author: Pithey, Y. C.

text:
    Charles A. Worch, Harry C. Fairchild and Robert S. John v. William Thompson Woodruff.
    [Submitted November 23d, 1900.
    Decided December 15th, 1900.
    Filed June 4th, 1901.]
    1. Defendant gave plaintiffs an option to purchase a tract of land, sufficiently described, or such portion thereof as they might elect to purchase. The description given in plaintiffs’ demand for a conveyance of a part of the premises called for a strip of land situated on the north side of a certain highway, which constituted the southern boundary of the land, “such strip extending the entire length of the tract, and extending in depth 50 feet from the western boundary to a point 20 feet west of where a dwelling-house is situated, and extending 150 feet in depth from that point to the eastern boundary of the property.—Held, in an action for specific performance of the contract, that the description given in the demand was ■sufficiently explicit.
    ' 2. The ascertainment of the precise quantity of land to be conveyed, nnd the amount to be paid, in accordance with an option to purchase at a specified price per acre, is not a prerequisite to the vendee’s right to demand a conveyance before bringing suit for specific performance, where the number of acres is not stated in the description, but such matters belong to proceedings in the master’s office after the question of the right to specific performance is determined.
    3. A vendee is not required to make such a tender as will sustain a plea of tender in an action at law in order to maintain a suit for specific performance of a land contract, but it is sufficient if he is ready and willing to pay the' contract price at the time fixed.

      On bill for specific performance of contract to convey land, and demurrer thereto.
    The facts set forth in the pleading are as follows: That the defendant, on the 12th of April, 1900, was the owner of a tract of thirty acres of land described as follows:
    ‘‘Lying on the South side of the road from Salem, New Jersey, to Union, New Jersey, and on the North side of the road leading from Morris Avenue, to Irvington, New Jersey, known as the David E. Woodruff farm;”
    and on that day entered into a written agreement with Charles A. Worch, one of the complainants, as follows:
    “Whereas, William Thompson Woodruff, of Newark, N. J., hereinafter designated as the party of the first part, is the owner of certain lands described as follows, to wit: Thirty acres lying on South side of road, Salem, N. J., to Union, N. J., and on the North side of road leading from Morris Avenue to Irvington, N. J., known as the David E. Woodruff farm; and,
    “Whereas, Charles Alfred Worch, of Brooklyn, N. Y., hereinafter described as the party of the second part, is desirous of acquiring an option for the purchase of said lands;
    “Now, therefore, this agreement witnesseth, that the party of the first part, in consideration of the sum of two hundred dollars, lawful money of the United States, to him in hand paid by the party of the second part, the receipt of which is hereby acknowledged, promises and agrees that he will sell and transfer to the party of the second part, his nominee or assigns, at any time before August 1st, 1900, at such time or times during the said period as the party of the second part, his nominee or assigns may elect, the whole of said above described land or any part thereof, free and clear of all encumbrances, at the rate of $150 per acre and the party of the first part further agrees that he will from time to time during the life of this option, upon ten days’ notice in writing by the party of the second part, his nominee or assigns, execute and deliver to the party of the second part, his nominee or assigns, a warranty deed •or deeds to the whole of said land or such part or parcel thereof as the party of the second part, his nominee or assigns may elect to purchase, upon the payment to him, the said party of the first part, of the purchase price of the same at the above mentioned rate of $150 per acre, said deed or deeds to contain no covenants or restrictions of any kind as to the future use of said land or any part thereof. It is further agreed by party of first part to credit $100 of the $200 to-day paid in on the purchase of the land by party of first part.”

      That afterwards, on. May 24th, Worch assigned the contract to himself and the other two complainants; that afterwards, on or about the 13th of July, the complainants made a demand on the' defendant for a conveyance of a portion of the premises as follows:
    “Take notice, that we demand of you forthwith a warranty deed for a strip of land' situated on the North side of the road leading from Morris Avenue to Irvington, N. J., in the township of Union, County of Union and State of New Jersey, a part of the property known as the David E. Woodruff farm; the plot of ground herein desired is a strip of land extending the entire length of the said Woodruff farm along the aforesaid road, and extending in depth 50 feet, from the Western boundary of the said Woodruff farm to a point 20 feet to the West of where a dwelling house is situated, and extending 150 feet in depth from that point to the Eastern boundary of the said property. The strip of land aforesaid which we herewith demand comprises the entire frontage of the aforesaid property on the road leading from Morris Avenue to Irvington, N. J.
    “We herewith demand the aforesaid deed in accordance with a written option bearing date April 12, 1900, and 'made by you with Charles A. Worch of Brooklyn, and subsequently assigned to the said Charles A. Worch, Robert S. John and Harry C. Fairchild, which said option was duly recorded in the Union County Clerk’s Office in book 3G5 of deeds for said county, on pages 583, &c.; and we herewith desire you to notify us when the deed will be ready for delivery and then we will pay you the consideration for said land in accordance with the terms of the aforesaid option.”
    That within ten days after the service of the notice', to wit, on the 23d of July, the complainants called on Woodruff at his place of business, and then and there tendered him
    “the sum of money required by the said agreement, in legal tender, and requested him to deliver unto your orators a deed of the land and premises more particularly described and mentioned in said written demand,”
    and that they have always been ready and willing, and are still' ready and willing, to pay the purchas.c-price and comply in all ■ respects with the provisions of the agreement, upon receipt of a . proper deed of conveyance in fee-simple. That the defendant has wholly refused to deliver a deed of conveyance.
    The bill contains the ordinary prayer for specific performance, • with tender on the part of the complainants to specifically perform on their part by paying the purchase-price.

      Mr. Thomas Anderson, for the demurrant.

      Mr. Jacob L'. Newman, contra.

   Pithey, Y. C.

Several special causes of demurrer are assigned, but they may be considered as two. Pirst, that the description given in the demand for a conveyance of a part of the premises is not sufficiently explicit.

In estimating the value of this point it must be borne in mind that the farm was bounded on the north and south by public highways—the road from Salem to Union was on the north side, and the road from Morris avenue to Irvington was on the south side. The description given is of a portion of the land lying on the north side of the latter road, and it is a strip extending the entire length of the farm along that road, and is fifty feet deep for a portion of the distance, viz., commencing on the western boundary of the land, and running from there easterly, of course, to a point twenty feet westward of where a dwelling-house is situated. I think that point—“twenty feet to the west of where a dwelling-house is situated”—is sufficiently determined. It would be ascertained by measuring twenty feet parallel with the road westerly from the most westerly portion of the house, and dropping a line from that point perpendicularly to the road. Prom that point east the tract taken is one hundred and fifty feet in depth, measured from the road.

It is suggested that there may be more than one dwelling-house on the premises. It is not so stated in the bill, and I thinlr there can be no presumption of that kind; but, if there were,, the depth of fifty feet would stop at the first dwelling-house-which is reached, commencing at the westerly boundary of tliefarm.

It must be recollected in this connection that the presumption-is that the muniments of title of the farm are in the possession) of the.defendant, and he will be assisted in locating the land by the use of those conveyances. I think that an ordinary land' surveyor will have no difficulty in locating the tract on the-ground. Whether the depths of fifty and one hundred and fifty feet, respectively, shall be measured from the side or center of the road is a matter depending on the true construction of the contract, and if the parties differ it is to be settled by this court.

Eor these reasons I am of the opinion that the description of the land to be taken is on its face sufficiently definite.

The next objection is that the quantity of the land is not stated, and presumably was not ascertained by the complainants at the time of making the demand, and that the ascertainment of the quantity was a prerequisite to a demand of the conveyance, because the amount of purchase-price to be paid could not be otherwise ascertained.

But I think the maxim id cerium est quod cerium reddi potest applies to this and the former objections.

But still demurrant insists that it was a condition precedent to demanding a conveyance that the complainants should ascertain the quantity of land, and from it the amount of money to be paid, and that the statement of the offer to pay the money is insufficient because it does not state the amount which was offered.

The arguments of the complainants in answer to this position are—first, that naturally it is the duty of the vendor to ascertain and fix the amount of the price, where it remains to be fixed by any kind of measurement; second, that the avermént of an offer to pay is sufficient in this case because the complainants state in their bill that they offered to pay the purchase-price, which means the amount which the defendant might justly state to be due him; and third, that by the bill it appears that the defendant’s refusal to perform was general, and not based on any failure of complainants to ascertain, on their own account without the aid of the defendant, the quantity of the land or the amount of money to be paid; and the complainants urge that it was the duty of the defendant either to ascertain for himself the quantity, or to propose, what is quite usual in such cases, a joint survey and measurement.

I think that the complainants have the better of this argument.

But of both of defendant’s points it is to be remarked that he seems to be standing on the very apices liiigandi. I think it {quite clear that the fixing of the precise quantity of the land and of the purchase-price was not a condition precedent to the complainants’ right to commence their suit for specific performance of the contract. Those matters, as well as the determina- . tion of the sufficiency of the deed and its execution, naturally belong, under the practice in suits for specific performance, to proceedings in the master’s office, after bill filed and answer, if any, and after the question of the right to the specific performance of the contract is settled. According to the English practice, where the suit is by vendor against vendee, the question whether the complainant can make a good title is referred to a master; also in all cases the precise amount of purchase-price, according to the contract, if that amount is not, as here, settled by the contract; also the question of interest and mesne profits, and the verbiage of the conveyance. The practice will be found referred to in Dan. Ch. Dr. (5th ed.) *988, *992, *1215, *1221;. also, see Seton Dec. (ed 1881) 209, 212, with notes.

To illustrate: Suppose, in this instance, the complainants had employed a surveyor to survey this land, and had, on his report, fixed the acreage at so many acres and so many hundredths of an acre, and had demanded a conveyance of that, and had tendered the price fixed on that basis, all in good faith, and suppose the defendant had made an independent survey, and his surveyor had reported a greater quantity of land than the complainants’ surveyor, and, the parties not agreeing, complainants should file a bill, and at the hearing it should be determined that the defendant’s surveyor was right and the complainants’ surveyor wrong, would the complainants, in the absence of bad faith, thereby lose their right to a specific performance? I think there can be but one answer to that question—they certainly would not.

So, if a dispute should arise as to the sufficiency of the deed ’ of conveyance offered; if the complainants should make improper objections to the form or execution of the deed, and refuse to accept it, and file their bill, and at the hearing t¡he defendant should be held to be right, it would not necessarily follow that the complainants would lose their right to specific performance.

Or, again, suppose the suit be by the vendor against the vendee, and the written contract provides that the vendor should convey •free and clear of encumbrance, and there should be a mortgage upon the premises which the vendor expected to pay out of the purchase-money, and he should appear at the time and place fixed for the performance, with the mortgagee or his attorney, ready to receive the money and cancel the mortgage, could the vendee set up, in defence to a suit for specific performance, that the vendor failed to pay the mortgage and have it canceled before the moment of passing the title ?

In short, the objections set up by the defendant by way of demurrer are all mere matters of detail which, if not previously amicably arranged between the parties, are to be determined by the court in the progress of the suit; and if the complainants' action has been in good faith they will not lose their right to specific performance by having made a mistake in any of these details, but compensation for delay to the defendant may be made by way of payment of interest, and the complainants may be punished for any such mistakes by being refused their costs.

So, with regard to the offer to pay at the time and place fixed, I do not understand that in a suit by vendee against vendor the vendee must, as a condition precedent to the right to maintain his suit for specific performance based on a contract in the ordinary form, make an actual tender of lawful money, such as would sustain a plea of tender in an action at law. It is sufficient if he was ready and willing to pay at the time and place, if any, fixed, after having inspected, and being satisfied with the deed of conveyance offered by the defendant.

For these reasons I will advise that the demurrer be overruled, with the usual results, and upon the usual terms.


source: Caselaw Access Project

author: Pitney, Y. C.

license: Public Domain

text:
    Effie Bruce Anderson, May Osborne, Jennie Sharpe Henry (nee Sharpe), Lydia Spring Osborne (nee Spring) and Florence McKirgan. v. Augustus F. Eggers, executor of Mina Stager, August Konig, Ferdinand Konig, Max Konig, Hubert Konig and Huldah Konig Ortlepp.
    [Submitted December 1st, 1900.
    Decided December 15th, 1900.
    Filed June 4th, 1901.]
    1. Complainants were associated together to give aid to deserving poor people. The testatrix whose will was here attacked was among their beneficiaries. From 1891 to 1900, the year of her death, they had given her food, money, clothing and medical and personal attention. Testatrix had always declared that she was poor and destitute of all support save that furnished by complainants. In 1896, complainants, suspecting that testatrix had money, or the expectation of receiving some, requested her to make a will in their favor, which she did. At the time it was stated that the will was made in consideration of what complainants had theretofore done for testatrix and would do thereafter. This will was subsequently destroyed by the testatrix, and a new one made, giving her property to others, without the knowledge of complainants. At testatrix’s death she was shown to have had nearly $4,000 deposited in bank, most of which had been-under her control during the ten years next before her death. Complainants sought to enforce a contract on the part of testatrix to give her property to them by will.-—Eeld, that what complainants had done for testatrix furnished a consideration for her making a will in their favor, since the executor was estopped by reason of the fraudulent representations of the testatrix, as she herself would have been, from setting up as a defence to an action for the value of these services the fact that they were mere gifts, not constituting a consideration.
    2. Where complainants, relying on a will made in their favor, rendered charitable services to testatrix, the latter could not recede from the promises made by the will, though there was no binding agreement on the part of the complainants to continue such services.
    3. Where complainants rendered charitable services to one who made a will in their favor, they did not lose any rights under the will of testatrix by accepting as security for their ministrations an instrument which they knew was revocable by her.
    4. Testatrix, presumably a very poor woman, at the request of complainants, who had assisted her for a long time, made a will in their favor. The will was twice read to her. She had said to witnesses that she had talked with the complainants about it and wished to make it. She admitted to another witness that she had made the will, and never alleged any undue influence. Complainants were shown to have had nothing more than a suspicion that she was not a poor woman.—Held, that under these facts no undue influence was shown.
    On final hearing on bill, answers and proofs.

      Mr. William H. Osborne, for the complainants.

      Mr. Adrian Bilcer, for the defendant Eggers.

      Mr. Egbert J. Tamblyn, for the other defendants.
   Pitney, Y. C.

The object of this bill is to enforce a contract to give by will. The contracting parties were the five female complainants, on the one side, and the testatrix, Mina Stager, on-the other.

The facts in the case are simple, and entirely undisputed.

The complainants, during the time covered by the transactions displayed by the evidence, were young ladies of a benevolent disposition, who, about the year-1891 or 1892, associated themselves into a society (unincorporated) called “The Ever Ready Circle of King’s Daughters,” whose object was to succor and solace deserving poor people. To that end they raised money in various ways, principally by preparing articles for sale at fairs, and by giving dramatic entertainments and the like. They had an acquaintance, a Mrs. Drummond, who herself was much engaged in looking after poor and deserving persons, and had among her beneficiaries the testatrix, Mrs. Mina Stager, who was infirm and advanced in years, and represented herself to Mrs. Drummond as being entirely poor, without any pecuniary means whatever, entirely dependent upon her own exertions, and without any friends whatever to assist her. Mina Stager kept house in three rooms in the city of Newark, and so far as she was able supported herself by sewing, but at the time of the formation of the complainants’ circle she had become so far helpless as to be unable to earn anything even by sewing, and declared herself to be perfectly dependent upon the charity and assistance of others.

Mrs. Drummond introduced the complainants to Mrs. Stager, and recommended her to them as an object worthy of their benevolent practices. They took her up as such about the year 1891 or 1892, and administered to her from that time until her death in January, 1900, by giving her $4 every month to pay her rent; by carrying her articles of clothing and food; by leaving orders at a provision store in the immediate neighborhood to furnish her with certain articles of food, including milk; by furnishing her with a holiday dinner three or more times a year; by furnishing her with medical attendance; by taking her out. driving and on , excursions, and by personal ministrations in the way of visiting her and inquiring after her wants.

During all this time the testatrix frequently expressed her gratitude for these ministrations; her desire to have them continued, and declared that she was entirely poor and had no means of support except those furnished by the complainants.

Mrs. Drummond, on one occasion prior to her introducing the complainants to Mrs. Stager, inquired particularly of her as to whether she did not have some money, and Mrs. Stager stated to her that she had had some money at one time in a savings bank, but declared that she had lost it all and had not a cent left.

In the year 1896 or 1897 the complainants suspected, for what reason does not appear, that notwithstanding Mrs. Stager’s pro-' testations of absolute poverty, she did have some money or means, or expectation to receive such, and asked her to make a will in their favor. This she readily agreed to do, and in the month of June, 1897, she made a will giving all her property of every kind to the complainants by their individual names. The will was duly executed in the presence of two witnesses, and handed by Mrs. Stager to Mr. Osborne, then the fiance of one of the complainants, and now her husband, to keep for her.

Mr. Osborne gave Mrs. Stager a copy of the document.

At the time of the making of the will it was distinctly stated and declared that it was made in consideration of what the complainants had theretofore done for Mrs. Stager, for what they were then doing for her, and for what they thereafter expected to do for her, and it abundantly appears that what they did thereafter was done upon the strength of it.

Subsequently, several months later, she asked to have the will returned to her, stating that she did not like to have it out of her own possession and wished to keep it between the mattresses of her bed. The will was returned to her.

She then called in the defendant Eggers (who had known her and her husband in his lifetime for many years and took an interest in her, and all the time, as he declares, had been told by her that she was perfectly poor, and on the strength of her povertj^ had obtained from him small sums of money), and told him that she had expectation of some money from her friends in Germany, and that she wanted to make a will. She then made a new will giving her property to her brothers in Germany, the other defendants herein; and in the presence of Mr. Eggers destroyed the will she had made at the instance of the complainants.

'The destruction of that will, and the making of a new one, were concealed from the complainants, and they continued, as we have seen, their ministrations to her up to the time of her death, which occurred on the 23d of January, 1900. At that time there was due the rent for the current month of January, 1900, and the executor continued the possession of the premises so long that he was obliged to pay also the rent for the month of February.

At Mrs. Stager’s death it was discovered that she was possessed of two savings bank books, one in the German Savings Bank, amounting to $77.23, the other in the Security Savings Bank, upon which was due at the time of her death the sum of $3,729.91. Her inventory amounted to $3,828.77.

An examination of her book with the Security Savings Bank, which was offered in evidence, furnishes abundant evidence that she knew that she had the deposit there. The book commences in August, 1884-, with $1,300 deposited, and further deposits are made later; the interest is added from time to time in different handwritings, showing that they were entered on the book every six months. On September 2d, 1892, she deposited $236; on February 19th, 1895, she deposited $150; all this in addition to the interest which accrued from time to time and there put to her credit. Besides that, she drew her semi-annual credits of interest on three occasions—in 1897, 1898 and 1899.

Upon these facts the complainants found their claim to relief.

It is urged by the defendants that there was here no consideration for this will which had accrued at the time it was made; that the ministrations of the complainants were benevolent in their character, mere gifts, and hence would not create a cause of action nor a legal consideration for a contract, and that a consideration is necessary in cases of that kind, as held in Drake v. Lanning, 4 Dick. Ch. Rep. 452.

The answer made by the complainants to that argument is this: that all the ministrations prior to the date of the will were made upon the supposition and belief, arising from the positive declarations and statements to that effect made by Mrs. Stager, that the testatrix was an entirely poor person, without any pecuniary means or friends, disabled by age and infirmity to earn a living, and that, therefore, she was a worthy object of benevolence; and that the declarations of the testatrix in that respect were so far untrue as to be fraudulent; and they argue that if a person, by false representations of poverty made to a party, procures a gift from that party and is sued therefor, the defendant is estopped from setting up that it was a mere gift. Hence, complainants argue, at the date of this will—June, 1897 ’—had it been disclosed to them that the testatrix was possessed of these moneys and was, therefore, not deserving, they might, at their option, have brought an action at law against her for services rendered, moneys lent and goods furnished, ’to which she could not have set up as a defence that they were done and rendered as benevolences. Hence, they say, that what they had already done for her furnished a consideration for her promise to make a will, and for the making of it.

I am inclined to think that the complainants’ point is well taken.

But' the complainants rely also upon what they did after the promise to make the will and the mailing of it, up to the time of her death, and it is abundantly shown that what they did afterwards was done in reliance upon the will. It is true that at the time of the making of the will there was no positive binding agreement on their part to continue their ministrations, but a binding agreement on the part of the beneficiaries in such a case is not necessary. It is sufficient if upon the promise of testamentary disposition in anticipation of services to be rendered those services are afterward actually rendered upon the strength of such promise. If services are so rendered, the promisor will not be permitted to recede from his promise.

Again it is urged by the defendants that the complainants accepted as a security for their ministrations an instrument which they knew was revocable by the testatrix. But that is true of all the numerous instances found in the reports of promises to make a particular disposition by will. The essence of the promise is that the will-shall exist at the death of the testator, and be his or her last will. Without such implied provision in the promise it is entirely idle. The object of using the machinery of a will rather than an irrevocable disposition is that the testator thereby retains the use of the estate during his life, and the power to revoke in ease the beneficiary does not fairly fulfill the just expectations of the testator. But-such reserved power cannot be exercised in such manner and under such circumstances as to work injustice to the beneficiary' whose conduct has been influenced by the promise to give by will. Although the testator in such cases acts as a judge in his own cause, he must still determine justly.

Fumerous examples of this principle are found among the adjudged cases. Van Dyne v. Vreeland, 3 Stock. 370; S. C., 1 Beas. 142, is one. There the promise was made by the defendant to the father of the complainant, while an infant, to adopt the complainant and treat him as his son and give him all his property at his death. There was no promise on the part of the complainant to do anything, but he actually served his adopted father for many years; and the court enforced the contract by enjoining the defendant, the promisor, from making any disposition of his property to a point beyond his own lifetime.

A case much in point with the present is that of Loffus v. Maw, 3 Giff. 592; also reported in 8 Jur. (N. S.) 607. and 32 L. J. Ch. 49. (I have used the latter report.) The head-note is this:

“Where a niece has been induced to \ render valuable services to her uncle on the faith of his representation that by so doing she would become entitled to the benefit of the trusts created in her favor by a codicil to his will, and the testator afterwards revoked such trusts, it was held that he had no right to make such revocation, and a decree was made that the trusts in favor of the niece declared by such codicil should be performed.”

In that case the testator executed the codicil and showed it to the complainant, and on the strength of it she continued to serve him. The case was elaborately argued before and decided by Sir John Stuart, vice-chancellor. After remarking upon the necessity in cases of this kind of clear proof of the representation (promise), the learned vice-chancellor says: “Anything vague or indistinct in its nature would prevent the right to relief, but in the present case the codicil is adduced as evidence in writing of the fact of the representation, and for that purpose it is perfect evidence. In cases of this kind a representation that the property is to be given by a revocable instrument is binding. It is the law of the court which makes it binding, although it be of the essence of the representation that the instrument is to be of a revocable nature. No evidence of the representation can well be stronger than the actual preparation and production of the instrument, whether revocable or not, and where the preparation and production and execution of the instrument all take place for the purpose of influencing the conduct of the other party who acts upon it, the principle applies in its full force.” Then, again:' “In cases of this kind, where the testator is bound by the effect of his representation, he cannot defeat the right to relief by bequeathing or devising the whole of his property to another person. Whoever claims under the will or codicil takes as a mere volunteer, and cannot escape the effect of any act of the testator which has bound the property in his lifetime. The testator’s representation in this case, and any other casé within the application of the doctrine, binds the property which he devised to the plaintiff as completely, according to the law of this court, as if he had bound himself in consideration of money not to revoke the gift, and had made the person named in his will a purchaser of the property devised.”

In the case in hand the desire and expectation of Mrs. Stager to have the ministrations of the complainants continue is perfectly clear, and the making of the will in their presence operates, as did that of the codicil in Loffus v. Maw, as a representation or promise, and here, as there, the complainants have acted upon the strength of the existence of the will made in their favor, and it was not competent for the testatrix to change that in favor of her relatives, who, as remarked in Loffus v. Maw, are mere volunteers.

If the complainants, after the making of the will had ceased their ministrations, or had in any way failed to do for Mrs. Stager what she had a reasonable right to expect they would do, the case might be different, but, as I have already stated, although the complainants were much embarrassed in proving what they actually did for her up to the time of her death, I think the evidence is sufficiently clear that they did continue the ministrations with fully sustained liberality up to the last. At any rate, no complaint'was ever made of any default on their part by Mrs. Stager.

It is further urged by the defendants that the will in complainants’ favor was obtained by undue influence.

I am unable to find any evidence in support of this contention. The will was twice read over to the testatrix in the presence of two witnesses who witnessed it and have testified, namely, Mr. Henry and Mr. Osborne, and the testatrix declared that she had previously talked with the complainants about it and that she wished to make it. A copy was left with her. She after-wards stated to Mrs. Drummond that she had made it, and she did not state to Mr. Eggers as a reason for destroying it that she had executed it under any pressure on complainants’ part, or that she had been tricked into its execution. In fact, all that was said by Mrs. Stager to Mr. Eggers is entirely consistent with, and accounted for by the admitted fact that she was all the while concealing from the complainants, as well as from Eggers, the fact that she possessed this little fortune. One remark testified to by Mr. Eggers is significant. After speaking of her expectation concerning the German fortune, she said: “How, they [the complainants] have never given me much, and I don’t want them to have that money.” Heither in the answer nor in the production of the evidence was there any hint of this defence of undue influence, which first appears in the written argument of counsel.

The only shadow of ground for imputing bad faith to complainants, and it is but a shadow, is found in the fact that they did not disclose to Mrs. Stager the suspicions which they entertained of her being less destitute than she represented herself to be. But surely she, who was all the while practicing upon the complainants and Mr. Eggers a most despicable fraud—one which, when discovered, made them as well- as Mr. Eggers, subjects of merriment among their friends—could not complain of -that reticence on their part. There is nothing in the case from which it can be inferred that complainants had anything more than a mere suspicion. In that situation what could they do more consistent with their common benevolent purposes than what they did do? It was idle to question Mrs. Stager any further upon the subject. She had already been well probed by Mrs. Drummond, and had frequently declared to the complainants her utter destitution. It was almost a crime to continue their ministrations if she were not the worthy object they supposed her to be.. If, on the other hand, she was what she pretended to be—helpless and entirely poor—then it was cruel to abandon her. In this situation they determined to ask from her a testamentary disposition in such shape as to secure their reception of whatever property she might die possessed of. If there was none, no harm would be done. If there was a comparatively small amount, they would be justly entitled to it; and if there wás a large sum, then she would be proven to have been all the time a frauddoer and at last be overcome with her own weapons. It is quite plain that she all the while intended to procure from complainants a comfortable living and the solace of their frequent visits and sympathizing ministrations, and, in the end, to defraud them by destroying the will and making another. The question is whether she can succeed. I think not. I think she was justly meshed in her own net, and that the complainants’ case is as meritorious in morals as it is well founded in equity.

The amount which the complainants will receive seems large in comparison with their actual outlay, but here two considerations come in, first, the length of the time that they were liable to be obliged to serve Mrs. Stager was at the time of the arrangement uncertain. She might have lived many years longer than she did. And, in the second place, they rendered to her services of personal ministrations of solace and social visits, the value of which to a lonely widow without any near relatives is hard to measure in money.

I will advise a decree for complainants. The defendant Eggers will account for the estate in this court, where all just allowances will be made, including his costs and a reasonable counsel fee.


text:
    Stephen D. Ely v. Eliza A. Wilson and husband, John S. Silvers et ux., James H. Conover et ux., et al.
    [Submitted November 15tli, 1900.
    Decided December 27th, 1900.
    Filed June 4th, 1901.]
    Where the purchasers of portions of mortgaged property remained for more than twenty years in the full, exclusive, open, and actual possession thereof, without admitting the title of the mortgagee, and no claim for the principal or interest was made against them, the lien of the mortgage is lost as to such portions, though the debt was kept alive by payments made by the owner of the other portions.
    On bill to foreclose. Heard on bill and answer by two sets of defendants, owners of parts of the mortgaged premises.

      Mr. Woodbridge Strong, for the complainant.

      Mr. Willard P. Voorhees, for Silvers.

      Mr. Abraham V. Schenck, for Conover.
   Pitney, Y. C.

The object of the bill (which was filed February 8th, 1896) is to foreclose a mortgage given on the 1st day of May, 1845 (nearly fifty-one years before the bill filed), by John I. Duncan and wife to Kenneth Applegate, to secure $3,000.

The complainant claims title through (1) the will of Apple-gate, (2) the will of his widow and universal legatee Gertrude Applegate, and (3) an assignment from one Wyckoff, the executor of Gertrude.

The mortgage covers two tracts of land, one, presumably farm land, containing thirty-three acres, and the other containing three and twenty hundredths acres, upon which was situate a mill and mill-site at Cranbury, in the county of Middlesex.

Complications have arisen in the case from the fact that the tract of thirty-three acres has been conveyed away by the-mortgagor and released from the mortgage,- and the mill tract of three and twenty hundredths acres has also been conveyed away by the mortgagor and subdivided, and three small tracts sold from it, one of which has also been released from the mortgage. These lots contained forty-five hundredths, forty hundredths and ten hundredths of an acre respectively, making ninety hundredths of an acre in the aggregate, and leaving two and twenty-five hundredths acres remaining in the mill lot proper.

Two of the tracts so sold off have not been released and are owned by the defendants Conover and Silvers, respectively.

Neither included any part of the mill or 'pondage, which latter at the time of the filing of the bill was owned by the defendant Mrs. Wilson. She did not answer. Decree pro confesso was taken against her, and after hearing all parties an order for sale pendente Hie of the mill -tract of two and twenty-five hundredths acres was made, and that sale produced a sum insufficient to pay the amount claimed by the complainant to be due on his mortgage.

The contest in the cause is whether or not the complainant may now resort for the balance to the several lots owned by Silvers and Conover which are part of the original mill tract and have never been released from the mortgage.

Two grounds were relied'upon by both Silvers and Conover for. relieving their lots from liability to pay this residue or any part thereof. One is that the holder of the mortgage has released a part of the mortgaged premises against which Silvers and Conover each had an equity to have it applied to the payment of the mortgage before their land should be called upon for that purpose. And, second, that the complainant’s mortgage has ceased to be a lien upon their tracts, by reason of the lapse of time.

Bearing this in mind we will state the order of events in regard to the several conveyances and releases.

The first conveyance made by Duncan, the mortgagor, was of the whole mill tract (three and twenty hundredths acres) in March, 1847, to one James Prall. The conveyance of this tract contains covenants of ownership, power to convey and general warranty, and there is in it no mention of the complainant’s mortgage. The result of this, standing by itself, would be at once to cast upon the thirty-three acre tract the burden of being first sold to pay the amount due on the mortgage.

Duncan and wife in 1859—twelve years later—conveyed the thirty-three acre tract for the consideration of $4,000 to one Chamberlain. That conveyance also contained covenants of ownership, power to convey, quiet possession and against all encumbrances and general warranty. No mention is made therein of the complainant’s mortgage.

Prall—the owner of the mill tract—died in 1854, and on October 16th, 1855, commissioners in partition, by order of the orphans court of the county of Middlesex, conveyed to Elizabeth Prall, widow of James Prall, two and seventy-five hundredths acres, part of the mill tract of three and twenty hundredths acres, and containing the mill and pondage. No mention is made in this conveyance of the complainant’s mortgage.

Mrs. Prall, by deed dated October 20th—four days later— conveyed to Hamilton Jones two and thirty-five hundredths acres out of the two and seventy-five hundredths acres so conveyed to her. This deed contains full covenants of ownership, power to convey, and general warranty, and no mention is made of the complainant’s mortgage.

On the same day—October 16th, 1855-—'the commissioners above named conveyed forty-five hundredths of an acre, the remaining part of the mill tract, to Tyler D. Conover by deed containing the same verbiage as that to Mrs. Prall, and without mentioning the complainant’s mortgage. The defendant Conover is his heir and holds the title as such.

So far there is nothing on the record to indicate that the equity arising out of the original conveyance from Duncan to Prall in favor of Prall as against the thirty-three acre tract had been affected or released. J ones and Conover were clearly entitled to the benefit of that equity, so far as the record shows.

Then Mrs. Prall, coincident in time with her conveyance to Jones, to wit, October 20th, 1855, conveyed forty hundredths of an acre out of the two and seventy-five hundredths acres conveyed to her by the commissioners, to Henry "Vanderwater; and on October 23d, 1855, Mrs. Applegate, then the holder of the complainant’s mortgage, released to Vanderwater the forty hundredths of an acre so conveyed to him.

Eight and a half years later, namely, on the 19th of April, 1864, Mrs. Applegate, still the holder of the complainant’s mortgage, released to Chamberlain the thirty-three acre lot previously—in’ 1859—conveyed to him by Duncan and wife. It is upon this release that the defendants mainly rely in support of their first defence..

The mill tract, containing two and thirty-five hundredths acres, passed by various conveyances until it became vested in one Nutt, and on the 28th of April, 1865 (thirty-one years before the bill was filed), Nutt and wife conveyed a small corner to one Dey, and the tract so conveyed to Dey became vested in the defendant Silvers.

We now come to facts which tend to destroy the equity between the owner of the mill-lot of two and thirty-five hundredths acres and the owner of the thirty-three acre tract.

The name of the owner mentioned as Hamilton Jones was James H. Jones, and he was examined as a witness. He swears that when he purchased the property from Mrs. Prall, shortly after the conveyance to her by the commissioners in 1855, and •before Duncan, the mortgagor, conveyed the thirty-throe acre tract, he assumed the complainant’s mortgage as a part of the consideration money, and gave her a mortgage for $5,500 besides, and also something in cash; and that in less than two years the grist-mill, saw-mill and dwelling connected with it were burnt down, when he made an assignment for the benefit of his creditors, and a few months later took the property back from them.

This arrangement sworn to by Jones indicates that when' Prall purchased the mill property from Duncan, the mortgagor, he verbally assumed as part of the consideration to pay the complainant’s mortgage in destruction of the equity which would otherwise arise out of the covenants of the deed in his favor as against the thirty-three acre tract retained by Duncan,

Jones further swears that Mrs. Applegate, the owner of the mortgage, lived on the main street of Ilightstown, about a mile and a half from the mill, and that Thomas Applegate, a nephew, was her agent and took charge of her business. The mill was not insured, and its destruction by fire substantially ruined Jones, but, as we have seen, he took title back from.his assignees, and swears that he rebuilt the mill and tried to go on, but was unable to pay the interest on the mortgages, and, for that reason, in November, 1858, conveyed the property to William A Shreve, the brother of Mrs. Prall and one of the executors of her husband.

In the list of creditors annexed to the deed of assignment by Jones to assignees in insolvency, which is dated May 22d, 1857, appears the following: “Mortgage to Applegate, $3,000; mortgage to Elizabeth Prall, $5,500.” -

In the deed from the assignees back to Jones, dated September 25th, 1857, the consideration is expressed as follows: “Eifty cents over and above encumbrances, which are two mortgages and the interest, amounting to $9,062.”

In the deed from Jones and wife to Shreve is found the following language:

■ “Said William A. Shreve does assume to pay two mortgages ou said property, one held by the widow of Kenneth Applegate for $3,000, one held by Elizabeth Prall for $5,000, and the interest due on said mortgages.”

It is thus rendered clear that the mill tract was properly chargeable with complainant’s mortgage in favor of the thirty-three acre tract.

Shreve conveyed the mill property to Nutt, and that deed is made subject to a mortgage to Elizabeth Prall for $3,250. And Nutt and wife, in December, 1870, conveyed the premises to one Snedecker subject to a bond and mortgage held by Gertrude Applegate for $2,900, which is the amount of principal claimed by complainant on his mortgage.

The mill property subsequently became vested in Charles H. and Henry Smith, and they, on December 29th, 1879. conveyed the premises to the defendant Eliza A. Wilson, subject to the Applegate mortgage for $2,900.

This statement shows that the defendant Silvers and the defendant Conover stand in a different position so far as relates to the equity against the thirty-three acre tract. Conover cannot be held to be affected either by the verbal agreement which it is fair to infer must have existed between Prall and his grantor, Duncan, the mortgagor, that Prall should assume the payment of the Applegate mortgage, or by the verbal agreement proved to have existed between Mrs. Prall and Hamilton Jones that the complainant’s mortgage should be assumed by him and taken as a part of the consideration money of her conveyance to him. Both of them were latent equities, not appearing on the record, and there is no proof that, Conover had any notice of them, nor is he bound by the actual assumption of the mortgage contained in the deed from Jones to Shreve, for it was made subsequent to his purchase, while Silvers, grantee of Dey, is or may be affected by that assumption.

Taking up the case of Conover on the question of the effect of the release of the thirty-three acre tract, the only difficulty arises out of the question whether, when Mrs. Applegate in 1859 released the thirty-three acre trapt to Chamberlain, she was chargeable with notice that the commissioners of Prall, or somebody claiming under him, had conveyed to Conover the forty-five hundredths of an acre tract from the mill property to Conover.

To sustain that position Conover’s counsel relies on several circumstances. First, that she lived within a mile and a half of the premises, and her nephew and agent came there demanding payment of the interest, not of Conover, but of Jones, the owner of the mill tract. And further, that the conveyances by the commissioners to Conover of the forty-five hundredths of an acre, and to Mrs. Prall of the balance of the mill tract, and then the conveyance by Mrs. Prall of a part of that balance to Vanderwater, and the release to Vanderwater, were all substantially coincident in time; and that the release signed by Mrs. Apple-gate to Vanderwater, dated October 23d, 1855, describes the land as follows:

“Lot which the said Henry Vanderwater purchased of Elizabeth Prall, situate, lying and being in the township of South Brunswick, county of Middlesex and State of New Jersey, butted and bounded as follows: beginning on the northwesterly side' of the main street or road in the village of Cranbury and Une of Tyler D. Oonover; and from thence running on said road north forty-six degrees east seventy-six links or fifty feet; thence north forty-four degrees west four chains and thirty-four links to the mill race; thence down the same south eighty-five degrees west eighty-six links to Tyler D. Conover’s line; thence along the same south forty-three degrees and forty-five minutes east four chains and seventy links to the place of beginning. Containing forty-hundredths of an acre, be the same more or less.”

It is worth while to stop to say that the original mill tract was in shape approximately an isosceles triangle, with an acute apex. The brook ran along and near to the west side, and the road along the east side. The Conover lot is composed of a slice taken—not by a straight line—from the base of the original lot, and the Vanderwater lot (which was released) was taken off just above it. So that the Conover lot was separated by the Vanderwater lot from the mill-lot as it remained after those conveyances. The Dey lot was taken from the northwest side.

In this connection let us turn to the allegation of the bill. That sets forth all these conveyances and releases, not, however, with absolute accuracy in each case, and we find in it no allegation of any recognition of the complainants mortgage, or any claim on the part of the complainant against the owner of the Conover lot for the payment of interest, except so far as it may be inferred from the allegation in the bill that $100 of principal has been paid, and that $2,900 remains due, with interest from April 1st, 1894.

The clear proof—in fact, the written admission of the parties—is that both Conover and Dey, directly after the several ■conveyances were so made to them, took actual possession of their several lots, fenced them in and built dwellings upon them, and have ever since had exclusive, actual and open possession •of them.

It is claimed that from this possession of the Conover lot, .and failure to demand interest from the owner, an inference may be drawn that Mrs. Applegate and her agent must have had actual notice of the conveyance to Conover, and such notice would make the release by her of the thirty-three acre lot inequitable as against Conover. And it is further alleged that the verbiage of the release of the Vanderwater lot is of itself such notice.

This position is not without strength, but I find it unneces-' sary to come to a conclusion upon it, since, for other reasons,

I think complainant’s claim must fail, not only as against the Conover lot, but also against the Dey lot, in whose favor no such facts exist.

The proof is clear, as we have seen-—in fact, it is admitted— that both Conover and Dey have been in the full, exclusive, open .and actual possession of their respective lots- for more than thirty years before the filing of the bill, and during all that time neither ever admitted in any manner the title of the mortgagee, by payment of interest or otherwise, and no claim for either principal or interest was ever made against either of them. Their possession was open and visible to the holder of the mortgage, who lived in the immediate neighborhood, and it was beyond all question, as it seems to me, adverse to the mortgagee’s claim. And I am of opinion that the fact that the interest on the debt was paid (not by the obligor, but by the owner of the mill tract proper), with reasonable punctuality, up to the year 1894, does not save the lien of the complainant’s mortgage upon the two lots of Conover and Dey.

This result is contrary to what was decided by Vice-Cham cellor Emery in Longstreet v. Brown, 37 Atl. Rep. 56., and by Vice-Chancellor Reed in Mundy v. Smith, July, 1899, in an opinion not reported (such non-report being due, as I understand, to the direction of the learned vice-chancellor), but both of those cases were dealt with before the publication of the opinion of the court of errors and appeals in the case of Colton v. Depew, 14 Dick. Ch. Rep. 126. That opinion, taken in connection with that of the same court in the case of Blue v. Everett, 11 Dick. Ch. Rep. 455, seems to me to do away with and supersede the main considerations which had previously influenced the action of the court in dealing with the effect of the lapse of time upon the rights of mortgages.

Prior to the publication of the opinion in Blue v. Everett, this court had always ignored the question as to whether the mortgagee was barred by lapse of time of his right to maintain an action at law to recover his debt; had, in fact, to some extent, ignored the effect of the statute of limitations, and had confined itself to the single and simple inquiry, Has the debt been actually paid? It it had not been paid, then, no matter how old might be the mortgage, the title was still maintained as security for the debt. It is proper to say, however, that this court did not entirely ignore the statute of limitations, but used it by way of analogy, and presumed that the debt had been paid if its existence had not been acknowledged by the mortgagor or his' grantee within twenty years; and it held that payment on account by the holder of the title was such an acknowledgment. In the application of this rule, so called, the question arose whether such presumption was conclusive or not, so as to preclude proof that the debt had not, in fact, been paid. This question was discussed and settled by Vice-Chancellor Emery in Blue v. Everett, when that case was before him, as reported in 10 Dick. Ch. Rep. 329.

The court of errors and appeals, in affirming the decree so advised by the learned vice-chancellor, went further, and laid down a new rule, whieh, as I interpret it, declared the law to be that, after twenty years from the default in payment by the mortgagor, the mortgagee, in order to have relief in equity, must show a right of action at law to recover his debt which was not barred by the statute of limitations. If he had a sealed instrument to secure the debt, he must’ show a payment or other competent acknowledgment within sixteen years. If he held only a simple promise to pay, then his acknowledgment must-be within six years. The complainant’s right in an ordinary foreclosure was asserted to be a purely legal one, based either rvpon the right to sue at law for the debt or to bring an action of ejectment based upon the' mortgage.

It is true that this statement of .the law was made by the single judge who gave the reasons of the court for the decree of affirmance. But the language used therein indicates that he thought at least that he was speaking for the whole court. Eor it is to be observed that after stating the grounds relied upon by the learned vice-chancellor in the court below, he says: “Without-considering the questions decided below, we think the decree should be affirmed on broader grounds.” And then proceeds to state with elaboration the doctrine -above stated and its foundation, and closes as follows: “The complainant’s rights, under both his bond and his mortgage, are purely legal in their nature, and as they have been barred, that under the bond by the lapse of sixteen years since the last payment was made, and that under the mortgage by the lapse of twenty years since the breach of tho condition, they should be denied in equity as well as at law.”

This statement of the doctrine startled the profession, and provoked the plea interposed in Colton v. Depew. There, more than twenty years had elapsed since the pay day named in the mortgage, and the action on the bond was barred by a discharge in bankruptcy, as well as by the statute1 of limitations, no payment having been made within sixteen years, but a payment had been made by the owner of the mortgaged premises just within twenty years. TJpon these facts the complainant seemed to be barred by the rule laid down in Blue v. Everett.

Vice-Chancellor Stevens, when the ease was before him, distinguished it from Blue v. Everett and held that the payments made in that case, as in this, by the grantee of the mortgaged premises could not be treated as payments applicable to the bond, but must be considered as acknowledgments by the. holder of the legal title of the existence of the mortgage, and advised a decree for the complainant. 14 Dick. Ch. Rep. 126.

The court of errors and appeals, when that case came before it on appeal, in giving its reasons for affirming the decree, reviewed the opinion in Blue v. Everett, and confined the question, as the learned vice-chancellor had done, to the character of the possession of the mortgaged premises by the mortgagor or his grantee: Was such possession adverse to the title of the mortgagee, and was it continued for twenty years? If not adverse, and not so continued for twenty years, then it mattered not that the right of action on the bond or promissory note, as the case might be, was barred by the statute of limitations, and that more than twenty years had elapsed since default on the mortgage.

By that decision, as I interpret it, the payment of interest by the mortgagor or his grantee is treated as an acknowledgment of the title of the mortgagee and of his right to possession as such of the mortgaged premises, and that the possession of the mortgagor or his grantee is not adverse to the right of the mortgagee.

. The result of the doctrine thus established is, as it seems to me, that a payment on account of the debt, in order to be efficient to preserve the mortgagee’s right against lapse of time, must be made by the party in possession of and claiming title to the mortgaged premises. A payment by the bondsman after he has parted with the title and the possession of the mortgaged premises will not, necessarily, avail the mortgagee as an acknowledgment of his title, and may be entirely consistent with adverse possession of the premises by the assignee of the mortgagor. In like manner, as it seems to me, a payment by the owner of one distinct portion of the mortgaged premises, who, perhaps, has assumed payment of the whole mortgage debt, cannot, standing alone, be construed as an admission, by the owner of another distinct portion, of the title of the mortgagee to that distinct portion of the premises.

One clause in the exhaustive opinion of Mr. Justice Depue in Colton v. Depew is significant: “The mortgagee has two securities for the debt—the bond and the legal estate in the mortgaged premises. A payment on the debt may be made by the obligor on the bond, or by the grantee of the mortgaged premises. Where the obligor has convejred the - premises, his grantee has no interest in keeping alive the contract to pay contained in the bond. A payment of interest or part principal on the debt may be made by the obligor-or by his grantee. If such payment be made [as it has been here] by the owner, who was not the obligor, it would not, at law, remove the bar of the statute of limitations in an action against the latter.” And I think the converse of that proposition follows, viz., a payment by the obligor, who is no longer the owner of the mortgaged premises, will not affect or bind such owner.

The practical effect of this new rule is that the mortgagee, in ■order to insure the safety of his lien after the lapse of twenty years from the pay-day named in the mortgage, must inquire who is the party making the payment upon which he relies— whether it he by the party in possession as owner of the mortgaged premises, or by some one liable for the debt merely. He can no longer rely upon the mere keeping alive of the mortgage ■debt. The payment must be made by the person in possession as ■owner; and I think that where the premises have been divided in title and open and visible possession taken by each of the ■several grantees, the mortgagee must inquire whether the payment which he receives represents all the owners. Such, as it seems to me, is the logical result of Colton v. Depew.

I perceive nothing in this result contrary to settled rules and established principles. It imposes no greater hardship or degree ■of vigilance upon the mortgagee out of possession than the law imposes upon every owner of land who is not in the actual possession of it. If such owner out of possession desires to preserve his title he must see to it that no person is in the actual possession not only of the whole, but also of any part of his land, under a ■claim of title adverse to him. The mortgagee must do the same. The division of a tract of land into portions and the occupation of such portions by different parties assuming varying attitudes towards a claimant of the whole is one of the ordinary incidents of such a state of things. The books record numerous instances where parties have succeeded in establishing title to portions of tracts by an adverse possession of such portion.

It seems to me plain enough that the possession of both Honover and Dey was adverse to the holder of the mortgage. Neither was under any personal obligation to pay any part of the mortgage debt. Neither of their lots was, as between them and the principal mill-lot, under equitable obligation to be subjected to pay any part of that debt. Each held under conveyances made and taken in good faith for a full consideration, without mention of the mortgage debt. Neither, as it seems to me, can be held or deemed to have authorized the owner of the main tract to make for either an acknowledgment to the holder of the mortgage of the continued existence of its lien upon his lot.

Eor these reasons it is difficult, under the circumstances, to see how the holder of the mortgage, at the time he filed his bill, could maintain ejectment against either of those defendants. And the right to maintain ejectment is the test of the right to equitable interference.

If it be asked how a mortgagee may retain his lien upon the whole of the promises in a case like this, and allow his mortgage to rest beyond twenty years, it seems to me that the question is quite aside from the problem to' be solved, and therefore need not be answered. But the proceedings to be taken by the mortgagee to protect himself, under such circumstances, seem to mo to be sufficiently obvious and simple. He could, in this case, before twenty years had elapsed, have called on the owners of the Conover and Dey lots and asked them whether they still acknowledged the lien of his mortgage, and if they answered in the affirmative, he could have required them to put their acknowledgment in writing. If they had declined to give such acknowledgment, then it was open for him to determine' whether he would retain the mortgage upon the security of the principal mill-lot, or would foreclose. If he was willing to-retain his mortgage upon the security of the principal mill-lot alone, he could do so and abandon the lien upon the other two lots. If he was not so willing, and Conover and Dey declined to acknowledge the lien of his mortgage, then, of course, he' would be driven to foreclose, precisely as he would if the owners of the principal mill-lot, as well as the others, had declined to acknowledge the lien of his mortgage by payment.

And it seems to me that there was no difficulty in the mortgagee determining in t-liis case the time when the adverse possession by Conover and Dey commenced. It was from the time that they took open and notorious possession of their separate lots, fenced them in, built upon and occupied them. It was a part of the case that the payment of interest was made by the owner of the principal mill-lot, and there is -nothing in the case to show that the mortgagee had any reason to suppose that Conover and Dey made airy contribution toward it or authorized it as an acknowledgment of her title on their part.

In Longstreet v. Brown Vice-Chancellor Emery was dealing with a case like the present, where a part of the mortgaged premises had been conveyed away for value and without any assumption of the mortgage debt or any part of it, which had been kept alive by the payment of interest by the owner of the part of the premises retained by the mortgagor. The learned vice-chancellor held that such payment kept the mortgage alive as against the owner of the property sold off, on the ground that the payment was for his benefit; and the decision is, as I have stated, based wholly upon the debt itself being shown to be in existence within twenty years, and so not within the time required to warrant a presumption of payment. But the learned vice-chancellor distinctly points out that the question here involved, namely, "whether the possession of the mortgagor or his grantees for twenty years after default is to be considered a possession adverse to the mortgagee, so as to deprive the latter of the equitable remedy of foreclosure, has not been decided by our courts.” That question has now, as I conclude, been decided by our highest court in Colton v. Depew; for it seems plain to me, as before remarked, that the logical result of that decision is that a mere acknowledgment of the existence of the debt by one not interested in the land pledged to its payment cannot be construed as an acknowledgment of the right of the mortgagee in the land.

I do not find it necessary to state the unreported grounds of • Vice-Chancellor Reed’s decision in Mundy v. Smith, since that learned judge agrees with me that they cannot stand against Colton v. Depew.

I will therefore advise a decree dismissing the bill as against Conover and Silvers, and I think, after examining the pleadings, that it must be with costs.


text:
    Mary Doll, an infant, by her next friend, v. Jeremiah Cash.
    [Submitted January 14th, 1901.
    Decided January 17th, 1901.
    Filed June 4th, 1901.]
    Plaintiff’s mother died leaving substantially no personal property, and plaintiff, an infant, as her only heir. Decedent’s husband was appointed her administrator, and obtained an order to sell the real estate for payment of her debts, among which was the undertaker’s bill for her burial, for which the husband was liable. Other bills were for provisions furnished the family, and druggist’s and physician’s bills, for which he was prima facie liable.—Held, that an injunction would lie, at the suit of plaintiff, to restrain the sale since, being an infant, she could not protect herself, by obtaining a loan on the property and otherwise, against a sacrifice of her property.
    Heard on order to show cause, based on bill, answer and affidavits, why an injunction should not issue.

      Mr. James A. Gordon, for the complainant.

      Mr. William A. Goddingion, for the defendant.
   Pitney, Y. C.

The complainant is the infant daughter and only heir-at-law of Maggie Cash, deceased, who was the wife of the defendant, Jeremiah Cash, complainant’s stepfather.

The object of the bill is to enjoin Cash from acting under an order, which he lately obtained from the orphans court of the county of Hnion, authorizing him to sell a house and lot of which his wife died seized, situate in Plainfield.

The complainant is four months short of twenty-one years of age. Her mother died in October, 1899. She was possessed of substantially no personal property; it amounted to only $29.15.

Nevertheless, her husband, shortly after her decease, took out letters of administration upon her estate, and applied to and obtained from the orphans court an order to sell her real estate to pay her debts. His statement showed nine creditors and a total indebtedness of $317.42. Of these nine creditors five were small bills for provisions furnished to the family, amounting to less than $40. The other four were as follows:

Physician’s bill................................. $77.00
Druggist ...................................... 20.35
Undertaker.................................... 103.25
Boyce, Runyon & Co............................ 79.26

The claim of Boyce, Runyon & Company is based on a promissory note made by Cash and endorsed by his wife. In his affidavit, however, he states" it was originally her debt to Boyce, Runyon & Company, and he loaned her his note to pay it. íhe undertaker’s bill is for the burial of the deceased, and is clearly the debt of the husband; leaving to be dealt with the physician’s and druggist’s bill and the small bill for provisions supplied to the family; and even for these the husband is prima facie liable.

The complainant, by counsel, opposed the making of the order for sale in the orphans court, offering to prove that these claims were not the debts of her mother; but the orphans court felt bound by the decision in the prerogative court, in Smith v. Smith, 12 C. E. Gr. 445, to decline to undertake the determination of that question; and this court, however much it may doubt its soundness, must treat it as binding, as was done in Baptist Church v. Syms, 6 Dick. Ch. Rep. 363 (at p. 366), and see the same case on appeal, 7 Dick. Ch. Rep. 545.

It further appeared in the affidavit of the defendant, in opposition to the application for an injunction, that the defendant had no property or means with which to pay any of the claims above stated, except a mortgage which Re claims to ’hold, as stated by counsel, as assignee, upon the house and lot in question, for $700, and arrears of interest, which mortgage was under foreclosure and its enforcement disputed by the complainant.

The question is whether, under the above circumstances, the administrator should be permitted to proceed to sell these lands. The circumstances disclose a strong motive on his part to obtain a sale of the premises and appropriate the proceeds to the payment of debts, a portion of which are clearly his to pay, at a time when the complainant, by reason of her infancy, is unable to protect herself against the sacrifice of her property. If she were of age, she could borrow money, either on her personal security or by mortgage, sufficient to pay so much of the claims as were really the debts of her mother; but during her minority her hands are tied, and without the aid of this court she must stand by and see her property sold for whatever it may bring at a forced sale, at an expense in court fees, printer’s fees and commissions of the administrator, which, in the aggregate, will probably amount to more than sufficient to pay such part of the claims presented as were really the debts of her mother. Admitting, therefore, for the argument’s sake, that, upon the present showing, the weight of the evidence is that a small portion of the claims presented is valid against the decedent’s estate, yet I think that the conduct of the administrator in pressing the sale at this time.is so far oppressive and unwarranted as to be inequitable; in fact, one cannot but feel a doubt as to the pro-2M’iety of his incurring the expense of administration at all.

I will advise an order that an injunction do issue.


author: Emery, V. C.

text:
    William Miller v. The United States Casualty Company.
    [Filed October 30th, 1900.]
    1. The statutes of New Jersey conferring jurisdiction for discovery upon the law courts, have not had the effect of divesting the court of chancery of its ancient and original jurisdiction for discovery.

      2. When a plea contains several distinct averments or allegations of fact, all the allegations must be supported by the proofs, or the plea will be overruled as false.
    3. When complainant replies and takes issue upon the plea, the determination of that issue is final, and if the plea is not well founded in fact, complainant is entitled without further proof to a final decree to the extent of the court’s jurisdiction to grant relief upon his bill.
    4. Although complainant may, in addition to his prayer for discovery, have added a prayer for relief, discovery only will be decreed, as jurisdiction to decree relief upon a purely legal claim cannot be exercised though the parties, so far as it is possible, have consented to the jurisdiction for relief.
    Complainant’s bill alleges that in February, 1895, complainant and defendant entered into an agreement by which defendant obtained complainant’s services to secure business for defendant (an insurance company) from other companies, by which it was agreed that if no such business was secured, complainant should be paid $50 a week besides expenses, and that if business was procured, the compensation of complainant should be adjusted between complainant and defendant upon some basis proportionate to the value of the work. Complainant’s bill alleges that he undertook the work, and through his efforts the .American Accident Insurance Company of Kentucky entered into negotiations with defendant and with one Chase, Ihe general manager of defendant company, and that, partly through complainant’s efforts and partly by direct negotiations with the defendant and its officers and managers, the Kentucky company entered into an agreement with the defendant, the terms of which complainant has not been able to ascertain; but, in consequence of the agreement, all of the business of the Kentucky company was transferred to the defendant, whereby defendant has made a large profit; that this agreement between the two companies was made in May or June, 1895, when the Kentucky company had five thousand five hundred and seventy-one members holding policies, aggregating $21,211,100, and that a very large portion, if not all, of this business was secured by defendant, but complainant is not able to state the number of policies transferred, their aggregate amount or the profit thereon, as defendant’s manager, for the purpose of defrauding complainant of his compensation, concluded the negotiations without complainant’s knowledge and concealed from him the nature of the contract and the fact of its consummation. Complainant alleges further that he is entitled to receive from defendant a large sum as compensation under the agreement, but that he is unable to ascertain the compensation he is entitled to, or the value of his services, or to safely and properly bring any action to recover without discovery of the terms of the agreement between the companies and the number of policies transferred to defendant in consequence, and the profits made thereon by the defendant, of which facts the defendant is alleged to have exclusive knowledge. Application is alleged to have been made by complainant to the defendant for this information, but the company refuse to give it, and refuse to enter into any negotiation with complainant as to his compensation, or to pay him any sum for his services. An answer to the bill is prayed and discovery is specially prayed as to whether an agreement was made with the Kentucky company—its date and the full terms thereof-— what policies were received in conveyance of the agreement, and the aggregate amount of insurance thereon. The prayer is added, “and that your orator may have such further and other relief as the nature of the case may require.” To this bill the defendant, as to discovery of the terms of the contract, the number of policies transferred and the profits made, pleads that the negotiations between the companies was not due to nor in any way the consequence of any efforts of the complainant, nor was it through his efforts that the Kentucky company entered into negotiations with defendant or its general manager, and it is not true that it was partly or to any extent through complainant’s efforts that the Kentucky company entered into an agreement with defendant. The plea then adds
    “and that although it is true that a part of the business and some of the policies of the Kentucky company were transferred to the defendant in pursuance of an agreement made between them, it is not true that defendant was thereby enabled to make any profit, nor that it did make profit, and it is not true that under the agreement made between complainant and defendant, and by reason of anything done by the complainant, the complainant -is entitled to any compensation by reason of the fact that the agreement was made between the defendant and the Kentucky company, or that certain business and policies were transferred from that company to defendant.”

      The plea is set up to bar answer to the bill and the discovery as to the terms of the contract, or the number of policies or value of business transferred, or any of the matters of, which discovery is sought by the bill. Complainant filed a replication to the plea, and both parties have proceeded to proof. The proofs taken are upon the defence in the plea, that the contract between the company was not due to the efforts of the complainant. Ho proofs have been taken to support the allegation in the plea that the defendant, by the transfer of the business and the policies .of the Kentucky company, was not enabled to make any profit, and upon the issue raised by inference in the plea, that a part of the business and policies were transferred, the defendant’s proofs show that the business and all the outstanding risks of the Kentucky company were transferred to the defendant, which assumed the Kentucky company’s liability thereon.

      Mr. Edwin B. Goodell, for the complainant.

      Mr. Edward Q. Keasbey, for the defendant.
   Emery, V. C.

(after statement of issues).

Complainant’s right of action, as disclosed by the bill and proofs, is a purely.legal right, and in a court of law depends for its establishment upon complainant’s proving three things—first, defendant’s contract to compensate him, according to the value of his work, if he secured business for defendant; second, that he secured or assisted in securing the business of the Kentucky company, and Hik’d, that this business was valuable to the defendant. Sufficient proof- of all of these three facts would be necessarjr to maintain his case at law. Defendant’s plea does not reach to a denial of the whole of complainant’s legal case, but to two of the facts or parts which constitute this case, viz., a denial that complainant secured the contract and that the contract was profitable. Both of these issues will be issues in the action at law to be brought. Had the plea been set down for hearing, my present view is that it must have been overruled, and mainly for the reason that the plea sets up as a bar to the discovery, in aid of the action at law, a denial which is a denial of only one of the several grounds which together constitute the basis of the legal action, and does not go to the whole ground of action. At an early day it was laid down by Lord Thurlow, in the leading case of Hindman v. Taylor 2 Bro. Ch. C. 7; S. C., 2 Dick. 651, that a plea which set up matter which went to the whole cause of action, and was a legal bar to the action, was not a good plea to a bill for discovery only, as that would put the trial of the legal right in the court of equity. This decision has never been expressly overruled, but its soundness has been vigorously attacked, and later eases have undoubtedly qualified it, to the extent of allowing, in some -cases, a plea to a bill of discovery to set up a denial of complain.ant’s title or interest. The reason is that otherwise, by complainant’s false or unfounded claim of interest or title as the '.basis of either an existing or proposed action, he might have a ■discovery of transactions with which he had, in fact, no concern, and for the disclosure of which the false or unfounded ■claim was asserted for ulterior purposes. Wigr. Disc. *151f, &c., and cases cited; Story Eq. Pl. § 821. The cases, however, in which the pleas were sustained as denying complainant’s interest or title were either cases in which equitable relief as well as discovery was sought, e. g., denials of partnership on bill for account, and in which the issue raised by the plea was properly triable in equity, or cases in which the plea went to the whole issue triable at law, as the basis of the legal action. The late case of Robertson v. Lubbock, 4 Sim. 161, 180 (Vice-Chancellor Shadwell, 1881), cited in Wigr. Disc., supra, states the rule in cases like the present. The vice-chancellor says (at p. 180) : “If a right of action is founded upon a variety of circumstances put together, a plea which attempts to show that the action cannot be maintained by confessing and avoiding some of the circumstances and denying the rest, cannot be good, for the reason that it, in effect, takes to pieces all the several grounds which, put together, are asserted as the grounds upon which the action is maintainable, and by confessing and avoiding some and traversing others, it reduces the plaintiff to the necessity of proving in a court of equity, without a discovery, that he has a right to support that action.” In other words, the plaintiff in an action at law has the right to the trial of the whole right of action or the whole bar set np, together and in a single court, and if a legal bar to the action is a good plea to the bill for discovery, the plea must extend to the whole right of action or to all the eircumsances which, together, constitute the right of action. Chancellor Walworth, in Sperry v. Miller, 2 Barb. Ch. 632 (1848), followed Hindman v. Taylor, and held it good law to its full scope, overruling a plea of payment of the legal claim as a bar to discovery. Our own decisions are silent upon the point, but the validity of a plea of legal bar to the action cannot be extended beyond the extent indicated in Robertson v. Lubbock, supra, and, under this rule, the defendant’s plea would probably have been overruled. The validity of the plea is not, however, a question directly in issue now, and it is only referred to because it has a bearing upon the question of the status of the case upon the entire record which is now presented for decision upon the proofs. Complainant, by replying to the plea, has, for the purposes of this suit, admitted its validity, and the question now to be determined is whether the defendant has established its plea by the proofs. The burden of doing this rests upon the defendant. 1 Dan. Ch. Pr. (6th Am. ed.) *698. And where a plea contains several distinct averments or allegations of fact, all of the allegations must be supported by the proofs or the plea will be overruled as false. Dows v. McMichael, 6 Paige 139, 144, cited and approved in Flagg v. Bonnel, 2 Stock. 82, 85. The reason is that in this court no repleader is awarded where a cause comes to hearing upon an immaterial issue joined on a plea, and' the court, therefore, never inquires as to the materiality of the allegations contained in the plea if the complainant admits the validity of the plea by replying to it. If the truth of the plea is established by the proofs, complainant’s bill must be dismissed, although the matters stated in the plea contain, in fact, no valid defence to the suit, and, on the other hand, if the defendant fails in proving the truth of his plea upon the hearing, the plea must be overruled as false, and the complainant will be entitled to a decree according to the ease stated by the bill. Dows v. McMichael, supra (at p. 144). And upon the hearing upon the plea the question therefore is as to the truth of the several allegations in the plea, and if the truth of every distinct allegation is not established the plea must be overruled as false. Ibid. See also 1 Dan. Ch. Pr. (6th ed.) 695, 697.

In the present case the defendant has wholly failed to establish the allegation of its plea that the business transferred was not valuable, or to offer any proofs upon that subject. This is a material fact, solely within its knowledge, and having chosen to tender this issue in the plea, it was bound to sustain it as well as the other issue tendered, and its failure to do so will not be remedied by proofs upon the other allegations of the plea that the complainant did not procure the contract. This question of procuring the contract was one of the issues which should properly be tried in the action at law; the proofs which are produced upon the question are such as fairly entitle the complainant to its submission to a court of law; and the decision of this court should not be expressed thereon unless necessary for the decision upon the plea. Especially should this opinion not be expressed where the plea, if brought to a hearing, would probably have been overruled, as attempting to bring for the'adjudication by this court that which was altogether an issue of fact to be tried at law as one of the circumstances on which the plaintiffs legal action was based. Eor this reason therefore, that the defendant has failed to sustain all the material allegations of the plea, it must be overruled as false and not sustained by 'the proofs.

Two objections of defences to a decree for discovery not presented by the plea were made at the hearing—first, that the contract or agreement set up by complainant was, as appears by the proofs, not made by the company. This objection Cannot be entertained, because it is not an issue under the plea, which moreover admits the agreement. The second objection was that no decree for discovery should be granted, the courts of law, in which action is brought, being, by the later statutes, authorized to compel the necessary discovery in aid of plaintiffs action. The answer to this objection is twofold. In the first place, it is settled in this state that the statutes conferring jurisdiction for discovery upon the law courts have not had the effect of divesting the courts of equity of their ancient and original jurisdiction for discovery. Howell v. Ashmore, 1 Stock. 82 (Chancellor Williamson, 1852); Shotwell v. Smith, 5 C. E. Gr. 79, 81 (Chancellor Zabriskie, 1869), approved and followed in Sweeny v. Williams, 9 Stew. Eq. 627, 629 (Errors and Appeals, 1888). In the second place, the objection cannot properly be raised at the hearing upon the truth of the plea. Under the settled practice, the complainant, if the plea is not well founded in fact, is entitled, without further proof, to a final decree to the extent of the court’s jurisdiction to grant relief upon his bill. Flagg v. Bonnel, 2 Stock. 82, 84 (Chancellor Williamson, 1854); 1 Dan. Ch. Pr. (6th ed.) *697; Story Eq. Pl. § 697. The cases, in other courts cited by counsel in which the exercise of equitable jurisdiction for discovery has been refused, because it could be obtained in the law courts under the later statutes, were principally, if not wholly, cases where the question arose upon demurrer.

The defendant having failed to sustain its plea, complainant is therefore entitled to a decree upon his bill to the extent of the court’s jurisdiction. In the present case, this extends to the discovery only, for the court has not jurisdiction to decree' relief upon a purely legal claim under the general prayer for relief. The effect of adding this general prayer was to malee the bill a bill for relief as well as discovery (2 Dan. Ch. Pr. *1557), but jurisdiction to decree relief upon a purely legal claim cannot be exercised, if it is based only on the circumstance that the parties have failed to raise objections to the jurisdiction, and, so far as it is possible for the forms of pleading to effect it, have consented to the jurisdiction for relief. The complainant is entitled to the discovery sought by his bill, and an order will be advised overruling the plea as false, and directing the defendant to answer the interrogatories.