text:
    Armenia Chadwick v. Albert F. Chadwick.
    In an action for divorce by the wife for cruel treatment, where the only-cruelty charged is the use of abusive and filthy language, proof of gross abuse-of marital rights is not available.
    On petition, answer and proofs.

      Mr. John H. Reynolds and Mr..Eugene Ekiley, for the petitioner.

      Mr. Wood MoKee and Mr. John W. Griggs, for the defendant..
   Green, V. C.

The marriage of these parties was the result of no love romance. He was a widower, forty years of age, with four children, whose-■ages ranged from eleven to three years. She was a spinster, thirty--two years old, who had for some years maintained herself by her occupation of stenographer and typewriter. Their wooing consisted of negotiations carried on through a matrimonial agency in New York city, and resulted in their marriage in Brooklyn, March 24th, 1892. It could scarcely be expected that their union, having its inspiration in such methods, would be at once •characterized by the loving devotion or cheerful self-sacrifice which so largely contributes to married happiness. He was the ■principal of a public school in Paterson, and did not think his salary justified him in a certain style of living which his wife says she had every reason to expect. If is evident that her disappointment was keen when she realized the responsibilities of the household and the care of her husband’s small children. After a short season of comparative harmony, there were occasions of disagreement, more or less violent in character. The defendant's mind, from some cause, became affected, and after examination by physicians, he was, about April 30th, 1892, a little •over a month after his marriage, sent to the state insane asylum, .at Morris Plains, as suffering from an “acute attack of primary •dementia.” He remained at the asylum until about the 2d of ■July following, when he left there and went to a relation’s, where he remained five weeks, and returned home the latter part of August. From this time on there is complaint by the wife of •unkind treatment, with occasions of abuse, culminating in a serious quarrel on December 23d, 1892. Each charges the other with the blame for this outbreak and claims to have been more or less injured by the other. This is the only occasion, so far as the evidence shows, when she suffered physical injury from his violence. On .Christmas day following, however, they came to an agreement with reference to their differences and mutually signed a compact as to their future conduct towards each other and the children. This was followed by a resumption of marital relations, and the incident of the reconciliation and its accompanying cohabitation must be regarded as a condonation of previous offences of a violent character. The petition is for a limited divorce and alimony oft the ground of extreme cruelty. To warrant such a decree in this case it must appear that the. defendant, after condonation, was guilty o-f some matrimonial offence which was sufficiently aggravated to he a cause in itself for limited divorce, or of such character and degree as to revive the offence condoned.

Eo specific charge of physical violence between December 23d, 1892, and March 7th, 1893, when Mrs. Chadwick left her husband’s house, is made in the petition. It avers that for a time after Christmas day his conduct was more quiet and peaceable,, but that he soon again fell into his habits of abuse by degrees and became more and more’violent in his language, and used vile and filthy language against her in the presence of the children; that the violence increased until the 7th of March, when she became so shattered in health and so much in fear of physical violence that she could endure his cruel treatment no longer and that she thereupon left his house; that for four months prior to her leaving her husband’s said house she was in constant fear of physical violence, so that her nerves were shattered, her health was impaired and she could neither eat nor sleep. It will be noted that there is here no specification of any attempt or threat of personal violence, and she states no acts which led her to fear such injury. Whether such fears were well-founded or not we have no means of knowing other than she says that she experienced them. The only direct charge of any kind of cruelty during this period is that he used abusive language to her. She does say, however, that from this constant dread her nerves were shattered and her health impaired so that she could neither eat nor sleep.

In her testimony she says that his treatment affected her nervous system and caused her to break down, resulting -in disease of the uterus, for which she has since been treated. She is, of course, competent to speak of the state of her health and nerves, but it is very questionable if she is competent to testify as to the causes of their condition. She says further, that after Christmas he treated her a little better, but gave her no assistance in the house, and that the abuse complained of on almost every occasion, or three-quarters of the occasions, came from her reluctance or refusal to gratify his sexual desires, and that on such occasions he called her vile names and used opprobrious epithets. It is only due to him to say that he explicitly and emphatically denies the latter charge. I am forced to the conviction that her testimony in this regard is much exaggerated. The defendant is a man of education and culture, and of seeming refinement. There was nothing in his conduct or appearance on the stand to indicate that he would indulge habitually in the vile and violent language attributed to him. The above, however, is the only specification of cruelty in the interval between Christmas and her leaving him that she gives in her testimony. The other incidents spoken of do not, it seems to me, justify any fear of personal violence.

Her testimony, as well as that of her physician, Hr. Ungei’, and the fact that there was but one occasion when she suffered from his violence, develops, in my judgment, the true reason for, not only her condition of health, but for her leaving her home, and that is the excess, it may be the abuse, by the husband of his marital privileges. Dr. Unger says that she was suffering from enteritis and vaginitis, and she attributes such condition to undue sexual intercourse. Gross abuse of marital rights is a ground for a divorce a mensa et thoro for extreme cruelty (Moores v. Moores, 1 C. E. Gr. 275; English v. English, 12 C. E. Gr. 71, 579), but it is not available under a general charge of cruelty, and if so given must be disregarded as irrelevant. Moores v. Moores, supra. ■ There is stronger reason for these rules when the only specification of cruelty charged is the use of vile and filthy language. On the first attempt by counsel to introduce evidence of the abuse of marital rights, defendant’s counsel objected, and the objection was sustained except so far as it might relate to the occasions when physical violence was charged in the petition. These were all before the condonation. There is no evidence, in my opinion, of conduct on the part of the husband, after December 25th, 1892, on which to base a decree on the ground of extreme cruelty, or which would revive the matrimonial offences condoned, as I think the evidence of his having employed abusive and vile language is very much colored.

Nor, in my judgment, did the wife leave her husband’s house •on March 7th from any fear of personal violence at his hands, or for any reason other than an aversion to gratify his carnal desires. The incidents of her leaving, her visit to his school, her promise to return shortly, her promise to come back if he would treat her differently, as well as various later occurrences, show that she was in no fear of his injuring her physically by angry and cruel 'treatment.

Neither of these parties is without blame. Each was, as is usual in cases where marriage is the result of negotiation rather than affection, deceived as to the other’s means. She manifested on the stand, as a witness, her disappointment, not only with the home surroundings she found, but with her husband’s ideas of economy and duty. He, on his part, whether from his mental misfortune or not, manifested, particularly in his letters, an exacting and complaining disposition, making serious charges with reference to trivial acts and posing as a master rather than as a husband. But if the.cause of this separation, as I gather it from the whole case, is to be considered, there is no evidence that until this trial he knew, as a medical fact from professional sources, that his wife’s physical condition could be attributed to his marital excesses. 1 I am not prepared to say that had he had such knowledge he would not have restrained his indulgence, and that a resumption of their relations might not be had with entire safety to the wife’s health. Separation from bed and board is mainly as a protection against future, probable acts of cruelty, this probability being based upon the former conduct and the character and disposition of the parties. English v. English, supra. They have both acted in a most foolish and reprehensible manner, not only in their personal treatment of one another, but also in their correspondence; but each professes a certain amount of affection for the other, possibly as much as, under existing circumstances, could be expected, and I do not think the court should, by its decree, now legally separate them for a definite time or until they mutually-apply for its rescission, the husband in the meanwhile maintaining the wife living away from him and his home.


source: Caselaw Access Project

author:
Beasley, C. J.
      Magie, J.

license: Public Domain

text:
    The First Baptist Church of Hoboken, appellant, v. Parker Syms, executor of the will of Samuel R. Syms et al., respondent.
    1. Where, in an action at law against- one sued in a representative capacity, the defendant colludes with the plaintiff to suppress material evidence, a judgment thus obtained in the action will be vacated.
    2. Collusion to conceal material evidence will suffice to move a court of equity to give relief against a judgment when the evidence suppressed, if offered, might have produced a different result.
    3. Herbert V. Herbert, 4 Dick Gh, Dep. 566, explained.
    On appeal from a decree of the chancellor, whose opinion is reported in First Baptist Church of Hoboken v. Syms, 6 Dick. Ch. Rep. S6S.

      Mr. Gilbert Collins, for the appellant.

      Mr, John II. Garrick, for R. H. Syms.

      Mr. William Brinherhoff, for Parker Syms.
   The opinion of the court was delivered by

Beasley, C. J.

The facts of this case are so fully stated in the opinion read by the chancellor, that it is not necessary to rehearse them.

The only question that this court has been called upon to consider is, whether a certain judgment obtained by Robert Syms against his brother, Parker Syms, as the executor of his father, should be permitted to stand or should be set aside. These litigants were brothers, and the chancellor finds that the judgment in question was obtained by collusion between them. In the opinion of this court no other reasonable conclusion can be reached from the proofs before us. We fully agree with the statements and strictures of the chancellor with respect to the conduct of the trial of the case. He says: “ No witnesses were produced in behalf of the defendant [that is, the executor]. The defendant appeared by counsel before the referee, and that counsel cross-examined the plaintiff’s witnesses in such a manner that it is impossible to read the cross-examination without an abiding conviction that it was intended to aid the plaintiff’s case rather than to defend against it and defeat it.”

It is plainly shown that the matter in question could not be fairly tried without the testimony of one Mrs. Serrell, and on this subject the chancellor says: “The plaintiff testified, as an excuse for the non-production of Mrs. Serrell as a witness, that she was then ill and absent from home, and that excuse was suffered to account for her absence, no application being made to continue the case until her attendance could be had. Neither she, nor her sons, nor her daughter-in-law, nor John J. Syms, nor George N. Syms were produced by the executor, although the case abundantly discloses that they were known by him to Joe most material witnesses in his behalf. Although the executor was sued in a representative capacity, he made no objection to the plaintiff being sworn in his own behalf and testifying both to conversations and transactions with his decedent. Indeed, it is difficult to see how the case could have been more carefully ■managed to support the plaintiff’s claim ” &c.

In view of these circumstances, the chancellor thus expresses his conclusion, viz.: If it were in the power of this court to afford the complainant relief against the judgment upon the establishment merely of collusion between the parties to it, in pursuance of which important evidences were intentionally withheld from the law court, particularly where that collusion is coupled with the fact that the defendant in the judgment occupies a position of trust and confidence, as executor of his father’s will, to •each of the legatees thereunder, which demands from him the exercise of a more scrupulous fidelity than such collusion admits of, I could have little hesitation in granting it relief.” The chancellor then proceeds to explain the ground on which he feels constrained to refuse to grant the prayer of the complainant, such ground being, in his own language, “ that this court’s jurisdiction obtains in such a case as this only upon the establishment of fraud, and to establish that the proofs must show not only ■collusion and the intentional concealment of evidences, but also that the evidences withheld, if they had been presented to the law court, would clearly have been sufficient to defeat the plaintiff’s suit. In other words, it must clearly appear that the collusive acts have done injury to the complainant.” For the doctrine thus propounded the case of Herbert v. Herbert, 4 Dick. Ch. Rep. 566, is cited.

With respect to the ascertainment by the chancellor of the facts of the case and his estimation of their effect, this court, in all particulars, concurs; but we cannot agree to the legal theory that was applied to them. In our opinion it is plain that the ■complainant has been, and is, greatly wronged and injured by this collusive judgment. Unless it be vacated it stands as prima facie evidence of the right of the plaintiff in it to recover the sum awarded, and thus the burden of the proof is shifted so that the appellant is obliged to prove a negative. But more' than this, it has deprived the appellant of an honest trial of his-case in the courts of common law and the verdict of a jury. It is the prerogative of every man that his adversary shall be compelled to prove the validity of his claim, and that such proof shall be made before the tribunal appointed for that purpose. These are fundamental rights and of these this appellant has been deprived by the indefensible practices that have been so strongly reprobated in the opinion under criticism. Eor do we-think that the case cited will, in any degree, bear the construction put upon it. That was the case of a judgment that had been obtained by virtue of a proceeding in foreign attachment, arid it certainly, in nowise, is intimated in it that if such a course of law had originated in, or had been carried on by means of, covinous practices it would not have been abolished by a decree in equity.

The result, therefore, is that this court adjudges-that- the decree appealed from be reversed, and in its stead that a decree annulling the judgment in question be entered.*

In order to avoid misconception it is proper to say before leaving this subject, that it is not to be inferred that the view that this court has taken of the merits of this case coincides with that expressed by the chancellor. The burden is upon the defendant Robert to show that the alleged gift of his father’s interest in the estate in question was actually and legally made, and it may well be doubted whether he has succeeded in fulfilling either requirement. The evidence is conflicting and obscure, and the gift was by parol, although the subject of it was mainly land, and consequently to what extent it is affected by the statute of frauds, is obviously a matter of vital interest, although in the progress of the investigation it seems to have escaped attention. But as this court has disposed of the case on an issue that does not involve these latter questions,, with respect to them no definitive conclusion, has been, reached..

Magie, J.

(dissenting).

If the proofs .in this cause establish that Robert H. Syms and Parker Syms fraudulently colluded to suppress evidence material to the issue in the trial of the action brought by the former against the latter as executor o'f Samuel R. Syms, deceased, the decree proposed by the majority of this court is one proper to be made, and I would vote for it without stopping to consider whether the suppressed evidence, if produced, would either have compelled or justified a different result, for if the evidence so suppressed is relevant and of sufficient importance to tend to produce a different result, in my judgment those who fraudulently and collusively suppressed it, ought not to be permitted to avail themselves of'the judgment, unless they permit persons interested as appellant is to retry the issue.

But as I am unable to discover in the case sufficient proof that Robert and Parker Syms were guilty of the fraud charged, I cannot concur with the majority of my associates, but must vote to affirm the decree below.

A complete review of the evidence is unnecessary. It will be sufficient to briefly indicate wherein I think the evidence falls short of sustaining the charge.

The charge is that Parker Syms, by collusion with Robert, purposely refrained from calling as witnesses their aunt, Mrs. Serrell, and some of her family, who had been present at an interview when the terms upon which Mrs. Serrell agreed to undertake the contest of the will of her brother, William J. Syms, were settled. The action of Robert included his claim to a large sum of money, which arose out of a compromise of that contest, and whether that money belonged to Robert or to his father, Samuel R. Syms, was the question in dispute, and which depended for solution on what agreement had been made by Mrs. Serrell at that interview. Parker Syms was, therefore, aware that Mrs. Serrell and those of her family who had been present were competent witnesses to the occurrences of that interview.

But before he can be convicted of having fraudulently acted in refraining from calling them as witnesses, it must affirmatively and clearly appear that he either knew or had good reason, to believe that their testimony would have at least tended to-defeat Robert’s claim in the action.

Parker Syms was present at the same interview, as was his-brother Robert. Both of them testify that Mrs. Serrell then, agreed that one-third of the amount obtained by the contest she proposed to undertake should be paid to Robert for himself. Unless these .persons have sworn corruptly (which I can find no-ground for imputing), Parker Syms believed, and had a-right to-believe, that such was the agreement then made.

There was also present at the interview Mr. Bormeisler, a-lawyer, who. was employed to act in the contest of the will for Mrs. Serrell, Robert H. and George Syms. • He appears to be entirely indifferent between the parties. By his testimony such, an agreement was then made, and he produces, in corroboration, a document which he swears was drawn upon instructions given, him by the parties who employed him. That such instructions were given is not denied. The fact that Mrs. Serrell afterwardsdeclined to sign the document is of no significance, as her refusal was put on the ground that her word was as good as her bond.

From anything that has been made to appear in this case, I find no reason to suppose that Parker Syms knew, or had reason to believe, that the recollection of his aunt and her family as to the terms of the agreement made at that interview differed in any respect from his recollection and that of his brother Robert and of Mr. Bormeisler. If he knew of such difference of recollection, it has not been proved.

Parker Syms was aware that Mrs. Serrell knew that Samuel R. Syms had resisted the urgent entreaties of his children to-unite with her in the contest of the will of their brother 'William ; that he had refused to do so on the ground that he deemed it dishonorable for an executor and trustee under the will to take any steps to defeat it. Parker’s knowledge of his aunt’s acquaintance with these facts does not render it probable that he had ground to believe she would testify to an agreement with, her brother Samuel, through the agency,of Robert, by which-he should receive a share of the proceeds of a contest, which lie-was declaring himself too honorable to join in, by an underhand and dishonorable expedient.

After the compromise was effected the co-executors of Samuel R. Syms contested his right to commissions upon the estate of "William J. Syms, on the ground that he had procured or aided in the attack upon William’s will, and had shared in the proceeds resulting from a compromise of that attack. It appears that Parker became aware of the charge of misconduct against his father. This might indicate that he had grounds at least to suspect that Mrs. Serrell had, directly or indirectly, implicated Samuel as a secret party to her contest and a sharer in its results. But any such inference is wholly forbidden, for Parker received from Mrs. Serrell her voluntary affidavit, drawn by an attorney engaged and aided by her son, in which affidavit she asserts, in the strongest manner, that Samuel R. Syms had refused to sanction and to render aid to her action; that her agreement with Robert was that he should have one-third of the proceeds of any compromise made, and that she had paid out such portion, which she calls the “ share of the said Robert H. Syms,” to his father with his consent. This affidavit Mrs. Serrell admits was made by her for the purpose of enabling Parker to contradict the imputations upon his father, including that which charged him with sharing the proceeds of the compromise she had made. Unless he was informed by her or otherwise knew that it was false, he had a right to believe that -her recollection of the agreement she had made was in accord with his own.

In the absence of anything to show that he did not hold this belief, which, from the circumstances, he was justified in holding, I find it impossible to infer that his failure to call Mrs. Serrell and others present at the interview, as witnesses, was' fraudulent. His conduct was not inconsistent with an honest belief that Robert’s claim was just and would be supported by those witnesses if he had called them.

This, in my judgment, disposes of the case made by the bill, and it is unnecessary to consider whether appellant might not be otherwise entitled to relief.

For reversal — Ti-ie Chief-Justice, Abbett, Depue, Garrison, Lippinoott, Sims, Smith — 7.

For affirmance — Dixon, Magie, Reed, Bogert, Brown — 5.


author: Dixon, J.

text:
    The National Docks and New Jersey Junction Connecting Railway Company, appellant, v. The Pennsylvania Railroad Company and The United New Jersey Railroad and Canal Company, respondents.
    On appeal from a decree dismissing complainant’s bill, advised by Vice-Chancellor Van Fleet, whose opinion is reported in National Docks &c. Railway Co. v. United New Jersey Railroad, Co., 7 Dick. Ch. Rep. 366.

      Mr. Charles L. Corbin and Mr. John R. Emery, for the appellant.

      Mr. James B. Vredenburgh and Mr. Joseph D. Bedle, for the respondents.
   The opinion of the court was delivered by

Dixon, J.

The bill in this case was filed to have the defendants enjoined from hindering the complainant in the construction of its railroad through the yard of the Pennsylvania Railroad Company in Jersey City. The complainant based its right so to construct the railroad on statutory proceedings to condemn, which it claimed had been completed by payment of the assessed compensation to the clerk of the Hudson circuit court. The defendants insisted that such a payment, made without any rule or order of the court itself, was not a compliance with the statute; and the vice-chancellor being of that opinion, a decree was. entered dismissing the bill, from which decree the complainant appeals.

The language of the act regulating these condemnation proceedings is that, under certain circumstances, “payment of the ■ amount * * * into the circuit court * * * shall be ■deemed a valid and legal payment.” • Rev. p. 929 § IS.

There is, we think, no substantial difference between the meaning of this language' and the meaning of a statutory direction ■that the money should be paid to the clerk of the circuit court. As long as the courts of this state have existed, the clerk of the •court has been its officer for the reception of money lawfully ■paid into court, and whether the legislature directs payment into court or payment to the clerk of the court, it contemplates that the money shall pass into the hands of the clerk, but under the ■ charge and control of the court. In neither case is manual pos•session by the clerk essential to the accomplishment of the legislative purpose; in both, the substance of the thing is that the ■fund shall be within the judicial authority of the court.

This being so, a due regard to the rights of parties would seem to dictate that the court should be brought into every transaction involving the payment of money into court, for it owes, ■either to the party paying or to the party for whom it is paid, the duty of exercising judicial care over the fund. To this end, ■the court itself should be apprised of and should sanction every •such payment.

In all cases where a party in a pending suit brings money into court for his adversary, the propriety of such a practice is recognized by the courts, and it was admitted on the present argument that in such cases the uniform procedure was to obtain a rule permitting the payment. But it is insisted that, because the statute authorizes the condemning company to pay the money into court, no rule of court is requisite. The statute, however, is not tantamount to a special direction in a particular case; it merely grants a general privilege to be enjoyed by all persons ■coming within 'its purview. In like manner, the law of the land gives to all litigants the privilege of paying money into court, for their opponents. But when a suitor seeks to avail himself of this general privilege, he must take a special rule to legalize his payment. I see no good reason why the general statutory privilege should not be appropriated on the same terms.

What has been said is not intended to deny the power of each, court to establish its own rules and practice on this subject, or-to intimate that a payment made in accordance with such rules or practice, though without a special order, would be illegal. All we mean is that, in the absence of due proof that any different rule or practice prevails, it should be assumed, under statutes authorizing payment into court or' to the clerk of a court,, that payment cannot lawfully be made without the participation-of the court itself.

In the present case, neither the pleadings nor proofs indicated any peculiar rule or practice on this subject in the Hudson circuit, and consequently the vice-chancellor rightly concluded thafr due payment had not been made.

This determination renders it unnecessary to consider any other point of controversy.

The decree dismissing the bill should be affirmed.

For affirmance — The Chief-Justice, Abbett, Depue,. Dixon, Garrison, Magie, Reed, Van Syckel, Bogert,. Brown, Sims, Smith — 12.

For reversal — None.


text:
    The Pennsylvania Railroad Company, appellant, v. The National Docks and New Jersey Junction Connecting Railway Company, respondent.
    1. The dismissal of an original bill does not involve the dismissal of theeross-bill, so far as the latter seeks relief beyond what is necessary to maintain a defence against the complainant’s claim.
    2. A preliminary injunction is properly refused when there exists no-reasonable ground for apprehending that the injury, against which the injunction is sought, will be attempted.
    On appeal from a decree denying an injunction advised by Vice-Chancellor Van Fleet, whose opinion is reported in National Docks Railway Co. v. United New Jersey Railroad Co. 7 Dick. Ch. Rep. S66.

      Mr. Charles D. Corbin and Mr. John■ R. Emery, for the-appellant.

      Mr. James B. Vredenburgh and Mr. Joseph D. Bedle, for the-respondent.
   The opinion of the court was delivered by

Dixon, J.

The complainant, The National Docks &c. Railway Company,- hied a bill to restrain the defendants from interfering with the construction of its railroad through the yard of the defendants in Jersey City. One of the defendants, the Penn-. sylvania Railroad Company, annexed to its answer a cross-bill, alleging that the complainant had acquired no right to construct a railroad through the yard, and praying that the complainant might be enjoined from interfering with the yard, as-well as with other property of the defendants. The complainant. ¡having replied, the matters came to a hearing before the vice-■chancellor on orders to show cause why the injunctions desired should not be granted, and then, the vice-chancellor being of opinion that the complainant had shown no right to construct its railroad through any property of the defendants, a decree was entered dismissing the original bill and granting the defendants ■the injunction requested, except as to the yard. .

From this decree the Pennsylvania company appeals, on the ground that the retention of the original bill is necessary to ■enable it to secure the relief to which it is entitled on the cross•bil.1, and on the further ground that an injunction against interference with the yard should have been ordered.

We are of opinion that the dismissal of the original bill, especially as the order dismissing it indicates a purpose to retain file cross-bill, does not involve the dismissal of the cross-bill, so .far as that seeks affirmative relief beyond what was requisite to maintain the defence. Dawson v. Amey, 13 Stew. Eq. 494; Beach Mod. Eq. Prac. § 447 and cases cited.

With respect to the denial of,injunction: While the case made it plain that the complainant had acquired no right to interfere with the defendant’s yard, we find nothing in it to indicate that any interference was likely to be attempted after its wrongfulness was judicially declared. By appealing to a court of equity for ■aid in the enforcement of its claim, the complainant had shown its good faith, and that afforded the vice-chancellor reasonable ground for believing that when the claim was adjudged invalid no unlawful effort to enforce it need be apprehended. For this reason we cannot say that the injunction was improperly refused. Society v. Morris Canal Co., Sax. 157; Kean v. Colt, 1 Halst. Ch. 365.

The decree should be affirmed.

For affirmance — The Chief-Justice, Abbett, Deptte, Dixon, Garrison, Magie, Reed, Yan Syokel, Bogert, Brown, Sims, Smith — 12.

For reversal — None.


author: Reed, J.

text:
    Ann Costello, appellant, v. The Prospect Brewing Company, respondent.
    A wife, to whom her husband had made a voluntary conveyance of an equity of redemption in real estate, paid, with her husband’s consent, out of her own and her children’s earnings, a portion of the mortgage debt; on a bill, filed by her husband’s precedent creditors, to set aside the conveyance to the wife as fraudulent — Held, that the decree should preserve the right of the wife to a lien for the amount which she had so paid.
    On appeal from a decree in Prospect Brewing Co. v. Costello, which adjudges that a conveyance from a husband to his wife be set aside as against the judgment creditor of the husband.

      Mr. David J. Pancoast, for the appellant.

      Mr. Alfred Blugg, for the respondent.
   The opinion of the court was delivered by

Reed, J.

The bill was filed by the Prospect Brewing Company, which held three judgments against Thomas K. Costello, one for $4,700, another for $890, and still another for $320, all entered on December 31st, 1890, for debts incurred in 1887. Executions issued upon these judgments were returned unsatisfied.

The bill charges that Thomas K. Costello is the real owner of certain pieces of real estate, the paper title to which is in the name of his wife, and prays that the conveyances to her may be set aside and the title to the same declared to be in the husband, so as to subject the said real estate to the lien of the said1 judgments.

One of these pieces of real estate was conveyed to her directly by one Bernard Lyon, in 1887; another by Robert Wallace, in-February, 1888; another by Joseph J. Allen, trustee of William. B. Ellis, in December, 1883; and another by William B. Ellis and wife on the same day.

None of these conveyances was made to the wife by the husband, either directly or indirectly. The ground upon which the husband’s creditor claimed a right to subject these several pieces of property to the payment of his judgments, was that the property had been paid for by the wife out of money which belonged to the husband.

The vice-chancellor who heard the cause refused to recognize this claim of the creditor, and no appeal has been taken from the decree on this ground.

But in addition to the pieces of property already mentioned, •there was another, the title to which was in the wife, and which the bill also prayed might, be subjected to the payment of the judgment creditor’s debt.

This piece of property had been conveyed to Thomas K. Costello, the husband, by one Robert Conway. Thomas K. and his wife gave to Conway at the time of the purchase a mortgage for $2,000. The property, as I gather from the testimony, was, when , sold, subject to a $2,000 mortgage, so that the property, when in the hands of Thomas Eh, was encumbered to the amount of $4,000.

He held it for a year or more, and being unable to pay the interest upon the mortgages he conveyed it, on January 9th, 1890, to John Conway, son of Robert Conway; John and his wife, on the samq day, conveyed to Mrs. Costello.

The conveyance from the husband to the wife, through John Conway, seemed to have been voluntary. The mortgages of •12,000 each were upon the premises, and although $4,010 is mentioned as the consideration, Mrs. Costello swears that no cash passed.

The devolution of title to this property differed from the titles to-the other pieces of property in the particular that it passed to the wife from the husband-

Inasmuch as the conveyance of the equity of redemption in it was voluntary, it was voidable as to antecedent creditors without respect to the intention of the parties in making the deed. It follows that the decree, in avoiding it and subjecting it to sale for the payment of these judgments, was entirely equitable.

There is, however, a feature of the case which does not appear -to have been presented to the court of chancery, which seems to call for a modification of the decree.

It appears that the wife, since she has had the title to the •equity of redemption in this property, has paid $1,000 on the mortgage debt.

This fact was used by the counsel for the appellant as a reason why the conveyance to the wife should be permitted to stand. It was not pressed that a lien for the amount of this payment should be preserved to the wife in case the conveyance was set aside.

In the light of the testimony in the cause, T think that she is entitled to this. The evidence is that the money with which this payment was made was derived from the same sources as was the money which went to pay for the pieces of real estate already mentioned, the title to which was permitted to remain in the wife. The wife had for several years conducted a business. Her husband, neither by disposition nor habits, was fitted for business, and the support of his wife and children fell upon the wife’s labor and business management, in which he seems to have ■taken no part.

From the proceeds of her business and from the wages of her -children, earned in a neighboring mill, she bought land, borrowed money from building -and loan societies, erected houses for renting purposes, and out of the proceeds derived from these sources, paid the sum named, upon the mortgage encumbrance upon this property.

The husband laid no claim to these proceeds of the labor of his wife and children, but, on the contrary, recognized the right • of his wife to have unrestrained control over both.

Now, while the husband has the right to the earnings of his wife if he chooses to exercise that right, yet he is not bound to do so. The earnings of a married woman, working on her own account or by her husband’s permission, or earned in working for herself without his permission, if given to her by him, are-her separate property and within the provisions of the Married Woman’s act; and a husband is not bound to compel his wife-to labor for his creditors or to appropriate her earnings to' them. His permission and gift to her are valid against his creditors. Peterson v. Mulford, 7 Vr. 481.

The right of a father to forego his claim for the earnings of his children is equally clear. He may sell or give to the infant his time or authorize him to make contracts in his own name- and receive pay therefor, and in such case the minor may sue for and recover his wages. Wood M. & S. (2d ed.) § 25; Snedeker v. Everingham, 8 Dutch. 143; Campbell v. Campbell, 8 Stock. 268.

There is no rule of law which requires the husband to compel the wife or a parent to compel his children to work for his creditors.

The decree should be modified so that Mrs. Costello may be subrogated to the right of the mortgagees for such amount as she may have paid upon the mortgages, so that her lien may be established to that extent in preference to the lien of the creditors’ judgments.

There is another objection taken to the form of the decree.

The objection is that the decree fixes upon the wife a personal-liability to pay the judgments, and that it can be enforced as a judgment by an execution which may be levied upon any of her property.

This part of the decree directs that she shall pay the judgments before a certain day, and that, in default thereof, an execution issue to make the money out of this piece of property.

This form of the decree is intended merely to permit the wife to save this property from sale, if she sees fit, by paying the judgments.

The effect of a failure to make such payment is fixed by the-decree. It is that execution shall issue, not against all the wife’s-property, but only to sell this particular property.

The judgment is reversed.

For reversal — Abbett, Dixon, Garrison, Lippincott, Reed, Van Syckel, Brown, Smith — 8.

For affirmance — None.


author:
Magie, J.
      Garrison, J.
      Van Syckel, J.

text:
    Anna E. Bullock, appellant, v. Thomas O. Bullock et al., respondents.
    1. The jurisdiction acquired by the courts of one state over parties to an action incidentally affecting lands in another state,-is a jurisdiction purely in personam. The decree or judgment in such action cannot have any extraterritorial force in rem.

    2. A decree or judgment of the courts of one state requiring and directing lands in another state to be conveyed or charged or otherwise disposed of, may he enforced by their process and when enforced or submitted to, by the execution of a conveyance, mortgage or other instrument as directed, such conveyance, mortgage or other instrument is effective in the situs rei, but not the decree.
    3. The courts of the situs of lands are not bound by the decree or judgment of the courts of another state affecting such lands made in an action in which their jurisdiction is purely in personam, for their jurisdiction being limited their decree and judgment can extend no further. Full faith and credit will be given to such decrees and judgments under section 1 of article 4 of the constitution of the United States, by according to them a force merely personal upon the parties and enforceable alone by their process.

      4. Such decrees and judgments do not create a personal obligation upon the party which the courts of another state are bound to compel him to perform; at the most, they impose a duty, the performance of which may be enforced by the process of the courts pronouncing them.
    5. The courts of the situs of lands cannot be compelled to issue their decrees to enforce the process of courts of another state, or the performance of acts required by the decree of such courts, ancillary to the relief thereby granted, affecting such lands.
    6. A court of New York having jurisdiction over -the action and parties dissolved the bonds of matrimony between them, fixed the amount and directed the payment of alimony, and ordered the husband to execute and deliver to the wife a mortgage upon lands in New Jersey to secure the payment of the alimony.- — Held, that a bill founded upon the order requiring such a mortgage to be given and praying a decree that the mortgage should be given in conformity to the order, disclosed no equity and was properly dismissed.
    On appeal from a decree dismissing a bill advised by Vice-Chancellor Bird, whose opinion is reported in Bulloclc v. Bulloch, 6 Dick. Ch. Rep.

      Mr. Edward Q. Keasbey, for the appellant.

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

Magie, J.

The appellant in this cause was the complainant below. Her bill of complaint stated the following facts, viz., that she had commenced an action in the supreme court of the State of New York, which court had “jurisdiction in the case,” against re-: spondent, her former husband, for the purpose of dissolving the marriage previously entered into by them; that respondent was personally served with process and duly appeared in said action ; that such proceedings were had thereon that- a judgment was rendered in her favor, whereby it was adjudged that said marriage should be dissolved; that respondent should pay to her, as alimony, $100 on the first day of each month, commencing June 1st, 1892, and should execute a mortgage as security for such payments, upon lands in the State of New Jersey, of such form and containing such provisions as the court should subsequently direct and approve; that said court, by a subsequent order, directed respondent to execute, acknowledge and deliver to appellant a mortgage of a specified form and containing specified provisions, upon lands in this state which were particularly described in the order; that respondent had failed and refused to execute and deliver the mortgage as directed, and made various mortgages and conveyances of said lands without consideration and with the fraudulent purpose of defeating appellant’s rights.

It was charged in the bill that appellant, by virtue of the decree and order of the New York court, acquired an equitable lien on said lauds prior to the lien and interest of the mortgagees and grantees of respondent, and an equitable right to a mortgage on said lands in accordance with the decree and order.

Upon these statements and charges the prayers of the bill were for answer and discovery, for a decree setting aside the mortgages and conveyances of respondent, and that he be “ decreed, pursuant to the said decree and order of the New York supreme court, to execute and deliver” to her “the mortgage on said premises therein directed to be made and delivered, according to the form therein provided.” There was a general prayer for relief.

Respondent moved the court of chancery to dismiss the bill pursuant to the practice established by rule 215 of that court, upon the ground that the bill exhibited no equity entitling appellant to the relief she prayed for. The notice of the motion specifically set forth the grounds of objection.

The motion was heard by 'Vice-Chancellor Bird, and upon his advice a decree was made dismissing the bill. The opinion of the vice-chancellor is reported in 6 Dick. Ch. Rep. 444. this decree appellant has prosecuted the appeal which is now to be decided.

A motion to dismiss a bill under chancery rule 215 is a substitute for a demurrer. The rule was designed to furnish a speedy mode of bringing to adjudication questions which, before its adoption, could only be raised by demurrer. Obviously, all facts stated in the bill which are relevant and well pleaded must be deemed to be admitted to be true upon such motion as upon a demurrer, of which it is the substitute.

Looking at the bill to discover what facts must have been taken to be true upon the hearing of the motion to dismiss, I find difficulty in determining how extensive a jurisdiction is thereby asserted to have inhered in the supreme court of New York. It is expressly stated that the action commenced in that court was for the purpose of dissolving the marriage of the parties, and there is a conjoined statement that the court had jurisdiction of the case. From these statements it was obviously to be assumed, that the court in question had jurisdiction to-decree a divorce and annul a marriage.

But is it to be inferred — for there' is no express averment of it — that the same court possessed jurisdiction to fix the amount and require payment of alimony, and especially to require a defendant to secure the payment of alimony by a charge upon lands lying beyond the territorial jurisdiction of the court?' Alimony is, in general, an incident of divorce.- It may be justifiable to infer that a court empowered to dissolve the bonds of matrimony would also be clothed with authority to determine on the amount of alimony and to render judgment therefor. But how, without some further averment, is an inference to be drawn that the same court was authorized to require security for the payment of alimony to be given by- the mortgage of lands and of lands beyond its jurisdiction ?

If, however, the bill is defective in the respect suggested, the defect was not included in the causes set out in the notice of the motion to dismiss, and no objection upon that ground was made in the court below or here. From this, I think, we must deem it to have been conceded that the bill properly averred the jurisdiction of the supreme court of New York to make the decree aud order mentioned in the bill, and copies of which were annexed to and made a part thereof.

The decree, in this respect, ordered respondent to pay to appellant the alimony from time to time during her natural life, and to execute and deliver to her.¿mortgage on his real estate, and particularly that located in the state of New Jersey, to secure-such payments. The order simply required respondent to perform the decree by executing, acknowledging and delivering to appellant a mortgage bn particular lands in New Jersey, of a form shown in a schedule annexed to the order. .The order and requirement of the court was therefore directed in personam, and there was no attempt to adjudicate or enforce an adjudication ■ in rem.

It is scarcely necessary to observe that a court of New York could not have been empowered to affect by its decree or judg■ment lands lying within another state. For no principle is more fundamental or thoroughly settled than that the local sovereignty, by itself or its judicial agencies, can alone adjudicate upon and ■determine the status of lands and immovable property within its borders, including their title and its incidents and the mode in which they may be charged or conveyed. Neither the laws of another sovereignty, nor the judicial proceedings, decrees and judgments of its courts, can in the least degree affect such lands and immovable property. Story Confl. L. §§ 543, 591. The concession as to the jurisdiction of the supreme court of New York in this case must therefore be deemed to be limited .to a jurisdiction to proceed in personam and not to extend to a determination, adjudication or decree in rem.

The jurisdiction thus conceded to the supreme court of New York is exactly analogous to the jurisdiction which, since the ■decision of Penn v. Lord Baltimore, 1 Ves. 444, has been universally recognized as inherent in courts administering equity. This recognized jurisdiction extends to making decrees in cases of equitable cognizance, such as fraud, trust and specific performance against persons brought into those courts, notwithstanding such decrees incidentally affect lands beyond the court’s jurisdiction. But the exercise of this jurisdiction has been supported solely on the ground that it operated in personam only, and did not extend to the utterance of decrees in rem. In the leading American case, Chief-Justice Marshall declared that the question was whether the question presented was an unmixed question of title, or a case of fraud, trust or contract. Massie v. Watts, 6 Cranch 148. If relief cannot be effectively given by the decree in personam, such courts will not retain the bill. Morris v. Remington, Pars. Eq. 387; Lindley v. O’Reilly, 21 Vr. 636. Nor will the power be exerted in personam to compel an act affecting lands in another jurisdiction of doubtful legality. Blount v. Blount, 1 Hawks 365. The power of such courts to make effective such decrees is limited to their process operating upon the party, such as sequestration of property within jurisdiction, attachment for contempt and the like; it will not extend to validating a conveyance of the foreign lands made by its master or commissioner, in default of the performance of the decree by the party. Watts v. Waddle, 6 Pet. 390; Burnley v. Stevenson, 24 Ohio St. 474. When by the process of the court acting upon the party obedience to the decree is enforced as by tiie conveyance, it is the conveyance, not the decree, that affects the lands in the foreign jurisdiction. Davis v. Headley, 7 C. E. Gr. 115.

The long line of cases illustrating this doctrine and its limitations is collected in 22 Am. & Eng. Encycl. L. 918. Nowhere-has the doctrine been more clearly stated than in our own courts. Wood v. Warner, 2 McCart. 81; Davis v. Headley, ubi supra; Potter v. Hollister, 18 Stew. Eq. 508; S. C., 1 Dick. Ch. Rep. 609; Lindley v. O’Reilly, 21 Vr. 636.

In my judgment it does not admit of doubt that the jurisdiction of the supreme court of New York, if properly averred in-the bill, was a jurisdiction to make a decree as to alimony and its being secured by mortgage on lands in New Jersey only inpersonam, and to enforce it by any process against respondent which is proper in that state. Nor was the decree which was-pronounced by that court capable of any other construction than one which showá it to have been within such conceded jurisdiction.

From these considérations I deem it evident that the theory of this bill that, by virtue of the decree and order of the supreme court of New York, appellant acquired an equitable lien on lands in. New Jersey and a right to have such lands disposed in a certain manner, cannot be sustained without a disastrous violation of fundamental principles. The decree and order of that court does not pretend to have any such purpose or effect, nor could that court be empowered to make a decree having such an effect.

But it is ingeniously contended in this court that the decree- and order of the supreme court of New York imposed upon respondent a personal obligation to do what that decree and-order had directed him to do, and that a court of equity in New Jersey ought to compel him to perform that obligation as it-would compel him to perform his contract to convey or mortgage lands in its jurisdiction. Moreover, it is contended that the provisions of section 1 of article 4 of the constitution of the United States, requiring full faith and credit to be given in each state to the records and judicial proceedings of every other state, impart to this decree and order a conclusive force with respect to the mortgage directed to be given on lands here, which compels our courts to enforce it by decrees in conformity therewith.

Doubtless the judgment of the New York court must be accorded in our courts a conclusive effect in certain respects. Thus it has conclusively determined the status of the parties to that action, and that the marital relation previously existing between them has been absolutely dissolved. If. by tha-dheetien to payjilimony an indebtedness arises from timeTo-time as such payments become due, an action at law wou!d-lie-feh«reon-and--the/' decree w.Q.iúd fhriiish_conclusive evidence of such-indebtedness.

But the question, upon the solution of which this case must turn, is whether the courts of New Jersey must give conclusive effect to the decree or judgment of the courts of New York made in a case where they had acquired jurisdiction of the parties but affecting lands situated here, and disposing of the title thereto in whole or in part. If this question is to be answered in the affirmative, it seems evident that we accord jurisdiction over lands in New Jersey to the courts of other states, and, as was said by Chancellor Zabriskie, in Davis v. Headley, supra, “ leave to the courts of this state only the ministerial duty of executing their decrees.” For the doctrine that jurisdiction respecting lands in a foreign state is not in rem but only in personam is .bereft of all practical force if the decree in personam is conclusive and must be enforced by the courts of the situs.

If such is the effect which must be given to the judgments and decrees of the courts of a sister state respecting lands situated here, it is extraordinary that no trace of the doctrine can be found in text-books or in adjudicated decisions. My researches have not disclosed any support of the doctrine by any text-writer of repute or by any decision in point. The very industrious counsel who maintained this view in argument has produced no authority which, in my judgment, sustains his position.

In Elizabeth Savings Institution v. Gerber, 8 Stew. Eq. 151, the question was as to the effect to be attributed by our courts to an order of a court of New York directing a New Jersey corporation to pay money due from it to one Ahern, in part satisfaction of a judgment which the savings institution had recovered against Ahern in New York. The decision of this court went upon the ground that the New York court had not acquired jurisdiction of the New Jersey corporation, which had been ordered to pay, and that its order was consequently void. -What was said by the learned chief-justice who wrote the opinion respecting the power of our court of chancery to enforce a right to money under such an order was unnecessary to the decision, but can doubtless be supported, because the New York order was for the payment of money raising an indebtedness, which in that case required to be enforced in the,court of chancery, as the debt which was the subject of the order had then been paid into that court. Bpt-the effect of a foreign judgment or decree as to money in another state must differ from the effe'ct of such a judgment and decree as to lands in another state.

Cheever v. Wilson 9 Wall. 108, presents a closer parallel to the case in hand. In that case a divorce court in Indiana made an order that one of the parties to an action for divorce should pay to the other party a certain proportion of the rents to accrue from real estate situated in the District of Columbia, and should execute to him a sufficient power to collect such rents. She executed the_ power^asjrescñbed, and the question before the court was what interest in the rents passed thereby. Mr. Justice Swayne, delivering the opinion of the court, incidentally said that the order “could have been enforced in the situs rei by proper proceedings conducted there for that purpose.” But this statement is not supported by the cases cited, and was unnecessary to the decision, as the learned judge immediately pointed out by showing that the party had executed an assignment which vested in. the other party the interest in the rents which ■she had been ordered to convey. The whole question was as to the effect of that assignment.

The contention that such an order requiring lands in New Jersey to be charged with alimony created a personal obligation on respondent is, in my judgment, without forge. It is a misuse of terms to call the burden thereby imposed on respondent a personal obligation. At the most, the decree and order imposed a duty on him, which duty he owed to the court making them. That court cau enforce the duty by its process, but our courts ■cannot be required to issue such process or to make our decrees operate as process. Moreover, the substantial part of the decree is comprised in the dissolution of the marriage and the direction to pay alimony. The charge of the alimony upon lands. is rather in the nature of process to enforce the substantial decretal order for alimony.

The establishment of the contrary doctrine would result in practically depriving a state of jdiat exclusive control over' immovable property therein which has always been accorded. For example, by our statutes, contracts respecting lands, to be enforceable, must be entered into and evidenced in a particular mode, but our courts, upon equitable grounds, sometimes enforce contracts that are without the statute. It is the province of our legislature to prescribe the rule for such contracts and for our courts to'construe the rule so prescribed and to determine when such contracts, whether within or without the statute, may be ■enforced. It is true that the courts of another state, proceeding in personam to enforce a contract for lands in New Jersey, would be bound to determine whether the contract was enforceable under our laws. But they would construe those laws, and if their decree in pei'sonam may and must be conclusive in our ■courts and compel a decree in conformity therewith,.it is obvious that the contract will be enforced according to whatever construction the foreign court put upon our laws, and not according to the construction of our own courts. Other examples will occur to anyone considering the subject.

For these reasons I shall vote to affirm the decree below.

Garrison, J.

(concurring).

I concur in the result announced by Mr. Justice Magie, but not for the reasons contained in the opinion just read, nor for those stated in the conclusions of the learned equity judge who heard the cause in 'the court of chancery.

The object of the complainant’s bill is to execute, through the medium of our court of chancery, an order made by the supreme court of New York upon the defendant to secure his performance of a decree rendered therein against him by mortgaging his lands in New Jersey. The procedure in this state is justified under that provision of the federal law that gives conclusive force in one state to the records and judicial proceedings of another. The vice of this deduction, in the case before us, is that it assumes that the order made by the New York court to secure the performance by the defendant of its decree against him is a “judgment ” of that state within the meaning of the federal constitution and the act of congress,

The transcendent force given by the federal law to the judicial proceedings of sister states is confined to such judicial determinations as possess the quality of judgment; it does not extend to-proceedings in the nature of execution or to orders merely ancillary to some special form of relief.

In cases that proceed to judgment in common-law form, this-distinction is well marked, but it is liable to be lost sight of in decisions rendered in equity causes where judgment, in decretal form, is often accompanied by special orders for particular forms of relief or for the enforcement or securing of the execution of' the decree pronounced. The distinction, however, is always a substantial one that must not be overlooked because of the-form in which the decretal order may be framed.

That only is judgment that is pronounced between the parties to the action upon the matters submitted to the court for decision. To judgments thus rendered, the federal law accords in every state the same conclusive force possessed in the state where they are rendered. After judgment in a state court, all that follows for the purpose oí enabling the successful party to reap the benefits of the determination in his favor is execution or in aid of execution. No interpretation has ever been placed upon the federal constitution giving conclusive effect, or, indeed, any effect at all to the executions of the judgments rendered in sister states.or to any order merely in aid thereof. Such orders lack the quality of judgment and must be^differentiated from judgments, ^e53hougU’embodied_ in the._same decretal orders that pronounce the judgment of the court. These decretal orders may be defined to be decisions made touching some matter collateral to the issue presented in the record or required to be passed upon in order to carry into execution the judgment of the court. To these determinations ancillary to execution, no> extra-territorial force is given by the- federal law.

That the order in the present case touching the defendant’s land in New Jersey is of this nature clearly appears in the case before us. Upon this demurrer it is established that the New York suit was instituted for the sole purpose of dissolving the marriage of the complainant with the defendant. Upon the record thus submitted the supreme court of New York pronounced as its judgment that the marriage should be dissolved with the incident of alimony to the complainant. Here the sentence of the law upon the record ceases. The order of the court then proceeds in these words: “And it is further adjudged and decreed that the said defendant, within ten days after the entry of this judgment and service thereof on the attorney for the defendant, execute and deliver unto the plaintiff a mortgage covering the real property owned by the defendant and particularly located in the State of New Jersey, which mortgage shall be of such form and contain such provisions as shall be sufficient and requisite to secure unto the plaintiff the faithful performance of the provisions of this judgment and decree on the part of the defendant as may be directed and approved by this court.”

In my opinion this order was ancillary to execution and did not possess any element of a judgment upon the issue submitted to the court for decision, which was whether the marriage between the parties should be dissolved. Eor this reason I think the complainant’s bill was properly dismissed.

Van Syckel, J.

(dissenting).

The supreme court of New York made a decree for divorce in favor of the wife, and ordered that the husband pay $100 per month alimony, and that to secure it to the wife he should execute a mortgage on lands which he owned in New Jersey. Personal service was made upon the husband in the New York ■divorce suit, and the decree for divorce, including the order to ■execute the mortgage, was obtained on the 1st day of July, 1892.

On the 19th of November, 1892, on the application of the wife’s attorney, an order was entered in the New York court •specifying the lands in New Jersey upon which the husband should execute the mortgage.

Thereupon the wife filed a bill in the court of chancery of this state to compel the husband to execute the mortgage in accordance with the New York judgment, and also to set aside conveyances of the property in this state by the husband, which are •alleged to be fraudulent.

The first question is, whether the New York court, on common-law principles, had the power to decree a mortgage to be ■executed to secure the wife’s alimony.

The ecclesiastical courts had no such power.

These courts enforced their decrees by excommunication until an act was passed (53 Geo. III. c. 127) forbidding excommunication and providing imprisonment for contumacy in its stead.

The power of the New York court, if it exists, must be ■statutory.

Prior to the judgment the presumption, in the absence of proof, would be that the common law prevailed and that no such power rested in the New York court. But after judgment the presumption will be .that all things were rightly done and that the power did exist by statute in New York.

This presumption will prevail until evidence is produced to 'repel it. In this case there is an entire absence of proof, on this point. Admitting this to be so, the judgment in New York constitutes no lien upon lands in this state. Davis v. Headley, 7 C. E. Gr. 115; Lindley v. Reilly, 21 Vr. 636.

But this does not 'dispose of the case. The question is,, whether our court of equity will establish a lien upon the New Jersey lands so as to give effect to the New York decree.

It may be conceded that the lex fori must apply to the remedy to enforce the New York judgment in our courts. Harker v. Brink, 4 Zab. 333; Garr v. Stryker, 1 Harr. 404; Amour v. McMichael, 7 Vr. 92.

While we will give full faith and credit to the New York-judgment, we cannot be asked to give greater efficacy to a decree for alimony made in New York than we can give to a like decree made in our own courts.

For instance, if the common law prevailed here, we would-enforce the New York decree for alimony only according to the common-law practice, for that would exhaust our power in that respect.

Under our statute concerning alimony it has been held that equity may decree that it shall be a lien upon the husband’s lands. Snover v. Snover, 2 Beas. 261.

I do not find that a decree has been made expressly requiring the husband to execute a mortgage, but it is not necessary here as the decree that it shall be a lien by its own force attaches to-the land. It is a difference in mere form,.not in substance.

The right to establish the lien must .carry with it the power to require the husband to execute any conveyance requisite to its enforcement. The question to be solved, therefore, is whether, under that provision of the federal constitution which requires that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, the-wife is entitled to invoke the aid of our courts to give effect to-the New York judgment in conformity to our practice.

It is undoubtedly true that the New York court had no power to create a lien upon New Jersey lands, and it is also true-that the New York court could have acted upon the person of the husband while within its jurisdiction and constrained him to-execute such a writing as would have been effective to pass the title to, or establish a lien on, the New Jersey lands. The question, however, is not what the New York court could have-•done, but what the courts of New Jersey, in discharge of her ■constitutional obligations, should do in aid of the wife after rendition of the judgment in New York.

The New York court having jurisdiction of the person of the husband and also of the subject-matter of the suit there, the judgment in that state, as between the parties to that suit, was conclusive of the right of the wife to have the husband execute a mortgage upon the New Jersey lands, although it did not of its . own force create a lien upon the lauds. As to the title to such lands, it had the effect of an admitted legal contract or obligation by the husband to convey and should b.e enforced in ■equity here.

A judgment in New York that a party defendant shall specifically -perform a written contract to con vey lands in New Jersey would furnish no better foundation for the interference of our court of equity than the judgment relied upon in this case. In what respect they differ in principle is not apparent. In either case obedience to the mandate of the federal constitution would give effect to the judgment here.'

In Elizabeth Savings Institution v. Gerber, 8 Stew. Eq. 153, this court held that a judicial order in New York that the garnishee owes a debt to the defendant in a judgment, such moneys being in the custody of a court of equity, creates per se a right to apply to such court for such moneys in the same way as an assignment of such moneys to the plaintiff in the judgment would have passed such right. Such ar decree in the New York court settled the plaintiff’s right to the fund, and that right was an equitable one, which -was enforced in this state.

The decree or judgment in New York has the effect of being not merely prima fade evidence, but conclusive proof of the rights thereby adjudicated, and a refusal to give it the force and effect in this respect which it had in the state" in which it was rendered denies a right secured by fundamental law.

The force and effect of the decree for alimony in New York was not to create a lien upon lands in New; Jersey, but to conclusively entitle the wife to have that decree ‘enforced against the husband.

It being competent for our courts to enforce such a decree made in our own courts by establishing it as a lien on lands, we cannot refuse like relief in this case on the extra-territorial judgment. Huntington v. Attrill, 146 U S. 657; McElmoyle v. Cohen. 13 Pet. 312.

In Cheever v. Wilson, 9 Wall. 108, 121, there was an order of the divorce court in Indiana directing the wife to pay one-third of her rents as they became due to her husband. The land was in Washington, where suit was brought to enforce payment of the rents to the husband. The court said that the decree in Indiana, so far as it related to the real property in question, could have no extra-territorial effect; but if valid, it bound those who were parties in the case, and could have been enforced in the situs rei by proper proceedings for that purpose.

The judgment in New York must be regarded as conclusively imposing a legal personal obligation or duty upon the husband to mortgage his lands in New Jersey.

The New York judgment is conclusive between the parties to it—

First. As to the right to a divorce.

Second. As to the right of the wife to the alimony allowed.

Third. It is equally conclusive, as against the husband, as to her right to have such alimony secured by a mortgage on his New Jersey lands, that being expressly a part of the adjudication in New York.

The judgment imposed an obligation upon the husband from which he cannot relieve himself by removing from the jurisdiction in which it was rendered; that obligation follows him into this state.

The lien does not by mere force of the extra-territorial judgment attach to lands in this state. To impress that lien upon lands here the intervention of our court of equity is necessary, just as it is necessary to sue here upon a New York judgment before execution can issue from our courts to obtain satisfaction of it.

The husband has had his day in court in New York, where all these questions have been adjudicated against him, and our courts should hold that he is thereby concluded.

The question in its true form is whether we will give full faith and credit to the judgment of the New York court in so far as it finally adjudges the questions legally submitted to it, when it had jurisdiction both of the subject-matter of the controversy and of the parties to it.

It seems to me that there can be but one answer to this question, and that the court below erred in dismissing the complainant’s bill.

For affirmance — Abbett, Depue, Garrison, Magie, Brown, Smith — 6.

For reversal — Dixon, Lippincott, Reed, Van Syokel, Bogert — 5.


author: Per Curiam.

text:
    The Clinton Hill Lumber and Manufacturing Company, appellant, v. Jonathan F. Strieby et al., respondents.
    Two things are indispensably requisite to render an absolute transfer a mortgage — first, the transfer must be made to secure the payment of a debt or the performance of a duty; and, second, a right of redemption must exist in the mortgagor.
    On appeal from a decree advised by Vice-Chancellor Van Fleet, who rendered the following opinion :
    The complainants are judgment creditors of'Frank D. Holloway. They bring 'this suit to procure a decree setting aside, for fraud, a bill of sale made by Holloway by which he transferred all his property to the Clinton Hill Lumber and Manufacturing Company.
    The following facts are undisputed: Holloway commenced business as a dealer in lumber, in Newark, in September, 1892,. and continued such business for about five months, and until January 23d, 1893, when he transferred to the defendant the lumber in his yard and that in course of transportation, and also the good will of his business and everything else belonging to it, including his accounts receivable. The debts on which the complainants’ judgments are founded were contracted by Holloway in the purchase of lumber during the five months he was engaged in business, and a part of the property which he transferred to the defendant consisted of lumber which he had purchased of the complainants. The defendant was organized on the very day that the transfer was made. At that time the defendant was without a penny in its treasury, as well as wholly destitute of assets of any other kind. Though the answer alleged that four hundred and five shares of stock, at $100 each, were subscribed for the day the defendant was organized, so far as appears, not a single dollar in money has ever been paid on the subscriptions. The defendant has never acquired any property of any kind except that which Holloway transferred to it and about $3,000 worth of lumber in addition which Holloway had purchased just prior to the transfer and which was delivered to him on the guaranty of a third person that it should be paid for. The value of the property transferred, as ascertained and settled by Holloway and a representative of the defendant, was $15,100, but the defendant made no agreement or promise, either before or after the transfer, to pay that sum or any other for it in money. And the defendant has never paid a dollár for it in money. All that the defendant has ever given in exchange for the property is to issue eighty-two shares of its stock to one of Holloway’s creditors.
    The circumstances under which the transfer was made, as described by the defendant in its answer, were these: Holloway commenced business with capital furnished by one William S. Ketcham, Sr. Eor more than a month prior to the date when the defendant corporation was organized, Holloway’s business had come to a standstill for lack of money to carry it on and to pay Holloway’s debts. Ketcham refused to advance any more money. Holloway then proposed that a corporation should be formed, and agreed that if it was'he would convey his assets and business either to Ketcham or to the corporation, and that if the. transfer was made to the corporation, the corporation should issue its stock to Ketcham for the value of the assets and business transferred; and that Ketcham thereupon agreed that on the transfer by Holloway of his assets and business to the corporation, he would accept its stock, at par, for the value of the same. The corporation was formed and the transfer was made, as the answer alleges, to carry this arrangement into effect. The answer also says that Holloway was at this time insolvent, or, to quote the language of the answer, he “ was entirely without means to pay said debts or to carry on said business.” This arrangement, it will be noticed, made it the duty of the corporation to issue stock to Ketcham for the entire value of the assets and business transferred by Holloway, even if the sum due to Ketcham was much less than the value of the assets and business.
    At the time the transfer was made the amount due from Holloway to Ketcham was a little less than $9,610, and the value of the property he transferred was over $15,000, so that if the arrangement set forth in the answer had been carried out according to its terms, Ketcham would have received in defendant’s stock, in payment of his debt, nearly $5,400 more than was due to him. But the proofs show that this arrangement was not carried out. Only eighty-two shares of stock were issued to Ketcham. Forty were issued to him and forty-two to two other persons, by his direction and on his account. Assuming, for present purposes, that these shares were a marketable commodity and could have been put on the market and sold for par — a thing which it is almost absolutely certain could not have been done — it is manifest that, by means of the transfer, the corporation obtained from a debtor in failing circumstances, property worth over $15,000, for $8,200, and that all of the debtor’s creditors except one were defrauded to the extent of nearly $7,000. William S. Ketcham, Sr., swears positively that the consideration which the defendant was to pay to Holloway for the property transferred was the amount of Holloway’s indebteduess to him, and that there was no arrangement or agreement that anything more should be paid or given in case the value of the property exceeded the sum due to him from Holloway.
    These facts, as I think, establish a plain case of fraud. The transaction was conspicuously fraudulent as against Holloway’s creditors, both in its essential elements and in its result. By means of it, Holloway either gave away or attempted to conceal a large amount of property which his creditors had a right to have applied to the payment of their debts.
    But it has been suggested that the validity of this transaction should be upheld, even as against the creditors of Holloway, on the ground that the transfer to the defendant was made by way of mortgage to secure the debt which Holloway owed to Ketcham. There can be no doubt that a transfer absolute on its face may be shown to have been executed as a mortgage, but to warrant a court in so changing the legal effect of such an instrument, clear and convincing evidence must be produced, proving that, though the transfer is absolute in its terms, it was fully understood by both parties, at the time of its execution, that the relation of creditor and debtor should continue between them, and also that the debtor should have the right, on paying his debt, to have his property returned to him. Two things are indispensably requisite to render an absolute transfer a mortgage — -first, the transfer must be made to secure the payment of a debt or the performance of a duty; and second, a right of redemption must exist in the mortgagor. This case is not only destitute of the least evidence tending to show that it was understood that Holloway should have a right to redeem the property transferred, but all the circumstances attending the transfer— the nature of some of the property transferred, the person to whom the transfer was made and the purpose for which it was made — go to show, with almost conclusive force, that it was intended to be absolute and unconditional.
    But if it were possible, under the evidence in this casé, to change this instrument from an absolute transfer to a mortgage, I still think there would be strong reason to doubt whether there had been such an immediate delivery of the things mortgaged, followed by such an actual and continued change in their possession as would, without a verification of its consideration and without its being recorded, render the instrument valid against the creditors of its maker. The proofs show that the defendant took possession of the property transferred, not'as mortgagee or as the agent of a mortgagee, but as its absolute owner, and dealt with it and disposed of it as its owner.
    The complainants are entitled to a decree, with costs.

      Mr. Samuel J. McDonald, for the appellant.

      Mr. James E. Howell and Mr. John O. H. Pitney, for the respondents.
   Per Curiam.

Decree affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Dixon, Garrison, Lippincott, Mague, Reed, Van Syckel, Bogert, Brown, Green, Krueger, Sims, Smith — 13.

For reversal — None.


text:
    Joel Thomas, appellant, v. Francis D. Weaver et ux., respondents.
    In an action against husband and wife to enforce the specific performance of a contract to convey land, a-plea by the wife that complainant refused to carry out the agreement unless she executed a like agreement, which she did, without consideration and solely to answer for the default of her husband in carrying out said agreement, is a good defence to an action against her under the statute (Mev. tit. “Married Women” \ 5) providing that no married woman shall be liable on a promise to answer for the default of another.

      On appeal from an order advised by Vice-Chancellor Green, who delivered the following opinion :
    This bill is filed for the specific performance of a contract to convey three certain tracts of land in West Berlin, in this state, to the complainant.
    This contract was incorporated in two separate written agreements, both dated February 1st, 1893; both executed by the complainant as party of the first part, one executed by Francis D. Weaver as party of the second part thereto, and the other by Catharine B. Weaver, wife of Francis D. Weaver, as party of the second part. Each provides that the party of the second part, in consideration of the transfer to him and her of the right, title and interest of the complainant in and to a certain printing business, and the personal property incident thereto, at 1028 Filbert street, Philadelphia, agrees to convey by proper and sufficient deed or deeds to the complainant or his nominee the property in question, free and clear of encumbrance, liens and claims of every kind; and to further pay to the complainant the sum of §500 in four months; and further to put the property in good repair before conveyance.
    The agreement signed by the wife contains the "following statement:

      “ It being understood and agreed that this agreement and one of like date, made between the said Joel Thomas and the said Francis D. Weaver, constitute and make up the entire contract between the said parties, and are to be taken and considered as one entire contract.”
    The bill alleges that, in pursuance of the contract, the complainant, on the 4th of February, 1893, executed and tendered a bill of sale for the printing establishment mentioned unto Francis D. Weaver and Catharine B. Weaver, who accepted the same and at once took possession as the absolute and unqualified owners thereof.
    That the defendants not having made the repairs mentioned in the contract at that time, refused to execute'a deed until the repairs were in fact made; but avers that such repairs have now been made, and- that the defendants still refuse to convey the property to him.
    Francis D. Weaver has answered the bill.'
    Catharine B. Weaver, the wife, files a plea to the bill, or such part of it as prays that she be decreed specifically to perform the agreement, substantially as follows:
    That previous to the execution of the agreement, executed by her, the defendant Francis D. Weaver had entered into an agreement of similar import with the complainant.
    That at the time of the execution of these agreements she, Catharine B. Weaver, was the owner in fee simple of the premises in controversy, and that the complainant declined to carry out his agreement with Francis D. Weaver unless the latter procured the defendant Catharine B. Weaver to also execute the agreement, which she afterwards signed; that she had no interest, directly or indirectly, in the profits, outcome or objects of the agreement between complainant and her husband, and has not, nor never had, any knowledge of the same; that she was, without any consideration whatever from Francis D. Weaver or the complainant, induced to sign and execute the agreement, and that she signed and executed the same solely to answer for the default of said Francis D. Weaver in his carrying out said agreement, and that at the time she signed and executed it, and since that time, she has been a married woman. All tvhich matters and things she avers to be true, and pleads the provisions of the fifth section of the act entitled “An act to amend the law relating to property of married women” (Rev. p. 637), approved March 27th,-1874, in bar to the complainant’s bill.
    Section 5 of the act referred to is as follows:
    “That any married woman shall, after the passing of this act, have the right to bind herself by contract, in the same manner and to the same extent as though she were unmarried, and which contracts shall be legal and obligatory, and may be enforced at law or in equity, by or against such married woman, in her own name, apart from her husband; provided, that nothing herein shall enable such married woman to become an accommodation endorser, guarantor or surety, nor shall she be liable on any promise to pay the debt or answer for the default or liability of any other person.”

      Motion is made, under Eule 213, to strike out the plea.
    The reasons stated in the notice of motion are, substantially, that the facts as pleaded show no defence; that the contract is not the contract of a married woman to become an accommodation endorser, guarantor or surety; nor is it a promise to pay the debt or answer for the default or liability of another person; that the contract is not in contravention of the statute, nor is the statute a bar to the action.
    Eule 213 provides a speedy and simple method of accomplishing the end formerly reached by demurrer, and on the hearing of the motion under the rule, as on the hearing of a demurrer, the allegations of facts, which are well pleaded, are to be taken as true. The allegations of fact of this plea, epitomized, are that the defendant Catharine B. Weaver was a married woman; that her husband, Francis D. Weaver, had made a contract for the conveyance of the property &c. in consideration of the transfer of the printing establishment as set out in the bill of complaint; that the complainant refused to carry out his agreement with her husband unless he would procure her also to execute a like agreement, being the one set out in the bill; that she had no interest, directly or indirectly, in the transaction or its outcome, or any knowledge of its objects, and that, without any consideration whatever, she was induced to execute the same, solely to answer for the default by her said husband in carrying out his agreement.
    This presents, in the first place, the question whether the averments are sufficiently specific, and in the next place, if so, do they constitute a bar to the complainant’s right of action as against her ?
    It is objected, in the first place, that the allegation that she has no interest, directly or indirectly, in the profits, outcome or objects of the agreement between complainant and her husband, is irrelevant and immaterial, and that she, without any consideration whatever, was induced to sign and execute the agreement,, is immaterial. I do not so- regard them.
    The position which Mrs. Weaver assumes by the plea is that, in executing the agreement, she did so simply as surety that her husband would carry out the agreement, which, she alleges, had been previously made by him with the complainant, and it is certainly not only relevant, but material, to such insistment that she had no interest whatever, directly or indirectly, in the transaction, and that she executed the same without any consideration to herself.
    It is admitted that the allegation that she signed and executed the agreement, solely to answer for the. default of her said husband, in his carrying out his agreement, would be material if it was sufficiently specific.
    As is said by Vice-Chancellor Pitney, in Reeves v. Morgan, 3 Dick. Ch. Rep. 433, th.e burden is on the married woman, who is sued on her contract, to set out and prove that she is within the exception of the proviso. It is difficult to conceive what other facts Mrs. Weaver could have pleaded in order to comply with these requirements. She alleges that her husband.and the complainant first made a contract; next, that the complainant refused to perform unless she, the wife, entered into a similar agreement, containing a provision that the two memoranda were to constitute an extra contract; that she had no interest whatever in the transaction, and that she received no consideration whatever for executing the same, followed by the declaration that she only did it as surety for her husband’s carrying out his agreement.
    On this motion these various allegations must be accepted as . if they were proved, and the question only remains whether, if true, they are within the proviso of the statute pleaded.
    There does not seem to be any room for argument as to this; for if her husband had made an independent contract with the complainant which he refused t.o perform unless the wife joined her husband therein, and if she did so without any interest whatever in the transaction, and without any consideration therefor, and simply as surety for her husband’s performance, it would seem to bring the case squarely within the exception.

      Mr. Howard Garrow, for the appellant.

      Mr. John W. Wescott, for the respondents.
   Per Curiam.

Order affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Dixon, Garrison, Lippincott, Mague, Reed, Van Syckel, Bogert, Brown, Krueger, Sims, Smith — 12.

For reversal — None.


author: Per Curiam. •

text:
    Isaiah M. Heston, appellant, v. Anna P. Beckett, respondent.
    On appeal from a decree advised by Vice-Chancellor Green, whose opinion is reported in Beckett v. Heston, Ip Dick. Ch. Rep. 510.

      Mr. John W. Wartman, for the appellant.

      Mr. Allen B. Endicott, for the respondent.
   Per Curiam. •

Decree affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Abbett, Depue, Dixon, Garrison, Lippincott, Magie, Reed, Van Syckel, Bogert, Brown, Krueger, Smith — 13.

For reversal — None.


text:
    The Bookwalter Steel and Iron Company, appellant, v. John P. Stockton, attorney-general, respondent.
    On appeal from an order advised by Vice-Chancellor Bird, whose opinion is reported in Bookwalter Steel and Iron Company’s Case, 6 Dieh. Ch. Rep. 71.

      Mr. Horatio N. Barton, for the appellant.

      Mr. William Y. Johnson, for the respondent.
   Per Curiam.

Order affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Dixon, Garrison, Lippincott, Magie, Reed, Van Syckel, Bogert, Brown, Krueger, Sims, Smith — 12.

For reversal — None.


text:
    The Electro-Pneumatic Transit Company, appellant, v. John P. Stockton, attorney-general, respondent.
    On appeal from an order advised by Vice-Chancellor Bird, whose opinion is reported in Electro-Pneumatic Transit Company’s Case, 6 Dick. Ch. Rep. 71.

      Mr. Horatio N. Barton, for the appellant.

      Mr. William Y. Johnson, for the respondent.
   Per Curiam.

Order affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Dixon, Garrison, • Lippincott, Mague, Reed, Van Syckel, Bogert, Brown, Krueger, Sims, Smith — 12.

For reversal — None.


text:
    Acton C. Hartshorne and Charles E. Hill, appellants, v. George C. Boorum, respondent.
    On appeal from an order advised by Vice-Chancellor Pitney, whose opinion is reported in Boorum v. Tucker, 6 Dick. Ch. Rep. 1S5.

      Mr. Charles E. Hill, for the appellants,

      Mr. James Fleming, for the respondent.
   Per Curiam.

Order affirmed, for the reasons given in the court of chancery.

For affirmance — Abbett, Depue, Dixon, Garrison, Lippincott, Reed, Van Syckel, Bogert, Brown, Smith — 10.

For reversal — None.


text:
    William H. Earl et ux., appellants, v. Collins Winters, respondent.
    On appeal from a decree advised by Vice-Chancellor Van Fleet, whose, opinion is reported in Winters v. Earl, 7 Dick. Ch. Rep. 58.

      Mr. Charles M. Woodruff, for the appellants.

      Mr. Edward M. Colie, for the respondent.
   Per Curiam.

Decree affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Dixon, Garrison, Lippincott, Magie, Eeed, Van Syckel, Bogert, Brown, . Green, Krueger, Sims, Smith — 13.

For reversal — None.


author: Pee Cueiam.

text:
    Dominick Coogan et al., appellants, v. Amos H. Van Horn, Limited, respondent.
    On appeal from an order granting an injunction advised by Vice-Chancellor Van Fleet, whose opinion is reported in Van Horn v. Coogan, 7 Dick. Ch. Rep. 880.

      Mr. Abner Kalisch, for the appellants.

      Mr. Robert Ii. McCarter, for the respondent.
   Pee Cueiam.

Order affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Dixon, Gaeeison, Lippincott, Magüe, Eeed, Van Syckel, Bogeet, Beown, Geeen, Keuegee, Sims, Smith — 13.

For reversal — None.


text:
    Richard H. Wilson et al., appellants, v. Charles Alpaugh, administrator &c., respondent.
    On appeal from a decree advised by Vice-Chancellor Bird, whose opinion is reported in Alpaugh v. Wilson, 7 Fide. Ch. Rep. JiAJp.

      Mr. Charles A. SMllman, for the appellants.'

      Mr. Richard S. Kuhl, for the respondent.
   Pee Cueiam.

Decree affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Dixon, Gaeeison, Magie, Eeed, Van Syckel, Bogeet, Beown, Keuegee, Sims — 10.

For reversal — None.


text:
    The Pennsylvania Railroad Company et al., appellants, v. The National Docks &c. Railway Company, respondent.
    On appeal from an order advised by Vice-Chancellor Van Fleet, whose opinion is reported in National Books Railway Co. v. Pennsylvania R. R. Co., 7 Bick. Ch. Rep. 58.

      Mr. James B. Vredenburgh and Mr. Joseph D. Bedle, for the appellants.

      Mr. Charles L. Corbin and Mr. John R. Emery, for the respondent.
   Per Curiam.

Order affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Abbett, Depue, Dixon, Garrison, Lippincott, Mague, Reed, Van Syokel, Bogert, Brown, Krueger, Sims, Smith — 14.

For reversal — None.