author: Pitney, Y. C.

text:
    Melford N. Roll et al. v. Abraham Everett et al.
    [Decided December 15th, 1906.]
    1. The owner of a tract of land conveyed it to two persons as tenants in common, tbe deed providing that it was agreed between the parties that it should not “conflict with the title” to any part of the granted premises previously conveyed by the grantor to any parties. Thereafter one of the grantees sued to recover possession of a parcel of the tract, and in such action the grantor of the tract gave a deposition to the effect that he had conveyed the land involved in the action to a certain person prior to the conveyance to plaintiff therein and her co-tenant, and he refreshed his memory by reference to a book kept by himself showing the various conveyances which had been made, and by consent a copy of the book was made and used on the trial. Subsequently those representing the title conveyed to plaintiff in such action sued for partition of another parcel of the tract, and defendant claimed that the land sought to bo partitioned was not included in the original conveyance of the tract, and sought to show the same by producing the copy of the book which had been introduced in the former action, and by proving that it was a true copy, without any proof of any effort to produce the original. It was not shown that the one to whom defendant claimed the original owner had conveyed the land had ever claimed title, or that he was in any possession claiming under a lost deed.—Held, that such evidence was insufficient to establish defendant’s claim.
    2. In a suit for partition tbe court would not determine the validity of a tax title asserted by defendant, but would hold the case to await the decision of a court of law as to the validity of such title.
    8. Where the interest of one tenant in common was sold under execution, the purchasers could not, by subsequent dealings between themselves, such as partitions and conveyances, of which no notice was brought to the owner of the remaining interest, increase the purchaser’s interest in the premises.
    In partition. Final hearing on bill, answers ánd proofs.

      Mr. Frederic M. P. Pearse, for the complainants.

      Mr. Alan 11. Strong, for the defendants.
   Pitney, Y. C.

The complainants, on behalf of themselves and certain cestui que, irustents, who are made defendants, -but who are really in the same interest with the complainants, claim to be the ownerb of the equal undivided half of certain lands situate in the borough of South Amboy, Middlesex county, and file their bill against the defendants, other than the cestui que irustents just mentioned, praying for a partition.

I will hereinafter ignore the cestui que irustent defendants and speak of the real defendants, Abraham Everett et al., as the defendants.

The land in question consists of a block which was numbered forty-one (41), and laid out on a map of the village of South Amboy made in 1835 by one Perrine and on file in the office of the clerk of Middlesex county, and is bounded on the east by Pine avenue, on the north by Louisa street, on the west by Eeltus street and on the south by Portia street.

The block lies in the extreme outskirts of the borough as now improved, and has never been improved in the least, or built on or occupied by anybody.

The streets at the east, north and west have been traveled, but not that to the south. The lot itself is covered with brush.

It is alleged by the complainant, and distinctly admitted by the defendants at the hearing, that this block of land is a part of what was in 1835 laid out by two gentlemen, Messrs. Cotheal and Thomas, as trustees for a syndicate of land speculators, and partially sold off at auction.

The whole tract thus laid out consisted of several small farms, the title of which was united in said Thomas and Cotheal in 1834.

In April, 1874, Cotheal, as the survivor of Thomas, conveyed those farms to Mary Jane Roll and Sarah E. Dey, in consideration of $2,500.

This deed of conveyance, however, contained this clause:

“It is agreed by and between the parties to these presents that this indenture shall not conflict with the title to any part of the aforesaid premises previously sold and conveyed by the said Alexander T. Couheal and James P. Thomas to any party or parties, and this deed is subject to any such conveyances. And all the parks, streets and avenues as laid out on the aforesaid map are hereby excepted from this deed, and are not quit-claimed or in any manner conveyed by these presents.”

It is palpable, of course, that the object was to convey all the parts of these farms which were laid out on the map of 1835 and not previously conveyed.

The complainants represent the title so conveyed to Mary Jane Eoll, and the defendants, as alleged by the complainants, represent the title so conveyed to Sarah E. Dey.

The public records show that the title passed from Mrs. Dey to Everett and Perrine by a sheriff’s conveyance based on an execution against said Sarah and a decree for deficiency on the foreclosure of a mortgage against her. This sheriff’s deed was dated April 11th, 1877, just three years after the conveyance to Eoll and Dey.

■ No deed appears of record from Cotheal and Thomas, or either of them, to any person for the lot forty-one (41) here sought to be divided, and which was confessedly a part of the three farms comprising the original plot of the village of South Amboy.

That Cotheal and Thomas were once seized of the lot or block forty-one (41) was admitted by the defendants.

It follows, then, that the conveyance to Mrs. Eoll and Mrs. Dey passed the title to them as tenants in common, with the usual result, in the absence of anything like adverse possession or claim of title on the part of anybody else, that they, Eoll and Dey, became constructively in possession of the land, and as there has been no sort of adverse claim or possession, either as between Mrs. Eoll and Mrs. Dey or their grantees, or by any third party, that constructive possession continues.

To this case made by the complainant the defendants set up two distinct defences.

They do not deny that Cotheal and Thomas were at one time' seized of the premises in question, and that Cotheal, as survivor, was competent to convey them to Mrs. Eoll and Mrs. Dey, or that the consideration of $2,500 mentioned in that deed was not actually paid in good faith, by Eoll and Dcy to Cotheal, but they allege that block forty-one (41) was not included in the description found in that conveyance, but was excepted thereout by the language of that deed above quoted, because it had been previously conveyed away by Thomas and Cotheal to one Taylor.

Now, I conceive the burden is on the defendants to prove this, and this they attempt to do. They do not produce any deed executed by Cotheal and Thomas, or either of them, or any record of any, nor the evidence of anybody that they ever saw such a deed, or that it was ever executed. Nor do they produce any memorandum in the handwriting of either Cotheal or Thomas that they had ever executed such a deed, but they attempt to prove it in this wise:

In the year 1884 an action of ejectment was brought in the Middlesex circuit court by Mrs. Eoll against one Eea to recover possession of two small building lots, parcel of another block in South Amboy, based on the before-mentioned conveyance of 18*74, and in that cause the deposition of Mr. Cotheal, then alive and a resident of New York City, was taken, wherein he swore that he had made a conveyance of the lots claimed by Eea to one Leary, and for that purpose Mr. Cotheal refreshed his memory by reference to a book kept by himself, or under his immediate direction, in which he set down the various conveyances which he and his co-trustee, then dead, had made of these premises. Also an account which he had kept of the amount of money received for such sale and the persons from whom he had received it. This book and the original account he refused to have go out of his possession, but, by consent of counsel in that cause, a copy of each was made and compared and used on the trial of the case of Boll v. Rea, which took place in 1886. Defendants now produce the copy then made of the original book and document in Cotheal’s possession, and prove by a witness that those copies are true copies of 4he original, compared at the time of the taking of Mr. Cotheal’s evidence, and they offered the copies in evidence in this cause without any proof of any effort to produce and find the original.

The object of this offer is to show that block forty-one (41) was conveyed to one Taylor by Cotheal and Thomas in 1835. They also produce an old copy of the Perrine map, upon which block forty-one distinctly appears, and across it is written the word “Taylor.”

I admitted these documents in evidence subject to the timely objection- of counsel for the complainants, but expressed the opinion at the time that the evidence was insufficient to show that the conveyance of 1874, upon which complainants rely, did not include the land in question, or rather, that the land in question was excepted from that conveyance under the excepting clause above quoted.

After having heard further argument and given the matter further consideration, I am still of that opinion.

If Taylor had ever come forward and claimed title to the land, or was in possession claiming under a lost deed, it is possible, I will not say probable, that a different ruling might be proper. •But the present situation is simply this: Two persons pay for

and accept a conveyance from a third party of land of which their grantor was once the undoubted owner. One files a bill against the other for partition, and that other sets up as a defence that the land in question was not included in the terms of the deed under which they both claim, or rather, was excepted out. Nov, I think in such a case the person making the allegation should be held to strict proof. Such proof has not been made.

Moreover, it is worthy of remark that the clause in the deed from Cotlieal to Eoll and Dey of 1874 does not say that the description in the conveyance shall not be held to include any land previously conveyed, but it says that “this description shall not conflict with the title of any part of the aforesaid premises previously sold and conveyed,” &c. Now, the difference between that language and the verbiage of an ordinary exception out of a description may be slight, but I think, for present purposes, it is material. It permits the doctrine of constructive possession to hold good until the actual appearance and claim made by some holder of an older title.

This conclusion renders it unnecessary to determine another question which would arise if the giving of the deed of Thoma» and Cotheal to Taylor in 1835 had been established by parol, and that question is whether such proof would at all affect the relation of these parties to each other since it would destroy the title of each and neither have any title by constructive possession.

Here we have a party at one time the admitted owner of the premises making a conveyance of them to two parties by a description which clearly describes and includes a certain block of land, but containing a clause which, as claimed by one party, excludes all land previously conveyed. Now,_ it seems clear enough that such conveyance gives the grantees a color of title with constructive possession, which cannot be disturbed and destroyed by parol proof of a former conveyance under which no entry or possession has been made or taken. If such parol proof be made it does not in the least affect the relation of the two grantees to each other. It simply results in showing that neither has any title. Now, when neither has taken possession to the exclusion of the other, and neither has title, I find it difficult to perceive how either can object to a legal proceeding which will result in simply marking on the ground the limits of what would be the title of each if they had any. The only effect that I can perceive of the proof by the defendants that neither they nor the complainants have any legal title is to relieve them from the liability to pay costs.

I have looked through numerous cases, including all those cited by counsel for the defendants, and I can find no authority for the position which he here takes in that respect. The rule that the defendant in ejectment may defend his actual possession, or that of his tenant, by showing that the plaintiff has no title has no application to the present case, for the simple reason that here the defendants are not in actual possession.

The next defence set up by the defendants is a tax title supported by a deed made on the 4th day of June, 1877, by John Disbrow, collector of the township- of South Amboy, to Ward C. Perrine and Abram Everett, who, as we have seen, had purchased at a sale by the sheriff the right of Mrs. Dey in the premises by a deed dated the lltb day of April, 1877.

The deed by the collector of June 4th, 1877, is based on a warrant signed by five persons purporting to be the township committee of the township of South Amboy, of whom Abram Everett, one of the grantees, purports to be the chairman, and it recites that

“it appears to the committee that one John I-I. Clark, one Milley D. Powers, and George Leary, who reside out of the state, were duly assessed by the assessor of said township in the sum of, Milley D. Powers for the year 1874 for $91 and for the year 1875 $154.56, John H. Clark for four years $41.10, George Leary $14.10 for their taxes for the years [without mentioning the years] on account of lands, tenements and hereditaments of the said John H. Clark, Milley D. Powers and George Leary, situate in said township, which said lands, tenements and hereditaments were by the said assessor description---[no description given], and that the said assessment, together with interest thereon, &c., have remained unpaid for the space of one year after the said tax was payable, you are therefore hereby commanded to make the said sum of the taxes aforesaid and interest thereon from and after the twentieth day of December, a. d. 1874, the cost and fees in relation to said assessment and the costs of the execution hereof of the lands, tenements and hereditaments so described as aforesaid, by selling the same or any part thereof as will be sufficient for that purpose for the shortest term * * * and you are further commanded to pay the money raised by such sale to the township committee and make return of this warrant and your proceedings thereunder.”

Then follows a recital that the collector had given notice of the time and place of the sale “of the lands, tenements and real estate in said warrant described” by advertisement, &c., and at the time and place, on the 30th day of June, 1877, he sold and struck off the following-described part of said lands, tenements and hereditaments, namely, the lands of John H. Clark. Then follows a reference to block 41 and lots in other blocks, with a reference to the map of Perrine, in the township of South Amboy, previously mentioned, and that Perrine and Everett bid for the knds the amount of the tax mentioned in the warrant, $127.77, for the term of seventy-five years. Then there is an acknowledgment of that deed before a master in chancery on June 4th, 1877, and the ordinary affidavit that the lands had been sold to the best advantage, &c.

To this instrument the counsel for the complainants makes two answers—first, that it is void on its face, and second, that if it is not so void, and the court shall be of opinion that it is a ?alid deed, he takes the ground, for which there is more or less authority, that one tenant in common cannot cut off the interest of another tenant in common by buying in the property under a sale for taxes under circumstances like those above recited, but that the same are subject to redemption by him at any time, and offers to pay one-half of the amount so paid by Ward and Perrine, with interest during all these years.

I will first consider his first point.

I find the law, as to sale of land for taxes, to have been in 1877 that found in the revision of 1877, page 1163, &c. It consists of the act of March 17th, 1854; a supplement of March 25th, 1863, and a supplement of March 26th, 1873. The first section compels the assessor to assess all the lands in the names of the owners, “and to designate the same by some short description as will be sufficient to ascertain the location and extent thereof.”

The second section provides that the tax so assessed shall remain a lien thereon for two years from the time when the taxes were payable.

The third section provides that if the taxes remain unpaid for a year (reduced to four months by the act of 1863), then the township committee may issue a warrant to the constable of the township

“commanding him to make said taxes, with the interest, &c., of the lands, tenements and hereditaments or real estate on account ivhereof the same were assessed as aforesaid, and of lohieh the assessor's description shall be therein set forth, for the shortest term.”

Section 4 provides that the warrant, before execution, shall be recorded by the clerk of the township in a book to be proidded.

Section 5 provides that the constable shall advertise, &c.

Section 6 directs that a deed shall be made.

Section 7 provides that, notwithstanding any mistake in the names of the owners of any lands in assessing the taxes, the assessment shall be valid.

The supplement of 1873 provides for'the sale of lands of any person or persons, whether the owner is a resident or not, and provides for a sale if the taxes are unpaid for the space of four months, instead of a year, and repeats that the lien is to be for two years, and section 2 provides for redemption by the owner in one year. The revision of this act made after 1877, principally March 14th, 1879, and found in the supplement of the revision, page 990, was, of course, not in force at the time of the giving of the tax deed in this case.

The warrant .in this case was issued to the collector instead of the constable, presumably by virtue of a special act entitled “An act to facilitate the collection of taxes in the township of East Brunswick, in the county of Middlesex,” approved April 4th, 1871, page 1171, which act was extended to South Amboy by an act of 1872, page 616. By that act the collector of the township was given power to enforce the collection of all delinquent taxes “assessed on any real estate in said township by exposing the same for sale,” &c., to the person or persons who will take the least quantity of said land to be laid out in one body and to commence at some designated corner of the premises on which said taxes are claimed to be due. This provides for sale in fee-simple of a specific quantity of land. The second section provides that no land shall be sold until the township collector shall have made a return that the taxes are unpaid and have by him been returned as delinquent, and shall verify the same by his affidavit. The third section provides that within ten days after the return of delinquents by the collector the committee shall cause a copy of the return to be recorded in the clerk’s office and the copy to be posted in three public places. The fourth section provides that the township committee shall cause a certified copy of the return and affidavit to be published therein specifying .the time and place where the same will be sold at auction, and on that day the collector shall sell the tracts to’the person or persons who shall take the least quantity of the premises so offered, and immediately thereafter such sale the township committee shall execute and deliver to the purchaser a certificate of such sale describing the piece or pieces sold and the amount paid and entitling the holder thereof to a deed of the premises so sold, with a proviso that the owner may redeem within two years. It then provides that if at the expiration of one year the owner shall not appear and redeem then the collector may execute a deed. Then follows a repealer of inconsistent acts.

It is quite evident from the tax deed here in question that the township committee and the township collector have failed to follow either this special act applicable to the townships of East Brunswick and South Amboy or the general act of 1854. No proof was offered in this cause of any of the acts required by the statute to validate a tax sale either under the general act of 1854 or the special act of 1871.

Reliance was had by counsel upon the force of those sections of the act concerning the sale of lands, approved March 27th, 1874, and found in the revision of 1877 at page 1045, sections 14 and 15, which make the recitals in such a deed prima facie proof of their truth. The force of those recitals in tax deeds was dealt with by the supreme court in Allen v. Woodbridge, 42 N. J. Law (13 Vr.) 401, and on error, Woodbridge v. Allen, 43 N. J. Law (14 Vr.) 262. The opinion of the court of errors and appeals contains an elaborate treatise on the state of the law at that time.

Without going into detail, if it were within my jurisdiction to determine the question, I should feel constrained to hold the deed here in question absolutely void—first, because the recital in the deed does not show that the taxes assessed against Clark were so assessed upon the very lands which were conveyed; second, because they do not show that the taxes were so assessed and became payable within two years before the sale, but rather the contrary; third, if we look at the East Brunswick act of 1871 we find no such inconsistency in its provisions in this respect with the general act from which we can infer that the provisions in that behalf of the general act were repealed by the special act, and we find the collector in his proceedings not following the provisions of that act.

But, as I feel constrained, by the decision of the court of errors and appeals in the famous and familiar case of Sloch bower v. Kanouse, 50 N. J. Eq. (5 Dick.) Ifil, not to determine any question of pure law in this cause, however plain it may be, I shall leave that question to be determined in the manner to be suggested farther on.

One other matter deserves attention. The defendants show that by divers conveyances and partitions between Everett and Perrine they have treated and dealt with the complete title precisely as if they owned the whole, and claim that while there has been no sort of adverse possession or occupation of the premises by the defendants or any other persons whatever at any time, yet that this dealing in conveyances, in language which indicated that they had a complete title, gives them a sort of (/"uasi-adverse possession.

I cannot accede to that position.

Everett and Perrine undoubtedly bid for and accepted from the sheriff in April, 1877, a deed for the interest of Mrs. Dey. That deed recites a levy on these lands and says the description is taken from Book 146 of Deeds, pages 612, &e., which is the deed from Cotheal to Eoll and Dey, and then, farther on, it specifies what part of that land is levied on, as follows:

“Also block No. 41, consisting of forty lots, being a part of the same premises conveyed by Alexander Cotheal to the said Mary J. Roll and Sarah E. Dey by deed dated April 16th, 1874, and recorded in the clerk’s office of the county aforesaid.”

Here, then, in the levy, which preceded the sale under execution, is a distinct notice to the purchaser that the lands they were about to purchase had been conveyed to Boll and Dey by a deed which presumably created in them an estate as tenants' in common, so that the purchaser had notice that Mrs. Dey had prima facie only a half interest.

Now, it is quite plain that any subsequent dealings between themselves, of which no notice was brought to Mrs. Eoll, could not increase Everett’s and Perrine’s interest in the premises. Mrs. Eoll and her successors in title were under no obligations to watch and take notice of the subsequent conveyances between Perrine and Everett of the interest which they acquired under the sheriff’s deed.

Complainants argue that this court has, in some instances, assumed jurisdiction to determine the validity of a tax title. But those instances were cases where the tax was outstanding and a cloud on the title and the bills were filed especially to remove the cloud, or where the question of the validity of a tax title arose incidentally in a foreclosure proceeding or the like. In the present instance, complainants do not attack the tax title by their bill and it is not framed with that view. Nor do I find any more strength in the further point made by the complainants, namely, that the title of the defendants, or some of them, is equitable only. That circumstance does not give the complainants any* right to invoke the aid of this court to deal with so much of the defendants’ title as is clearly legal. For reasons already given, I feel constrained to await the decision of a court of law as to the validity of the tax title.

Under the circumstances of this case, where neither party have anything more than a constructive possession of the premises, I think the burden is on the defendants to establish their title under the collector’s deed, and I will hold the case to enable the defendants to establish that title as they may be advised. Proceedings for that purpose must be taken within thirty days, and if they shall be advised to bring an action of ejectment against the complainants the bringing of such action shall not be held, except for the purposes of the action, to be an admission that the complainants are in actual possession, and any other provisions may be inserted in the decree to be advised as may be proper to protect the rights of each party in the premises.

The question whether, if the tax title is established, it is subject to redemption by complainants as a tenant in common, is reserved.


source: Caselaw Access Project

author: Pitney, V. C.

license: Public Domain

text:
    George August Beling v. The American Tobacco Company et al.
    [Decided January 4th, 1907.]
    After the filing of a consolidation contract between certain corporations, the business previously transferred by the constituent companies was carried on by the merged corporation as an entirety, and a large amount of the property received by the merged corporation had been sold, exchanged, or converted into other forms, and the receipts therefor had been so commingled that it became impossible to identify the same or to separate the business of the constituent corporations. Complainant, a stockholder in one of such corporations, made no objection to the merger until nearly six months after the merger agreement, during which time, the consolidated corporations’ securities had been put on the market and were largely dealt in. It also appeared that complainant’s assignor, who was the administrator of the record holder of the stock, had received notice of the meeting at which the merger agreement was entered into, and complainant when he acquired the stock had actual notice thereof, and bought the stock for the purpose of suing to set aside the consolidation.—Held, that complainant was not entitled to a decree vacating such merger agreement and requiring the officers of his corporation to resume possession of its assets and continue to transact its business.
    Final hearing on bill and answer.

      Mr. Thomas L. Raymond and Mr. William■ M. Seabury (of New York), for the complainant.

      Mr. Richard V. Lindabury and Mr. Charles L. Corbin, for the defendants.
   Pitney, V. C.

This is, in substance and effect, a bill for the specific performance of a continuing contract in writing, consisting of a certificate of capital stock, dated February 38th, 1894, issued by the then American Tobacco Company to one Fannie Soule, by which it was certified that she was the owner of one hundred shares, of $100 each, of the preferred capital stock of ihe American Tobacco Compaq, which stock was entitled to dividends not exceeding eight per cent, for each year out of the net profits for such year, payable quarterly, in preference to the common stock, and also a preference on the assets of the company on the final distribution or division thereof (1940).

Fannie Soule, the beneficiary named in this certificate, died February 28th, 1895, and one J. Forbes Potter became the owner and holder of said certificate of stock by virtue of letters testamentary of the will of the said Fannie Soule, and held the said certificate until the latter part of the month of January, 1905, when he sold and assigned it to one Schalk, who held it until the 15th day of February, 1905, and on that day sold and assigned it to the complainant, Beling.

In the meantime the ownership of the stock stood on the books of the company in the name of the said Fannie Soule, and dividend checks were sent to her at her address, as recorded on those books, four times each year until the month of September, 1904. Those checks were presumably received by the executor and collected by him in the ordinary course of business.

The business of the American Tobacco Company, as declared in its articles of association, was

“to euro leaf tobacco, and to buy, manufacture and sell tobacco in all its forms, and to establish factories, agencies and depots for the sale and distribution thereof, and to transport, or cause the same to be transported, as an article of commerce, and to do all things incident to the business of trading and manufacturing aforesaid.”

On the 9th day of September, 1904, the American Tobacco Company entered into an agreement of consolidation and merger with two other companies engaged in ihe tobacco business,' to wit, the Continental Tobacco Company and the Consolidated Tobacco Company, to consolidate and merge those three companies into a new company, to be known as the American Tobacco Company, all the said corporations being New Jersey corporations, and said agreement of merger was afterwards approved by a meeting of the stockholders of the American Tobacco Company held, after due and legal notice to each stockholder, on September 30th, 1904.

The agreement of merger was filed in the office of the secretary of state on the 20th day of October, 1904.

The proceedings were had in pursuance and by virtue of section 104 et seq. of-the Corporation act of 1896 and the supplements thereto of April 10th, 1902. P. L. p. 700; Dill. Private Corp. (4th ed.) 128 et seq.

The merger agreement provided that the new corporation, the present American Tobacco Company, should assume 'all the obligations of the old corporations, and provided for the satisfaction of the preferred stock of the old companies, amounting to $14,000,000, of which the complainant is the holder of $10,000, by the issuance of six per cent, bonds, maturing in 1940, the date of the expiration of the original American Tobacco Company’s corporate existence, such bonds to be delivered to the holders of the preferred stock in the proportion of $13,333 of face value of the bonds to $10,000 of the face value of the stock, with a provision for fractions. So that complainant had the option to receive for his certificate of stock six per cent, bonds maturing at the time that his certificate of stock, so to speak, would have matured, which would produce him precisely the same income that his preferred stock, under the most favorable circumstances, could have produced him, and insure him at its maturity one-third more than its face value. Further, as appears by an examination of the consolidation agreement, the security for its payment would have been much better than that for the payment of dividends on his certificate of stock. Then comes the fact, distinctly alleged in the answer, that the market value of complainant’s stock was at once increased as the result of the merger, so that presumably Potter received a greater price on his sale to Schalk than he otherwise could have received.

The only respect in which the holders of such preferred stock could have been the losers by the exchange was in the loss of the right, if any, to participate in the division of the surplus assets of the old American Tobacco Company, at its winding up in 1940, over and above sufficient to pay all classes of stock at par.

The question of this right so to participate was discussed at length, but I do not deem it worth while to express a definitive opinion upon it, since it abundantly appears that the shares of common stock were more than three times the number of that of the preferred stock, and the control of the company was absolutely in the common stockholders, and the directors, being elected by the holders of the common stock, would naturally see to it, by the exercise of their power to declare dividends, that the preferred stockholders should receive no more than the par value of their stock at the end of the corporate existence of the company.

It sufficiently appears, from the pleadings, exhibits and schedules, that the property of the company is composed so much of general merchandise and of individual units quite susceptible of being sold in pieces as to present no obstacle to the consummation of what would almost necessarily lie the natural desire of the common stockholders. And this circumstance makes the case a complete contrast to that of Bridgewater Navigation Co., 39 Ch. Div. 1 (1888); Birch v. Cropper, 14 App. Gas. 525 (1889), which is an authority relied upon in support of the proposition that preferred stockholders have an equal right with the common stockholders to share in surplus assets.

I am satisfied that the allotment of bonds to the complainant or his predecessor in ownership was a fair equivalent for his stock.

This oiler, however, the complainant declined to accept, and by his bill charges that the whole proceedings to merge, though taken and carried through strictly according to the terms of the act of 1896, were absolutely void as to him and the then holder of his certificate of stock, for the reason that that act was passed after the organization of the original American Tobacco Company and after the issuance of the certificate of which he is now the owner.

His argument is the simple one so often advanced, viz., that his certificate of stock was a contract into which must be read the provisions of the Corporation act of the State of New Jersey at the time (1890) that the original American Tobacco Company was organized, and that no more than those provisions can be so read into it; that at that time it was not competent to merge that particular corporation with any other corporation. Hence, he argues, the act of 1896 was absolutely void as to him and his contract, and the proceedings taken under it to merge were as to him absolutely void.

On this basis he prays that the whole proceeding may be set aside, and that the original American Tobacco Company may be compelled to transfer on the books of that company the one hundred shares of such stock to him, and that the merger agreement may be declared null and void as to the complainant and as to the assets of the original corporation, and that the merger itself may be declared to be void, and that the property of the original American Tobacco Company may be declared free and discharged of all liens, by mortgage or otherwise, made thereon since the merger, and that all such liens, as to the complainant, may be declared to be void, and that there may be an ascertainment, under the direction of this court, of the personal and real estate and other assets of the original American Tobacco Company at the time of the merger, and that the same may be separated from the property of the merged corporation and be redelivered to the officers and directors of the original American Tobacco Company, and that there may be an ascertainment of the amount of loss and damage sustained by the original company, and that a receiver may be appointed to take charge of all the property and assets of the American Tobacco Company, and to recover from the merged corporation all of the assets of the original company, and that a mandatory injunction may issue to compel the performance of the decree to be made by the court, and also for other relief.

With regard to any liens put upon the property by the new corporation, the inability of the court to grant the prayer in that behalf appears when we consider that no holder or trustee of any such lien is made party hereto.

A consideration of the wide sweep of the prayer and the task it asks the court to perform is sufficiently startling when we consider that the terms of the merger have been accepted by thirteen million eight hundred and eight thousand five hundred shares of the preferred stock out of a total issue of fourteen million, leaving only one hundred and ninety-one thousand five hundred outstanding, and that all the other provisions of the merger for exchanging preferred stock of one or the other of the merger corporations for bonds of the new corporation and for the exchange of the stock of the old companies has been carried out to an extent equal in proportion to that of the preferred stock of the American Tobacco Company, and that the new bonds and new preferred stock of the merged company have been put upon the general security market and dealt in to a large extent, all before any notice to the defendants or public of the claim now made on behalf of the complainant by his bill.

The first notice was in a letter dated March 4th, 1905, nearly six months after the merger agreement, and it appears that in the meantime not only had these securities been put upon the security market in New York, but, as appears by the answer, after the filing of the merger contract, October 20th, 1904, the business theretofore carried on by the three constituent companies separately has been carried on by the merged corporation as an entirety; that a large amount of the property received by the merged corporation from the constituent companies had been sold, exchanged or converted into other forms, and the receipts therefor have been so commingled that it became impossible to either identify or separate the same, and that the funds in general have been so commingled and otherwise disbursed in the general course of business that it was impossible at the time the complainant’s bill was filed to restore the affairs of the company to their original condition.

Before considering the question whether the court, under such circumstances, ought to undertake to grant the prayer of the bill, it is necessary to notice a point made by the defendants.

The complainant in his bill, apparently feeling that the point would be made against him that his predecessors in title had been guilty of laches, alleges that Potter, the previous holder,

“received no notice of the said alleged meeting of the stockholders held on the 30th day of September, 1904, and that he had never voted on said stock at any time upon any proposition presented to the stockholders to be voted on, nor had he at any time given any proxy to any person to vote for him; * * * that he received no notice from the officers of said company, or from any other source whatsoever, of the said merger agreement or its proposed adoption; * * * that all the proceedings taken to carry out said merger was done without the knowledge, connivance or consent of Potter, and that he was never notified of the closing of the books of the original American Tobacco Company until the month of February, 1905,”

and it alleges the same as to Schalk, the intermediate owner between Potter and the complainant, and it then says that complainant himself has never given his consent by word or act to the merger.

This allegation, it will be observed, is of a fact or series of facts not within the knowledge of the defendants, and therefore not admitted by a failure to deny.

The complainant in his argument makes the cardinal mistake of presuming that, because these allegations are not specifically denied by the answer, they must be taken to be admitted. But this is not the rule. If no answer at all had been filed and a decree pro confesso taken, that decree would not have availed the complainant to the extent of entitling him to a final decree. By the well-settled practice of the court he would have been obliged to adduce proofs ex parte to sustain every material allegation in his bill.

It appears, however, by the answer that, as already stated, the stock all the while stood on the books of the company in the name of Mrs. Soule, and that the regular quarterly dividends had all the time been sent to her at the address found on the books of the company in connection with her name as a stockholder. And then, in answer to the specific allegation of non-notice to Potter of the proceedings in merger, the answer states that the defendants have no knowledge as to what notice J. Forbes Potter had of said merger agreement or of the stockholders’ meeting called to ratify the same, but says that notice of said meeting and a copy of said agreement were mailed to the said Fannie Soule at her post-office address given on the books of the company, which is the same address at which notices of every other stockholders’ meeting have been sent to her since the said stock was transferred to her in 189-1. Then further on is another allegation charging Potter with actual notice through the public prints, wherein it was widely discussed.

Now these allegations, taken in connection with the fact that dividend checks were sent to Mrs. Soule four times a year, and that it appears by the exhibit annexed to the bill that at least two stockholders’ meetings were held between 1895 and 1903, and the fact that it does not appear that Potter has ever complained that he did not receive his dividends, amounts to an averment of facts from which I feel bound to infer that Potter did receive actual notice of the meeting of September 30th, 1904.

Counsel for the complainant made the mistake in his argument of supposing that the positive allegation in the bill of non-notice to Potter, unless explicitly denied, stood as if proven, but, as before observed, this is incorrect. That rule applies only to allegations of matters within the knowledge of the defendants, and the defendants’ answer- herein to the allegation put the complainant on proof of non-notice, the right to make which proof he waived by going to hearing on bill and answer.

I must therefore hold that Potter did have actual notice of the meeting of September 30th, 1904. And certainly if he did not it was his own fault and not that of the defendants, since he permitted the ownership of the stock to stand on the books of the company all these years in the name of his testatrix at her original address.

The answer further alleges:

“This defendant alleges, however, that both the said Rudolph Schallc and the said complainant had notice of the said merger before they acquired the said stock, and the said stock was acquired by them not as an investment, but for the sole purpose of bringing such a suit as the present one.”

Now, this allegation, distinctly made in the answer, is admitted by the complainant.

Before considering its effect one other fact set up in the answer and likewise admitted is worthy of notice, namely, that at the meeting of September 30th one million one hundred and fifty-eight thousand nine hundred and thirty-four shares of both classes of stock out of a total of one million two hundred and thirty thousand outstanding were present or represented by proxy, and of those so present one million one hundred and fifty-seven thousand two hundred and fourteen shares voted for the adoption of said agreement and seven hundred and twenty shares voted for the rejection of the same.

It thus appears that nearly ninety-five per cent, of all the shares voted in favor of the merger, and of those actually voting nearly ninety-nine per cent, voted in favor of it.

Now, taking all these circumstances together, and the fact that the agreement bas been acted upon to the extent I have previously mentioned, and the extreme difficulty, if not the impossibility, of practically granting the complainant the relief he asks, and that the old American Tobacco Company has practically ceased to exist, the question arises whether, admitting to the fullest extent the complainant’s legal right, this court ought to attempt to grant him the relief he asks for. That relief amounts to a decree for the specific performance of the contract implied in the certificate of stock that the American. Tobacco Company would, by its regular organization, its directors and officers, proceed to carry on the business provided for in its certificate of organization until the end, in 1940, of the term of its existence, also provided for.

Now, in order to carry out that agreement as prayed for, it will be necessary not only to perform the well-nigh impossible task of taking the account previously mentioned, but also to revivify the old company, whose existence was ended by the merger agreement, by calling the stockholders together to elect a new set of directors, after those stockholders have surrendered all their stock and taken in its place new stock and bonds in the new company in pursuance of the elaborate scheme set forth in the merger agreement, and, if they fail to do so, to submit the old company to the management of the small fraction of the stockholders of the old company who may yet have refrained from accepting the securities provided for them by the merger agreement.

Now, I conceive that the case presented is one in which the court is thoroughly justified in refusing to give specific performance.

It is well settled that the court will not, in all cases, grant specific performance. It is always, in a sense, a matter of judicial discretion. The difficulty of specifically performing the contract and its effects and consequences to the parties, the comparative injury to the one party and the benefit to the other, are to be taken into consideration.

The latest illustration of this rule is found in Speer v. Erie Railroad Co., 68 N. J. Eq. (2 Robb.) 619. The subject is touched upon by Professor Pomeroy (Pom. Spec. Perf. § 303 et seq.), and the general subject is dealt with in section 36 et seq.

I shall not go into the authorities, and will content myself with saying that this is a ease in which the court ought not to assist the complainant to the extent which he asks.

The complainant’s assignor, Potter, is chargeable with negligence in not coming forward and asserting his rights in time to have prevented the merger from being so far carried out as to render it practically impossible to grant the relief which he asks.

This view renders it, perhaps, unnecessary to take notice and pass upon another point made by the defendant, and that is that while the act of 1896, providing for a merger, was not in existence at the time the original company was organized, the law then in force did provide for the winding up of a company before the time provided for in its charter or certificate of organization, and that this agreement of merger amounted to a winding up of the old company.

The act then in force was that of April 7th, 1875 (Rev. p. 175), which in the seventh subdivision of the first section gives express power to any corporation to wind up and dissolve itself or be wound up and dissolved in the manner thereinafter men-' tioned. The provisions for dissolution are found in the thirty-fourth section of that act on pages 182 and 183. This section was slightly amended by the act of February 21st, 1877 (P. L. p. 20), and this section was substantially re-enacted by the act of 1896, section 31. Dill. Mun. Corp. 51.

Now, the existence of this act shows clearly the fallacy of the complainant’s argument that, by the contract, he is entitled to have the old company carried on until the time limited in its original certificate of organization, and it meets and disposes of many of the dicta cited in his argument and relied upon to support his position. That right to have the business carried on until the natural death of the corporation is subject to the will of the majority of two-thirds provided for in the statute.

Now, while the merger jn’oceedings here attacked do not amount, strictly speaking, to a legal winding up, their effect was, in substance, precisely the same, and the only difference to the complainant is that he did not receive the .share of the proceeds of the winding up which he would have got under formal proceedings under the statute.

But the large vote for the merger shows conclusively that, if the winding-up proceedings had been necessary, they would have been taken and pursued to the end, and it further indicates, with sufficient certainty for present purposes, that if the decree asked for by the complainant were granted, its practical effect to the complainant would be immediately met bjr formal winding-up proceedings.

The complainant argues with great force that the negligence or laches of his predecessor in title cannot, upon any legal or equitable principle, be extended so far as to forfeit his rights. Granting the general proposition to be as claimed by him, yet the complete answer is that the refusal to grant his decree does not work any forfeiture of his rights, but simply has its weight, in connection with other circumstances in debarring him from the special and extraordinary relief which he is asking. For it must be borne in mind that not a single stockholder of those who appeared at the meeting did anything more than vote against the merger; no formal protest was made or proceeding taken to prevent the merger; the small minority quietly acquiesced in the action of the great majority, and that majority, acting on that acquiescence, proceeded with the merger, and so far altered the situation as to render it now well-nigh impossible to grant the relief asked for by the complainant.

Complainant relies as a precedent for his decree upon the familiar cases of Kean v. Johnson, 9 N. J. Eq. (1 Stock.) 401; Zabriskie v. Hackensack Railroad Co., 18 N. J. Eq. (3 C. E. Gr.) 178; Black v. Delaware and Raritan Canal Co., 22 N. J. Eq. (7 C. E. Gr.) 416, and Mills v. Central Railroad Co., 41 N. J. Eq. (14 Stew.) 1.

The principles established by those cases do undoubtedly apply here, but neither of them are precedents for the relief asked for in the present case. In the first place, the subject-matter of the contract was, in each case, quite different, as well as the character of the business carried on from that in this case. The subject-matter was a unit which had a continued existence in its original condition and was incapable of daily change in form or substance. In neither case had that, form and substance been changed or the mode of its use altered. In the Blach Case and in the Zabrishie Case the remedy asked for was purely one of restraint against the consummation of a proposed change in the contract. In the Mills Case the relief prayed for was simply to set aside a lease of the subject-matter and was accomplished without the least disturbance of the operation of the subject-matter. And Mr. Mills had attended the meeting and voted against the lease. In the case of Kean v. Johnstone the prayer went a little farther, but not so far as asked for here. It did not in anywise disturb the existence or operation of the subject-matter. It simply prayed an account of the property of the original road under the new organization, and that the purchase complained of and the bonds and mortgages issued might be declared void, and for an injunction against further issue of bonds and mortgages. The cause was heard on general demurrer to the equity of the bill. No mortgagee or holder of any of the bonds was made a party, and there was no demurrer for want of parties. The demurrer was simply overruled, and no further proceedings were ever had in the cause, so far as the records of the court show. So that the ease is not a precedent for the decree here asked for.

Counsel were unable, as I must presume, to produce any case where a decree like that asked for here has been made by a court of equity.

Defendant oilers to pay complainant in cash the market value of his stock at the time of the consolidation or the present worth of his stock, with all dividends that can be possibly received thereon up to the expiration of the old charter, meaning by this last the value of the coming payments discounted. Of course, complainant can have the six per cent, bonds originally allotted to him.

The only decree other than that offered by the defendant, which I-have been able to conceive can be properly made in favor of the complainant in this cause, is a decree for the payment quarterly of the eight per cent, dividend on the amount of the stock from the date of the last payment up to the termination of the charter of the old company and the payment of the par value of the stock at that time. Such a decree was not suggested at the argument, and I am not ready, without argument, to say that I will advise it. I am willing, if complainant shall so wish it, to hear argument on the propriety of such a decree. If he does not wish it, I must advise that his bill be dismissed without prejudice to his right to his action at law, which, in my judgment, is ample to give, him the full value of his stock at the time of the merger. If the complainant chooses to accept either of the offers made by the defendant in its answer, a proper decree will be advised, without costs.


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    Richard T. Dana, administrator of Richard S. Dana, deceased, v. The American Tobacco Company and The Morton Trust Company et al.
    [Decided January 8th, 1907.]
    1. Where complainant acquired certain corporate stock as administrator of his father, who died in 1904, it was complainant’s duty either to have the stock transferred on the books of the company or to give distinct notice that subsequent notices of meetings sent to him as a stockholder should be sent to a certain address, in order to charge the corporation with neglect in continuing to send notices io the address of his father as the registered holder of the stock.
    2. Complainant acquired certain stock in defendant company as administrator of his father’s estate, but took no steps to have the stock transferred until after his return from Europe, when he learned that proceedings were in progress for the consolidation of the corporation with certain other corporations. Complainant waited some eight weeks before he employed local counsel to attack the merger, during which time the new corporation’s stockholders’ “rights certificates” and corporate bonds had been issued.—Held, that the complainant was not entitled to the relief prayed for, which consisted in the actual separation of the original assets of the corporation whose stock was held by complainant, ani the resuscitation of the corporation and its being compelled by a decree of this court to proceed to cnnrinct the business provided for in its articles of association.
    On final hearing on bill, answer and proofs.

      Mr. James B. Howell and Mr. Grosvenor Nicholas, of New York, for the complainant.

      Mr. Charles L. Corbin and Mr. Richard V. Lindabury, for the American Tobacco Company and the individual defendants.

      Mr. Robert II. McCarter, attorney-general, and Mr. Bronson Winthrap, of New York, for the Morton Trust Company.
   Pitney, Y. C.

This bill is almost identical in frame and prayer with that of Beling v. American Tobacco Company, just decided.

The certificate of preferred stock held by the complainant was issued to his intestate in 189-2 and the intestate died in 1904. The stock ivas never transferred.

The prayer of the bill, though varying somewhat in verbiage from that in the Beling Case, is in substance the same. It prays that the merger agreement and the merger itself, in all its aspects, may be held to be void as against the complainant; that the lien of the mortgage made by the new company to the Morton Trust Company may be removed from the property of the American Tobacco Company and be declared null and void as a lien thereon, so far as regards the rights of the complainant; that there may be an ascertainment of the specific items of real and personal estate and other assets owned by the original company al the time of the merger, and that the same may be separated from the property of the merged corporation and be redelivered to the officers and directors of the American Tobacco Company; that there may be an ascertainment of the loss by reason of the merger, and that the stockholders of the original company who are made parties to the bill may be made liable therefor and charged therewith by the decree of this court, and that the court will-issue a mandatory injunction to compel performance of its decree, and that the merged corporation may account for all the profits, income, properties and moneys derived by it from the assets of the original corporation, and for other relief.

The defendants’ answer is much the same as the answer to the Beling bill.

At the hearing a large amount of evidence was taken verifying-in detail the allegations of the answer, which were admitted by the complainant in the Beling Case.

It was further proven that most of the few stockholders who had voted against the merger agreement had come in and accepted the terms of that agreement.

With regard to the attitude of the complainant and his conduct, the case differs from that of Beling. The complainant’s father died in January, 1904, and complainant took out letters of administration, and about the 1st of June complainant wrote a letter to the company stating that he was about to leave for Europe, to be gone during the summer, and wished his dividends put to his credit in a bank which he named. This letter at its head stated Ms business address at an office which he occupied in New York City. But the complainant did not have Ms stock transferred to Ms name. It consisted of two certificates of $5,000 each, and he contented himself with handing over one of those certificates to his brother, who was, besides his mother, the sole nest of kin.

No entry having been made upon the stock ledger of this change of ownership and address, the notice of the meeting and the copy of the contract of merger were sent to the residential address of his late father in New York City, which, at the time, September 9th, that they were sent, was in the hands of a caretaker. The widow, who was also a stockholder, and who resided there, was, at that time, still stopping at her country place in the Berkshires.

Affirmative proof was given tending to show that for some unexplained reason neither the notice to the complainant’s intestate nor to his widow was ever actually received.

The complainant returned from Europe on the evening of October 5th, entirely ignorant of what had taken place in his absence, but after attending to his own private affairs and business, which occupied a few weeks, he seems to have bethought himself of his dividends on the tobacco stock, and applied to the Farmers’ Loan and Trust Company, the transfer agent, on or about the 10th day of November, and then and there learned that the company was no longer in existence, and very shortly— two or three days afterwards—received copies of the merger agreement which contained all the particulars. He had, however, some fews days or weeks before that, heard indefinite rumors of some change in the organization or management of the company. He immediately consulted his New York counsel and with him alone undertook to study the situation and his rights. He also interviewed counsel of the tobacco company and correspondence ensued running over into January, 1905, and early in that month he served a written protest on the company, which was the first that he had made a definite declaration of his position.

In the meantime the transactions provided for in the agreement of merger had been carried through by the surrender of the original certificates of stock and bonds and the issuing in place thereof, as usual in such cases, temporary negotiable certificates to be delivered to the trustees when the permanent securities had been engraved, prepared and signed to be exchanged therefor. The complainant’s protest reached the company before the actual exchange for temporary certificates for permanent securities had taken place, but in the meantime those temporary certificates had become an article of mercantile dealing.

Now, under these circumstances, each party charges the other with negligence and laches. The defendants charge the complainant with laches in not having the certificate of stock formally transferred to him, and giving his address to be entered on the stock ledger, and next in that, upon receipt of a copy of the merger agreement and being informed, as he was, that the merger had been or was being consummated, and being aware, as he must have been, that changes were daily taking place in the situation, both of the business conditions of the new company and in the ownership of the securities issued by it, he did not immediately take advice of counsel learned in New Jersey law as to1 his rights and remedies thereon.

On the other hand, the complainant complains that the defendants ought, on the receipt of his letter asking them to have his dividends put to his credit in the bank, to have made such memorandum of it as would have resulted in the notice of the meeting of September 30th being sent to his business address, in which case he claims it would have reached him at that address in New York City.

The defendants’ reply to that is that that letter referred wholly to dividends and did not at all call their attention to his business address but to the address of his bank, the former appearing only in print at the head of the letter, and hence that it was misleading. I find by examining the correspondence that it does seem to have misled them; and they farther claim that the regular course of business and the terms of the statute require them to send the notice to the party in whose name the stock stands on the books of the corporation, and that they were not justified or required to change the address upon an implied notice of that sort.

I am inclined to think that the defendants’ position is sound, and that the complainant’s duty was either to have the stock transferred on the books of the company or to have given them distinct notice that any notice sent to him as a stockholder should be sent to a certain address. But the evidence leaves me in doubt whether he would have' received the notice under any circumstances. The only effect of his receiving it on his return from Europe would have been to enable him to have filed a bill in this court to restrain the merger before it was consummated as it was on October 80th by the filing of the dissolution papers in the office of the secretary of state.

The positive negligence with which I think the complainant is chargeable consisted in his failure immediately to employ New Jersey counsel, and to make a prompt decision and take prompt action thereon. By failing in that respect, and occupying some eight weeks or so in determining what ground and course he would take, he undoubtedly seriously increased the difficulties in the way of granting the relief here asked for. For not only were the temporary securities issued by the company dealt in on the market in the meantime, but the mercantile subjects of its business were being changed and the difficulty of a separation were increasing daily.

The present case is not so strong against the complainant in the matter of acquiescence and laches as was found in the Baling Gasa. But while I find that fact Í am still of the opinion that it is a case in which relief as prayed for should not be granted. The injury and disturbance to business affairs is too great and serious as compared to the benefit to be derived therefrom by the complainant to justify that extraordinary remedy.

I have said the complainant prayed for specific performance of a contract. I will add that the decree prayed for much resembles a decree for the specific performance of a continuing contract. Complainant asks for a mandatory injunction to compel the officers and directors of the extinct tobacco company to resume their functions, to take charge of the property of the old company, and, as I understand the scope of the prayer, to carry on that company’s business until the year 1940, unless sooner dissolved. That is a sort of function that this court is very cautious about undertaking, and I am unable to bring my mind to adjudge that it ought to do it in this ease.

I will advise the same decree in this case as that proposed in the Baling Gasa.

The defendants, by their answer, allege that the complainant never applied to the tobacco company to waive the bar of the statute to the appointment of appraisers to ascertain the value of his stock, under the provisions of those sections of the Corporation act which provide for dissolution, and declare that the company in fact has been willing and is now willing to consent to such an appraisement, notwithstanding the expiration of the statutory period of thirty days.

The tobacco company, defendant, by its answer, also offered to pay complainant the market value of his stock at the time of the consolidation, or to pay him the present worth of said stock and of all dividends that could possibly be earned thereon until the expiration of its charter, or to pay complainant such a sum of money as may be ascertained by this court in this proceeding to, represent the proportionate share of the assets of the original American Tobacco Company, to which the complainant would be entitled as the owner of its preferred stock, mentioned in the bill, if the company were dissolved and its assets liquidated under and in accordance with the statute. And it submitted' itself to the jurisdiction of the court in this behalf and consented to the entry of a decree against it in favor of the complainant, upon any one of the offers just mentioned which the complainant may elect to accept.

If the complainant shall decline to accept any one of these offers I shall advise a decree that his bill be dismissed, without costs.


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    Annie A. Spiltoir v. Gustav E. Spiltoir.
    [Decided June 15th, 1906.]
    1. Presumption of death, after an unexplained absence of seven years, does not arise where the supposed decedent lias been heard from and there is reliable information that he was alive within four years.
    2. 1 Gen. Stat. p. 1187 provides that anyone absenting or hiding himself for seven years shall be presumed to be dead “in any case wherein his or her death shall come in question,” and provides for the property rights of the parties on the return of the supposed decedent. P. L. 1898 p. 80S § 53 relieves from criminal punishment a wife who in good faith marries after the husband has absconded, but does not legitimatize such second marriage.—Held, that 1 Gen. Stat. p. 1187 has no application to a proceeding for divorce against an absconding husband not heard from, and hence will not prevent the granting of a divorce.
    On exceptions to -the master’s report dismissing petition. Exceptions sustained, and decree granting divorce advised. The report of the master is substantially as follows: That on the 29th day of June, 1897 (this is an error for 1898, and the wife corrected her testimony in this respect), the parties were and had for a long time been living together as man and wife in this state, where they had been married; that on the day last named the defendant deserted the petitioner. The report then continues: “And I do further report that since June 29th, 1897, so far as the testimony in this case shows, the defendant has not been seen or heard of. Where he went, when he left the petitioner, is unknown. Various persons who would have been likely to hear from him had he been alive were produced as witnesses, but their testimony is that they have heard nothing from him. The testimony undoubtedly warrants the conclusion that when the defendant went away he intended to desert his wife. In view of these facts my opinion is that it is necessary for the petitioner to overcome the presumption of death which arises by reason of the statute entitled 'An act declaring when the death of persons absenting themselves may be presumed,’ passed March 7th, 1897. 1 Gen. Stat. p. 1187. Naturally, as I view the case, it is important that the petitioner show that the defendant is alive in order to maintain the suit at all, and for that purpose she should overcome this presumption by some proof. I do therefore report that the petitioner’s petition should be dismissed.” To this finding the petitioner excepts.

      Mr. George D. Mulligan, for the exceptant.
   Pitney, V. C.

I agree with the learned master in the result at which he has arrived that the defendant willfully deserted the petitioner on the 29th day of June, 1898, and that such desertion and its continuance from that time was willful and obstinate. But I am unable to agree with him in his conclusions—first, that the evidence warrants the presumption that the defendant was, at the time of the hearing before him, dead; and second, that our statute regulating presumptions in such cases has any application to the present case. The evidence is clear that the petitioner heard of her husband, and had reliable information that he was alive, withm four years. The general common-law rule of presumption of death after an absence without being heard from for seven years is held strictly, and reliable information that the party is living within that time is usually fatal to the presumption, although juries, especially in criminal cases, have been permitted to presume death in a less period of time, and are entitled also to take into consideration a great variety of circumstances, including the state of health and the motives which impelled the absenting party to leave his home and disappear. But in civil cases involving the devolution of title to land or the succession to personalty, the rule has been held more strictly.

The statute of this state (1 Gen. Stat. p. 1187; P. L. 1895 p. 751) is as follows:

“That any person, whether a resident of this state or not, who shall remain beyond sea, or absent himself or herself from this state, or from the place of his or her last-known residence, or conceal himself or herself in this state, or in the place of his or her last-known residence, for seven years successively, shall be presumed to be dead, in any case wherein his or her death shall come in question, unless proof be made that he or she were alive within that time; but an estate recovered in any such case, if in a subsequent action or suit, the person so presumed to be dead shall be proved to be living, shall be restored to him or her who shall have been evicted, and he or she may also demand and recover the rents and profits of the estate during such time as he or she shall have been deprived thereof with costs of suit; provided, however,” &c.

Now, it seems to me tliat tlie very reading of that act shows that it was intended to apply wholly to cases where property rights were involved, arising out of descent or succession, and that it is impossible to apply it to the present case. This is too plain for argument. Notice the words, “in any case wherein his or her death.shall come in question.” Now, the death of the defendant did not come in question in this ease. It was not an issue raised by the pleadings, and whatever evidence is found in the case tending to show an absence of seven years came out incidentally. It seems to me to approach the absurd to hold that a married woman becomes a widow to all intents and purposes as soon as her husband has absented himself from the state for seven years. Our Crimes act (P. L. 1898 p. 808 § 52), which relieves an innocent spouse whose husband has absconded, and who, on the strength of that absence, marries again, does not legitimatize the second marriage or its issue if the former spouse be found later on to be living. It simply relieves the innocent party from criminal punishment. It does not in anywise impugn or create any exception to the first section of the act of April 3d, 1902 (P. L. p. 490), declaring absolutely void a marriage contracted by a party who has another spouse living. A person situate as is the petitioner here, who marries again without procuring a divorce, does so entirely at his or her peril as to the validity of the marriage and the legitimacy of the offspring. See 1 Bish. Mar. & D. §§ 717, 1812.

In some other states of the union the section of the statute above cited, relieving an innocent spouse from criminal prosecution, is accompanied with other provisions giving the issue of such a marriage a sort of legitimacy. This subject was considered by the supreme court of Massachusetts in an opinion delivered by Chief-Justice Gray in 1874. Glass v. Glass, 114 Mass. 563. There a party, situate as is the petitioner here, married a second time; both she and her husband believing that the first husband was dead, and founding their belief on his absence for seven years. He afterward appeared, and the second husband brought suit for a declaration of nullity. The learned judge, in delivering judgment, used the following language: “It must be assumed, upon the report of this case, that the second marriage was contracted by both parties in good faith and with the full belief that the respondent’s former husband was dead. As he had been absent for seven years, they might not be guilty of polygamy. Gen. Stat. 1860 c. 165 §§ 4, 5. But as he was in fact still living, and the first marriage had not been dissolved by a decree of divorce, the respondent was in law his wife, her second marriage was unlawful, and the information which both parties to it had on the former marriage, and of the circumstances connected with the absence of the former husband, cannot estop either to apply to the court for a decree of nullity.” The case of Burkhardt v. Burkhardt, 63 N. J. Eq. (18 Dick.) 479; 52 Atl. Rep. 296, properly understood, is not inconsistent with this view. There the husband sued his wife for a decree of nullity by reason of her previous marriage contract with one Iloeger. The wife’s answer was twofold. First, that there had been no marriage with Hoeger, although she had lived with him in adultery and borne a child by him, and this was found as a fact by the vice-chancellor, and rendered any further observations unnecessary and obiter. The second defence set up by the wife was that at the time of the supposed marriage with Hoeger she had a former husband, one Hoffman, still living. The proof was that she was married to Hoffman and was living with him, and that he had run away by reason of having killed a boy in an accident only two or three j^ears before her supposed marriage with Hoeger, but at least eight years before her marriage with the complainant. Diligent inquiry had been made for Hoffman, and clear proof was made in support of the second branch of the defendant’s answer that he had not been heard from for more than seven years before she married the complainant. Under these circumstances, and especially as the complainant was well acquainted with them all before he married the defendant, the vice-chancellor refused relief. There it will be'perceived that the death of Hoffman did come directly in question. The case is not authority for the position that if seven years after Mrs. Burkhardt’s first husband, Hoffman, had absconded, and had not been during that time heard from, she had sued him for divorce on the ground of desertion, and it had incidentally appeared that she had not heard from him for seven years, the court would have denied her a decree.

It seems to me that the distinction between the two cases is clear enough, and that it is the duty of the court to grant relief in such cases and relieve the deserted spouse from an equivocal position. The references cited from Professor Bishop and the case of Glass v. Glass were not brought to the attention of the court in Burkhardt v. Burhhardt, and I take the liberty of saying that anything said by the court in that case in conflict with those authorities was not law, and was, as before remarked, mere obiter. It must be borne in mind that, in the absence of direct proof of death, the possibility of the life and return of the absent spouse exists, precisely as it did in the Massachusetts ease; and if in this case the petitioner, relying upon a decree of dismissal entered upon the advice of the learned master, should marry again and bear children, and her former husband should return or actually be living, these children would occupy a most uncertain position in the matter of their legitimacy. For these reasons, I think that every consideration of public policy and common justice impels towards granting a divorce in this case.

If it be said that it is inconsistent with fundamental principles to grant a divorce against a dead man, the answer is twofold: First, there is no certainty, in the ordinary sense of that word, that the defendant is dead. The presumption arising from his long absence is but a presumption at best, adopted as a convenient and necessary substitution for proof in order to avoid a deadlock in business affairs. See Best Ev. §§ 408, 409. In the next place, a decree of divorce is peculiar, in that it is not in itself a decree or judgment in personam, although the ancillary remedy for alimony may be such. It is, in effect and substance, a judicial declaration of a status or condition. It declares that the parties are free and clear of the marriage relation. And certainly if the defendant be dead the petitioner is free and clear of the marriage relation, and the declaration or decree to that effect does him no harm. In all cases of divorce on account of desertion the real ground of the relief is that the defendant is dead as to the complainant or petitioner.

Finally, 1 feel quite sure that many divorces have been granted in this state on the ground of desertion, where the deserting spouse has not been heard of for more than seven years, and I am free to confess that the point taken by the learned master in this case is, so far as I am concerned, quite novel.

I will advise an order sustaining the exceptions and a decree of divorce.