author: Kocher, Advisory Master.

text:
    Essex County Orphans Court.
    In the matter of the estate of Charles A. West, deceased.
    Administration — Letters Granted to Widow of Deceased — Order Appealed From on Ground That She Had Net Been Legally Divorced From a Former Husband — Court Cannot Question Validity Nevada Divorce Decree.
    On appeal from grant of administration by surrogate.

      Messrs. Guggenheimer, Strasser c(5 Meyer (by Mr. Charles H. Meyer), proctors for the appellants; Messrs. Heine, Bostwick £ Bradner (by Mr. Palmer Bradner), of counsel.

      Messrs. Murphy & Fullz (by Mr. Frederick IF. Murphy), proctors for the respondent; Messrs. Whiting & Moore (by Mr. Im C. Moore), of counsel.
   Kocher, Advisory Master.

On the 13th day of December, 1922, one Grace E. West, claiming to be the widow of Charles A. West, late of the county of Essex, deceased, made application to the surrogate of the said county for letters of administration upon the estate of the said Charles A. West, deceased, and the said surrogate, by his order made on the day above mentioned, issued letters of administration upon the said estate to the said Grace E. West.

On the 2d day of January, 1923, Arthur H. West, Edgar A. West and Anna G. West, next of kin and heirs-at-law of the said Charles A. West, deceased, filed their petition appealing from the aforesaid order of the surrogate granting letters of administration to the said Grace E. West, and alleging as grounds of appeal that the said Grace E. West was not the lawful wife of the said Charles A. West,, deceased, and that no notice of the application for letters of administration was served upon the said appellants, the heirs-at-law and next of kin of the said Charles A. West, deceased, and that the letters of administration so granted were for that reason null and void.

There is no question that Grace' E. West was ceremonially married to Charles A. West. The contention of the appellants is, however, that at the time she was so married, she had another husband living, by reason of the fact that a divorce obtained by her from her prior husband in Reno, Nevada, was invalid. The sole question raised for determination by the appeal is, therefore, whether the Reno divorce is valid.

The imcontroverted testimony as to the facts and circumstances leading up to the Nevada divorce decree are as follows :

The respondent, whose maiden name was Grace M. Flint, lived in the city of Troy, in the State of New York, for the grater part of her life and until about the year 1905, when she removed to the city of New York, where she obtained employment as a private secretary. Thereafter, she continued to reside in New York City, and on June 3d, 1914, was there married to one John Pa.ul Marquette, with whom she continued to live in New York City until some time in the fall of 1916. At this time Mr. Marquette left New York City and went to Montana to' practice law, the respondent -continuing to reside in New York, and continuing in her employment, which had not been interrupted by her marriage. In 1918, Mr. Marquette returned to New York City to enter the United States army. While in the army he was sent to San Antonio, Texas, The respondent joined him there for a. short time, and then returned to New York City and resumed her employment. Some time in August, 1919, the respondent told her employer that she was ill and would have to go away for a short time, and left his employ. On August 26th, or August 27th, the respondent testifies, she arrived in Reno, Nevada, and took up her residence at the Riverside Hotel 'in that city. On January 5th, 1920, she entered the University of Nevada at Reno, and took two courses in' French, two in English literature and three in history. Her class status was “special.” These courses would have been completed in June, 1920, hut, as appears hereinafter, the respondent never completed them. Respondent had no employment at Reno-, and used, she says, her own money to support herself while there.

On February 28th, 1920, six months and one day, or six months and two days, from the time that the respondent states she arrived in Reno, she filed her petition for divorce in the Nevada courts, alleging that her husband had willfully and without cause deserted and abandoned her, against her will and without her consent, and that he wholly failed to provide for her the common necessities of life.

Mr. Marquette, the husband, was at this time in a hospital at Washington, District of Columbia; he never was in the State of Nevada at any time. The record of the divorce proceedings in Nevada shows that on the 11th day of February, 1920, the said John Paul Marquette executed a power of attorney authorizing H. F. Danforth, an attorney óf the city of Reno-, to represent him in any action “now commenced, or hereafter to be commenced, against me by Grace F. Marquette in the second judicial district court of. the State of Nevada.;” that an answer in the divorce proceedings was filed by Mr. Danforth for Mr. Marquette, in which he denied all of the allegations of the petition, and that due service of this answer was admitted on Februar3r 28th, 1920, by Stoddard & Salisbury, attorne37s for respondent, the petitioner in the divorce proceedings. It may be noticed, in passing, that the husband’s power of attorney was executed seventeen days before the wife’s petition for divorce was filed and that the answer was served on the same day on which the petition was filed. The record of the Nevada court further shows that on March 5th, 1920, a decree of divorce was granted to the appellee.

Mrs. West’s explanation of her trip to Reno is that, just before leaving New York City, she was in poor health, out of sorts and very discouraged; that she intended to go to California to recuperate; that she purchased a ticket for California, and that on the train she met some people who lived at Reno, Nevada. These acquaintances, learning of her ill health and of her intention of going to California, told her of the wonderful climate of Nevada, and also of the fact that there was a wonderful state university in Reno, where respondent could attend, her acquaintances knowing that she wished to perfect- herself in certain studies. She left the train at Reno and went to the Riverside Hotel. When she got off the train she did not have it in mind that she might get a divorce from her husband, although she had thought of it before that time. She entered the state university, and at that time intended to remain permanently in Reno, and intended to stay at the hotel only until she could secure a small apartment. She did not conclude her course at the university, because she was taken very ill in January, 1920, with influenza and nervousness, and her doctor advised her to remove from Reno. She did so, intending to go to Southern California for a rest, and then to return to Reno and finish her course at the university, but when she reached Los Angeles, she received word that her mother, who resided at Troy, New York, was very ill, and wanted respondent to return and see her. She, thereupon, and after having been in California for about a week, went to Troy and visited her mother, arriving in the early part of April, 1920. Her mother recovered from her illness.

The further testified that she met Mr. West, the intestate, with whom she had been acquainted for some time previously, at her mother’s house in Troy, on April 16th, 1920, and it is undisputed that she married him in New York City of April 2?'th, 1920. The respondent’s testimony that, at the time of her leaving New York City, she intended to go to California, is corroborated by the testimony of one Helen J. Twony, who testifies to statements to that effect made to her by the respondent at that time. It should be noted, in passing, fhat objection was made to> the admission of the witness Twony’s testimony as to those declarations made to her by the appellee, which testimony was tentatively admitted.

Mr. Marquette, called as a witness on behalf of the respondent, testified- that his first knowledge of the contemplated divorce proceedings Avas obtained through a letter from his wife,1 sent from Reno,' Nevada, and received by him about October 15th, 1919,- and that the substance of this letter was that she was taking a conrse at the university in Reno;, and had decided she was-going to get a divorce. The copy of the record of the university, admitted in evidence, shoAVS that respondent entered the university on January 5th, 1930, as has already been stated. He says that he replied to this letter, the substance of his reply being that she was doing a foolish thing, but that he was helpless in the matter, and that if she Avas determined to have a divorce there was nothing he could do. He received no further letter from his wife. Some time thereafter he received a letter from a- firm of attorneys in Reno, “Stoddard and somebody, I think the name was; I do not recall the name.” This letter stated that they either had filed, or were about to filo, a suit for divorce as attorneys for his Avife, and notified him that he had the right to appear in that suit if he so desired, stating that the charge made by .attorneys in Reno for appearance was $35, and enclosing a list of names of attorneys at Reno, about six in number. The' letter further stated that if he chose to appear in the suit, he could select an attorney to do so. A power of attorney was enclosed. As has been stated, Mr. Marquette Avas at this time confined to a hospital in Washington.

He further testifies that he selected the name of Mr. Dan-forth from the list of attorneys submitted, his reason for selecting him being that he was city attorney, and that he thought he was probably a reliable man. He sent an orderly from the hospital to the post office to get a money order payable 'to Mr. Danforth, presumably for $35, executed the power of attorney, and returned the letter he had received to the firm of attorneys from whom he had received it, Avith a memorandum endorsed thereon, and- enclosing ■ the money order and the executed poAver of attorney. He says,’ further, that he was at this time in bed in the hospital, with a plaster cast from liis arms down to his feet. He felt he was helpless, and did not desire to contest the suit, but wished to appear in it to make sure that the court had jurisdiction over him, because, in his own language, “if I was to be divorced, I wanted to be divorced, and not running around -not knowing whether I was divorced or not.”

Mr. Marquette denied that he had received any money from his wife to induce him to appear in the Nevada divorce suit; he stated, however, that ho had received money from his wife at an earlier rate as a loan to enable him to open an office in Montana, but that lie had repaid this money to his wife some time in the early summer of 1919 and before the institution of the divorce proceedings.

It appears from the testimony that, after the granting of the Nevada divorce decree, Mr. Marquette remarried, and that he does not reside, and never has resided, in the State of New Jersey.

Upon the foregoing statement of facts, and giving the respondent the benefit of tlie testimony of the witness Twony, I should have no difficulty in finding that the Nevada divorce was obtained by fraud and imposition upon the court granting it by reason of the obviously fictitious nature of the respondent’s residence- in that state. The respondent, however, contends, in limine, that this court should not pass upon the validity of the Nevada divorce, upon the ground that, as appears by the undisputed testimony, neither the respondent nor her then husband, Mr. Marquette-, were residents of New Jersey at the time of the granting of the Nevada divorce, or at any time prior thereto.

There appears to- be two reported cases in this state dealing with this situation. In Nichols v. Nichols, 25 N. J. Eq. 60, decided by Chancellor Runyon in 1874, the complainant, in 1872-, filed her bill in the court of chancery7 against the defendant, praying a divorce a vincule. Complainant and defendant were married in Massachusetts in 1852, and resided in Plainfield, New Jersey, nntil 1868, when they broke up housekeeping, stored their furniture, and went, with their children, to the residence of defendant’s father in Massachusetts. The defendant, after remaining in Massachusetts for about a week, returned to New Jersey to settle up his business, and remained about a month, engaged in collecting debts and in packing up his goods to remove them. He • then went west, and was in Indiana in March, 1868, claiming to have taken up his residence there. About April 1st, 1868, he came east from Indiana for the purpose of collecting some debts, but, he alleged, with the intention of returning, again to Indiana. Prom that time until about July 1st he’appeared to have no particular abiding place, but he did not return to- Plainfield, nor did he again come to1 this state to reside. About July 1st, 1868, he settled in Brooklyn, New York, and was still residing there at the time of the filing of complainant’s bill. Complainant remained in Massachusetts until some time in-Jixly, 1868, when she returned to Plainfield, the former place of residence of her husband and herself, and remained there thereafter to the time of the filing of her bill. Her bill of complaint alleged that for the ten years next preceding its filing she had been, and was, when the bill of complaint was filed, a resident of Plainfield, and that the defendaait was also a resident of that place until January, 1868.

The defendant answered, alleging that he had been divorced from the complainant by a decree rendered June 27th, 1868, in a suit brought by him in the Indiana courts, wherein the complainant had appeared and answered. The complainant replied that this decree of divorce had been fraudulently obtained; that the Indiana court never acquired jurisdiction over the parties to or the subject-matter of the proceedings, nor over their marriage relation, and that the parties had been from 1862 up tOj and were at the time of those proceedings, residents of this state; that the complainant had not appeared in person or by attorney in the Indiana court, had never knowingly signed any warrant of attorney as alleged by the defendant, and had never known or heard of the proceedings until after the decree _wa.s obtained, and that the proceedings and the decree were fraudulent and void.

filie court of chancery found that, when complainant and defendant removed from Plainfield, he left New Jersey intending to- change his domicile, and did remove his domicile from this state; that when the proceedings for divorce were instituted in Indiana, and until their conclusion, he was, if not a resident of that state, a resident of Massachusetts, and that neither he nor the complainant at that time resided in New Jersey, filie court also found that the wife had actual notice of the Indiana suit, and that she had appeared and answered by her attorney duly appointed, and that it appeared, by the record in that suit, that the question of domicile had been passed upon and the petitioner therein adjudged to have been, at the time of the filing of the petition, a bona fide resident of Indiana, and to have been such- for a year previous thereto.

On these facts the court of chancery held that the decree was conclusive in Indiana, and was so- here also; that it was unnecessary to express an opinion on the question whether the decree was conclusive on the subject of the domicile of the petitioner, as against a charge that the petitioner had not in fact been a bona fide resident of Indiana for a year previous to filing the petition, and that, therefore, the proceedings and decree of divorce were a fraud upon the complainant and upon the laws of this state, because, if that were so, and the fraud admitted, the complainant was a party to it, and could not take advantage of it, and that the parties to a collusive divorce were hound by it.

After making these findings, the court used the following language:

“There is still another consideration. I am satisfied from the evidence that the parties to this suit were not residents of this state ivhen the suit in Indiana was commenced, nor at any time during its progress, nor1 at the time when the decree was made. No fraud on the law of this state, therefore, was committed by those proceedings or that decree.”

As a third ground of decision, the court also fo-und that the complainant was guilty of laches, the defendant having remarried shortly after obtaining the indiana divorce, and having had children by this marriage, and the complainant having waited for four years after the Indiana' divorce decree was made, and over two1 years after her husband had contracted the second marriage, before filing her bill, without any reason ox excuse being given or appearing for the delay.

Appellants point out that Nichols v. Nichols, supra,, was criticised in the later case of Watkinson v. Watkinson, 67 N. J. Eq. 142, 158, in which latter case it was doubted “whether such ruling will stand the test of more modern cases.” The ruling referred to-, however, was that part of the opinion in the Nichols Case holding that the divorce decree was valid, although collusive, and not that concerning the residence of the parties which has been quoted above.

Respondent, in turn, points out that Watkinson v. Watkinson, supra, was, in turn, reversed in 68 N. J. Eq. 632, but this reversal was upon the facts as found by the court of chancery, and did not criticise the statement of law just quoted.

Respondent also point out that Nichols v. Nichols, supra, was cited with approval by the court of errors and appeals in Fairchild v. Fairchild, 53 N. J. Eq. 678, 680,. but this also was not upon the fact that the parties to the Indiana divorce were not residents of New Jersey at the time', but upon the ruling stated in Nichols v. Nichols, supra, that the decision of the foreign state as to' the bona fides of the complainant’s residence therein, unless procured by fraud, is conclusive, not only in the foreign state, but in every other jurisdiction where the validity of- the judgment comes in question.

The other New Jersey case, which appears to be in point on this question, is Lister v. Lister, 86 N. J. Eq. 30, decided in 1916. In this case, Vice-Chancellor Stevenson, in holding void a divorce obtained by the defendant from the complainant in the State of Nevada before the filing of the bill of complaint in the court of chancery, used the following language:

“It is, I think, the established law of this state, that jurisdiction of a court to grant a divorce from the bond of matrimony cannot rest, in the slightest negree, upon the consent of either of the parties to the marriage, or of both of them. Any divorce granted by a court in a foreign state In which neither of the parties was a bona fide resident would, I think, be treated as void by tile courts of New Jersey, even although neither of the parties was at any time a resident of this state. Of course, it is not necessary to lay down such an extreme preposition in this case, because the complainant was domiciled in New Jersey, the matrimonial domicile was here, and the defendant's pretended change of domicile and residence was a fraud and a sham.”

It thus appears that this language employed by Vice-Chancellor Stevenson is pure diet'll,m, the parties in that case both having been residents of New Jersey.

On the other band, the doctrine in Nichols v. Nichols, supra, that the fact that the parties to the divorce suit in the foreign state were not residents of this state at any time during the progress of such suit, nor at the time when the. decree was made, prevents such proceedings from being a fraud on the laws of this state, and that, consequently, such decree cannot be successfully attacked in the courts of this state, while, as has been stated, only one of three grounds for the decision in that case, nevertheless, is a radio decidendi in that case, and, as such, a ruling of the court of chancery.

In addition to the cases above considered, appellants cite Thompson v. Thompson, 89 N. J. Eq. 70, and Garabrant v. Garabrant, 1 N. J. Adr. R. 1507.

In Thompson v. Thompson, supra, it was held that under section 33 of the Divorce act (2 Comp. Stat. p. 2041 § 33) a foreign divorce decree is not entitled to enforcement on the ground of interstate comity, whore jurisdiction has been acquired by substituted service, unless, in accordance with section 7 of the Divorce act (2 Comp. Stat. p. 2032 § 7), the petitioner, except where the divorce is sought on the ground of adultery, was a bona fide resident of. the state in which the divorce was granted for two years next preceding the commencement of the suit. It will be noted, however, that this decision expressly applies only to a case of substituted service, whereas, in the case at bar, the defendant appeared and answered in the Nevada court. In the Thompson Case, furthermore, it is, by necessary implication, held (a.t p. 73), that if defendaait has appeared in the divorce suit in the foreign state, the decree is entitled to recognition under the full faith and credit clause of the United States constitution, and the doctrine of interstate comity need not, in such a case, be invoked. In Garabrant v. Garabrant, supra, the defendaait also did not appear in the divorce suit in the foreign state, and the doctrine of Thompson v. Thompson was, consequently, applied.

Bespondent has called attention to the case of Floyd v. Floyd, 2 N. J. Adv. R. 638, decided by the court of errors and appeals in April, 1924. This case ivas a direct attack by the complainant, in the court of chancery, on a, divorce decree obtained against him by the defendant in the State of Nevada and alleged to have been fraudulently procured by her. The complainant and defendaait were married in Virginia, and resided either there or in Pennsylvania up to the time the defendant, on January 9th, 1921, left her husband and went to Nevada, where, on September 3d, 1921, she filed her petition for divorce. On October 24th, 1921, the defendant, as petitioner in the Nevada courts, was granted a decree of divorce, and immediately thereafter returned east and took up her residence at Atlantic City, in this state, where she still resides. The complainant, continuing to be, or having become, a resident of Pennsylvania,' and never having become a resident- of the State of New Jersey, thereupon filed his bill of complaint in our court of chancery, seeking to have the Nevada decree declared void.

The court of chancery granted complainant the relief sought; but the decree was reversed by the court of errors and appeals on the ground that complainant had no legal status in this state to maintain his suit, for the reason that the matrimonial domicile of the parties was in the State of Pennsylvania; that reliance for the successful prosecution of the suit was based upon the simple fact that the defendant was residing in Atlantic City, and was served with process there, and that, in leaving her husband and going to the State of Nevada and petitioning for divorce there, under the circumstances narrated in the bill, she perpetrated a fraud upon the complainant and the. courts of this state, and that, although the present suit Aid not seek a dissolution or annulment cf the marriage contract, nevertheless, It is quite manifest, whatever result the court below reached, it would affect the marital relation, which never was here, but existed in the State of Pennsylvania at the time the defendant obtained her decree.

The fact that this case was a direct attack upon a foreign divorce decree renders its decision inapplicable to the case at bar, which is one of collateral attack. Indeed, this fact is emphasized by the following language used by the court of errors and appeals in its opinion:

“We are only concerned in passing upon the validity of a judgment cf a sister state where an attempt is made to enforce such judgment in this state, and when the validity of such judgment is attacked upon the ground of fraud or want of jurisdiction of the foreign forum over the subject-matter or of the person. * * * There can be no debatable question concerning the right of a suitor to come into this, state and attempt to enforce a, judgment obtained in a foreign state, and-likewise the right of a defendant to challenge the validity of such judgment upon the ground of fraud or lack of jurisdiction of the foreign tribunal which rendered the judgment.”

This language is so sweeping as, by implication, to cast some doubt upon the doctrine of Nichols v. Nichols, supra; but, sweeping as it is, it is, after all, pure diclum,, and I cannot consider it as of any controlling effect.

Both parties also cite, in support of their respective contentions, the case of Andrews v. Andrews, 188 U. S. 14, detided by the supreme court of the United States in 1903 This case concerns an attack upon a Massachusetts statute, similar to section 33 of our,Divorce act (2 Comp. Stat. p. 2041 § 33), providing that a divorce decreed in another state> by a court having jurisdiction of the cause and of both the parties, should be valid in Massachusetts, but that if an inhabitant of Massachusetts should go into another state to obtain a divorce for a cause which occurred in Massachusetts while the parties resided in Massachusetts, or for a cause which would not authorize a divorce under the laws of Massachusetts, such divorce should be of no force or effect in Massachusetts. The contention was made that the statute conflicted with the full faith and credit clause of the constitution of the United States, and the supreme court said (at p. 29) :

“In coming to the solution of this question, it is essential, we repeat, to bear always in mind that the prohibitions of the statute are directed solely to citizens of Massachusetts domiciled therein, and that it only forbids the enforcement in Massachusetts of a divorce obtained in another state by a citizen of Massachusetts, who, in fraud of the laws of the State of Massachusetts, while retaining his domicile, goes into another state for the purpose of there procuring a decree of divorce.”

It will thus be perceived that this case does not help appellants, because) while it held the statute in question valid, the parties concerned were residents of the State of Massachusetts, while in the ease at bar, as has been seen, the parties were not residents of New Jersey; and further, because the ground of attack on the fereign decree in that case was that the divorce had been procured for a cause which accrued in the State of Massachusetts, or which was not a cause for divorce in Massachusetts, while in the case at bar the attack is upon the bona, fides of the petitioner’s residence in the foreign state. Nor is the case of help to the respondent, because, while the deduction might be drawn from the language cited that, if the statute had directed its prohibition against others than citizens of' Massachusetts domiciled therein, the supreme court woxild liave found it to he uncontitutioual, such deduction is a mere supposition, not even rising to the dignity of dictum, and, in point of fact, I have not been referred to any federal case; and do not know of any, adjudicating upon such a statute.

The result of the foregoing is that the decision of the court of chancery on this point in Nichols v. Nichols, supra, still stands unreversed and unassailed by any other decision of our courts, and unquestioned except by dictum, and is binding on this court, and I am therefore constrained to hold that this court cannot, under the facts in this case, pass upon the validity of the Nevada divorce decree obtained bv the respondent.

I will therefore advise a decree dismissing the appeal.


source: Caselaw Access Project

author: Walker, Chancellor.

license: Public Domain

text:
    Antonio J. Geneive, petitioner, v. Sylvia C. Geneive, defendant.
    [Decided June 23d, 1924.]
    Evidence — Rule Against Leading Questions — Nullity of Marriage —Impotency—Examination Under Order of Court.
    On final hearing on master’s report and depositions ex parte. On petition for nullity of marriage.

      Mr. Edward M. Salley, for the petitioner.
   Walker, Chancellor.

This case flagrantly violates the rule against leading questions. The petitioner on direct examination is asked this question: “Q. After you have a civil ceremony do the Italians usually have a religious ceremony?” and the unexpected answer, “No, sir,” was given. However, it was proved by other witnesses that a religious ceremony usually follows the civil ceremony. Again, “Q. Did your wife ever live with you as a wife ?” That question may, and probably does, mean several things. The answer was, “No, sir.” Again, "Q. Did you at any time have any relations with your wife? Did you ever sleep with your wife?” The term “aiiy relations,” of course comprehends several things, and the answer, “No, never,” denied every one of them, without its appearing exactly what it comprehended by the question. Again, “Q. How'many times altogether, after you were married in New York, did you see your wife and try to get her to live with you as man and wife?” An allowable non-leading question to elicit the information sought by this question might run along lines about as follows: “Did you ever see your wife after you were married?” Upon an affirmative answer being made, the question might then he, “When and where, how man)' times, and what did she say?”

Not only by decision in this court (see In re McCraven, 87 N. J. Eq. 28), but also by a circular letter to the special masters, I have laid it down that permitting leading questions must stop. I have been told that it is almost, if not quite, impossible to prove certain ex parte divorce cases without permitting leading questions to be asked. The answer is that if the solicitors will not, or camiot, ask non-leading questions, the result will be that they cannot obtain for their clients the divorces which they solicit.

The following rather remarkable examination was conducted, De Fuccio being the witness — he was family physician and had examined the petitioner: “Q. How did you find him from a physical and sexual standpoint ? A. Absolutely normal. Q. Was he able to perform his ordinary marital relations as a husband? A. Tn my judment he was.”

If I understand the attempt here made, it was to negative a presumption that he might be impotent. Of course, there is no such presumption, and the petitioner was not called upon to refute it unless the case were defended and petitioner’s impotency was pleaded by his wife, as it might have been, to show why there was no consummation. Tt seems like a sort of substitution for the examination of the wife.

In Bolmer v. Edsall, 90 N. J. Eq. 299 (at p. 304), I observed that if the defendant would submit to a physical examination for the purpose of showing whether or not the marriage had been consummated, and the result showed that she was still a virgin, that that would corroborate the petitioner’s testimony, and if the defendant were a resident of Yew Jersey and within the reach of the process of this court inspection might he compelled. In the Bolmer Case the defendant afterwards voluntarily submitted to an examination by a physician, and upon the coming in of supplemental proofs her virginity appeared and a decree of nullity was made.,

Ill Bissell v. Bissell, 93 N. J. Eq. 537, the defendant A\ras ordered to show cause why an order should not be made that he be examined for the purpose of ascertaining whether or not he AA^as physically and incurably impotent. On the return day such order Avas made appointing tAVO physicians inspectors, and a commission was issued. The defendant refused to present himself for examination, and I held (at p. 5J/1) that where the petitioner’s testimony makes a case except for the requirements of the corroboration rule, sufficient corroboration is afforded by the refusal of the accused person to submit to a physical examination by physicians, to the end that they may form an'd express an opinion as to the affliction of the party.

Prom the testimony in the case before me it Avould appear that the defendant resides in New York, although the record shows that she was served in .this state by the sheriff of Bergen county. Perhaps she-will voluntarily submit to an examination.

It is noticeable that Beatrice I. Gall, Avho took the testimony, is purported to have been SAVorn to the performance of her duty, but she did not subscribe the affidavit. That of itself might be overlooked, but the case will have to be sent back to the special master to take over again the testimony of the petitioner in accordance with the rules of law and eA-idence, and Miss Gall can then sign. So much of the testimony of Dr. De Euccio as is above set out will be overruled. The additional testimony should be sent to me personally.


author: Church, Y. C.

text:
    Henry Wittnebert, complainant, v. Anna Wittnebert, defendant.
    [Decided June 19th, 1924.]
    Conveyances — Alteration After Execution — New Deed Ordered.

      Mr. Frederick Stoddard, for the complainant.

      Mr. Felix Vorlenm, for the defendant.
   Church, Y. C.

As I indicated from the bench, I have decided that the deed in this case should be sot aside, as it is evident from the deed itself and the testimony in the case that it was altered after execution, and I direct that a new deed be prepared, giving the property in question to Henry Wittnebert and Anna Wittnebert as tenants in common and not joint tenants.

As to the money withdrawn from the bank, I am of the opinion that Henry Wittnebert had the benefit of it, and I, therefore, shall dismiss the petition for its return to him.

As to the third phase of the question, it appears that the complainant himself tore down the buildings and removed the machinery, and he has no claim as to this.

1 have waited for briefs of counsel in this matter quite patiently and have decided to wait no longer.


author: Leaming, V. C.

text:
    Moorestown Manor Company, complainant, v. Clara T. Hunt et al., defendants.
    [Heard and determined June 16th, 1924.]
    Contracts — Relief From Operation — Terms Clear — Claim of Misunderstanding Cannot Prevail.
    On bill, &c. On final hearing.

      Mr. Henry F. Stockwell, for the complainant.

      Mr. Thomas P. Curley, for the defendants.
   Leaming, V. C.

(orally).

I see no way by which Mrs. Hunt can be relieved from the operation of this agreement. 'The agreement is perfectly plain; it couldn’t be made plainer by the English language. If Mrs. Hunt didn’t understand it it was her own fault; nobody has' undertaken to deceive her. She is a cultivated woman; she can read and understand what she reads; the agreement has been executed by all the formalities which the law provides, and in the absence of positive deception on the part of the complainant, or someone representing the complainant’s interest, as to the contents of this agreement, there is no way in the law to relieve her from its terms, and it must be enforced according to its terms. It may be she now thinks she accurately recalls the conversation with Mr. Evans at that time; she may be sincere in her statement that she understood the interest on this money was to be paid to her at once and as long as she lived. The agreement is perfectly plain in its statement that the interest is to he paid to her husband during his lifetime, and then, if she survives, to her during her lifetime. Gan it be possible an intelligent Woman can sign that instrument and acknowledge it with all the care that was taken in the execution of these papers and then defeat the rights of the purchaser by testimony that she didn’t understand it, especially when it is clear that no one attempted to- deceive her? If she did not understand it it was her own fault; nobody .has attempted to deceive her. I think the truth is she is mistaken in her recollection. I think the testimony of Mr. Evans is accurate1; it is more likely to be accurate, because the agreement itself is exactly what the law would give her. She will get for her dower a life right in one-third interest in the value of the real estate of her husband when he dies, and not until then; she is entitled to nothing out of it as a dower right until he dies, and that is what this agreement provides for her; it gives her one-third of the net income, of the sale of this property from the date of his death as long as she lives thereafter.

On thing, among others, that leads me to- think Mrs, Hunt is mistaken in her present recollection, is the fact that upon the receipt of this agreement, or a copy of it, after it had been executed, she says she read it over and became dissatisfied with it at once, noticing then, for the first time, she was not to receive any m,one3r until her husband’s death, whereas she wrote to* Mr. Evans a letter acknowledging receipt of tlio agreement and making no mention whatever of the fact that the agreement did not provide what she had been led to understand it would provide. Later, she talked to1 Mr. Evans over the telephone and made no1 suggestion to him that he had misrepresented the contents of this agreement, and it wasn’t until some two months later, from.earty in November until January, that she even consulted an attorney in the matter, and during all that time she knew, from reading the agreement, that it did not contain the matters that she now claims she had understood it was to contain, or understood it did contain, when she signed it. The law plac'es upon an intelligent woman, or an intelligent man, when they execute a plain and clear instrument and acknowledge it in the solemn form that the law provides to secure the intelligent execution of an instrument, the obligation to know what they are signing, and it isn’t possible for them to come into court and be relieved from their carelessness, unless, under circumstances of that kind, some false representations were in fact made to them. It is plain that Mr. Evans did not make.any false representations and was not guilty of any fraudulent conduct; the utmost that is claimed is Mrs. Hunt did not adequately understand what the agreement provided. He stated to her what was in this agreement, and he says he read it to her, and if she didn’t understand it it wasn’t because of her ignorance; it was her carelessness and careless mistake, and she must suffer the consequences, and the consequence is in fact no imposition upon her, since she gets by that agreement all the rights she had in that farm before it was sold. She loses nothing except this suit; she loses that.


author: Ingersoll, V. C.

text:
    The Moore Securities Company, a corporation, et al., complainants, v. O. J. Hammell Company, a corporation, and Karl Schaffer, defendants.
    [Determined April 23d, 1924.]
    Real Estate — Title—Tax Sale — Right of Redemption Foreclosed —Prior Mortgage.
    On bill to quiet title. On final hearing.

      Mpwrs.-Gole & Gola, for the complainants.

      Mr. John S. Weslcott, for the defendants.
   Ingersoll, V. C.

This case was tried with Moore Securities Co. v. Karl Schaffer on bill to quiet title.

Tliis is to foreclose a mortgage held by complainant upon certain lands In Atlantic City. The defendant- Schaffer purchased the land at tax sale, and foreclosed the right of redemption. I am convinced that Schaffer complied with the statute, and, by so doing, became the owner of the premises clear of the lien of the mortgage sought to he foreclosed.

The bill will be dismissed.


author: Ixoersoll, Y. 0..

text:
    The Moore Securities Company, a corporation, et al., complainants. v. Karl Schaffer, defendant.
    [Determined April 23d, 1924.]
    On bill to quiet title. On final hearing.

      Messrs, fíale <£• fíale, for the complainants.

      J\Ir. Joint S. Westcott, for tiro defendant.
   Ixoersoll, Y. 0..

The bill to quiet title must be dismissed. There is no convincing proof that the statutory requirement to foreclose the right of redemption of the property has not been fully complied with.


text:
    Fleurette B. Cavanna et al., complainants, v. Carrie F. Brooks, defendant.
    [Determined June 18th, 1924.]
    On bill for specific performance. On final hearing.

      Mr. William Elmer Brown, Jr., for the complainants.

      Mr. John G. Reed, for the defendant.
   Ingersoll, V. C.

A decree will be advised in accordance with the prayer of the bill.

Should it become advisable to file a more extended memorandum, it will be done upon the presentation of a transcript of the testimony.


author: .IXgeksoll, Y. C.

text:
    Isaac M. Garfinkel, complainant, v. John F. Hickey et al., defendants.
    [Submitted June 4th, 1924.
    Determined June 18th, 1924.]
    Mortgages — Foreclosurei—Suit Upon Failure to Pay Interest Within Time Stipulated — No Notice of Due Date — Extension of Time.
    On bill to foreclose. On final hearing.

      Messrs. Harcourt & Steelman, for the complainant.

      Mr. Jaim G. Reed, for the defendants.
   .IXgeksoll, Y. C.

This is on bill to foreclose. Complainant alleges that the eniire principal sum is due by reason of a default, for more than thirty days, in the- payment of a semi-annual installment of interest, which became due on December 1st, 1923.

The defendant purchased this property on or about the 20th clay of August, 1923, subject to the operation of the murtgage now being foreclosed.

This mortgage was executed on June 11th, 1923, by John E. "Fiable to the Atlantic City Realty Company, to secure the payment of the sum of $7,500 at any time within three years from the date thereof, and contained the usual “default clause,” in the event of the non-payment of interest.

On December 1st, 1923, this mortgage was assigned to tiro complainant by deed of assignment, bearing date on said day, and recorded on the 31st day of December, 1923.

At the time of the delivery of the deed to Hickey, and the settlement for the consideration thereof, Hickey was not present, but was represented by a real estate agent. An adjustment of the interest then due on this mortgage was made. Hickey testified that, although he knew the property was. subject to a mortgage of $7,500, he never knew the date upon which interest became due, and that lie never received notice thereof.

Xo action was taken by the complainant until after the expiration of the thirty days, when a letter was written by the solicitor to Hickey of the contemplated foreclosure, which resulted in a call by Hickey upon the solicitor, who, on January 3d, 1924, agreed to take no steps toward foreclosing the mortgage until after January 21st, 1924. Xo settlement having been made at that time, the bill to foreclose was filed on February 8th, 1924.

At no time prior to- the expiration of the thirty days did Hickey take any steps to pay this interest to anyone.

Following the reasoning of Vice-Chancellor Church in Scharff v. Annaltee Realty Co., 2 N. J. Adv. R. 1091, decided on May 23d, 1924, I will advise a decree in accordance with the prayer of the bill.


author: Tngersoll, V. C.

text:
    Reardon Laundry Company, complainant, v. Daniel E. Reardon, defendant.
    [Submitted June 2d, 1924.
    Determined June 18th, 1924.]
    Trade Names — Corporate Names — Sale of Good-Will — Competition Under Name Clearly Not Misleading — Efforts to Secure Business of Former Customers.
    On hill for injunction. On final hearing.
    H/easrs. Cole & Cole,, for the complainant.

      Messrs. Harcourt & Steelman, for the defendant.
   Tngersoll, V. C.

The complainant is a corporation of this state. Ohmnoiss, father and son, after having secured the stock held hy the former partner, purchased of Reardon in November, 1923, all the stock held hy him in the company. The corporation is now exclusively under the control of the Ohnmeiss family.

The defendant and one John W. Risley as partners, were, prior to the incorporation, conducting a laundry business, which business, together with its good-will, &e., was conveyed to the company. This conveyance was the consideration for which the shares of stock were issued to the partners.

At the time of the purchase of the stock from Reardon there was some discussion of a change of the name of the comi>aiiT. The witnesses for the complainant, while admitting that this question did arise, insist that no1 agreement was consummated that a change should be effected.

The defendant swears that it was agreed by Ohnmeiss that the change would he made, but that they declined to fix a date for such change, and he, relying upon their statements, concluded the purchase without haying this clause included in the agreement.

The defendant has since the sale entered into the laundry business in Atlantic City, whore the business of the complainant is also situate. He uses the business name "Daniel E. Reardon's Laundry.” He also has on his truck in conspicuous letters the words "Not connected with Reardon Laundry Company.”

It is clear that there lias been no attempt on the part of Reardon to deceive the public, but it is just as apparent that since Reardon has resumed business some of the patrons of the complainant company have ceased doing business with it, and resumed business relations with Beardon.

In the sale of the original business with its good-will, &e., there was no agreement by either of the parties that they were not to engage in the laundry business. Nor was there any such agreement at the time of the sale of the stock to Ohnmeiss. There is in this case no claim that the defendant has specially solicited the trade of those who were customers of the partnership business, although some have come to him, and he is justified in serving those who do coiné of their1 own motion.

Should he (Reardon) specially solicit customers of the former partnership, he might be restrained. Hilton v. Hilton, 89 N. J. Eq. 182.

It would not necessarily follow, however, that he could be restrained from specially soliciting customers of the complainant corporation, and no opinion is now expressed upon that question.

“The light of a man to use his own name in his own business is part of the natural and inalienable rights guaranteed by our constitution, without which the right to acquire, possess and protect property would be of little worth. Even in a. case of unfair competition, the courts go no further than to restrain the irse of a name except when so marked as to .distinquish it from a competitor, and this exception amounts to allowing the wrong-doer to continue the use of his own name when it is so marked.” Hilton v. Hilton, super.

The sale by Reardon of bis business conducted under that name, including its good-will, did not deny him the right to conduct a competing business in the absence of an express agreement on his part no to do so — it merely denied to him the right to specifically solicit the trade of the customers of the business he sold. Nor did such sale deny to Reardon the right to use his own name in a competing business, so long as his name was not used in a manner calculated to deceive the public, and in that manner gather the fruits of the business he had sold. Auto Hearse Manufacturing Co. v. Bateman, 109 Atl. Rep. 735.

I will advise a decree dismissing the hill.


author: Bentley, V. C.

text:
    William Blancard and Eleanor B. Hewitt, complainants, v. Blancard & Company, Inc., a corporation, et al., defendants.
    [Submitted June 19th, 1924.
    Decided June 23d, 1924.]
    Corporations — Dividends—When Suits to Compel May Not Lie— Salaries to Officers — When Not Excessive and When Restoration May Not Be Enforced.
    On bill, &c.

      Air. Pierre F. (Joule, lor the complainants.

      Mr. George O. Tennant, for the defendants.
   Bentley, V. C.

ThL is a hill filed by two stockholders against the defendant company and all the remaining stockholders, three in manlier, to compel the company (a) to declare a dividend; (b) to' rechice the respective salaries of the individual defendants. and (c) to compel them to1 restore to the company any excess of salaries above the value of the sendees bv them each rendered.

Of course, the defendants raise no objection to the right of the complainants to file the hill, for the reasons commented upon by Vice-Chancellor Stevenson in Raynolds v. Diamond Mills Paper Co., 69 N. J. Eq. 299.

During his lifetime, Christian Blancard, the father of all the parties except the corporation, established a business for the manufacturing of settings for jewelry, and-, before his death, associated with himself therein the defendants Frederick Blancard and Rudolph Blancard (two of his sons) and Thomas A. Mountford. In 1913, upon the death of their father, his two sons, still, with Mountford in their employ, continued the business. They caused a corporation to be organized under the laws of New York, and transferred the business and all the assets thereto. Prom that time to the present the destinies of the enterprise have been in the hands of the individual defendants, the complainants having rendered nothing but the most nominal services. The defendant Rudolph has had the general supervision of the manufacturing plant, has been the financial agent of the company, designed and generally taken care of the designing of its products, fixed prices, and concerned himself in many other activities pertaining to his position. Frederick has discharged the duties of attending to the selling of the company’s manufactures and directing its office in the city of New York, through which the selling has been done. Thus, it will be seen that these men have been, as Vice-Chancellor Stevenson pointed out in the case just mentioned, more than mere officers, and their activities have made them the agents and guiding spirits of the company. Mountford is a veteran toolmaker and jeweler, and the reliance upon his training, experience and ability, as expressed by the other defendants and their father, is not misplaced.

Originally, and until the year 1920, the entire business of the company was carried on in the city of New York. About that time the lease upon the premises where the manufacturing was carried on was about to expire, and it was thought advisable to acquire a plant of their own in the citj^ of Newark, New Jersey, because of a number of reasons, one of which being the enormous rents at that time prevailing in New York and all over the Metropolitan area. This project was carried out and also1 the incorporation of the present company in this state, and the taking over by the latter of all the assets of the New York company and the assumption of all its liabilities. The stock of the New Jersey company, one thousand one hundred and thirty shanes in all, of a par value of $100 each, was divided among the five individual parties hereto in the proportion of fifty shares to Mountford and two hundred and seventy shares to each of the others. While incorporated in New Jersey, in 1920, there seems to have been no organization or corporate activity until a meeting of the. incorporators on March 1st, 1922. The auditor’s report for the period ending December 31st, 1922, the last fiscal year before the filing of this bill, showed capital stock of $113,000, surplus of -$195,395.17, and a net profit of $25,354.72 for that year.

At the time that Rudolph entered into the business it was not in a prosperous condition, but from the time of the death of the father down to- the year 1920 it appears to have flourished, so that over the period covered by the last ten years, lumping the fat with the lean, the stockholders have enjoyed an average annual dividend of eight and one-half per cent. Since 1920 there has been but one dividend declared, and that of only five per cent. Notwithstanding, however, the directors, at a meeting held on March 1st, 1923, voted to, and did, increase their respective salaries as follows: Rudolph from $12,512 to $14,300, and Frederick from $11,300 to $14,300. It was undoubtedly these, increases of salaries, at the same time the dividends were reduced, that are the main causes of the comiplaina.nts, dissatisfaction.

Two objections are made by the complainants to the failure to declare a dividend of more than five per cent, in 1923, one because it could have been made much larger out of the net profits of the preceding fiscal year, and the second because it could have been declared out-of surplus. Upon the figures it would so appear. But it has been shown that there was then pending a claim against the, corporation by the national government of something in excess of $23,000 for deferred income tax payment, and that, subsequently, the company was compelled to actually pay slightly more than $17,000 on this claim, and that to have dissipated any more of the net profits in dividends than was done would have been hazardous to the corporation. Furthermore, a document has been proved under which the Yew York company was obligated to pay to the widow of Christian Blancard an annuity for her support and maintenance not to exceed the sum of $10,000, and which obligation, of course, was assumed by the present company, as I have indicated above. I think from these facts ii is indisputable that no larger dividend could have been safely made out of: the profits of 1922.

But the complan ants say, in the second place, that at all events a dividend could have been declared and should be now ordered out of what they charge to be an inordinate surplus above the needs of Ihe company for its working capital. I do not see how I can say so, under the language to he found in ihe opinion of Air. Justice Swayze, in Murray v. Beattie Manufacturing Co., 79 N. J. Eq. 604, and the authorities therein discussed. There is no question as to the jurisdiction of this court so to do in a proper ease, hut T do- not feel that the necessary facts have been proved herein. In the case just mentioned. Air. Justice Swayze reiterates the oft-repeated rule that the authority of the directors is absolute SO1 long as they act in the exercise of an honest judgment. In the present case, the testimony of the experts produced was to the effect that a surplus of $195,000, roughly, was not unreasonable for this corporation to hold. The surplus is not composed of cash tying idly in banks, but has been plowed in, and is represented by additions to the business, such, for example, as the manufacturing plant in Newark. It is also significant that, contemporaneously with the establishment of their New Jersejr manufactory, there was a •change in the business carried on by the company. Prior to that time, it only produced parts of the jewelry into which the same were to go. For example, it did not produce a ring with the setting complete and ready for the jewels to be incorporated in the ring, but only made the setting proper,' which had to be fused upon a ring procured by the jobber from another manufacturer. The present business is steadily getting away from that obsolete method while acquiring, in this new field, customers for the complete rings or such other articles of jewelry as may be desired. It was thought prudent to build up a fund sufficient to finance the changes necessary to effectuate manufacturing the new product and tide over losses probable to occur in the transition period. Under these proofs, I cannot say that any dishonesty or fraud has been shown in'withholding profits from the stockholders for use as capital. Therefore, under the statute as it exists, I could not substitute my judgment for that of the board, even though it might differ therefrom.

So far as the propriety of the amounts at which the salaries of the individual defendants have been fixed, they all presented themselves for cross-examination after having outlined the duties incumbent upon them, respectively. There can be no question that they are devoting their entire time to the fortunes of the business, and, without going into a particular description thereof, it may be said that they are carrying on all the affairs of the companjq except the physical "work being done by the employes imder their supervision. In their own testimony, that they have been fair in fixing the remuneration to be received by each, they are supported by the witnesses llaslett. Levy and Kantzmann, all men who have had experience rendering them familiar with the payment of salaries to others in like positions. There is not the weakness in their defense that was animadverted upon by Vice-Chancellor Stevenson in Raynolds v. Diamond Mills Paper Co., supra (at p. 317). I do not feel that I can say that those defendants are overpaid. It is true, as pointed out in the last-mentioned opinion, that these defendants, having fixed their own salaries, the burden is upon them to satisfy the court that the same have been earned. It seems to me, in view of the testimony of their witnesses and themselves, and in the absence of any contrary testimony, that they have completely discharged the burden under which they labored.

I cannot hut lie sympathetic with the desire of the complainants to receive a regular and sufficient dividend upon ih 'ir stock, but I think the showing of the company under its present management is rather creditable, when it is recalled that in the ten years of its existence it has passed its dividends hut twice, and then during a period of reconstruction, and when it is further borne in mind that, as T have said before, spread over its entire existence, the dividends have averaged eight and one-half, per cent, per year, added to winch has been the very serious drain of the annuity lo "Mrs. Blancard, from the payment of which the company is now released forever by her death. Of course, it is to lie expected that its condition, under the proofs of the defendant themselves, ought to improve, and if it does not it should he a simple matter for the complainants under another hill to show the reason therefor, if it shall be due to any unfair, unconscionable or inefficient conduct on ihe part of the managing officers.

With its answer the defendant corporation filed a countfcrelaim against the complainant William Blancard for the sum of $2,510, for moneys borrowed by that complainant from the company. This complainant admits that he borrowed the sum of $3,500 on September 9ih, 1920. and lias paid $1,000 thereof, leaving $2,500 due, with interest, on balances from the respective dates. On a preliminary motion to strike out the counter-claim, an order vas advised by Vice-Chancellor Fielder, refusing to do so^ and leaving the costs of that motion to abide the final eA’ent.

I will advise a decree in accordance A\dth the foregoing.


text:
    West Philadelphia Bank, complainant, v. Nellie T. Carey, defendant.
    [Heard and determined June 16th, 1924.]
    Conveyances, — Deeds to Secure Future as Well as Existing Indebtedness — Neglect in Including Necessary Conditions— Difficulties Growing Out of Cases When Contract Says One Thing and Something Different was Intended.
    .On bill, &c. On final hearing.

      Mr. Mark F. Gasnelman, for the complainant.

      Mr. Waller 8. Known, for the defendant.
   Leaming, V. C.

(orally).

I have endeavored to the utmost of my power to ascertain Avith certainty, if possible, the 'truth of this matter hoav in dispute. There is evidence, o'f course, that this deed Avas given to secure future indebtedness of Mrs. Carey to the bank as Avell as the indebtedness which existed at the time the deed was executed, but there is a good deal of evidence indicating to the contrary. The testimony of some of the officers of the bank strongly indicating that this deed Avas not given in anticipation of this $5,000 indebtedness, or any future anticipated indebtedness of Mrs. Carey’s.

The difficulties which are oncouutered are difficulties that arise, and naturally arise, from the execution of a document that says one tiling and is intended to mean something else. If lawyers and laymen would execute writings that say what they mean, and mean what they say, the courts would be spared a -good deal of trouble, and, perhaps, serious losses at times would be saved. There is no excuse, in my mind, for the execution of a deed that is intended to be operative as a mortgage, because, in the absence of some collateral writing, there is nothing in the world but the frail and uncertain memory of witnesses than can tell what the real transaction may have been. That was the situation there; the books of the hank apparently do not disclose what this deed was in fact given for; at any rate, the books and records of the bank have not been produced. The $5,000 note, which is sought to be tacked on this instrument as a subsequent obligation, which it is alleged it was intended to secure, contains on its face no suggestion that it was secured at all. It would have been perfectly easy to have had that note contained on memoranda over Mrs. Carey’s signature that it was secured by this deed, but it isn’t there. It would have been easy to have embodied some entry in the books of the bank at the time the deed was executed, or even subsequently at the time the $5,000 note was executed, that would have thrown light on the subject, but not one word in writing appears anywhere to show that this $5,000 note was ever anticipated by anybody to be secured by this deed. Such evidence as we have on that subject is the recollection of witnesses for and against that proposition. .It is perfectly easy to draw a mortgage that will cover existing and future indebtedness, but unless the mortgage on its face discloses its purpose to secure fulure indebtedness, it would, ordinarily, not do it. Here is an instrument that isn’t in form a mortgage; it doesn’t mean what is says at all; this is a deed, but nobody contends it was anticipated to convey the property absolutely, so we having nothing in writing to guide us as to what indebtedness it secures. "We only know it secures the $2,000 note by the fact that that indebtedness existed at that time, and that that fact is not apparently in dispute. So, the circumstance that stands out in this case as pre-eminent, in my o]>mion, and dominant, is that a.t the time this deed was executed there Avas due to this bank from Mrs. Carey for indebtedness of herself $2,000, and no more, and it is not onfy a reasonable presumption, but the natural and ordinary presumption, that this deed, which Avas not intended as a conveyance, Avas to secure that indebtedness. Noaa', it appears that no further indebtedness of Mrs. Carey’s to the bank arose for something like four or five months, and then her $5,000 note originated, and that wasn’t an'original indebtedness of Mrs. Carey’s at all; that note was a mere transfer of $5,000 from the indebtedness of Mr. Carey to his wife by her giving a note for the same am'ount, having the proceeds of the note placed to her credit and giving a check to the bank for the amount of the note to take up one of Sir.. Carey’s old $5,000 notes; so this $5,000 note aaus not in any strict sense, .or any real sense, an indebtedness of Mrs. Carey’s, except that she at that time assumed an indebtedness of her husband’s in that amount, and that four or fiA^e months after this deed Avas given. Indeed, the occasion of transferring $5,000 of Mr. Carey’s indebtedness to bis Avife appears to have been the excessive amount of Mr. Carey’s indebtedness and a desire upon the part of the bank to reduce it in anticipation of a visit of a bank examiner. If the $5,000 note had originated at about the time this deed AAras given in a transaction for Mrs. Carey’s benefit for money she borrowed, or even at about the time of the transfer of a note from Mr. Carey’s account to her’s, the presumption would have measurably existed that the deed, eAren though shortly prior in date, AAras to secure that indebtedness; but it is difficult for me to believe that this hank took this deed in such a manner that they could from time to time, or at any time, say five months later, turn over Mr. Carey’s note or notes to Mrs. Carey by merely shuffling-the bookkeeping, and in that manner bring them under the security of this deed. I think, without some writing to show that that was the well-understood intention and purpose of the parties when this deed was executed, I am unjustified in including that $5,000 in the security of this instrument.

I liare tried hard, very hard, to ascertain the facts; I have giren the bank every opportunity in the world to produce all the evidence that they can produce, but the trouble is there isn’t much evidence that is valuable, simply because they did not see fit to reduce the real transaction to writing. It may be that I am losing $5,000 for the bank, which might he saved if my intellect were adequate to penetrate further into the uncertain realm of doubt, conjecture and mystery, but I think all the presumptions are against the claim. The policy of the law is against tacking on debts to an existing security without some writing to justify it, and, on the whole, my belief is that it is my duty to deny the prayer of the bill, to the effect that the $5,000 note is secured by this instrument. I will sign a decree declaring the deed to he in the nature of a mortgage, to secure the payment of the indebtedness at that time existing from Mrs. Carey to the bank, something short of $2,000 at that time, and no more.


author: Walker, Chak oellor.

text:
    In the matter of the petition of Francis Henderson for appointment as the next friend of Annie L. Clarke, a person of unsound mind.
    [Decided June 20th, 1924.]
    Guardian — Lunacy—Application for Appointment of Next Friend for Purpose of Making Application for Special Guardian of One Heretofore Adjudged Insane.
    On petition for appointment of next friend, &e.

      Mr. Timi A. Merrill, for the petitioner.
   Walker, Chak oellor.

The petition recites that Annie L. Clarke, a widow, about-eighty years of age, was ordered committed to the New Jersey State Hospital for the Insane at Morris Plains, by the judge of the common pleas of Union county; that no application for the appointment of a guardian has been made either to this court or the orphans court, and that no inquest of lunacy has been had; that Mrs. Clarke is possessed of certain personal property to the amount of about $3,500 and has an income from the federal government by way of pension ; that petitioner is not related to Mrs. Clarke, wlm was for many years employed in his family, and since she has become incapacitated for work ho has looked after her interests until her confinement in the hospital, and that her domicile is in petitioner’s home. The prayer is that because she is unable to attend to her own affairs, leave of this court is asked byr petitioner to act as her next friend in order that he may make a further application on her behalf for the appointment of a special guardian to conserve her estate, pay her debts and for her maintenance.

This is not a proceeding for the appointment of a next friend to sue for the recovery of property belonging to a person non compos mentis, as was the case in Collins v. Toppin, 65 N. J. Eq. 439; affirmed, 66 N. J. Eq. 430; Kroehl v. Taylor, 69 N. J. Eq. 525. Nor is it an application to the court of chancery to determine the question of the lunacy or in- sanity and appoint a guardian for a person, without an inquisition of lunacy and the intervention of a jury under P. L. 1915 p. 57, which act was declared unconstitutional, because denying the right of trial by jury. In re McLaughlin, 87 N. J. Eq. 138. But it appears to be in the nature of an application for appointment of a guardian for a person adjudged insane by the court of common pleas and committed to the state hospital at the expense of her estate under P. L. 1916 p. 182, which was involved In re Braune’s Estate, 103 Atl. Rep. 412. This act was superseded by P. L. 1918 p. 343 (see, especially, p. 372 ¶ 401 et seq.), and was repealed by P. L. 1918 pp. 1050, 1052.

In re Braun's Estate, Stevens, vice-ordinary, on appeal from the orphans court, in a case where a guardian had been appointed apparently by the court of common pleas (although the report does not disclose that fact), without notice to her. affirmed the proceedings because the appeal was brought by an unauthorized person, but said that if an appeal had been taken by or on behalf of the subject, of the proceedings. Mrs. Braun, he would have advised an order of reversal. lie expressed no opinion on the constitutionality of tlie act in question (1916).

I and that there have been several cases in this court under that act (1916) for the appointment of a guardian on adjudication of insanity in the common pleas, and the application here was for the appointment of a guardian to conserve the estate of the person non com,pos, notably, Mary Diki (T)ieky) '(-16-230) ; Joseph Eogowski (46-230); Anna Moore (4-6-230) ; Alois Tloclireimer (46-230), in which guardians were appointed on the advice of Vice-Chancellor Lane. I do- not feel that it is necessary for me to pass upon the constitutional question referred to- — certainly not unless and until it is raised by the subject of the proceedings for whom a conservation guardian is applied for.

The result I have reached is, that the present application must lie denied and the petition dismissed, hut without prejudice to the filing of a petition for the appointment of a conservation guardian to pay for the maintenance of Mrs. Clarke in the state hospital out of her evstate, as was done in the Dicky, Eogowski, Moore and Ilochreimer eases.


text:
    Board of Education of the Borough of Merchantville, complainant, v. Anna V. Davenport, defendant.
    [Decided June 20th, 1924.]
    Specific Performance — Agreement to Lease and Option to Purchase Signed by Defendant as Executrix Not as Individual— No Power to Sell as Executrix — Specific Performance Will Not Lie — Suit for Damages Against Estate.
    On bill, &c. On final hearing.

      Mr. J. Glande Simon, for the complainant.

      Mr. Wilburt V. Pilce, for the defendant.
   Leaming, V. C.

(orally).

It was probably the purpose of Mrs. Davenport, at the time this lease was signed and the option of purchase given, to bind herself to sell this property at the price named if the borough determined to take it. It was a bargain that- she intended to make and which she intended at that time should be binding upon her in every way, and the borough in equally good faith undoubtedly intended to accept a lease that had some value, a lease that could be enforced in case they determined to enforce it, and an option of purchase that could be enforced in case they determined to purchase the property, but instead of taking an option of purchase from Mrs. Davenport in her individual capacity they took an option of purchase from her as executrix of her husband's estate. From a moral standpoint one would say it was the duty of Mrs. Davenport to1 convey this property.

But it is impossible for this court k> say that anyone who signs a contract expressly as an executor or executrix can be hound by it as an individual in a suit for specific performance. Suppose Mr. Parker should be' the executor of an estate and should execute a contract whereby he agrees as an executor to sell me a piece of land, no court can compel Mr. Parker to specifically perform that agreement except as executor, because he has agreed to convey as executor and not as an individual. The distinction between a person in his personal capacity and in his capacity as a representative, or as an executor, is so clearly drawn that the two characters or capacities are separate and independent — they are different 'persons or entities; and while it is probably true that at the time this lease was drawn that word “executrix” was used without due care — whoever drew the agreement probably thinking that the power of sale was in Mrs. Davenport as executrix rather than individually — that error cannot be corrected at this time', because it isn’t in the power of the court to now correct it. Mrs. Davenport as executrix has no power to sell this land, and as an individual she can refuse to sell it, and this court cannot compel her to' sell it in an action for specific performance. This is a peculiar type of action : it isn’t a suit for damages. In this suit a court of equity is asked to compel Mrs. Davenport personally to make good this agreement which she has made as an executrix; it asks her to specifically perform it by executing a personal deed to. the land. It is an extraordinary remedy, an unusual remedy, and a remedy unknown to court of law; it is a remedy only known in courts of equity, and it can only be enforced when the right of enforcement is clear.

I take no stock whatever in the defense that is made to the effect that the price of this property was unreasonable; in other words, that Mrs. Davenport, under her husband’s will, did not have the right and power to sell this property at *5.300. I consider that she did. There is testimony here to diiw that at that time the fail value of the property might have been more, perhaps $3,000 more, and there is other testimony that is quite to the contrary, and when it is a matter of disagreement between competent people as to whether the price was high or low, it surely would not unseat a sale that had been made at the lower price on- a theory that it was an unreasonable or unfair price. I have no favorable finding to make in behalf of that defense, but I do hold it is impossible to exercise the remedy here sought, that of compelling Mrs. Davenport personally to make a conveyance. That, however, does not necessarily exempt Mrs. Davenport from liability; complainant still has her contract. She, as executrix, has agreed to sell to complainant this land for $5,300,’ and she, as executrix, has refused to make good her contract, and if the board of education has suffered damages by her failure to malee good that contract, I see no reason why' the board cannot recover those damages from her as executrix and enforce the claim as a valid claim against her husband’s estate. In a suit at law for damages it would seem that the measure'of liability^ would be the difference between the contract price and the market value of the land when the conveyance should have been made. But that doesn’t help the present situation; this court is without power to specifically enforce this agreement against Mrs. Davenport personally, because this is an agreement by her as executrix. Nor can the agreement be reformed and specifically enforced. Reformation would not only add a new party to the agreement, but would also change a writing by parol. The cases of Schwartzman v. Creveling, 85 N. J. Eq. 402, and Schenck v. Spring Lake Beach Improvement Co., 47 N. J. Eq. 44 and the several cases cited in the former case; are conclusive in the denial of the prayer of this bill.

T will advise a decree dismissing the bill, but without prejudice against a suit at law by the board of education for damages.


text:
    Grace Kuehnle, petitioner, v. Henry Kuehnle, Jr., defendant.
    [Determined June 18th, 1924.]
    On bill for maintenance.

      Mr. William Charlton, for the petitioner.

      Mr. Joseph A. Gorio, for the defendant.
   Ingersoll, V. C.

An order of fifteen dollars ($3 5) per week for the support of the children will be made.


author: Le-uiixg, Y. C.

text:
    Union Building and Loan Association of Camden, New Jersey, complainant, v. Ralph D. Childrey et al., defendants.
    [Submitted June 10th, 1924.
    Determined June 20th. 1924.]
    Mortgages — Foreclosure—Redemption After Confirmance of Sale But Before Execution of Deed — Order to Show Cause Discharged.
    On bill to foreclose. On hearing on petition of mortgagor to redeem, filed after sale under foreclosure deem1 had been made and sale had been confirmed, and before deed to pur•chaser had been executed.

      Mr. D. Trueman Stackhouse, for the petitioner.

      Mr. Charles V. D. Joline, for the respondent Nathan Obus.
   Le-uiixg, Y. C.

No facts are in dispute herein. The single question for determination is whether a mortgagor is entitled to redeem the mortgaged premises, by payment of the amount of the decree and costs, after a sale has been made under a foreclosure decree and the sale has been confirmed, but before a deed has been executed by the officer who made the sale.

No claim is made that the sale was not regular in all respects, or that the amount hid was not adequate. The claim is that the right of a mortgagor to redeem obtains until the delivery of a deed by the judicial officer.

The mortgaged premises were purchased at the sale by a tlii-rd party for an amount in excess of. the amount decreed to be due to the mortgagee; that purchaser now resists petitioner’s claim of right to redeem.

In the early English practice the ordinary remedy of a mortgagee was the procurement of a decree foreclosing the equity of redemption; in later years that remedy has been commonly referred to as “strict foreclosure.” In form, the decree was that upon failure of the defendants to pay the amount found due at a specified time — usually three or six months — they- should stand foreclosed of all equity of redemption of, in and to the mortgaged premises. 2 Dan. Ch. Pl. & Pr. 998; 3 Ibid. 2213, 2214. Default in payment pursuant to that decree was operative to create an absolute estate in the mortgagee; but to rendér the decree pleadable, an order of confirmation was necessary. That order issued upon an affidavit being filed disclosing that’ defendants had not paid at the time specified for that purpose. 2 Dan. Ch. Pl. & Pr. 998. In appropriate circumstances the court would extend tlio time for payment of the money even though the final order had been enrolled. 2 Ibid. 999. Thornhell v. Manning, 1 Sim. (N. S.) 451. in certain classes of cases— included, among others, ownership by an infant heir, whose equity of redemption could only be absolutely foreclosed by decree until default should have been made after the infant had arrived at majority — the mortgaged estate could lie ordered sold. 2 Story Eq. Jur. § 1026; 2 Fonb. Eq. 214; 1 Dan. Ch. Pl. & Pr. 284. Subsequently, under 15 and 16 Vic. § 48, a decree foreclosing the equity of mlemption and directing sale of the mortgaged estate to satisfy the debt appears to have been permitted at the request of the mortgagee. and on terms at the request of the mortgagor. 2 Dan. Ch. Pl. & Pr. 1265. T think no English authority can lie found in any way recognizing or even suggesting the possibility of the existence of a right of redemption after a public sale liad been made pursuant to a foreclosure decree.

There appears to have been no statute in this state specifically authorizing a decree for sale of the mortgaged estate prior tO' the act of February 29th, 1920. R. S. 1820 (Penn.) 702. By ad of March 12th, 1798 (Pat. L. 303), a decree for sale was authorized in foreclosure suits after a decree pro confesso against an absent mortgagor: by the act of 1820 the decree for sale was authorized in all foreclosure cases. Section 8 of act of 1820 lias been continued in force until this time, and is identical with section 53 of our present Chancery act. 1 Comp. Stat. p. 429. Section 9 of the act of 1820 is essentially the same as section 5 Í- of our present Chancery act, and directs the sheriff or other officer making the foreclosure sale to deliver a deed to the purchaser.

A decree for sale is now the ordinary procedure in the foreclosure of moitgages in this state, and its usual form is the form adopted in the present case: “That the defendants stand absolutely debarred and foreclosed of and from ail equity of redemption in and to the said mortgaged promises when sold as aforesaid by virtue of this decree.” In Atwood v. Cramer, 75 N. J. Eq. 319 (at p. 325), Vice-chancellor Emery expressed the view that under that form of decree the right of redemption continues until the sale; that view is by him based upon the language of the decree, “when sold as aforesaid by virtue of this decree.” The same view had been previously adopted by the same vice-chancellor in Howards Sav. Inst. v. Essex B. & L. Assn. (N. J. Ch.), 46 Atl. Rep. 223, and in Wimpfheimer v. Prudential Ins. Co., 56 N. J. Eq. 585.

The first statutory requirement in this state for a confirmation of sale in foreclosure cases appears to hare been section 4 of the act of March 12th, 1880. That act, unmodified in its requirement for a confirmation of sale, is now section 50 of our Mortgage act. 3 Comp. Stat. p. 3422. That requirement is that the sale shall be reported, and if approved shall be confirmed “as valid” and “effectual in law,” and an order shall direct the officer making the sale to execute a deed to the purchaser'. Chanceiy rule 218, adopted September 20th, 1880, is to the same effect.

It is the contention of petitioner that although tire right of redemption cannot be said to extend beyond the time of the sale, the sale cannot be understood as having been made until the deed is delivered pursuant to the order of confirmation, since the-sale is consummated by the deliverv of the deed.

On the contraía, I am convinced that the “sale” which the statute contemplates, and which the decree specifically refers to as the time'when the equity of redemption shall be deemed foreclosed, is the public sale made b3r the officer as distinguished from the deed of conveyance which is to be executed after the sale shall have been confirmed.

By the terms of the decree defendants are to “stand absolutely debarred and foreclosed of and from all eqmdy of redemption in and to the said mortgaged premises when sold as aforesaid b3r virtue of this decree.” By a preceding provision of the decree a writ of fieri facias is ordered issued, directed to the sheriff, “commanding him to make sale, according to law, of the said mortgaged premises.” As directed by that writ the sheriff has made report to the court tliat after duly advertising the sale of the property he has sold the same at public vendue to Harry II. Teitehnan for $10,010., lie being the highest bidder; the report also being accompanied with the statutory affidavit touching the sale. On that report an order has been made in which it was “ordered that the said sale he and the same is hereby confirmed as '\alid and effectual in the law,” and directing the sheriff to execute a deed to the purchaser. It is thus clear that the writ, the return and the order of confirmation, by their terms contemplate the act of procurement of a purchaser at a public vendue as the sale which the decree has ordered made under the writ, the issuance of which writ the decree directs. And it appears to me equally clear that the sale referred to in the decree as the termination of the right of redemption as well as in the act authorizing the decree of sale is the public exposure of the property for sale and the procurement of a purchaser by that means. Not only is that “public sale” of the properly a sale in the; common acceptation of that term, hut at that time the equitable title to the property passes to the purchaser. Unless that sale should be set aside by failure of confirmation or for other cause, the purchaser at the public sale can enforce a formal conveyance, and specific performance can be enforced against such purchaser either by petition in the foreclosure suit or by hill for specific performance. Silver v. Campbell, 25 N. J. Eq. 465; Bowne v. Ritter, 26 N. J. Eq. 456. Thus the highest bidder, as purchaser at a sheriff’s sale, acquires hv the act of purchase a right to a conveyance. The order of confirmation confirms and has relation hack to that sale, and the delivery of the sheriff’s deed is a mere ministerial act which the officer is required to perform to consummate the sale and vest in the purchaser the legal title in compliance with the law under which the sale is made. The sheriff’s deed, when delivered, also has relation hack to the time of the public sale. The date of the sheriff’s deed and the date of its delivery*are declared to he circumstances of no importance so far as the sale is concerned. Carpenter v. Shanley, 75 N. J. Eq. 369; Morse v. Hackensack Savings Bank, 47 N. J. Eq. 279, 281. In Wimpfheimer v. Prudential Insurance Co., 56 N. J. Eq. 585, the view is clearly expressed to the effect that the officer’s procurement of a purchaser by a public sale of mortgaged premises pursuant to the decree is operative to terminate the right of redemption, subject only to- confirmation by the court. It is unnecessary here to determine whether a right of redemption majr be said to exist after the officer’s public sale and before its confirmation; in this case the'sale has been regularly made and duly confirmed; the deed will follow as a mere ministerial act.

An order will be advised discharging the order to show cause and restraint.


author: Ifgersoll, Y. C.

text:
    Liberto Albert Volpe, petitioner, v. Rose Volpe, defendant.
    [Heard and determined June 3d, 1924.]
    Divorce — Question of Clean Hands of Complainant — Presumption . of Coercion' — Sufficiency of Testimony.
    On petition for divorce. On final hearing.

      Mr. William Smathers, for the petitioner.

      Messrs. Gole & Cole,, for the defendant.
   Ifgersoll, Y. C.

I do not think it is necessary for me to take this case under advisement. There are many conflicting situations in this case. The first, though not so important as many others that I will speak of, is the fact that this man is now living in the same house, with no one else in that house than his children, with the wife of the man whom he charges as the co-respondent, which raises a very grave question whether lie comes into court with the clean hands that the court of chancery requires of a man under such circumstances. Certainly, it would ho quite clear that it would he extremely doubtful if a final decree would he granted, if a decree nisi would he granted at this time, and he continue to live in such a situation between the time of the decree nisi and the time at which a final decree could become due. I doubt if under such circumstances a final decree would ever be made by the court of chancery.

At the close of the petitioner’s case there was nothing upon which a decree for divorce could he advised. No attempt had been made to overcome the presumption of coercion so far as the confessions had been made. At that time the question of a confession or an oatli before the grand jury had not been testified to, and could not have been, because no one else could testify to what occurred in the grand jury room. I am satisfied that the burden of proof to show that those confessions, other than that one before the grand jury, has not been carried to show that those confessions were not caused by the coercion of the husband, and at the present time T am satisfied that his denial is insufficient to place them in the cacagorv where they can ho admitted as conclusive evidence against her. So far as the confession before the grand jury is concerned, I am forced to the conclusions that, even at that time, she was under the coercion of lier husband. She testifies that she came to the grand jury with the avowed intention of telling that she had had no relations with Dileo, hut that, her1 father being away for a time, her husband grasped the opportunity and again threatened her. That is not denied, and 1 am hound to feel that that presumption still exists.

Had there been but one child sworn, bad the boy been the only one sworn, I would have, and did at the end of his testimony, feel that his story was true, but when the second child came on, and even the preliminary examination by the court to test her capacity to be sworn a.s a witness, she used almost the- same language, gave almost verbatim the same responses to the questions propounded by. the court to- test that capacity, but more noticeable was it afterwards, when on the witness-stand, when the testimony of the two are so closely parallel, the use of the words, the same words so often occurred that I cannot feel that two children, one of them the age of about eight or nine, when the facts about which they are testifying occurred, the. other a year and a half oidor, it is impossible to- think that they could use the same language in describing what had occurred so- many months before. I am only in the position here to decide whether the case has been proven according to the laws as existing in the state, and it cannot help but be clear in the mind of anyone hearing the testimony here that there is a tremendous lack of honesty, of truthfulness — when I say honesty, I mean so far as the statement of "facts are concerned — and, perhaps, of morals existing in these two families. The fact that the children are found debauched by their own father, or by some other man, have been outraged, shows certainly a lack, at least, of that'proper precaution and care which the parent should exercise over children, but I 'am bound, on the. question of application for a divorce; which has been justly stated to ■ be a tripartite case, one in which the man, the wife and the state are each parties, to find in this case that the petitioner has not carried the burden of proof to- show that the confessions made by the wife to him in his presence, or immediately after leaving his presence, have not been by bis coercion, and even had I found that those confessions were sufficient, I am still bound to find that they have not been corroborated by such strong circumstances as in our laws make it necessary.

I am satisfied that the testimony of the two children, doubting as I do the truth of it — and I say that emphatically — -that I do not believe the story as told by the two children.; I believed the boy, but when it came up to the girl, the two of them apparently schooled in their testimony, of coarse, we all understand without any knowledge on the part of counsel in any way. would never for an instant think that anything I would say would extend to that, hut, without question, those children were schooled in their answers, I cannot find sufficiently to corroborate even if 1 could admit the confessions as being true and binding.

finder those circumstances, and, as intimated before, without intimating my personal view of the situation in these two families at all, I am bound to say the petitioner has not produced proof sufficient to entitle him to have a decree for divorce, and the petition will be dismissed.

Mr. Cole — Will your honor add a little counsel fee by way of a penalty?

The Court — The husband who brings a suit is bound to-furnish the funds, even if it appears on the face that the defendant is guilty. 1 will only make a nominal fee of $50.


author: Inoeesoll, V. C.

text:
    Karl Schaffer, complainant, v. Warren W. Hurd et al., defendants.
    [Determined June 18th, 1924.]
    Mortgages — Foreclosure—Vacation of Order for Purpose of Protecting Right of Petitioner — Question of Procedure by Petition or Bill of Review.
    On petition to ojien decree.

      Mr. Albert G. Abbott and Messrs. Gola & Cola, for the petitioner (defendant).

      Contra, Messrs. Thompson & Hanslein and Mr. Merritt Lane, for the complainant.
   Inoeesoll, V. C.

The original bill in this cause was for the foreclosure of a tax title to a large number of tracts of land in Atlantic City, and resulted in the entry of a final decree on July 6th,-1922.

On September 25th, 1923, the defendant Warren W. Hurd filed his petition praying that the “decree'heretofore entered * * * be vacated or opened, to the end that the right of redemption of petitioner be preserved and his interest protected.”

Objection is made that this result cannot be obtained by a petition, but that the petitioner must proceed, if at all, by a bill of review.

Vice-Chancellor Learning, in Boyer v. Boyer, 77 N. J. Eq. 144, states the law -to be:

“After the period for appeal has expired, or after an appeal has been taken and the decree affirmed, the court of chancery cannot entertain a petition to open the decree. Such decree can be challenged only by bill of review.”

I cannot find that this statement • has been criticised nr modified, and it must be accepted as existing law.

The testimony presented would indicate grave doubt of the-giving of proper notices, but without expressing an opinion as to the merits, I will advise an order dismissing the order to show cause, unless within ten days further motions be made.


text:
    JAY RUSSELL. PLAINTIFF, v. EVA M. SMITH ET AL., DEFENDANTS.
    Decided June 19, 1924.
    Service of Summons. — Defendant’s Usual Abode" is With Parents.
    On rule to show cause why service of summons should not he vacated.
    Before Justice Mintukn.
    Eor the rule, Collins é Corbin.

      Contra, Alexander Simpson.

   The residence of the defendant, or his usual place of abode in this state, is the home of his parents. The testimony makes that fact reasonably clear; and henee, I conclude that their residence was his usual place of abode in this state within the meaning of the statute.

‘ The rule upon the subject, as declared by this court, is amply stated in accordance with that conclusion in Missell v. Hayes, 84 N. J. L. 196, and 85 Atl. Rep. 818.

The rule to show cause will therefore he discharged.


author: Lloyd, J.

text:
    EDWIN S. DICKERSON, PLAINTIFF, v. WILKES-BARRE AND HAZELTON RAILROAD COMPANY, DEFENDANT. WILLIAM L, ALLEN, PLAINTIFF, v. WILKES-BARRE AND HAZELTON RAILROAD COMPANY, A BODY CORPORATE, DEFENDANT.
    Argued March 1, 1924
    Decided May 7, 1924.
    Statute of Limitations — Coupons to Bonds — Independent Simple Contracts to Which the Six-Year Limitation Applies.
    On motion to strike out answer.
    Before Justices Miytlen and Lloyd.
    For the plaintiff, Edwin S. Dickerson, D. Trueman Stack-house.

    For the defendants, Katzenbach tfi Sunt.

   The opinion of the court was delivered by

Lloyd, J.

These two cases were submitted together and involve the same question, viz., the legal sufficiency of: the plea of the statute of limitations. Both plaintiffs are holders of detached coupons formerly annexed to bonds issued by the defendant. The coupons were all due and payable more than six years before the present suits were commenced and are in form, except as to number, as follows:

“WILKESBARRE AND HAZELTON .

RAILROAD COMPANY On the 15tli day of

May, 1915 ($25)

Will pay to bearer at the office of Guaranty Trust Company of New York, in the cityof New York, N. Y„ TWENTY-FIVE DOLLARS, United States Gold Coin of the Standard existing May fifteenth, 1901.

Without deductions for taxes being six months7 interest then due on its five per cent, gold bond No. 757.

($26) N. C. Yost, (28)

Treasurer.”

The statute of limitations being pleaded it is contended by the defendants that the right of action accruing more than six years before suit the plaintiff is barred from recovery.

The coupon is a simple contract wherein the defendant, by its treasurer, promises to pay a certain sum of money at a certain time and place therein named. If it stood alone and wholly disconnected from any other obligation the holder would, by virtue of the statute of limitations, be obliged to commence his action within the statutory period of six years. It is contended, however, that the provision of the statute applicable to bonds applies, and that the limitation is sixteen years because of the fact that the coupon was, when executed, attached to a bond under seal. The relation of the conpon to a negotiable bond has been a fruitful source of consideration in the courts. The general trend of authority has been to hold that the detached coupon, when negotiable in form, is free from the conditions and limitations contained in the bond itself. 9 Corp. Jur. 50. And in this state that they form a distinct and independent contract. Jones Co. v. Guttenberg, 66 N. J. L. 666; Mack v. American Tel. Co., 79 Id. 109; and finally in a case arising upon a coupon of this same issue of bonds (Fidelity Trust Co. v. Wilkesbarre and Hazelton Railway Co., 120 Atl. Rep. 734), the Court of Errors and Appeals declared it to be a “separate and distinct indebtedness in the hands of a bona fide holder, and may be sued on regardless of the mortgage provision concerning the payment of the mortgage indebtedness.77 In that case the defendant sought the protection afforded the companv by the bond itself in which it was provided that suit could only be maintained by the trustee. The defense was held to be unavailable because of the independent status of the detached coupon. In this it must he observed that the independent status of the coupon is based not upon the construction of the bond nor upon the intentions of the parties resulting from' such construction, but upon the absolute divorcement of the contract. If, therefore, the detached coupon constitutes in the hands of the holder a distinct and independent contract, represents a distinct and independent indebtedness, is free from the restrictions ■ and limitations contained in the bond to which it was attached, it would be both illogical and unjust to attach to the coupon for the benefit of the holder the protection of the seal of the bond when considering the application of the statute of limitations, while denying to the maker tlie advantage of its protective features.- No anjount of discussion can make the proposition clearer than the plain statement. The 'plaintiff must come under the provisions of the bond in their entirety or be free from them all. The court of last resort has placed him in the latter class; the coupon stands by itself, is a simple contract obligation of the defendant to pay, and to it the statutory limitation of six years applies.

The motion to strike out the answer must be denied in both cases.