears it was $6,500, while Mr. Jahl swears it was $8,000. I am satisfied from the evidence and the circumstances, that while Jahl may have been instructed by Mr. Boyd to ask $8,000, he was, nevertheless, informed by him that he would sell at $6,500, and that that was the real price to be fixed upon the property, and the evidence shows that it was a full price for it.

About this time — the fall of 1889 — the property came to the notice of Mr. Christie. He was a simple-minded, sober and industrious, youngish New York drayman, almost entirely in-experienced in dealing in real estate, whose wife had saved some money from his earnings, and they took a fancy to the house. This led to an interview between Jahl and Mr. Christie, in which Jahl, according to Christie, offered him the property at $6,500, free and clear of all encumbrances. ' Jahl swears that he asked $8,000, but is explicit in the statement that the offer was made free and clear of encumbrance, and equally explicit that he was expressly authorized by Boyd to so offer it. Mr. Christie then offered him $6,000. Mr. Jahl reported this offer to Mr. Boyd, who replied that he knew Mr. Christie, and was an old friend of his family, and that he would see him personally and could do better with him in that way than through an agent. Mr. Jahl took no further part in the .negotiations. Mr. Boyd called upon Mr. Christie at his place of business in Yew York, but upon the objection of the complainant the latter was not permitted to testify as to what passed between them. The result was that an appointment was made for Mr. Christie to call on Mr. Boyd at his house at Hackensack, and bring with him Mr. Boyd’s confidential business man, Mr. Hulshizer, of Hoboken. The meeting took place and resulted in the following contract, written by Mr. Hulshizer, who acted as amanuensis -on account of Mr. Boyd’s defective eyesight:

“1890
“Hackensack, N. J. March 21st
“In consideration of One Hundred Dollars in hand paid to me by Gamaliel R. Christie, I hereby agree to convey all that house and three lots of ground situated on the North West corner of Palisade Ave. and Lake St. West Hobo-ken, Hudson County, New Jersey, to Mary R. Christie, wife of said Gamaliel R. Christie, on or before the first day of May, 1890, at which time the said Gamaliel R. Christie and wife agree to pay to me the sum of One Thousand Dollars and also to execute a Bond and Mortgage for the sum of Five Thousand Five Hundred Dollars to run for five years, with the privilege of paying one thousand dollars or more each year during the said period or the whole amount.
“ Witness our signatures this twenty first day of May, 1890.
“A. S. Boyd
“ Witness “G. R. Christie.
“ D. J. HüIíSiiizer.”

On the 1st day of May, Mr. and Mrs. Christie, at the request' of Mr. Boyd, went to Hackensack with Mr. Hulshizer and met Mr. Boyd at his house, for the purpose of closing the contract. Mr. Boyd had caused the deed and the bond and mortgage to be prepared, and had himself, on the same morning, executed and acknowledged the deed in Hoboken, where his office and business was, but had returned to his house at Hackensack to meet Mr. and Mrs. Christie. They executed the bond and mortgage at Hackensack, and the three instruments were placed in Mr. Hulshizer’s hands to be recorded, and were lodged in the register’s office for that purpose by him. The deed was not handed to Mr. or Mrs. Christie, and was not seen or examined by them until after its record. It contained no covenants whatever. Mr. Boyd died in October, 1890. Mrs. Christie paid her interest regularly for one year; also the taxes for 1890. In the fall of 1891 the town authorities demanded of Mrs. Christie payment of these arrears of taxes, which was the first notice the Christies had of their existence. They at once called on the complainant and asked that he should pay and discharge them, and objected to paying further interest on their mortgage until the taxes were settled. The complainant, after examination, replied that, as their deed contained no covenants, he could do nothing for them, and induced them to pay another, installment of interest upon the understanding that they should not be prejudiced thereby. Afterwards, under advice of counsel, defendants declined to pay further interest until the matter of-taxes in arrears should be arranged, and this bill was filed December 12th, 1892. In the meantime, the property had been sold for the taxes of 1888 and 1889.

Mr. Boyd was a practicing lawyer, living in Hackensack, but had his office in Hoboken, where he had business interests. He must have known of these arrears of taxes. He made application in his foreclosure proceedings for the appointment of a receiver, in which he swore that Mundorf was allowing the taxes to get in arrear, and he received, regularly, notices of the taxes each year after they were assessed to him.

Mr. Christie, who, throughout, looked after the affair for his wife, was born and reared in Bergen county, of which his father was at one time sheriff. Mr. Boyd was, or pretended to be, a friend of his father and to have known him from infancy. Christie knew Mr. Boyd was a lawyer and a man of wealth, and had full confidence in him, and believed him to be his friend; and Mr. Boyd’s manner and action towards Mr. Christie was such as to inspire such belief and confidence. Relying upon Mr. Boyd’s friendship and wealth, he did not suspect even that there were any arrears of taxes or other encumbrances upon the property, and made no search for any, and employed no counsel to examine the title. He did not know the difference between a deed without and one with covenants. I am satisfied that the interviews for the transaction of this business were arranged by Mr. Boyd to take place at Boyd’s house, at Hackensack, instead of at his office in Hoboken, for the purpose of lessening the chances of the question of arrearage of taxes being raised or looked into, or of the character of the deed being discovered.

Upon these facts two distinct questions arise. First. Assuming that some taxes were in arrear and a lien upon the premises, is the defendant Mrs. Christie entitled to relief against the complainant? And, second, what taxes, if any, were a lien upon the premises in May, 1890?

The first question is between complainant and Mrs. Christie, and the second between the complainant and the municipality.

And, first, I think it quite clear that, by the written contract of March 21st, 1890, and quite independent of the previous verbal statement made by Jahl to Christie, Mrs. Christie was entitled to a conveyance free and clear of all encumbrances. The language — “ I agree to convey all that house” &c. — amounts to an undertaking to convey a complete title in fee simple, free and clear of encumbrances. Lounsbury v. Locander, 10 C. E. Gr. 554 (at p. 556), and cases cited. The doctrine there announced by the court of errors and appeals was recognized by Chancellor Runyon in Newark Savings Institution v. Jones, 10 Stew. Fq. 449; S. C. affirmed on appeal, 11 Stew. Eq. 299, That was a suit by vendor against vendee to compel specific performance of a contract to convey, and the question was whether the vendor should pay out of the purchase-money agreed upon large arrears of taxes resting as a lien upon the premises, or whether the purchaser was to pay the full purchase-money and assume the burden of the taxes. The agreement there, as here, was a simple agreement to buy the premises,” without expression as to the character of the title to be conveyed or as to encumbrances. At, p. Ifil the learned chancellor says: “ The agreement is silent as to the character of the title to be given, and while, in such cases, in the absence of proof to the contrary,, the implication arises that the title to be conveyed is to be a good one, and therefore free from encumbrance, that implication may be rebutted.” He then proceeds to show, from the parol evidence, that the contract there was to convey subject to the taxes.

There is nothing in the case now in hand to rebut the implication which arises from the language of the contract. On the contrary, the parol evidence in this case — which Chancellor Runyon expressly held in the case just cited was competent for that purpose, and was therein affirmed on appeal — shows, clearly, that a title was to be given free and clear of encumbrance.

Now, Mrs. Christie has fulfilled her part of the contract by paying and securing the contract price as stipulated for, while Mr. Boyd did not perform his part, but failed in that he did not convey the premises free from encumbrance. It is equally clear, from the evidence) that Mrs. Christie did not accept the conveyance as a fulfillment of the contract, knowing that there were encumbrances upon the said land conveyed. She supposed she was getting a perfect title. She did not 'intend to waive her rights in that behalf. The language of Chancellor Zabriskie, in Conover v. Warded, 5 C. E. Gr. 266 (at p. 271), seems to me to apply here. Pie says: “A suit may be maintained to compel the performance of the contract performed only in part, and a party will not be precluded by his acceptance of a deed in performance of a contract when such acceptance was under a mistake as to the contents or effect of the deed.”

I am unable to perceive any distinction between the case of a conveyance of a pari of the land agreed to be conveyed and a conveyance of the whole, subject to encumbrances. The failure to fulfill the contract of sale is quite as complete in the case of a conveyance subject to encumbrances, when it should be free and clear of encumbrance, as it is when the conveyance omits a part of the premises contracted to be conveyed. See, on this subject, Rowley v. Flannelly, 3 Stew. Fq. 612.

Mrs: Christie, at the delivery of the deed, had a clear right to have the arrears of taxes due upon these premises, so far as they were liens, paid and discharged out of the purchase-money. This seems too clear for dispute or discussion. In my judgment, she did not, under the circumstances as I have found them to exist, lose that right by accepting a deed of conveyance without covenants, and hence she is still entitled to have them discharged out of the purchase-money still remaining unpaid, although secured, as it is, by the bond and mortgage under foreclosure.

This result would arise out of the bare fact that the parties had, through mistake, given and accepted a conveyance without covenants, both being ignorant of the encumbrance.

But the case here does not rest on the ground of mere mistake. I am satisfied that a fraud was practiced upon the defendants by Mr. Boyd. As before remarked, he must have known of these arrears of taxes. They were taxes that were assessed annually upon his premises, and not only do the proofs show that notices were regularly sent to him, but he was too good a business man not to know that his premises were subject to an annual tax. Then, as I have said before, though doing business in Hoboken and1 visiting there constantly, he arranged these meetings at his house in Hackensack, and there, when the contract was signed, spoke of his friendship and long acquaintance with Mr. Christie’s father, and when the deed came to be delivered, money paid and bond and mortgage executed, he arranged for this to be done at Hackensack, and prepared and executed himself a deed without any covenants whatever.

How, of the hundreds and thousands of transfers of real estate which take place in this state in each year, I venture to .say that it very rarely happens that a deed is delivered and accepted without any covenant whatever, aud the mere fact that Boyd gave such a deed to these defendants, who were ignorant of the varying qualities of deeds of conveyance and were acting ■entirely without counsel and in reliance upon him, indicates that he had a sinister motive in so doing. And another circumstance, not without significance, is that the price for the premises was a full one — all they were worth.

The case, as presented, shows an equitable right in Mrs. Christie, connected with and fastened upon this fund represented by the bond and mortgage sought to be foreclosed.

The right to defensive relief in such cases is well settled. White v. Stretch, 7 C. E. Gr. 76; O’Brien v. Hulfish, 7 C. E. Gr. 4711 per Chief-Justice Beasley speaking for the court of errors and appeals; Dayton v. Dusenbery, 10 C. E. Gr. 110, and cases cited; Bank v. Pinner, 10 C. E. Gr. 495; Stiger v. Bacon, 2 Stew. Eq. 442 and cases cited.

It is true that, in most of those cases, there was a covenant in the conveyance which would give the party an action at law.

But I think á close examination of the authorities shows that the real question in this and other like cases is, of necessity, one ■of convention. If the question be one of area, it will be solved by answering the inquiry, what was the contract between the parties ? Hid they contract upon the basis that the premises did nr should contain so many acres or so many square feet, or did ■they contract without regard to the precise quantity of land contained within the boundaries mentioned ? So with regard to the ■quantity of the estate. Did they contract with regard to a complete title, or to a fractional part of the title, as one-half or ■three-quarters ? Or did they contract to take whatever title the .grantor might have? And so with regard to encumbrances. Did the purchaser agree to take the title subject to all encumbrances which might be upon it, or was it the agreement that he should have it free from encumbrance? If the agreement was that he should have it free from encumbrance, then the mere fact that, either through fraud or mistake, he took it by a deed which did not expressly protect him in that regard, does not deprive him of the right to have it free from encumbrance. The presence or absence in the deed of conveyance of a covenant against encumbrances tends- only to show what was the real agreement between the parties. Its presence shows clearly that the agreement was that the premises should be clear of encumbrance. Its absence tends strongly to show that the agreement was that the premises were to be conveyed subject to encumbrances, but in neither case is it conclusive, and in equity either mistake or fraud will warrant the resort to other evidence to show the real intention and agreement of the parties. Newark Savings Institution v. Jones, supra; Mellick v. Dayton, 7 Stew. Eq. 245 (at p. 249).

My conclusion is that Mrs. Christie is entitled to relief against these taxes.

The next question is as to the existence and extent of the lien. The complainant denies that there is any lien. He claims that the Town of West Hoboken is governed, in respect to the lien of taxes, by the General Tax act of March 25th, 1863 (Rev. of 1877 p. 1165 122), which limits the lien to two years from the time when the taxes were payable, and he contends that whatever lien there may have been for recent taxes at the date of the sale expired by the lapse of time before the sale of June, 1892, and that the lien of all previous taxes, with the possible exception of one or two years, expired for the same cause. On the other hand, the municipality contend that, by its special charter, these taxes are declared to be a lien until paid.

The town was incorporated by an act entitled “An act to reorganize the local government of the township of West Hobo-ken,” approved March 27th, 1874 (P. L. of 1874 p- 594). This act defines the boundaries of the municipality, and gives its officers extensive and varied municipal powers quite equal to those of an ordinary city. The thirty-fourth section (at p. 614) declares

“That all taxes and all assessments which shall hereafter be levied, assessed or made upon any lands, tenements or real estate situate in the said township of West Hoboken shall be and remain a lien thereon until paid, notwithstanding any devise, descent, alienation, mortgage or other encumbrance thereof, and if the full amount of any such tax or assessment shall not be paid and satisfied within the time limited and appointed for the payment thereof, it shall and may be lawful for the township committee to cause such lands, &c., to be sold” &c.

It is argued by counsel of complainant that the omission of the words “ for two years,” found in the general act of 1863, and the insertion in place thereof of the words “ until paid,” is not sufficient to show a legislative intent to establish a rule for this municipality different from that established for all townships. He contends that the variation in language in the later act is accounted for by the words which follow relating to a devise, descent and mortgage thereof.

I am unable to accede to this view. The change in the language is too significant to be accounted for by such hypothesis. The same language is found in the charters of Hoboken (P. L. of 1855 p. 448 § 48), of Bergen (P. L. of 1868 p. 314 § 48), of Bayonne (P. L. of 1869 p. 371 § 46), of Harrison (P. L. of 1869 p. 683 § 20), of Union (P. L. of 1874 p. 648 § 20), and of New Brunswick (P. L. of 1875 p. 374 § 3). Of other charters granted about' the same time, some use the same language as found in the General Tax act-of 1863 and others use the same as that in the charter of West Hoboken, but limit the period in some instances to two years and in others to four years; and in some instances this language is accompanied by the same language as to devises, alienations, mortgages &c. City of Elizabeth (P. L. of 1869 p. 1092 ¶ 7), city of Passaic (P. L. of 1873 p. 484 § 41), Newark, cited in State v. Newark, 13 Vr. 38 (at p. 39); Trenton, cited in Trustees &c. v. Trenton, 3 Stew. Eq. 667 (at p. 674) (P. L. of 1874 p. 331 § 61).

The provisions of the charter of the city of Trenton, in this respect, are quite similar to those in the charter of West Hobo-ken, and were construed in the case just cited to give the lien of the taxes priority over mortgages; and Chancellor Runyon, in Kirkpatrick v. New Brunswick, 13 Stew. Eq. 46 (at p. 54), says: The words ‘ notwithstanding any devise, descent, alienation, mortgage or other encumbrance’ were used merely to declare the paramount nature of the lien for the designated period.”

It is quite impossible to suppose that the legislature would, within a period of a decade or less, use the varying language-which they have in so many instances, without intending to use it in a varying sense.

In this connection it is important to observe that the charter of West Hoboken places taxes and assessments for improvements upon the same basis, and it would be strange indeed if the legislature would limit the lien of an assessment for municipal improvements to the period of two years.

But complainant further relies upon the General Tax act of March 14th, 1879 (P. L. of 1879 p. 340; Rev. Sup. p. 990 50 et seq.), as superseding all previous special acts applying to-townships. That act limits the lien to two years, but by its terms it is restricted to taxes thereafter to be assessed, and by its-eighteenth section (Rev. Sup. p. 993 65), it expressly reserves all liens already existing.

The result is that the lien of the taxes of 1877-78, upon the-premises in question, were not. disturbed by the act of 1879, even if, by its true construction, it was intended to apply to a municipality such as was West Hoboken.

Hor do I see that the proceedings for sale provided by the West Hoboken charter, and pursued by its officers in 1881, were inconsistent with the provisions of the act of March 14th, 1879. If this be so, then the tax sales of 1881 were not made too late,, and there is no occasion for further inquiry, for, by another act 'of March 14th, 1879 (P. L. of 1879 p. 298; Rev. Sup. p. 604 ¶ 494) no further sale • was necessary, and the lands cannot be redeemed without paying all taxes subsequently assessed. But, in my judgment, the General Tax act of March 14th, 1879, did not alter the charter of West Hoboken. The eighteenth section, above referred to, prevented that result. West Hoboken was-clearly within the exception there mentioned; and if there be any doubt about the force of the eighteenth section, in that respect, it is set at rest by the subsequent declaratory act of May 6th, 1889. P. L. of 1889 p. 357.

The two certificates of sale of 1881 seem to be quite regular and complete. Several criticisms were made upon them, or rather upon the absence of proof that they had' been duly acknowledged, recorded &c. Without inquiring what value these criticisms would have in defence to an action of ejectment brought by a third party, who purchased at the sale, it is enough to say that here the sale was to the municipality. The certificates are produced by the municipality, and, as between the immediate parties, the objections are without strength. There are, besides, the validating acts of 1888. P. L. of 1888 pp. 179, 482.

I hold the certificates of sale of 1881 to be valid, and that under the Township act of March 14th; 1879, it is immaterial for how long taxes subsequently assessed remain a lien, as the premises cannot be redeemed from the effect of the sale of 1881 without paying all taxes subsequently assessed.

Complainant refers to the-act of March 25th, 1884 (P. L. of 1884 p. 90; Rev. Sup. p. 1081 ¶¶ 272, 273), by which the township governed by a special charter was authorized to change its name, and shows that West Hoboken did change its name thereunder June 20th, 1884. The second section of that act provides that when any of the provisions of the charter of such town shall be inconsistent with the provisions of any general statute theretofore passed or thereafter to be passed by the legislature, affecting or applying to incorporated towns, the inconsistent provisions shall be deemed to be repealed, and counsel for the complainant contended that the General Tax act of March 14th, 1879, before referred to, was such an act. For reasons already stated, I cannot so construe it; and further, even if such were its effect, it would not divest the rights of the municipality under the sale of 1881 and the Township act of 1879.

Counsel for complainant cites still another act, viz., that of March-17th, 1882.- P. L. of 1882 p. 130; Rev. Sup. p. 996. That act provides that taxes levied within any incorporated city, village, borough or other municipality of the state upon lands lying therein shall be, become and remain a full and complete first and paramount lien on all the lands on account of which said levy and assessment shall be made for and during the period now provided for in the act of incorporation, or any supplement thereto or revision of the same of any such city, village, borough or other municipality as aforesaid, or if no such period is provided in such act of incorporation, supplement or revision, for and during the period of three years. And he argues that that act applies to West Hoboken because no time is, as he argues, mentioned in its charter for which taxes shall be a lien.

If this argument were sound it would not affect the rights of the township, provided my conclusion is correct as to the effect of the tax sale of 1881. But be that as it may, I am unable to adopt the construction of this act contended for by the counsel of complainant. There were several special boroughs in the state which had no provision on the subject of taxes being a lien upon lands. Eor instance, Guttenburg (P. L. of 1859 p. 199; P. L. of 1875 p. 612) and Morristown (P. L. of 1875 p. 612); and I think it was not the intention of the legislature to interfere with such a charter as that of West Hoboken, which provided that the tax should remain a lien until paid. In such case it cannot be said that no period of time is provided in its' act of incorporation. “Until the tax is paid,” is a period of time.

In 1892, West Hoboken became incorporated under the General Tax act of 1888 (P. L. of 1888 p. 483), and by the seventy-ninth section of that act it is provided “ that all taxes and all assessments heretofore or hereafter levied, assessed or made upon any lands, &c., shall be and remain a lien on the lands on account of which the assessments are made until paid.” And counsel for defendant argues that that would cure any defect in the lien of previous taxes assessed, by retroactive action. But I do not find it necessary to consider whether that argument is well founded or not, for, independent of that act, upon a consideration of-the previous legislation, I come to the conclusion that all the taxes above mentioned are liens upon the premises.

The result is that Mrs. Christie was justified in demanding that the complainant should pay these taxes, and in refusing to pay her interest until he should do so. This relieves her from the position of being in default with her interest when the bill was filed. As the period of five years from the date of the mortgage had not elapsed nothing was due upon it, and the complainant was not entitled to take advantage of the thirty days’ clause and declare the mortgage due for non-payment of interest.

During the hearing, the defendant, by my direction, paid complainant $500, to be applied as the court should finally direct.

Unless the parties can agree upon the amount due, with interest, for taxes, there must be a reference to a master to settle that, and when it is settled, either by counsel or report of the master, there will be a decree that the complainant pay the same, or, if he shall fail to do so for thirty days, then that Mrs. Christie may pay the same, and the amount so paid shall be allowed as a credit upon her mortgage. The amount so to be credited, with the $500 already paid, will be applied as follows: first, to the payment of the several installments of interest which have fallen due since the 1st of November, 1891, and, then, what may remain, to the payment of so much on account of the principal of the mortgage.

The defendants are both entitled to costs against the complainant, to be paid out of the estate, or if complainant shall fail to pay them, then Mrs. Christie must pay the costs of the municipality, and shall be entitled to a credit upon her mortgage for the amount of her own costs and the costs so paid to the municipality.

       May is evidently a clerical error for March.


author: Pitney, V. C.

text:
    Addison Ely v. Mary A. Peet.
    Plaintiff, in an action for tlie recovery of certain lots, contracted with her solicitor to transfer to him a certain interest in the lots, in consideration of his paying all costs and disbursements which might accrue or had accrued since a certain time, and in satisfaction of his counsel fees. Plaintiff had paid all the costs which accrued prior to the time specified. — Hdd, that, in case of plaintiff’s recovery, she was entitled, as against her solicitor, to the costs taxed in the case, as costs are recoverable by a party as compensation to him, and the solicitor is only entitled to a lien on them for the repayment of mone” expended by him in the suit.
    This is, in effect, a bill for specific performance.
    The facts are as follows. The defendant, on August 20th, 1889, was induced by one De Arnaud to convey to him twenty-six building lots in East Orange, at a grossly inadequate price, and shortly afterward employed complainant, a solicitor of this court, to bring suit to recover them, which resulted in her favor. Peet v. De Arnaud, 2 Dick. Ch. Pep. 502. The decree directed a reconveyance of the lots to the complainant, the defendant herein, upon payment by her to De Arnaud of the amount of money he had actually paid her for them, less the amount of her costs of that suit.
    •
    Pending the suit, and before December 1st, 1890, defendant had paid complainant divers sums of money to defray the expenses of it.1 Such payments amounted to $453.28, and were intended to cover all disbursements in and about the suit made by complainant up to September 4th, 1890.
    On December 1st, 1890, while the suit was still pending, the parties entered into a written contract, by which, after reciting’ the previous history of the litigation, it was agreed as follows :
    “Now, therefore, the said party of the first part, in consideration of the sum of one dollar to her in hand paid, and in further consideration of the foregoing premises, and in the further consideration of the said party of the second part paying all the counsel fees for the various counsel employed, and in the further consideration of the said party of the second part paying all costs and disbursements which may hereinafter accrue and which have accrued since September 4th, 1890, in said case, and in full payment for the services of the said Addison Ely in said case, hereby agrees to sell unto the said party of the second part an equal undivided one-half interest in the following described property.”
    There were other provisions in the contract, not necessary, for present purposes, to be noticed.
    Subsequently, it was verbally agreed between the parties hereto that the contract should be executed by an allotment of the lots in severalty, thirteen to each, and the particular lots to be conveyed to complainant were agreed upon.
    After the decree of this court in Peet v. De Arnaud had been affirmed by the court of errors and appeals (4 Diek. Ch. Pep. 34&), the complainant herein called upon the defendant herein for the cash to reimburse De Arnaud according to the terms of the decree in Peet v. De Arnaud, and for that purpose required her toad vanee the entire sum she had received from De Arnaud, without any deduction for the costs of the suit,- which were taxed at $238.18. To this demand defendant objected, claiming that such costs belonged to her. Finally, and under protest, defendant paid complainant the larger sum, reserving her right to contest the question of her right to the costs, and complainant thereupon procured from De Arnaud the conveyance of the lots to defendant, paying him the amount received from Miss Peet for that purpose, less the amount of the taxed costs, which he retained in his hands. Miss Peet subsequently conveyed twelve of the lots to complainant, reserving one lot to secure her for whatever of the taxed costs she was entitled to. The bill prays that she may be decreed to convey this remaining lot to the complainant without the payment of .any part of the taxed costs.
    By a stipulation between the parties, the single question submitted is as to which is entitled to the taxed costs in Peet v. De Arnaud. No question was raised as to the validity of the contract of December 1st, 1890.

      Mr. Addison Ely, pro se.

      Mr. George P. Dutton, for the defendant.
   Pitney, V. C.

The case presents no difficult question of law for solution. ' It turns, as it seems to me, on the construction of the contract of December 1st, 1890. That contract provided that the defendant should convey to the complainant a one-half interest in the lots in question,

“ in consideration of the complainant’s paying all the counsel fees for the various counsel employed, * * * and all costs and disbursements which may hereinafter accrue, and which have accrued since September 4th, 1890, in said case, and in full payment for the services of the said complainant in said case.”

Costs are recoverable by a party to reimburse him for money which he has necessarily expended in the prosecution or defence, as the case may be, of his suit. They are recovered by the party, and the judgment or decree is in his favor, and not in favor of the attorney or solicitor. Unless the party has paid, or has become liable to pay, the several items of costs, he is not entitled to recover them, and he is supposed to have actually paid the various sums recovered before or at the moment of entering the judgment or decree. In fact, however, he has seldom paid all of them, but in practice most of them, except witness fees, have been paid by the solicitor or attorney, and that officer has frequently received nothing from his client. As between the party and his solicitor or attorney, it frequently, if not generally, happens that all the costs recovered belong to the latter. Hence arises what is called the solicitor’s or attorney’s lien upon the decree or judgment for his costs, and it has come to be a common expression to say that the costs belong to the solicitor or attorney, as the case may be. But this does not alter the intrinsic character of the affair, which is, as before remarked, a recovery by the successful party against the defeated party of certain payments which he has made or become liable to make to his solicitor, counsel and to other parties.

The fees of the attorney and solicitor and counsel, as at present allowed and taxed, are sums fixed by the legislature as compensation to be paid by the client to the attorney or solicitor in the suit, for the services specified. They are recoverable by the successful party against the unsuccessful party, as before remarked, as compensation to the client, and not as a reward to the attorney or solicitor contingent upon his success in the suit. In the absence of any express agreement on the subject, the duty of the client to pay them, and the right of the attorney or solicitor to ■demand them from his client, does not depend upon success in ■the suit or the recovery of costs.

In the case in hand, the costs recovered from De Arnaud belonged, in the first instance, to the defendant, Miss Peet, but so much of them as she has not already paid to the complainant, ■she should and must pay him.

Previous to the contract of December 1st, 1890,- she had paid him $453.28 for disbursements up to September 4th, 1890, and since that she has conveyed to him all the lots agreed to be conveyed, except the one in controversy. She also, in effect, paid him the full bill of taxed costs, but under protest.

Now, clearly, under these circumstances, complainant was not and is not entitled to all of those costs. He is not entitled to any of the solicitor’s or counsel fees contained in it, for he agreed to accept one-half the lots in full payment for all his services. It is impossible to escape the force of this language. And for the same reason, he is not entitled to so much of the disbursements prior to September 4th, 1890, as were-included in the taxed bill of costs and covered by the payment just mentioned.

The only question which appears to me to be open to the least debate is as to the disbursements included in the taxed bill of costs, which arose after September 4th, 1890. The contract of December 1st, 1890, is silent as to taxed costs and disbursements therein included, and makes no provision as to which of the parties should be entitled to them if recovered.

Complainant agreed to pay them in consideration of the conveyance to him of a one-half interest in the lots. The question then arises, for whom did he agree to pay them, for defendant or for himself, or for both ? At first I was inclined to take the view that these disbursements were made by the complainant for himself, and not for the defendant. But reflection has disclosed the fault of that view. If the disbursements were made for the complainant, the solicitor, and not for the defendant, the client, then the defendant was not entitled to recovery for them against De Arnaud, and they should not have been included in the taxed bill of costs. For, as we have seen, it is only on the ground that the prevailing party either has paid or is liable to pay them, that they are included at all therein. By inserting them in the taxed bill of costs, complainant has admitted that they belong, primarily, to defendant, and having done so he can only recover them from defendant, or, having received them under protest, can only retain them by showing that she has not paid him the amount. In short, he can claim to detain these costs only on the ground that the defendant owed them to him at the time he received them. This, under the contract, I conclude he cannot do. Defendant did not owe him on that account, or, rather, whatever she owed him she had agreed to pay by conveyance of these lots, and he had, in effect, agreed to accept them in payment.

The logic of the situation is that defendant must be considered as having recovered these costs, because she either had paid them or was bound to do so, and that she agreed to pay them to complainant by the conveyance of the lots, and the complainant cannot have both the lots and the money covered by the taxed bill of costs.

I will decree that the complainant is entitled to a conveyance of the lot here in question only upon payment of the taxed bill of costs, with interest according to the terms of the stipulation, and the costs of this suit.


text:
    Francis Salaun v. Benjamin M. Hartshorne.
    1. A devise of land by one who holds as devisee of one who died indebted, is not such a transfer of the title as will divest the statutory lien of -the creditors of the first devisor.
    2. In order to induce this court to order surplus money arising upon sale of mortgaged premises to be paid to the personal representative of the owner of the equity of redemption, it is not necessary that each of the claims presented to such personal representative should be finally proved and passed upon in this court. It is sufficient if this court shall be satisfied that it is expedient or necessary for the proper administration of the estate that such payment be made. Notwithstanding such payment, the personal representative or other person interested in the estate is at liberty to contest any of the claims reported by the representative to this court.
    In foreclosure. On exceptions to master’s report upon divers-petitions for surplus money.
    The surplus money arises from the sale under foreclosure of certain lands in Monmouth county of which Mrs. Mary M.. O’Rourke, late of New York, died seized in November, 1890,. subject to the mortgage which had been foreclosed. By will duly executed to pass real estate in New Jersey, she directed her debts to be paid out of her property, and, subject to such payment, gave all to her husband, Felix E. O’Rourke. That will was duly proven in New York in May, 1892, eighteen mouths-after her death, and a duly-certified copy filed in the Monmouth county clerk’s office in June, 1892, but no probate of it was-offered or letters testamentary ever issued upon it in this state.
    Before her will was proven in New York, viz., in or before November, 1891, letters of administration upon her estate were-duly applied for in the Monmouth county orphans court, and,, after notice given, an order was made orally, on the 27th of November, 1891, by that court, that letters of administration should issue to Frank Conover, one of the petitioners. This-order, however, was not actually entered in the minutes and letters issued thereon until January, 1894. By its terms it declared that it was entered.as of the 27th of November, 1891.
    Felix O’Rourke, the husband and devisee of Mary, died in April, 1891, about five months after his wife, testate of a will by which he devised his property to Teressa O’Rourke and to the petitioner, Albrecht J. Lerché, who was appointed executor. This will was also proven in New York in May, 1892, more-than a year after the death of the testator, and a duly-certified copy filed in the Monmouth county clerk’s office in June, 1892. No offer of probate of it was made in this state or letters testamentary issued here until December, 1893, when letters were issued to Mr. Lerehé by the surrogate-general.
    The bill to foreclose was filed December 17th, 1891, and the final decree .was made July 2d, 1892. The sale occurred November 7th, 1892, and was confirmed November 18th, 1892.
    On August 23d, 1892, after the filing of the probate copies •of the two wills, as above stated, and after the decree for sale, but before the sale took place, the petitioner Connelly sued out .an attachment from the supreme court of this state against Lerehé and Teressa O’Rourke, as devisees of Eelix O’Rourke, founded upon a joint indebtedness of Mary and Eelix, under which writ the sheriif of Monmouth county attached the mortgaged premises. Appearance was entered to this suit, with the result that judgment final was rendered for the plaintiff against the defendants November 15th, 1892, for $16,444.34, On September 28th, 1892, eight days more than a month after the Connelly attachment had issued, but before the sale, the petitioner Wenzel sued out from the supreme court a writ of attachment .against Teressa O’Rourke and Lerehé, as devisees of Mary and Felix O’Rourke, under which the same premises were attached. These writs, and another issued at the suit of Connelly — three in all — were the subject of consideration by the supreme court, ■as reported in Connelly v. Lerehé and Wenzel v. Lerehé, ¡27 Vr. 95. Petitions for the surplus money were presented severally by Connelly, Wenzel, Lerehé and Conover, the latter as administrator, which were referred to a special master, who reported that the money should be paid to the administrator, Conover.
    To this report Lerehé excepts. The other petitioners, Connelly and Wenzel, acquiesce, but waive their rights, under their judgments and attachments, only as against Conover.

      Mr. Willard C. Fish, for Lerehé.

      Mr. Robert L. Lawrence, for Connelly and Wenzel.

      Mr. Frank F. McDermott, for Conover, administrator.
   Pitney, Y. C.

This is, in effect, a contest as to whether Conover, the administrator of Mrs. Mary O’Rourke, or Lerché, the executor of her devisee, Felix O’Rourke, shall exercise the duty of receiving this money and paying the creditors of Mary. Those creditors-are clearly entitled to be paid before those of her husband and devisee, Felix, for he took and held subject to such payment. There is, confessedly, no personalty belonging to either of the-decedents, either here or in New York, nor is there other real estate sufficient to pay the claims presented so resort- must be-had to this fund.

Now, I think when so much is said the matter is decided.

The sufficiency of the proof of the claim of the two principal creditors was but faintly questioned ; that of Connelly was substantiated by a properly-exemplified transcript of a judgment in New York against Mary and Felix O’Rourke, and again by a judgment thereon in this state against the devisees of Felix and it was for an amount nearly equal to the whole fund.

The claim of Wenzel was based on a promissory note, supported by the affidavit of Wenzel, made in the proceedings io the Monmouth county orphans court on application for letters of administration, and again by another affidavit, which was the-basis of his writ of attachment. There can be no doubt as to the bona fides of his claim.

It is said that Wenzel’s claim is not fully proven, because he was not produced and subjected to cross-examination before the master. I do not think the practice of this court requires that the validity of the claim against the estate of the decedent, upon, the strength of which the personal rejrresentative asks to have-the fund paid to him, should be finally determined and passed upon as a prerequisite to paying over the proceeds of the sale of lands to the personal representative. It is sufficient if the circumstances are such as to render it expedient or necessary to the proper administration of the estate of the decedent in the-orphans court. Such is, in effect, the language of the statute. P. L. of 1876 p. 140. Notwithstanding the action of this court in ordering the money paid over to the personal representative,, he will still be at liberty, either on his own account or at the request of any other person interested in the estate, to question the very claims for whose liquidation he asks to have the money.

It would, manifestly, lead to embarrassment, inconvenience and probably to injustice, in the present case, to pay over only a portion of the fund.

It is well settled that the statutory lien of a creditor upon the lands of his deceased debtor continues not only for a year, but until such lands are aliened by the heirs or devisees.' Haston v. Castner, 4 Stew. Eq. 697 (at p. 699); Westervett v. Voorhis, 15 Stew. Eq. 180.

The devise by Felix O’Rourke to Lerché and Teressa is relied upon as an alienation which divested the lien in this case. But I think it comes within neither the letter nor the spirit of the act. It is not a conveyance for value, and I think such is contemplated by the statute. Not only is a valuable consideration wanting, but there is present notice to the second devisee, inherent in Felix’s title, that Felix held subject to the payment of Mary’s debts. The devise by Felix, at best, amounts to a voluntary alienation by a devisee of the lands devised, subject to the debts of his devisor. Such an alienation cannot have the effect of divesting the statutory lien of the debts of the first devisor. Besides, here we have the lien created by the terms of the first devise, and the proper mode of enforcing that lien is to pay the money to the personal representative, who will distribute it among the creditors according to, law.

From an equitable standpoint, the right of Mr. Conover is entirely clear.

But if I had come to a different conclusion as to Conover’s rights, I should have been of the opinion that Connelly’s judgment in our supreme court should be paid, because it was founded on the joint debt of Mary and Felix, and was a joint judgment against Lerché and Teressa, as devisees of Felix; and further, for the same reason, I should have thought that the attachment of "Wenzel was a like lien on these lands.

The order to pay over the money to the administrator of Mary will be without prejudice to the right of any person interested in the estate to contest the claims of Connelly and Wenzel, or either of them.


text:
    Mundy et al., executors of Mundy, v. Schantz et al.
    1. In the absence of special agreement, the solicitor who conducts an ordinary undefended foreclosure suit cannot charge his client for services therein beyond the amount of the taxed bill of costs.
    2. This court has power by summary proceeding, on motion, to compel a solicitor of the court to pay over to his client money belonging to his client, which lie has retained in his capacity of solicitor in a cause in this court, and therein to inquire and ascertain the amount of compensation due the solicitor from the client for services rendered in the same matter.
    In foreclosure.
    This is a motion, on behalf of the complainants, for an order upon their solicitors herein to pay over to them a portion of the .money raised by the sale of the mortgaged premises, which was retained by the solicitors as compensation for their services in this suit. They received their taxed costs in full, but claimed the additional sum retained as a collection fee. The matter was brought before the court by petition of the complainant, answer thereto by the solicitors and evidence taken orally in open court.
    The facts are that the complainants found among the assets of their testator the bond and mortgage which is the foundation of the suit, and handed it to the solicitors herein for foreclosure. Nothing was said by either the complainants or the solicitors on that occasion, or at any time, as to compensation.
    The land covered by the mortgage is situate in Middlesex county. The complainants lived there and the solicitors had their office at New Brunswick, the county seat thereof. No defence was made to the bill filed, and the case went to final decree and execution in the ordinary routine way. The solicitors made the ordinary searches of the records of the county, and in the proper courts, to show the state of the title, and to determine the proper persons to be made parties, and were allowed' for it in the taxed bill of costs. Extra allowance was also made to the solicitors, under the one hundred and thirteenth section of the Chancery Practice act. It did not appear that they performed any service or did any work not mentioned in and allowed for in the taxed bill of costs, except attending at the sheriff’s sale, which took place in New Brunswick, and also receiving from the sheriff the amount ordered to be raised by the decree and execution, and paying over to the complainants the amount due them, less the collection fee here in dispute.
    The obligor of the bond secured by the complainants’ mortgage, who also held a second mortgage on the premises, was made a party and was brought in by publication, being a nonresident, but it did not appear that the solicitors were subjected to any labor or trouble in finding his residence. There were also judgment creditors of the owners of the equity of redemption, who appeared in the suit by their attorneys of record in the judgments.

      Mr. Charles JS. Voorhis, for the complainants.

      Mr. Woodbridge Strong, for the solicitors.
   Pitney, V. C.

The learned counsel for the solicitors rested his case mainly . upon a general agreement entered into years ago by the members of the bar of Middlesex county, followed by long custom, to charge a collection fee upon transactions of this kind. But the case is bare of the least proof that the complainants had any notice whatever of this custom or practice of the bar of that county, and full notice is, of course, necessary in order to incorporate its terms into the contract.

He also took the ground that the solicitors were entitled to retain out of the moneys so received what their services were reasonably worth, as upon a quantum meruit, and relied upon the Middlesex county custom before referred to, and also upon the general knowledge of the court as to what is a reasonable charge in such a case.

So far as the court has any knowledge upon the subject, it does not support the charge claimed.

But it seems to me that the subject is regulated by statute. The second section of the “Act to regulate fees ” {Rev. p. 399) provides “ that the officers and persons in this act named shall be entitled to demand and receive, for the services hereinafter mentioned, the fees thereto respectively annexed and no more.” Then follows a long list of officers, services and fees, in which are included the very services here rendered.

It was argued that this fixing of fees was intended to apply only to the amount which the prevailing party was entitled to recover against the losing party, and not to regulate charges as between solicitor and client. But neither the language of the act just quoted nor that of any other relating to this subject warrants such construction. All that can be said in favor of the proposition is that no costs, except those provided for in the fee-bill, are recoverable by the prevailing party against the losing party. The sections of the Common-law Practice act (at p. 265 et seq.), relating to the recovery of costs, all speak of the party “ recovering Ms costs ” or paying Ms own costs ” &c. Nowhere in that connection is mention made of any particular sum fixed for any particular service as being recoverable against the losing party.

The same is true as to the provisions regulating the practice of this court. Section 105 of the Chancery Practice act provides that, “except where otherwise provided” &c., “it shall be discretionary for this court to award costs or not.” And that is the provision which governs the recovery of costs in this court.

I can find no authority for the idea that there is any difference bet'ween a taxation of costs between solicitor and client and such taxation for entry in a decree or judgment. The use of the verbiage “between solicitor and client” arises out of the circumstance that costs may be, and frequently are, taxed by the clerk when there is no recovery for them, and those words are used in such cases. But the taxation is the same whether there be a recovery or not. And the recovery, whether at law or in equity, is of costs to be taxed between solicitor and client.

This point is apparently set at rest by the tenth and twelfth sections of the Common-law Practice act. The tenth section provides:

“ If any solicitor or attorney-at-law shall charge in his bill of costs for services not actually done, or for services not allowed by law, or shall take any greater fee or reward for any service by him done than is or shall be allowed by law, he shall pay to the party aggrieved thirty dollars, to be recovered by action of debt, with costs.”

And the twelfth section provides:

“No solicitor or attorney shall commence or maintain any suit for the recovery of any fees, charges or disbursements, in equity or at law, against his client or legal representative, until after such solicitor or attorney shall have delivered to such client or his representative, or left for him at his dwelling-house or last place of abode, a copy of the taxed bill of such fees, charges and disbursements.”

It is impossible to escape the conclusion that those sections apply to charges by the solicitor against the client for services rendered to him, quite irrespective of the question of their recovery from the other side.

But the fee-bill covers only the particular services therein specified. There is a variety of work which an attorney or solicitor or- counsel may do for a client in the course of a suit at law or in equity not included in or provided for in the fee-bill. For all these, subject to the provisions of a statute presently to be referred to, he may and should be entitled to compensation, and, in the absence of a special contract, on a quantum meruit. Eor such he is entitled to sue and recover at law. And I do not wish to be understood as expressing the opinion that the statutes just cited prohibit the making of an express stipulation for compensation for the services mentioned in the fee-bill at a rate greater than those fixed.

The rule which prohibits counsel from recovering, in an action at law, for his services in the absence of a special contract, refers, as I understand it, only to the services of counsel as such in advocating causes in court, and not to the great variety of other work which may be done by either a solicitor or counsel.

I will mention two classes of work not included in the fee-bill, which may occur in an ordinary undefended foreclosure suit. One is the tracing of the devolution of the title in pais, where it does not appear of record — for example, where there has been a death and devolution by descent. Another is the ascertaining the residence of absent defendants. Both of these are services which, strictly speaking, the client should perform and which the solicitor should not perform until his client has declined or failed to do so, or has especially directed him to perform. In practice, this work is usually done by the solicitor without conference with his client, and is attended with but a trifling labor. In this case the record shows that the devolution of the title appeared of record, and for the work of examining the records the solicitors were allowed $27, under sections 79 and 121 of the Chancery act, as corrected in the Revision (at p. 1274). Under that act it has been the practice in many cases for masters to allow solicitors for their own work in making searches, precisely as if the clerk or register had been employed for that purpose. Presumably a large portion of the $27 in this case went to the solicitors. No proof was offered to show that the amount was not compensatory, or that any work of that kind done was not covered by the amount allowed by the master.

The answer of the solicitors further sets up that they made inquiries for one absent defendant, a Mr. •-, and proceeded against him by publication. No proof was offered, nor does the answer set out the amount of the labor involved in such inquiry. This defendant having a second mortgage, and being also liable on complainants’ bond secured by their mortgage, called on the solicitors and asked their advice in the premises and the favor of a special notice of the sale, which was given to him. That advice and work were not given or done on the retainer of the complainants, and were in nowise necessary for the proper prosecution of the suit. Hence the complainants clearly are not liable to pay for them.

The other special service, outside the fee-bill, was attending the sheriff’s sale, which took place in the same town in which the solicitors’ office was located, and afterwards receiving the money from the sheriff and paying it to their clients. At first I was inclined to think that the solicitors were entitled to retain pay for that service — attending the sale — but, upon reflection and in view of a section of the Chancery act now to be referred to, I have concluded that they are not.

I refer to the one hundred and thirteenth section, originally passed in 1872, wherein it is provided :

“That hereafter in all suits and proceedings in the court of chancery, instead of the retaining fee now allowed to counsel by statute, it shall be lawful for the chancellor, on final decree, to allow and order paid to the counsel in the cause such sum as the chancellor may consider justly warranted by the interests involved in the litigation and the services rendered, which allowance shall be included in the bill of taxed costs and collected with the other items of said bill in the same manner that the retaining fee has been heretofore; and the retaining fee now allowed to counsel by statute shall not hereafter be allowed in the cases herein provided for.”

In 1875 this section was amended by declaring that the amount to be allowed should not be less than one nor more than five per cent, of the amount of the decree.

That act, by construction, has been confined in its application to foreclosures. Thus construed, I think its enactment and amendment, in connection with the act providing for taxation of the search fees as a part of the recoverable costs, shows the policy of the legislature to be to make the taxable and recoverable costs of foreclosure compensatory to the solicitors, so that, in ordinary undefended cases, with a client at hand capable of attending to business, they should have no reason to charge beyond the amount of the taxed bill.

The importance of this is seen when we consider that it enables an executor or administrator safely and intelligently to appraise the assets of an estate so far as they consist of mortgage debts, and it also enables trustees and guardians, as well as other investors, to loan their money on mortgage security, with a reasonable assurance that, in case of death or other misfortune befalling the mortgagor or other owner of the equity of redemption, they may collect their money in full without depleting the body of the fund.

And my own observation has been that the general understanding and practice throughout the state has not been in accordance with the practice proven to exist in- Middlesex county, but that usually and in the absence of defence or special complications requiring extra work and with a client at hand capable of doing a client’s work, a mortgage can be foreclosed by respectable and careful solicitors without cost to the holder thereof.

Undoubtedly there are many small matters of service which a solicitor and counsel must perform in foreclosing a mortgage, such as interviews and correspondence with the clerks and with his client, and he must have a general supervision of the suit, and take a certain degree of care and responsibility, and that care and responsibility are increased by the amount of the mortgage. I think this general care includes at least one attendance at the sheriff’s sale to advise the client in bidding, and the receiving and paying over the money, if a sale takes place, to a third party. And it was, as it appears to me, to cover all this that the legislature provided that the chancellor might make an allowance to counsel in each case. Be that as it may, I think that if a solicitor intends to charge beyond taxed costs he should so stipulate in advance, and that in the absence of such stipulation and of any work outside that above mentioned, he cannot charge more.

The practice is and always has been, in the absence of a special application, for the clerk to fix the allowance to counsel according to the amount of the decree by a scale heretofore approved by the chancellor. But special applications in special cases and for special reasons for a greater amount than that inserted by the clerk, are not uncommon. In this case, if the solicitors were not satisfied with the amount which they are presumed to have known they would receive by the clerk’s fixed scale, they should have applied to the chancellor for a greater allowance. Not having done so and not having stipulated in advance, they cannot now claim it from the complainants.

Stress was laid, in the argument, upon the general practice of attorneys and solicitors to charge and retain a collection fe'e out of moneys passing through their hands.

I am unable to see how that practice can help the solicitors here. In this case,- all the work attending it was simply receiving the money from the sheriff and paying it to the complainants, and that was merely mechanical banker’s clerk work, which, if strictly compensated for, would not amount to one-eighth of one per cent., and is properly included in and covered by the general allowance above mentioned. Besides, I do not think that, strictly speaking, it is a part of the work or duty of a solicitor to receive the money from a sheriff — other than his own costs — and to pay it over, and that he is quite at liberty to permit his client, when, as here, he lives in the county, to call at the sheriff’s office and receive it himself. Be that as it may, in my judgment the labor of receiving and paying over money is altogether too trifling to be the subject of a charge for compensation by a solicitor. In fact, it seems to me quite beneath the dignity of the profession. If such a charge be allowed to a solicitor, then it should be also allowed to an ordinary agent or factor, and its allowance would result in a serious tax on all the numerous financial payments occurring in ordinary business transactions. In practice, in the ordinary affairs of life, the mere receiving, counting and handling money is not made the subject of a charge for work and labor done. And, really, the line must be drawn somewhere in these little matters or the result would be ridiculous. It would be ridiculous to charge by the folio for writing the words Received payment,” above the signature to a taxed bill of costs, and for counting the money which paid it, and an extra charge if change be required. But, as before remarked in the present case, whatever of chargeable service was involved in handling the money, was covered by the general allowance before referred to.

I do not understand the mere handling of the money to be the basis upon which a lawyer’s charge for collection of mercantile debts and claims is made. That, according to my experience, rests upon an entirely different basis, and one that is sufficiently substantial. When a bond and mortgage is placed in a solicit- or’s hands for foreclosure, his task is simply to enforce a specific lien upon a specific piece of- property, but when an open account or mercantile contract is placed in an attorney’s hands for collection, usually a quite different task is set before him. He may be able to collect the money by negotiation or threats of suit. Failing in that, he must first obtain a judgment and issue execution. That task is generally, and when there is no defence, simple enough, and resembles the proceedings in an ordinary foreclosure suit. Now, I have yet to learn that there is any reasonable basis in such a case, and in the absence of a special contract on the subject, for a claim by the attorney for any compensation beyond the amount of the taxed costs. But the work of the attorney who undertakes to collect a mercantile debt does not usually stop with the recovery of the judgment. He must first find and point out to the sheriff property subject to levy. If he finds property subject to levy, he may still find it encumbered by counter-claims in the shape of fraudulent covers or what not. In short, as every attorney of experience knows, in the ordinary collection of mercantile claims, suing and obtaining judgment is a small part of the labor and responsibility. The principal labor, and that which calls for the greatest skill, acuteness and diligence, is in the finding of the property, either in tangible shape for levy, or in the intangible shape of credits due the debtor, to be reached only by supplemental proceedings or creditor’s bill.

These services are all outside of the fee-bill, and for them attorneys are entitled to. charge and usually clients are quite willing to pay.

But no such labor occurs in an ordinary, undefended foreclosure suit. There is, in such a case, no collection, properly speaking, such as occurs in an ordinary collection case at law. The labor, care and responsibility in conducting a foreclosure proceeding, with a domestic client endowed with usual business capacity, are the same in case the property brings nothing at the sale or is bought in by the client, as it.is when the amount of the decree is realized from a purchase by a third party.

These considerations lead me to the conclusion that the amount of the taxed bill of costs is all that the solicitors were entitled to in this case.

The power of the court to deal with this matter in this summary manner was questioned, and it was urged that the complainants should be left to their action at law, giving the solicitors an opportunity to set off their claim for services. If their claim arose out of matters outside the proceedings in this cause the point might be well taken. But the question involves their conduct in the cause, as officers of this court, and with regard to such matters I understand them to be subject to the summary order of the court. It is common practice to order an attorney or solicitor to pay over money which he has received in his capacity as au officer of this court. Weeks Attor. § 94, and cases cited; especially Matter of Dakin, 4 Hill 42; People v. Smith, 3 Cai. 221; Starr & Riger v. Vanderheyden, 9 Johns. Ch. 252; Merritt v. Lambert, 10 Paige 352; In re Lawrence, 8 Sm. & G. 367; 23 L. J. Eq. 791; Ex parte Staats, 4 Coto. 76; Matter of Aitkin, 4 Barn. & Ad. 47; Ex parte Hall, 7 J. B. Moore 437; Mawhood v. Milbanke, 15 Beav. 36; Bailey & Hope, Re Barnard, 14 Beav. 18; Ex parte Wortham, 4 De G. & S. 415; Re Becke, 18 Beav. 462; Re Cullen, 27 Beav. 51; Re Rainbridge, 14 Beav. 645; Re Rush, L. R. 9 Eq. Cas. 147.

In the cases in 9 Johns. Ch. and 10 Paige the court went into and determined the amount of compensation due the solicitors. The same thing was done by Lord Hardwicke in Drapers’ Co. v. Davis, 2 Atk. 295. And see, in this connection, the case of Wescott v. Hinckley, 27 Vr. 343.

These cases establish the doctrine that it matters not that the money did not come into the hands of a solicitor in the course of a suit. The question is whether it came into his hands in his character of attorney or solicitor of the court.


author: Creen, V. C,

text:
    Joseph Hensler v. Marcus Senfert
    Under a will, first giving to testator’s wife his personalty for life, then giving to her his real estate, and providing that in case she married, her husband should be debarred from interest in the real estate, and in case she died without being married, the personal and real estate should be inherited by those relatives to whom she might will the same, or, if no will was in existence, to those by law entitled thereto, the wife takes only a life estate in the realty, with a power of disposition in case she does not marry, and otherwise testator’s heirs inherit it.
    On petition of Katharine Volk et al. for surplus money.

      Mr. Frank C. Willcox, for the petitioners.

      Mr. Michael T. Barrett, contra.

   Creen, V. C,

Matthias Hensler, late of the city of Newark, died testate, without issue, leaving his widow, Barbara, him surviving; and a brother, Joseph Hensler; a sister, Johanna Baumgartner; a sister, Theresia Meyer, and Robert Hensler and Elizabeth Hensler, son and daughter of a brother, Adolph Hensler, his heirs-at-law. He was seized at the time of his death of certain real estate in Newark, subject to a mortgage.

His widow, Barbara, afterwards married one Frederick Schuele, and is since deceased, intestate, without issue, leaving brothers and sisters and children of a deceased brother her heirs-at-law.

The mortgage has been foreclosed and the property sold, and a surplus of $994.28 has been paid into court.

Petition is filed by Katharine Volk, a sister, and four other of the heirs of Barbara (Hensler) Schuele, for this surplus money, and the question is whether the same belongs to the heirs-at-law of Matthias Hensler or to those of Barbara Schuele, his widow; that is, did the latter, under the will of Matthias, take an estate in fee in the premises or only a life estate.

The money is the proceeds of the real estate, and must go as the real estate would have descended. Lerch v. Oberle, 3 C. E. Gr. 575.

The question arises under the following items of the will of Matthias Hensler, viz.:

“Item. I give and bequeath unto my beloved wife Barbara Hensler, in addition to her right of dower at common law, the use of all my household utensils and furniture, also the saloon fixtures of every kind and description, during her life.
“Item. I give and devise unto my beloved wife Barbara Hensler all my lands, tenements, hereditaments and real estate, whatsoever and wheresoever, and in case that she should marry then I order that her husband be debarred of any interest in my said real estate, and in case of her death without being married, then the personal and real estate shall be inherited by those relatives that she may will the same to, or if no will be in existence, to those that are by law entitled to it.”

He also gives his wife, absolutely, his interest in a policy of life insurance.

There is no residuary clause, and no other disposition is made of the real and personal estate.

The clause, “ I give and devise unto my beloved wife Barbara Hensler all my lands, tenements, hereditaments and real estate whatsoever and wheresoever,” independent of the statute, would have created only a life estate. Hawk. Wills § 180.

By the statute, however, of 1784 {Rev. p. 800 § 18), these words, standing alone, would be sufficient to convey a fee simple. That statute was intended to prevent a failure of the testator’s intention to devise an estate in fee through a neglect to use, or ignorance of, the proper technical words to create such estate. It provides that a fee shall pass without words of inheritance, if there are no expressions contained in the will, whereby it shall appear that such devise was intended to convey only an estate for life, and no further devise thereof is made of the demised premises after the decease of the devisee, to whom the same shall be given. Are there, then, expressions in the will to indicate that the devise was intended to convey only an estate for life ? There can be no controversy as to the testator’s intention with reference to his personal property. By the item above quoted, he gave to his wife the use of it expressly for life. It was then for the testator to dispose of the remainder after the expiration of the life or particular estate. He then gives the realty without expressly limiting the estate, which, as above shown, would, standing alone, have carried the fee, but when he takes up the-personalty to dispose of the remainder, he couples it with the realty. This is strong, if not conclusive, evidence that he regarded the realty as in the same situation as the personalty, viz.,, given for life only. We are seeking the testator’s intention-from the words of his will, and when we find that he classes-the realty with the personalty, of which he had expressly given only the use for life, and gives his wife a limited power of appointment by will of the two estates thus coupled, he expresses-an intention to give only a life estate in each to the wife. It clearly evidences a scheme to give his wife all the estate, real' and personal, for life, with power of limited appointment (to relatives) if she should not marry again. If she should marry, her power of appointment is gone, and at her death the estate is-to go as if she had died intestate after his death.

It is argued that the clause, “ or if no will be in existence, to those that are by law entitled to it,” as it follows the clause providing that the personal and real estate shall be inherited ” by those relatives his widow may by will appoint, in case of her death without being again married, is dependent with the latter clause on the happening of the event, namely, her death without being again married, and that, as she was subsequently married,, both the power of appointment and the devise over have failed. This construction is open to the objection that it imputes to the testator an intention that is without reason. Practically, it is that, in disposing of his estate, he intended, if his wife died without being again married, she was to have the power of' appointment by will among relatives, or if she so died without-will, then it was to go to those entitled to it by law; but if she did marry, then she was to have the power absolutely. In other words, if she married again she was to have the whole estate, to do with as she wished, but if she did not marry, then only a power of appointment by will, or giving her a premium for marrying again. I think the clause, read with the context, certainly means that the personal and real estate shall, in the event of the same not being disposed of by will by the widow, as authorized, be inherited by those that are by law entitled to it, viz., his heirs-at-law. This is a devise over, contingent on the exercise of a conditional power of appointment by will given to the widow. That power of appointment failed, as the condition ■on which it was based could not exist at her death in consequence of her marriage. This, in my judgment, leaves the devise over to his heirs-at-law in force. There being expressions in the will indicative of an intention to give only a life estate' and a devise over after the death of the life tenant, the provisions of the act of 1784, raising this devise to a fee, do not become operative.

The estate for life is not created expressly by words, but arises by implication, and if the devise had been followed by an absolute power of disposition, it would have still cre’ated a fee. Borden v. Downey, 6 Vr. 74; S. C. on appeal, 7 Vr. 460. In this will, however, the power of disposition is a contingent one. It was limited to the case of her death without being married* As she did marry, this power of appointment failed, and the rule referred to does not apply. In my judgment, the personal and real estate is inherited [to use the words of the will] by those that are by law entitled to it,” viz., so far as the lands are concerned, which the surplus money represents, by the heirs-at-law of Matthias Hensler, and consequently the petition must be ■dismissed.