author: Dixon, J.

text:
    Carl W. Volney, appellant, v. Lewis Nixon, respondent.
    [Argued November 23d and 25th, 1904.
    Decided March 6th, 1905.]
    A contract between two persons that, in exchange for their joint property, one of them shall procure from a corporation of this state an original issue of stock to an amount known by all parties to be in excess of the value of the property, and shall divide the stock thus procured with the other person, is illegal, and the courts of this state will not aid in its enforcement, even, though the objectionable feature has been accomplished by the actual issue of the stock.
    On appeal from a decree advised by Vice-Chancellor Bergen, whose opinion is reported in 67 N. J. Fq. J¡S7.

      Mr. Frank P. McDermott, for the appellant.

      Mr. Foster M. Voorhees, for the respondent.
   The opinion of the court was delivered by

Dixon, J.

Prior to May 7th, 1897, the complainant had invented some processes for the manufacture of smokeless powder, and at that time was the owner of about ninety per cent, of the stock of the Yolney Smokeless Powder Company, a corporation of this state, organized in 1896, with a nominal capital of $100,000. The capital stock had all been issued, but for what does not clearly appear. So far as is disclosed the company had no property, except one of the Yolney patents, issued in 1887, and the value of that, patent may be conjectured from the facts that the complainant did not operate under it in 1897, and early in that year had applied for two other patents on the same subject, which were issued in the fall of 1897.

This being the situation, the complainant and defendant, on May 7th, 1897, entered into a written contract, as follows:

“Memorandum, of agreement made this seventh day of May, 1897, between O. W. Yolney, party of the first part, and Lewis Nixon, party of the second part:
“Whereas, The said O. W. Volney is the sole owner of at least 60 per cent, of the stock of the Volney Smokeless Powder Company, organized under the laws of New Jersey, it is therefore mutually agreed:
“1. That the party of the second part, if he secures a contract for about 200,000 lbs. of smokeless powder, such contract being conditional upon the successful trial of a sample lot of powder made under the Yolney patents, shall supply $5,000.00 in cash for the purpose of manufacturing such sample lot of powder, the money to be supplied as required by the party of the first part. In consideration of the payment of this amount of $5,000.00 the said Yolney agrees to convey to the said Lewis Nixon $12,500 of his stock in the company above mentioned; and it is further mutually agreed that, in order to supply further money necessary to erect a plant for the manufacture of powder, $45,000.00 worth of the stock in the company above mentioned will be sold to the said Lewis Nixon for $45,000.00, and that the said Yolney will then assign to a new company, to be organized with a capital stock of one million dollars, all his titles and interests in the patents obtained by him during 1897, the conveyance to be made so that the stock of the present company can be taken by the new company on the payment of ten shares of the new for one of the present.
“C. W. Yolney, [l. s.]
“Party of the First Part.
“Lewis Nixon, [l. s.]
“Party of the Second Part."

It should "be specially noticed, as a circumstance throwing light on the developments of this case, that although there is no indication that the stock of the Volney Smokeless Powder Company was worth even par, yet the parties to this agreement contemplated the formation of a new company which should issue ten shares of its stock for one share of the old.

Starting with this contract, the complainant’s contention is that the parties thereupon engaged in a joint enterprise for the manufacture of smokeless powder by the processes for which the Volney patents of 1897 were granted; that in this enterprise,he furnished his time and skill, and about $2,000 in cash, and the defendant furnished about $30,000; that with this money land was leased'or purchased; several small buildings and necessary machinery were constructed, and some explosives were manufactured ; that pending these operations negotiations were started and conducted by the defendant, on behalf of himself and the complainant, for the formation of a new corporation, which resulted, on April 6th, 1899, in organizing the International Smokeless Powder and Dynamite Company under the laws of this state, with a nominal capital of $10,000,000; that immediately after its organization the complainant assigned to the company his patents of 1897 and agreed to convey to it, without further consideration, all his future improvements and inventions upon the same subject-matter, and the defendant transferred to the company the land, buildings and machinery above mentioned, of which the title stood in his name, and that for the rights and property thus conveyed to the company the defendant received from the company seventy-nine thousand shares of fully-paid capital stock of the par value of $50 per share, and about $33,000 in cash, subject, however, to the defendant’s agreement to apply twenty thousand of the shares “for the benefit of the subscribers to the preferred stock of the company.”

On these claims the complainant insists that he is entitled to one-half of the defendant’s net receipts from the company, by virtue of the understanding between them, in pursuance of which their transfers to the company were made.

Respecting the precise terms of this understanding the parties are in dispute. At least some of its leading features (the defenclant insists all of them) are stated in a letter written by tire defendant to the complainant on the day before the incorporation of the new company, as follows:

“Elizabeth, N. X, April 5th, 1899.
“Dr. Carl ~W. Vobiey, Keyport, 2í. J.:
“Dear Sir — Referring to our conversation of to-day, I beg to confirm what I have said, which is as follows: That in the organization of the new powder company, the consideration to you for the assignment of all the patents which you control will be one hundred thousand dollars ($100,000) par value of the shares of the International Smokeless Powder Company. In addition to this, it is understood between ourselves that I shall turn over to you fifty thousand dollars ($50,000) par value of the stock obtained by me from this company and two thousand dollars ($2,000.00) in cash. Assignments will be assigned, transferred and set over concurrently with the transfer of stock.
“Yours truly,
“Lewis Nixon.”

But it is contended by the complainant that his further understanding was that the entire capital stock of the new company should be only $1,000,000; that for the transfers made to it by the complainant and defendant not less than $350,000 of the capital should be issued to the defendant as fully-paid stock for property -purchased; that of this the defendant should set aside $50,000 for a certain influential person named by him and for certain newspaper men, and should divide the residue of the stock equally with the complainant, so that together they would acquire nearly one-third of the entire capital. This understanding, the complainant says, was induced by the statements of the defendant, and their expectations as to the division of stock were based on the contract of May 7th, 1897, modified so as to allow the defendant one-half instead of the smaller share indicated by that contract for the money actually advanced by-him, and not until after the $2,000 of cash and the $150,000 of stock mentioned in the letter had been delivered to the complainant, did he learn what the entire capital of tire company was, and what the defendant had actually received.

Assuming the facts to be as the complainant insists, he is not entitled to the aid of this court.

It must be remembered that under the laws of New Jersey the stock of a corporation can be originally issued for property purchased only to the amount of what is honestly deemed by the directors the value of the property. Donald v. American Smelting Co., 62 N. J. Eq. (17 Dick.) 729.

The evidence in this case satisfies us that the contract set up by the complainant, was in violation of this, statutory policy; that there was no honest judgment on the part of anybody that the property for which it was intended that the company should issue $350,000 of fully-paid stock was really1 worth that sum of money. After the contract of May 7th, 1897, the first operations in the joint enterprise began in the erection of some small buildings in Keyport, at a cost of about $1,700. In May, 1898, the erection of similar buildings at South River Junction was commenced, but these seem not to have been completed when the transfer to the new company took place. I find no reason to think that the entire tangible property (land, buildings and machinery) was worth over $5,000. At Export, during the year 1898 and the early part of 1899, some powder was manufactured, to be tested at Sandy Hook for the United States government, but no test made- resulted satisfactorily to- the United States officers. Although in 'the whole venture the parties seem to have expended about $32,000, no income was obtained and no- business was established, nor was it demonstrated that the processes of manufacture invented and patented by the complainant had any substantial value, so that when, -in March, 1899, these parties were discussing their prospects in view of the organization of the new company, the defendant said to the complainant that they could not get much money for their -stock, and the outlook, so far as realizing money from the enterprise was concerned, was rather poor. To this statement the complainant did not object, and, as he puts it, they “felt bad” about the situation. From these circumstances the only rational inference as to tire worth of the property which these parties were about to- exchange for corporate stock, is that it had but little value in comparison with the sum represented by the stock to- be issued therefor. No one, by the exercise of honest judgment, did o-r could appraise that property at $350,000.

Another fact, clinching this inference respecting the valuation of the property, is the provision in the bargain, as claimed by the complainant, that out of the $350,000 of stock to be issued for the exchange, stock amounting to $50,000 was to represent, not the value of the property, but the influence of some outside persons exerted for some undisclosed object.

We conclude that according to the complainant’s contention his bargain with the defendant was that the latter should get from the International Smokeless Powder and Dynamite Company an original issue of its stock, having a face value of $350,000, at least, in exchange for property which nobody believed to be worth that sum in money, and should equally divide with the complainant whatever he thus obtained. The purpose of that bargain was plainly illegal.

It is the settled policy of the courts in this state not to aid in the enforcement of such contracts, having either an illegal or an immoral purpose, even although the objectionable feature has been accomplished, and there remains only the distribution of the proceeds among the contracting parties. Van Doren v. Staats, 3 N. J. Law (2 Penn.) 887; Watson v. Murray, 23 N. J. Eq. (8 C. E. Gr.) 257; Gregory ads. Wilson, 36 N. J. Law (7 Vr.) 315; Wyckoff v. Weaver, 66 N. J. Law (37 Vr.) 648.

On these grounds, the decree denying relief to the complainant and dismissing his bill should-be affirmed.

For affirmance — Ti-ie Chief-Justice, Dixon, Fort, Garret-son, Pitney, Swayze, Bogert, Yredenburgh, Yroom, Green, Gray — 11.

For reversal — Garrison—1.


source: Caselaw Access Project

author: Fort, J.

license: Public Domain

text:
    Alla A. Davenport et al., respondents, v. Mary Ann Davenport et al., appellants.
    [Argued November 22d, 1904.
    Decided November 22d, 1904.]
    1. Administrators pendente lite may always be appointed when the appointment of an executor or a general administrator is delayed for any reason, or the validity of a will is contested. They are officers of the court, called into being to aid the court — in fact, to take the place of the court — -to conserve the estate in independent and disinterested hands pending litigation. Any party in interest may apply for their appointment, or the court may appoint upon its own motion.
    2. The rule as to the right of appeal in such cases as stated by Runyon, Ordinary, in Dietz v. Dietz, 88 N. J. Mq. {11 Stew.) If88, approved.
    On appeal from the prerogative court. The opinion of Magie, Ordinary, is reported in 66 N. J. Eq. (21 Dick.) 300.

      Mr. Henry F. Stockwell, Mr. David J. Pancoast and Mr. Horace M. Pumsey, for the appellants.

      Mr. Frank T. Lloyd and Mr. Lewis Starr, for the respondents.
   The opinion of the court was delivered by

Fort, J.

This is an appeal from a decree of the ordinary dismissing an appeal from the orphans court of Camden county. The appeal-is from an order made September 18th, 1903, appointing an administrator pendente lite in the room and stead of one previously appointed, under an order of that court dated June 6th, 1903, and fixing the amount -of the bond of such substituted administrator.

The ordinary held, there being no appeal from the order of June 6th, 1903, which adjudged that an administrator pendente lile was essential to the preservation of the estate, that under the decision of Runyon, Ordinary, in Dietz v. Dietz, 38 N. J. Eq. (11 Stew.) 483, an appeal did not lie from the order of the orphans court of September 18th, 1903, naming a substituted person as administrator pendente lite or fixing his bond; these acts, in such case, being matters within the discretion of the court.

That question, so far as our research has been able to discover, does not appear to have been previously decided in this court.

Administrators pendente lite are the appointees of the court, and are not to be merely considered as the nominees or agents of the several parties on whose recommendation they are selected. 1 Wms. Ex. 590.

The statutory rule of administration as to the widow or next of kin is not operative as to this class of administration. Lamb v. Helm, 56 Mo. 420. The statute only applies i» appointment for general administration. An administrator pendente lite may always be appointed where the appointment of a general administrator is delayed for any reason or the validity of a will is contested. 11 Am. & Eng. Encycl. L. 801 802; Grece v. Helm, 91 Mich. 450; Lawrence v. Parsons, 27 How. Pr. 26; Jordan v. Thompson, 67 Ala. 469; Mclntire v. Worthington, 68 Md. 203.

This power also exists where the contest is being carried on in another court or pending an appeal of proceedings on removal of an executor or administrator. Roger v. Dively, 51 Mo. 193; Eslate of Moore, 86 Cal. 72; Brown v. Ryder, 42 N. J. Eq. (15 Stew.) 356; Matter of Blair, 60 Hun 523.

Such administrators are officers of the court, whose office as administrators continues only until the termination of the litigation.

Chief-Justice Hornblower says: “Their authority is more limited than that of any oilier administration, and, ex vi termini, ceases the moment the suit concerning the will is terminated. If the will is established, they are at once superseded by the executor; or, if occasion requires, by administration with the will annexed, or during minority or durante absentia; but they can no longer act as administrators either in relation to third persons or to each other. If, on the other hand, the will is overruled, administration at large is to be granted to those who by the law may be entitled to have it.” Cole v. Wooden, 18 N. J. Law (3 Harr.) 15, 17.

Administrators pendente lite, therefore, are not such as-by the law are entitled to- administer. They are officers of the court, called into being to- aid the court — in fact, to take the place of the court — -to conserve the estate in independent and disinterested hands pending litigation. Ellis v. Wren, 84 Ky. 254.

The court .should not appoint nominees of either party, but indifferent persons should be selected, except in certain cases where executors may be appointed administrators pendente lite. Woerner Admin. § 181; Haas v. Childs, 4 Dem. 137.

As officers of the co-urt, they are removable at the pleasure of the court. Flora v. Mennice, 12 Ala. 836.

As to the circumstances under which the administrator pendente lite was appointed in this case, we will take the statement of the facts as the appellant states them in his brief. They are these:

“Thomas C. Davenport died in Camden county, in the State of New Jersey, on February 17th, 1903, leaving the present appellants (consisting of his lawful widow and children) as his heirs-at-law and next of kin. They presented a petition on February 18th, 1903, praying that letters of administration should be granted to Job P. Davenport, the son.
“The appellee, Alla A. Davenport, filed a caveat and alleged she was the widow of the decedent. She also filed a bill in the court of chancery to re-establish a will which she alleged had been unlawfully destroyed.
“On June 6th, 1903, on the application of the proctors for the appellee, Alla A. Davenport, and without notice to the appellants, the orphans court entered an order appointing Howard M. Cooper administrator pendente lite of said estate. It appears from a later application, of which appellants had no notice, that an order was entered by the orphans court on the eighteenth day of September, 1903, on motion of proctors for Alla A. Davenport, appointing S. Conrad Ott, the other appellee, as administrator pendente lite in place of Howard M. Cooper, who never qualified under the previous order. This order, as well as its predecessor, was not founded upon petition and affidavits, and was entered without notice to appellants. It was from the order of September 18th, 1903, that the appeal to the prerogative court, upon a motion to dismiss the appeal in this cause, was taken. The prerogative court dismissed the appeal. From this order an appeal was taken to the court of errors and appeals.”

All these matters are thus admittedly a part of the records of the orphans court and in the proceedings in that court for the appointment of a general administrator on the petition of the widow and next of kin. Pending this contest over the appointment applied for by them the administrator pendente lite was. appointed.

The court in which the proceedings are pending must, in the first instance, be the sole judge as to whether the conditions arising out of the litigation are such as to require a temporary administrator to conserve the estate pending the litigation. Such appointment may be made at any time pending the contest, and if the court deems it for the best interests of the estate it may do so upon its. own motion.

The court is charged with tire preservation of the estate, and with a duty to see that it comes, intact, into- the hands of the executor or general administrator, when appointed, for distribution under the will, or in accordance with the statute. The exercise of this power is in the interest of all the litigants. If there be a wrongful exercise of the power of appointing an administrator pendente lite, no doubt an appeal will lie, but no such appeal will lie because an appointee of the court is objectionable to either party, or because of the amount of bond required to be given by the court. In this regard-the rule stated by Magie, Ordinary, in his opinion in this case, and the decision of Runyon, Ordinary, in Dietz v. Dietz, supra, is approved. There is no allegation in this case (waiving the question of whether the appeal from the order of the orphans court of September 18th brings up all questions) that the action of the orphans court in exercising the power to appoint an administrator pendente lite was improper or unnecessary to conserve the estate, except it be the suggestion that tire estate was being cared for by one of the parties litigant, which, in our view, and probably in the view of the orphans court, was a satisfactory reason for the appointment. Pending the litigation, it is the court’s duty to see that the corpus of the estate is in independent hands and under its own control.

The other ground alleged for error is that the order was made by the orphans court without notice to the appellants. Neither the appellants nor the appellees are necessary parties in appointing such an administrator. A creditor may apply for the appointment. Lothrop’s Case, 33 N. J. Eq. (6 Stew.) 246. On the face of the proceedings the court, in the exercise of a sound discretion, may, on its own motion, appoint one. No moving or replying parties are necessary. When the court conceives that the jeopardy of the corpus of the estate is such that its preservation requires the court’s action, it may appoint its officer as administrator pendente lite to protect it, and only in case of an abuse of this discretion can relief be had by appeal. Such a power in the court is essential to the proper administration of litigated estates.

The decree of the prerogative court is affirmed.

For affirmance—The Chief-Justice, Dixon, Garrison, Fort, Garretson, Swayze, Reed, Bogert, Vredenburgh, Voobhees, Vroom, Green, Gray—13.

For reversal — None.


author: Swayze, J.

text:
    Abram Speer, respondent, v. Erie Railroad Company, appellant.
    [Argued November 7th, 1904.
    Decided March 6th, 1905.]
    A deed to a railway company contained a covenant that the company would provide the grantor with a suitable and convenient road crossing across the track of said railway where the grantor might direct. In accordance with the deed, a grade crossing was built and used for years. The defendant, which had succeeded to the grantee’s title and franchises, in obedience to a decree of the court of chancery pursuant to the statute,, elevated its tracks so that the grade crossing could no longer be maintained, except by constructing approaches on the railroad company’s land, which would necessitate a detour, or on the complainant’s land, which would necessitate an elevation. The complainant, who had become the owner of the land, refused to assent to either method, and filed a bill for specific performance of the covenant. — Held, (1) that specific performance of the covenant having become impossible without its fault, the railroad company could not be compelled to substitute for the grade crossing a tunnel under the track, the cost-of which would exceed the value of the land to be benefited thereby; (2) that the bill might be retained, if the complainant so elect, in order that the damages sustained by reason of the destruction of the crossing might be ascertained by the court of chancery.
    On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 64 N. J. Eq. (19 Dick.) 601.

      Mr. Cortlandt Parker, Mr. Charles L. Corlin and Mr. Cortlandt Parker, Jr., far the appellant.

      Mr. Halsey M. Barrett and Mr. Richard V. Lindalury, for the respondent.
   The opinion of the court was delivered by

Swayze, J.

The facts of the case are stated in the opinion of the vice-chancellor. The bill was filed for the specific performance of a covenant in the deed from John A. Speer to the Montclair Railway Company, of which the defendant is the successor. The covenant required the railway company to provide the grantor “with a suitable and convenient road crossing across the track of said railway,” where the grantor might direct. The decree directed the railroad company to construct a tunnel through its embankment and across its right of way twelve feet wide and twelve feet high, and to maintain the tunnel at all times thereafter.

The rights of the complainant depend upon the provision in the deed, and not upon section 14 of the General Railroad law of 1873 (P. L. 1873 p. 88 Rev. 1877 p. 929, as amended in 1891; 2 Gen. Stat. p. 2661), nor upon the charter of the Montclair Railway Company. Section 14 of the General Railroad law, as originally passed, applied only to companies incorporated under the act. It is not necessary now to consider whether the clause subsequently inserted could affect railroads existing under a special charter, for there is aro proof that the Montclair railway, or. either of its successors, is within the terms of the description. The defeiaclant is the lessee of the New York and Greenwood Lake Railway Company, which acqiaired by foreclosure sales the property and franchises of the Montclair Railway Company. The last-named company was incorporated in 1867. P. L. 1867 p. 301. The provisions of its charter as to road crossings differ from the provisions of the General Railroad law, in that the charter requires the railway coaaapany to coaastruct and keep in repair bridges over or under the railway, where any public or other road shall cross the same, and oaarits the provision as to wagon ways where the railroad intersects the farm or lands of aaa individual. The provision as to the crossing of roads is intended for the protection of the public who. have the right to travel therein, and is applicable only to roads in which the public have such a right; these are public roads, private roads and by-roads. Green v. Morris and Essex Railroad Co., 24 N. J. Law (4 Zab.) 486, 490; Wood v. Hurd, 34 N. J. Law (5 Vr.) 87.

The provision as to wagon ways iaa the Geaaeral Railroad law is intended for the beaiefit of individual landowners, to secure them access from one portion of their lands to another, notwithstanding the construction of the railroad. The language of the General Railroad law is similar to the language comanoaaly used iaa railroad charters before the incorporation of the Moaatclair railway iaa 1867. Camden and Amboy Railroad (P. L. 1830 p. 88); New Jersey Railroad and Transportation Co. (P. L. 1832 p. 104); Morris and Essex Railroad (P. L. 1835 p. 29); Morris and Eastooa Railroad (P. L. 1837 p. 426); Somerville and Easton Railroad (P. L. 1847 p. 133).

The omissioaa of the usual provision as to wagon ways iaa the charter of the Moaatclair Railway Coaaapany indicates that the legislature did not intend to impose that burden oaa the coanpany.

The crossing involved in this ease was a mere wagon way connecting portions of the complainant’s lands, which had been severed by the construction of the railroad, aaacl was protected by bars and a fence, which tire deed compelled the railroad company to make and maintain.

Even if the charter provisions had been in the form usual at that date in railroad charters,-it would have been competent for the.owner of the land to agree with the railroad company as to the method of crossing, and where a deed for the land is made embodying such an agreement it is to that deed we must look for the obligations of the parties. Brearley v. Delaware and Raritan Canal Co., 20 N. J. Law (Spenc.) 236; Perry v. Pennsylvania Railroad Co., 55 N. J. Law (26 Vr.) 178, 184; Pipe Line Co. v. Delaware, Lackawanna and Western Railroad Co., 62 N. J. Law (33 Vr.) 254, 272.

In construing tire deed, we are helped by air examination of the language at that time common in railroad charters, and afterwards used in the General Railroad law. In all except the earliest — that of tire Canrden and Amboy — tire railroad company is required to construct passages “over or under” the railroad. The general law adds the word “across.” These citations from the statute suffice to show that from the beginning of railroads in this state a difference was recognized between a crossing over and a crossing under the railroad. The natural meaning of the expression used in the deed — -“a suitable and convenient road crossing across .the track of said railway” — is a grade crossing. And so the parties to tire deed themselves construed it at the time.

The decree of the court of chancery gives the owner of the land a tunnel under the railroad instead of the grade crossing provided for by the deed, at a cost of over $5,000 to the railroad company, for the sole benefit of land of the complainant worth about one-third that amount. Such a result could certainly not be deemed equitable unless the crossing provided for by the deed had become impracticable through the fault of the defendant. In this case the impracticability of maintaining the crossing in its former state is due to the enforced change of grade made by tire railroad company in obedience to- a decree of tire court of chancery, pursuant to the statute (P. L. 1895 p. 462; 2 Gen. Slat. p. 2717 pl. 343), in order to subserve tire advantage and safety of the public by doing away with a crossing at grade of the railroad and the street railway. It is inequitable to force the defendant to substitute for tire crossing which its predecessor in title agreed to give, a better passage of a different kind and much more onerous to the company — more onerous not merely in the first cost but in the future maintenance of the tunnel and the railroad structure above. The incapacity of the defendant to carry the contract into execution affords a ground of defence in a suit for specific performance (Fry Spec. Perf. § 658; Danforth v. Philadelphia and Cape May Short Line Co., 30 N. J. Eq. (3 Stew.) 12, 16), and even where it is possible to perform the contract specific performance is refused if the burden upon the defendant greatly outweighs the advantage to the complainant; in such case the party is left to his action at law for damages.

Instances where specific performance of contracts similar to the present has been denied by the courts are Murdfeldt v. New York, West Shore and Buffalo Railway Co., 102 N. Y. 703; 7 N. E. Rep. 404; Conger v. New York, West Shore and Buffalo Railway Co., 120 N. Y. 29; 23 N. E. Rep. 983; Goding v. Bangor and Aroostook Railroad Co., 94 Me. 542; 48 Atl. Rep. 114. An early case is Clarke v. Rochester, &c., Railroad Co., 18 Barb. 350. In that case the court refused specific performance because “a crossing would be of small value to the owner and would entail much expense on the company.” Judge Strong, in delivering the opinion of the court, said: “The court will never compel, a performance specifically, when, looking at all the circumstances on both sides, it is apparent that injustice would thereby be done.”

Most of the cases cited fi*om the New York reports by the respondent involved the performance by the railroad company of a statutory duty, and the courts held that it was no defence that the performance of that duty might be very onerous. The specific performance of a contract, of which exact performance is impossible, stands upon a different footing.

The case of Post v. West Shore Railroad Co., 123 N. Y. 580; 26 N. E. Rep. 7, is more like the present case, but there is this important difference: the change of the highway in that case was tire voluntary act of the railway company, although made to meet the objection of the highway commissioner to the road as at first proposed. Judge Andrews was careful to sa): “But the covenant with the plaintiff was not discharged by tire objection of the commissioner, for the company was under no legal compulsion to follow his direction in the matterIn the present case the company was under the compulsion of a decree of the very court which makes the present decree.

It is not physically impossible for the railroad to construct a grade crossing as the deed requires. It cannot, indeed, construct a grade crossing at exactly the same point of space; the change of grade makes that impossible. It has offered to construct a grade crossing -at the same point in its line, but at the new grade. To make such a crossing it will be necessary either to construct approaches on the company’s land parallel to and on both sides of its track, making a considerably greater distance for the complainant to travel, or to construct approaches at right angles to the track, for which purpose complainant’s land must be used. It has been held, in a similar case in Massachusetts, that the expense of preparing the approaches on his own land must be borne by the landowner (Williams v. Clark, Receiver, 140 Mass. 238; 5 N. E. Rep. 802, 804), but that case turned on the language of the deed, which required the railroad company to make a crossing entirely within the limits of the land conveyed, from which the court inferred that what was necessarily done outside of those limits must be done by the landowner, for the railroad company could not enter upon his lands without, committing a trespass.

In Storer v. Great Western Railway Co., 2 Younge & C. 48, the vice-chancellor decreed that the railroad company should perform its agreement and that the plaintiff must afford them all reasonable assistance in his power. The opinion states that the plaintiff undertook to put the railroad company in possession of the land necessary for the approaches.

In the present case the complainant is unwilling to accept a grade crossing with approaches constructed on the railroad company’s land, or to allow approaches to be constructed on his own land. He insists upon a tunnel.

Where specific performance of a contract in exact accordance with its terms has become impossible, the courts have, in some instances, required the defendant to perform as nearly as possible. Pom. Spec. Perf. §§ 296, 297. If that rule is applicable to a ease like the present, we think the methods of crossing proposed by the defendant both approximate more closely to- the original crossing than the tunnel. The complainant cannot, by rejecting those plans, equitably compel the defendant to give him such an entirely different passage at an expense nearly ten times as great.

Although we think the complainant is not entitled to a decree for specific performance; we think he is entitled to compensation for the destruction of his crossing. It is true, as counsel for the defendant argued, that he was bound to anticipate a possible change of grade in the railroad as public necessity might require. Central Railroad Co. ads. State, 32 N. J. Law (3 Vr.) 220, decided in 1867, three years before the date of the deed now in question. He was not bound to anticipate that Ms crossing would thereby be destroyed. The right of the railroad to change the grade as the need arose was subject to- an obligation to preserve fairly the private use. Nor can he be deprived of his crossing without compensation because tire change of grade was made under compulsion of the court of chancery. The change of grade did not make it necessary for the railroad company to destroy tire crossing; they might, if they had chosen, have built the tunnel which the complainant demands; and although we think it inequitable to give the complainant more than the deed entitles him to, we tMnk he is entitled to be made whole for what he has lost. He was. not bound to accept the new methods of crossing suggested by the defendant, since they differed materially from the crossing as it had existed. The only way in which the complainant can be made whole is by the payment to him of the value of what he has lost.

The jurisdiction of the court of chancery to award damages where both parties submit -themselves to- the jurisdiction of the court is established. The cases- are collected in Vice-Chancellor Pitney’s opinion, in Sparks Manufacturing Co. v. Town of Newton, 57 N. J. Eq. (12 Dick.) 367 (at pp. 392, 393), and the opinion in this respect met with the approval of this court. Ingersoll v. Newton, 60 N. J. Eq. (15 Dick.) 399.

The complainant has not submitted the question of damages to the court, and may not wish to do so. If he elects so to do the bill may be retained in order that the damages which the complainant has sustained by the destruction of the crossing may be ascertained by the court of chancery. If he does not so elect, the bill must be dismissed.

For affirmance — Pitney, Bogert, Voorhees, Green, Gray

For reversal — Ti-ie Chiee-Justice, Dixon, Garrison, GarRETSON, SwAYZE, VREDENBURGH, VrOOM — 7.


author: Swatze, J.

text:
    N. Lewis Cooper et al. v. Philadelphia Worsted Company.
    [Submitted December 3d, 1904.
    Decided March 20th, 1905.]
    1. Where a contract, with reference to the title of tangible chattels situated in another state, is made in that state between a resident thereof and a New Jersey corporation, and is to be petformed there, the law of that state determines the effect of the contract.
    2. The act of 1889 as to conditional sales does not apply to contracts made and to be performed in another state, with reference to chattels situated there, between a resident of that state and a New Jersey corporation ; nor does the act become applicable when the chattels are subsequently brought into this state without the consent of the former owner.
    On appeal of Mary J. Lees et al. from a decree advised by Vice-Chancellor Reed, whose opinion is reported in ¡57 Atl. Rep. 7SS.

      This ease involves the ownership of machinery of the Philadelphia Worsted Company, an insolvent corporation of this state. The receiver makes no claim and submits himself to the judgment of the court. The controversy is between the executors of Daniel Lees, deceased, formerly of Lenni, Pennsylvania, and Harding, Whitman & Company, a copartnership, the members of which do not reside in the State of New Jersey. The machinery was formerly owned by Lees, at Lenni. On November 24th, 1899, an agreement was entered into between Lees and the Philadelphia Worsted Companjq which purported by its terms to lease the machinery in question to the company for the term of two and one-half years, for a rental of $6,000, payable $2,000 on the execution of the agreement, $3,000 in twelve months, $1,000 in eighteen months, $1,000 in two years and $1,000 at the expiration of the term, the deferred payments to bear one per cent, interest. The company agreed to pay tire rent and to surrender the property at the expiration of the lease. The agreement then provided that if upon surrendering the property, the rent having been fully paid, the company desired to purchase the leased property, Lees would sell. the same for $6,000, with six per cent, interest, and that the amount received for rent should be applied upon the purchase-price. In case of default in payment of the rent or performance of the covenants by the company, the vendor might take possession of the property. ' The machinery was delivered at the date of the execution of the agreement to the company, at Lenni, for use in its mill at that place, and was there used by the company continuously until April, 1901; in April and May, 1901, it was moved into this state, with the knowledge, but against tire will, of Lees. Lees died May 30th, 1901. The corporation was adjudged insolvent and a receiver appointed in this state October 22d, 1903. At the time of his appointment a suit by Harding, Whitman & Company against the corporation was pending; judgment was entered October 26th, 1903; execution issued and a levy made October 30th, 1903. The judgment creditors were without notice of the lease or agreement for conditional sale. That agreement was recorded in Camden county, in this state, - October 27th, 1903.

      Mr. Edmund B. Leaming, for the appellants.

      Mr. Thomas E. French, for the respondents.
   The opinion of the court was delivered by

Swatze, J.

The agreement in question, under Pennsylvania law, constituted a bailment, and the title of Lees was good in Pennsylvania. Stadtfeld v. Huntsman, 92 Pa. St. 53; Ditman v. Cottrell, 125 Pa. St. 606; 17 Atl. Rep. 504; Brown Brothers v. Billington, 163 Pa. St. 76; 29 Atl. Rep. 904; Lippincott v. Scott, 198 Pa. St. 283; 47 Atl. Rep. 1115; Marvin Safe Co. v. Norton, 48 N. J. Law (19 Vr.) 410.

For the purposes of this case, we may assume that the contract would here be construed as a contract for conditional sale, which, under the New Jersey statute, if it is applicable, would be void as against judgment creditors not having notice thereof, unless recorded as directed by the statute.

The question to be decided is whether the validity of the appellants’ title is to be determined according to the law of Pennsylvania or the law of New Jersey.

The general rule is that the assignment of a movable, wherever situate, in accordance with the law of the owner’s domicile, is valid. Dicey on Conflict of Laws 535 (rule 142). But this is subject to the rule that "an assignment of a movable which can be touched, giving a good title thereto according to the law of the country where the movable is situate at the time of the assignment, is valid.” Dicey on Conflict of Laws 535 (rule 140). These rules have been ’the settled law of the English courts since the decision of Cammell v. Sewell, in the exchequer chamber, in 1860. 5 Hurlst. & N. 728; 5 Eng. Rul. Cas. 891; 29 Law Jour. Ex. 350. Cannmell v. Sewell was approved in the house of lords in 1870. Castrique v. Imrie, 39 Law Jour. C. P. 365; L. R. 4 H. L. 414; 5 Eng. Rul. Cos. 899—see especially the opinion of Lord Blackburn. See, also, In re Queensland Mercantile and Agency Company, 1 Ch. Cas. 536 (1891); 60 Law Jour. Ch. 579; affirmed on a different ground, 1 Ch. Cas. 219 (1892); 61 Law Jour. Ch. 145, but without dissent on this point. The rule has been applied to bills of exchange transferred in a foreign country. Alcock v. Smith, 1 Ch. Cas. 238 (1892); 61 Law Jour. Ch. 161, and in the most recent case—Embericos v. Anglo-Austiian Bank, 2 K. B. 870 (1904); 73 Law Jour. K. B. 993.

In Hooper v. Gumm, L. R. 2 Ch. 282; 36 Law Jour. Ch. 605, the general rule was recognized, but the holder -of the encumbrance, which was valid by American law, intentionally concealed it, and was not permitted to assert it against a bona fide purchaser for valuable consideration under an English contract.

The cases in our own courts are not in conflict.with the rule of the English courts. In Varnum v. Camp, 13 N. J. Law (1 Gr.) 326 (1833), two classes of goods were involved. Some were goods in the store at Paterson, in this state; at the time the assignment was made in New York; soma were in the store in New York, and were sent to Paterson after the assignment. It was held that the assignment did not transfer tire title to' the goods then at Paterson, but did transfer the title to the goods then in New York, and accordingly it was held that the plaintiff was entitled to a portion of .the articles replevied and the defendant to the residue. The court thus clearly recognized that the validity of, the transfer depended upon the actual situs of the goods.' The opinion of Chief-Justice Ewing, and his citations from other cases, show that this was the view held by him.. Thus he says (at p. 331) : “Every country has the right of regulating the transfer of all personal property within its territory, but when no positive regulation exists the owner transfers it at his pleasure,” and (on p. 882) he quotes with approval the following language of Justice Johnson, in Smith v. Union Bank of Georgetown, 5 Pet. 518: “That personal property has no situs, seems rather a metaphysical position than a practical and legal truth. * * * In point of fact, it cannot be questioned that goods found within the limits of a sovereign’s jurisdiction are subject to his laws; it would be an absurdity, in terms, to affirm the contrary.”

In Frazier v. Fredericks, 24 N. J. Law (4 Zab.) 162 (1853), it was held that a voluntary assignment made in Pennsylvania for the benefit of creditors would pass the title to a boat lying at a wharf in New Jersey as against an attaching creditor, but in that case there was no conflict between the law of Pennsylvania and the law of New Jersey. Chief-Justice Green said: “Admitting the assignment to be valid by the laws of Pennsylvania, where the assignment was executed, there is nothing in its terms repugnant to the provisions of our statutes or to the policy of our laws.”

In Runyon v. Groshon, 12 N. J. Eq. (1 Beas.) 86 (1858), the original owner of the picture and both claimants were domiciled in New Jersey, and the complainant was foreclosing his mortgage in our courts. There was no difficulty in the way of following the law of the domicile. The chancellor recognized the right of New York to declare how personal property situated there should be transferred, and added: “The property is protected by her laws, and it is but reasonable that it must be held and transferred agreeable to such regulations as that state may see fit to adopt.”

In Moore v. Bonnell, 31 N. J. Law (2 Vr.) 90 (1864), an assignment made in New York by a resident of that state was held to transfer a debt due from a resident of tliis state, although the assignment made preferences and would have been invalid under our law. The case did not involve the title to tangible goods situate in New Jersey, and tire citation by the learned chief-justice, from Story on the Conflict of Laws, recognizes the difference in a case where the particular property from its nature has a necessarily implied locality. Moreover, the question in Moore v. Bonnell arose between an attaching creditor, whose domicile was the same as the domicile of the assignor, and in this respect the case resembled Runyon v. Groshon.

The New Jersey cases thus far cited were either in the supreme court or in the court of chancery. Bentley v. Whittemore, 19 N. J. Eq. (4 C. E. Gr.) 462 (1868), was in this court. In that case a resident of New York made an assignment with preferences for the benefit of his creditors, and executed in due form a conveyance to his assignees of land in this state. The assignees sold the -land to Bentley, who paid $6,000 in cash and assumed a mortgage for $2,000. Another subsisting mortgage was canceled at tbe time of tbe sale. Subsequently creditors of the assignor, all of whom were non-residents of this state, obtained judgments here and levied upon the land. We held that the conveyance to the assignees passed title to land in New Jersey, although the preferences were forbidden by our law. The ground of the decision, however, was that tire deed was sufficient to pass the title in New Jersey; it was only the method of distribution of the assets of the assignor among his creditors that was inimical to our laws. That this was what Chief-Justice Beasley had in mind is shown by his statement that “no doubt is intended to be hinted as to the settled existence of the rule that the validity of every disposition of real estate must depend upon the law of the country in which that estate is situated.” He added: “The deed in question has been regularly executed, acknowledged and recorded, and is in due legal form; in all ceremonious parts, therefore, the transaction is a compliance with our land regulations. What, then, is to render this title defeasible? I can imagine nothing that can be set up to invalidate it except the idea that the distribution of the assignment, to which this conveyance is ancillary, militates with the provisions of our statute upon that subject.” And it was properly held that creditors not resident in New Jersey could not object to a method of distribution of the estate which was legal by the law of the domicile.

In Parr v. Brady 37 N. J. Law (8 Vr.) 201 (1874), a chattel mortgage was executed by a resident of New York upon a coach then in New York, and filed in New York in accordance with the laws of that state. The coach was subsequently brought by the owner (the mortgagor) into New Jersey, and sold here to a bona fide purchaser. The mortgage was not filed in this state, as then required by our statute. The case therefore involved a conflict between the laws of two states, in both of which the chattel had at different times its situs, and the court properly sustained the title under the earlier transfer. The opinion stated the general rule, as stated in the beginning of this opinion, that tire law of the owner’s domicile must govern, but recognized that “this rule has its exceptions, when the laws of different jurisdictions are in conflict, and particularly in cases where the situs rei at the time of the contract is in another state.”

In Marvin Safe Co. v. Norton, 48 N. J. Law (19 Vr.) 410 (1886), in the supreme court, the title was determined according to the law of the situs. The title reserved by the safe company was valid in Pennsylvania as long as the goods were in that state; the title acquired by Norton in New Jersey, under New Jersey law, was only such title as his vendor, Schwartz, then had, which was only a conditional title, and it was held that this title could not be made absolute as to tangible goods in New Jersey by a provision of the Pennsylvania law. There was no conflict between the title to the goods in Pennsylvania and the title to the goods in New Jersey; on the contrary, it was the very title acquired in Pennsylvania which subsequently passed by the transfer in New Jersey.

In Cronan v. Fox, 50 N. J. Law (21 Vr.) 417 (1888), the title acquired by Fox in Maryland was at the time a valid title; it was invalid in Maryland in the event of failure to record as against creditors or purchasers; but no rights of creditors or purchasers intervened while the cattle were in Maryland, and this court held that the liabilhy of the property to be seized and sold under a writ of attachment must be determined by the law of the state where the property then was, notwithstanding the domicile of all the claimants was in another state.

In Knowles Loom Works v. Vacher, 57 N. J. Law (28 Vr.) 490 (1896), the supreme coixrt held that the situs of the property, and not the lex loci contractus, determined the validity of the sale. The contract in that case was between-a Massachusetts corporation, which owned the looms, then located in Worcester, sold them under a contract made in New York, and delivered them in Paterson. It was held that the situs of the looms was in this, state. That was the place where the parties themselves contemplated that the looms should be permanently located. The judgment was affirmed in this court upon Justice Yan Syekel’s opinion.

In Woolley v. Geneva Wagon Co., 59 N. J. Law (30 Vr.) 278 (1896), the wagons were, at the time of the contract, in New York; the vendee, and apparently the vendor also, was a resident of that state, and the'property was brought into New Jersey without the knowledge of tire vendor. Chief-Justice Beasley held that our statute did not apply. Manifestly, the situs of the wagons had never been lawfully in New Jersey; they had been brought here without the owner’s consent.

In the f ederal courts, also, it is held that the title of tangible chattels is determined by the law of the situs. Green v. Van Buskirk, S Wall. 307; 7 Wall. 139; Hervey v. Rhode Island Locomotive Works, 98 U. S. 664.

In the present case the vice-chancellor held that the law of the domicile of the purchaser must control; that the purchaser was a New Jersey corporation, and the transaction was governed by our statute. The case exhibits the difficulty Which arises in determining the question by the law of the domicile. Not only may the parties have different domiciles, as in the present case, but several persons may be interested, either as vendors or vendees, each with a different domicile. The difficulty is not met by adopting the law of the domicile of the owner as the rule, for the very question to be decided is, who is the owner P^The rule which looks to the law of the situs has the merit of adopting the law of the jurisdiction which has the actual control of the goods and the merit of certainty.

It is not necessary to the decision of the present case to go as far as the English cases have gone in following the, law of the situs. The contract now in question was made in Pennsylvania, and was intended by the parties to be performed there; the chattels were at the time in Pennsylvania, and were removed to this state without the consent of the vendor; in Pennsylvania there was no transfer of title, but a mere contract of bailment. We think, in such a case, the law of Pennsylvania must control.

The vice-chancellor relied upon the case of Knowles Loom Works v. Vacher, 57 N. J. Law (28 Vr.) 490, but that case was not decided upon the ground, that the vendee was a New Jersey corporation, but upon the ground that the property was to be delivered, and was delivered to and held by the purchaser in this state. Justice Van Syekel said that the situs of the property, and not the lex loci contractus, determined the validity of such sales. What the court held was that the situs, under the circumstances of that ease, was in New Jersey.

In the present case the place of contract and the situs, at the time, was in Pennsylvania.

It is not necessary to decide whether or not the State of New Jersey, by virtue of the power it may exert over property within its jurisdiction, might clivest a title which was good in Pennsylvania, for in our view of the case the law of this state does not have that effect. The contract between Lees and the Philadelphia Worsted Company was valid at common law. Cole v. Berry, 42 N. J. Law (13 Vr.) 308. This rule was modified by a statute in 1889 (P. L. 1889 p. 421; 1 Gen. Stat. p. 891 pl. 185-191), which now appears in the act respecting conveyances (Revision of 1898). P. L. 1898 p. 670 §§ 71, 72. We think that this act is intended to affect contracts for goods subject to the jurisdiction of New Jersey at the time the contract is made, or intended by the parties at that time to be brought within the jurisdiction of this state. We are led to this conclusion by the provisions of the seventy-second section, which require the contract to be recorded in the office of the clerk of the court of common pleas of the county wherein the party contracting to buy, if a resident of this state, shall reside at the time of the execution thereof, and if not a resident of this state, then in the clerk’s office of the county where the property bought shall be at the time of the execution of such instrument. It would be of no avail to require record in the county where the vendee resides at the time of the execution of the instrument unless it were meant that the record should be substantially contemporaneous with the date of the instrument; to require record in that county two years later, when the vendee might then reside elsewhere, would not serve tire statute’s purpose of constructive notice to judgment creditors and subsequent purchasers and mortgagees in good faith.

There is another difficulty in the way of applying our statute to the present case. ’ The statute applies only to conditional sales. The contract now in question was a contract of bailment, but not a contract of conditional sale, as long as the goods were subject to the jurisdiction of Pennsjdvania. Taking the view of the case most favorable to the judgment creditors, the contract did not become a contract of conditional sale until the goods were moved to New Jersey, a year and a half after its execution. It would be a singular construction which would require a contract to he recorded in a county where one of the parties resided a year and a half before the contract became subject to the operation of the statute.

The authorities sustain the view we have adopted.

In Varnum v. Camp, 13 N. J. Law (1 Gr.) 326, the title of the assignee to the goods in New York at the time of the assignment was sustained, notwithstanding the goods were afterward brought to Paterson and there levied upon.

In Parr v. Brady, 37 N. J. Low (8 Vr.) 201, the title under the New York chattel mortgage was sustained, although the goods were afterwards brought to' this state and sold, and although the mortgagee had not complied with the provisions of our Chattel Mortgage act, requiring the filing of the mortgage in the same language used in section 72 of the act respecting conveyances as to recording contracts of conditional sale. The supreme court said: “The intention to do so (i. e., to prevent a foreign mortgage from having effect in this state) ought to be clearly manifested, when the object is to abridge the validity of a common law contract.”

In Woolley v. Geneva Wagon Co., 59 N. J. Law (30 Vr.) 278, it was the impossibility of complying with the statute that led the court to hold it not applicable.

■ The courts of other jurisdictions are almost unanimous in sustaining a title good under the law of the original situs, although not good under the law of the jurisdiction' to' which the property may be removed by one party without the consent of the other. United States Bank v. Lee, 13 Pet. 107 ; Shaparcl v. Hynes, 104 Fed. Rep. 449, a well-considered opinion in the United States circuit court of appeals; Edgerly v. Bush, 81 N. Y. 199; Nichols v. Mase, 94 N. Y. 160; Cleveland Machine Worles v. Lang, 67 N. H. 348; 31 Atl. Rep. 20.

In our judgment, the title of 'Lees’ executors to the machinery in question was valid, and the order should have directed the receiver to surrender possession thereof to' them- It must therefore be reversed, with costs, and the cause remitted to the court of chancery for proceedings in conformity with this opinion.

For affirmance — Pitney—1.

For reversal — Ti-ie Chief-Justice, Dixon, Garrison, GarRETSON, SwAYZE, BOGERT, VrEDENBURGI-I, VROOM, GREEN-9.


author: Vroom, J.

text:
    Adele Louise Watkinson, respondent, v. Howard E. Watkinson, appellant.
    [Submitted December 5th, 1904.
    Decided April 28th, 1905.]
    1. The object of a bill of review is to procure the reversal, alteration or explanation of a decree in a former suit, and must rest on error in law upon the face of the decree, fraud in procuring the decree, new or newly-discovered matter which could not haye been used before the decree was made.
    2. When it is sought to reverse a decree upon the discovery of some new matter, leave of the court must first be obtained by petition, supported by affidavit that the evidence is not only new, but could not have been discovered by reasonable diligence before the hearing.
    3. Although there is no express statutory limitation as to the filing of bills of review, the analogous limitation of the right of appeal should govern, and a bill of review cannot be filed after the lapse of three years from the final decree, except in case of new or newly-discovered matter.
    4. The temporary absence from this state of one domiciled here will not be held a change of residence, unless to the factum of residence elsewhere be added the animus manendi, for a domicile having once been acquired continues until a new one is actually acquired animo et facto.

    5. Condonation of the adultery on which the decree for divorce was based will not justify the granting of leave to file a bill of review; if intended to be interposed it should have been pleaded and proved in the original suit. .
    On appeal from a decree of the court of cliancery advised by Vice-Olianeellor Pitney, whose opinion is reported in 67 N. J. Eq. IJf'B.

      Mr. John H. Baches, for tlie appellant.

      Mr. James Steen, for the respondent.
   The opinion of the court was delivered by

Vroom, J.

The appeal in this case is from a decree advised by Vice-Chancellor Pitney upon a bill of review filed by Adele Louise Watkinson, the respondent, against Howard E. Watkinson. The bill was filed to review and set aside a decree of divorce obtained by the said Howard E. Watkinson in the court of chancery of this state on December 11th, 1896, and actually filed on December 17th following. The ground of the decree was adultery.

The record in this case shows that on November 5th, 1900, nearly four years after the signing of the above decree, the defendant in said cause, and the respondent here, filed a petition in the court of chancery, which was entitled a petition of defendant to open decree, to which was annexed the affidavit of the defendant that the said petition was true in all respects, and on the 28th of November, 1900, she exhibited a bill of review, praying that the decree of divorce, for the reasons in said bill set forth, be set aside and declared to be fraudulent and void.

The object of a bill of review, or a bill in the nature of a bill of review, is to procure the reversal, alteration or explanation of a decree in a former suit. 2 Dan. Ch. Pr. 1576. If the decree has been signed and enrolled, the practice is to file a bill of review; if not, a bill in the nature of a bill of review. As stated by Judge Story, in Dexter v. Arnold, 5 Mas. 310, “the distinction between a bill of review and a bill in the nature of a bill of review, though important in England, is not felt in the practice of the courts of the United States, and perhaps rarely in any of the state courts of equity in the union. I take it to be clear that in the courts of the United States all decrees, as well as judgments, are matters of record, and are deemed to be enrolled as of the term in which they are passed. So that the appropriate remedy is by a bill of review.” See, also, Wiser v. Blachly, 2 Johns: Ch. 488. Such a bill must rest on error in law upon the face of the decree without further examination of matters of fact, fraud in procuring former decree, new facts, or upon some new matter which has been discovered after the decree and could not possibly have been used when the decree was made. 2 Dan. Ch. Pr. 1576; Mitf. Pl. 101; Taylor v. Sharp, 3 P. Wms. 371; Wiser v. Blachly, supra.

It seems to be the settled practice in equity, when it is sought to reverse a decree signed and enrolled upon the discovery of some new matter, to first obtain the leave of the court to the filing of the bill, and tire usual practice is to make the application by petition, supported by affidavit that the evidence is not only new, but could not have been discovered by reasonable diligence before Hie hearing, and, as said by Daniels, the court must be satisfied that the new matter has come to the knowledge of the applicant and his agents for the first time since the period at which he could have made use of it in the suit, and that it could not with reasonable diligence have been discovered sooner, and that it is of such a character that if - brought forward in the suit it would have altered the judgment. 2 Dan. Ch. Pr. 1563; Wilkinson v. Parish, 3 Paige 653.

Presumably, leave was given to the filing of the present bill of review, although the fact of the granting of such leave does not appear in the record before us, nor is the fact of such leave having been granted set out in the bill, as it should be, where new matter is alleged upon which it is sought to impeach the decree. Mitf. Pl. 106.

At that time the posture of .affairs was this: The appellant had filed his bill for divorce against the respondent upon the ground of adultery, .on June 13th, 1896. An order of publication against her as an absent defendant was made returnable August 31st, 1896, and an affidavit made and filed by the solicitor of the appellee that he had personally delivered a copy of the usual printed notice in cases of divorce to the respondent on the 9th day of July, 1896, at her place of abode in the city of New York. She did not appear to the -suit and an order of reference was made to James S. Aitkin, special master, and the hearing came on before him in October of Hie last-named year, and on the 28th of October the master filed his report, advising that a decree of divorce should be made for the crime of adultery, and on the 11th of December, 1896, a decree of -divorce was duly made pursuant to said report.

The depositions thus taken before the master showed that the complainant was then a resident of the city of Trenton, in this state, and that he had lived there for fifteen years then last past. The crime of adultery charged in the bill was proved satisfactorily to the master and he reported in favor of a divorce,' which was granted. The petition before mentioned as having been filed to open the decree, or if it may be considered, for leave to file a bill of review, alleges that the petitioner first positively heard that a decree of divorce had been granted to her husband during the year 1900. She further alleges that she and her husband removed to New York-City in November, 1895, and lived there together until August, 1896, at which time he secured certain letters, was indignant at the contents thereof and blamed the petitioner therefor and left her; that in August or September, 1896, the petitioner signed some papers which she understood to be in an action of divorce, but as she was without means or any friends or advisers, and her health broken down and her condition and mind was such that she was unable to even consider or think of the matter; that subsequently, in September or October, 1896, her husband returned to New York and cohabited with her pending the action brought for divorce, and informed petitioner that no suit was pending and in other ways imposed upon the petitioner and the court.

The bill of review filed in November of 1900 admits that the complainant therein, in July or August, 1896, was informed of the institution of a divorce suit against her by her husband, and charges that subsequently he returned to her, assured her that he had abandoned his suit for divorce and cohabited with her, and that notwithstanding that he was living with her as husband and wife, and assuring her that he had abandoned said divorce proceedings, he was in fact prosecuting the same, and in fact, in December, 1896, obtained a decree of -divorce against the complainant, and that she did not defend said cause because she believed that the same had been abandoned; that said defendant was at the time of filing Ms said bill a resident of the State of New York; that after filing Ms said bill he condoned any fault or misconduct of complainant, and that his conduct was a fraud upon the court and made the decree null and void, and that tire complainant had but recently discovered the fraud practiced upon her and only recently had heard that a decree of divorce had been granted in said cause.

The answer of the defendant denies specifically the allegations of the said bill of review that he had condoned the offence of 'the complainant or had assured her that he had abandoned the suit for divorce; he further denies the allegation that the divorce proceedings were a fraud upon the court or the complainant, and that he was, at tire time of tire filing of his bill for divorce, or at any other time, a resident of the State of New York.

After the hearing of witnesses the vice-chancellor advised a decree in favor of the respondent upon the ground that the complainant had no domicile or residence in the State of New Jersey at the time of the filing of the bill which resulted in the decree attacked, or during the pendency of that suit, and that the adultery on the part of tire wife, upon which tire decree therein was based, had been thoroughly condoned by the husband, and that the allegation of condonation pending that suit and before the decree therein was sustained by the weight of the evidence, and that the complainant’s delay in asserting her right had not been such as to bar her from relief.

In his opinion tire learned vice-chancellor sets out at some length what, to use his own language, is termed a statement of the undisputed facts of the case, and adds that it would seem that the husband, the appellant here, had no residence or domicile in New Jersey at the time he was carrying on his suit here for divorce. If this could be considered an undisputed fact, or even a fair deduction from the proven facts in this case, it would decide this cause, for it would have to be admitted that he committed thereby a fraud upon the court, but in my opinion the testimony does not by any means establish this as a fact. The testimony of the appellant before the master in this suit for divorce, on October 9th, 1896, disclosed that he then resided in Trenton, New Jersey, and that he had lived in Trenton for fifteen years then last past. This was corroborated by the testimony of the father of the appellant, a clergyman of the Baptist denomination, who testified that at the time he married his son to the respondent, on the 6th of November, 1889, his son was a resident of Trenton; that he had resided in Trenton ever since, and still resided there on the day he testified, October 10th, 1896. It is true that in his examination before the vice-chancellor the appellant said that after his wife left him and had gone to New York and resided there in a flat, he went there and lived with her for four or five months, when he again went back to Trenton. I find it difficult to- perceive how this temporary residence in New York City can be held to affect, his residence o-r domicile in Trenton in the absence of any evidence of intention on his part to abandon it. The fact that he did not intend to change his domicile is manifested by appellant’s beginning Ms suit for divorce after he returned to Trenton, and this established his belief, not only as to- his residence, but his domicile in this state. The learned vice-chancellor, for the purpose of sustaining the view that the appellant had abandoned Ms residence in New Jersey by residing in New York City a few months, cited the case of German Sevings and Loan, Association v. Dormitzer, 192 U. S. 125, as “directly in point.” An examination of that ease discloses that it is far from being in point. In the opinion in that case, Mr. Justice Holmes said that “it appeared from the testimony of the husband that before he made a contract for part of the- land in question he had sold out his property and business in Kan-sas and had gone in search of what he called a new location, and that when he bought this land he desired to locate there.” These facts, the court held, were sufficient for the courts of Kansas to find that he had changed his domicile.

It seems unnecessary to point out how abso-lutety the facts in the case under consideration are at variance with those in the case cited, the intent in that case of the husband to- change his domicile being apparent from his own testimony, while here there is no evidence whatever to- warrant the belief or to enable a court to find that the appellant intended to change his domicile.

To construe the temporary residence by appellant with his wife in New York to be a change of domicile seems to me unwarranted, for, as Mr. Justice Depue said, in Harral v. Harral, 39 N. J. Eq. (12 Stew.) 285, “to the factum of residence must be added the animus manendi, and that place is the domicile of a person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a present intention of making it his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home.”

The doctrine laid down by the courts of the United States is that a domicile having been once acquired, continues until a new one is actually acquired animo et facto, 10 Am. & Eng. Encycl. L. 15; Cadwalader v. Howell, 18 N. J. Law (3 Harr.) 138; Clark ads. Likens, 26 N. J. Law (2 Dutch.) 207.

I am unable to agree with the conclusion reached below that, as alleged in the bill of review, at the time of beginning his suit for divorce the appellant was a resident of the State of New York, and therefore am of opinion that there was no fraud practiced on the court of chancery by the appellant in swearing that he was a resident of the State of New Jersey.

The second ground upon which below was based the right of the respondent to relief is because, as stated in the opinion, after the adultery charged in the bill and after the commencement of the husband’s suit and the service upon the wife of process, and before decree, the husband returned to the wife and cohabited with her, and led her to believe that he had abandoned the suit.

Condonation, standing alone, would not have justified the granting leave to file a bill of review, for how can that be considered new matter which could have been produced and used by tire respondent at the time when the decree was made. Every allegation relating thereto, if true, was known to the respondent during the pendency of the divorce suit and before the entering of the decree, and if intended to be interposed as a defence should have been pleaded and proved in that suit. It is too late if it is first made known in an application for a bill of review, for, as was well said by Lord-Chancellor Talbot, in Taylor v. Sharp, 3 P. Wms. 371, “unless this relief were confined to new matter it might be made use of as method for a vexatious person to be oppressive to' the other side and for the cause never to be at rest.”

Now, after the lapse of four years from the entering of the final decree of divorce, and years after the taking from her of the child, pursuant to the terms of said decree, she comes before the court of chancery charging that she was deceived by her husband as to the abandonment of the suit for divorce; that during the pendency of that suit he condoned her guilt, and, further, that she never knew of the granting of the final decree of divorce until after her time for fairing an appeal had expired. No extended review of the testimony is, it seems to me, necessary in the matter of the alleged deception on the part of the appellant as to the abandonment of the divorce proceedings, for the extent to which the respondent goes in her testimony is that she supposed from appellant’s conduct he had abandoned the proceedings ; but there is no pretence whatever that the appellant ever told her that he had done so, and in fact she testifies distinctly that she never had any conversation with him relating to the suit for divorce pending the suit. The testimony of the appellant is that he never visited his wife during the pendency of the proceedings, and never saw her save when he visited the boy, who was then living with her. The charge that the respondent had been led to believe that the appellant had abandoned his suit for divorce is not sustained in fact; this being so, the charge of fraud falls and no ground can exist for the consideration of the alleged condonation, which, as before stated, could not be held to be new matter' warranting the giving leave to file a bill of review, but was a personal defence of the respondent, which she could set up as a defence or waive, as she saw fit.

This brings us to the consideration, of the respondent’s alleged denial of knowledge of the existence of the granting of the decree of divorce until shortly before the time she filed the petition for a bill of review. An examination of her petition discloses that upon that very vital part of the respondent’s case the allegation in the petition is that

“your petitioner first heard positively that a divorce had been granted to her husband, Howard Watkinson, for infidelity on the part of your petitioner, through William D. Tyndall, an attorney and counsellor-at-law, of New York and New Jersey, who examined your petitioner in supplemental proceedings during the year 1901.”

Again, the averment in her bill of review is

“and your oratrix having but recently discovered the fraud practiced upon her, and having only recently learned that a decree of divorce had been granted in said cause, so as aforesaid instituted by her said husband, she expressly charges said decree, so fraudulently obtained as hereinbefore mentioned, ought to be set aside,” &c.

The evident intent of the above allegation was to excuse the laches of the petitioner, the respondent here. An examination of her testimony on this point is interesting. When examined in this cause de bene esse, on June 30th, 1903, before Samuel C. Mount, one of the masters in chancery, she was asked and replied:

“Q. Did you know that he had obtained the decree of divorce at that time? [Summer of 1897.]
“A. He said that he had.
“Q. When did he say that?
“A. Well, he told me that when 1 first saw him after he left home in November. The next time I saw him he said he had the divorce. When it was granted I don’t know; he didn’t say when he got it.”

Now, in the testimony before the'vice-chancellor, in referring to the summer of 1897, she was asked and said:

“Q. (By the court.) I understand you to say he came to your father’s house and stayed a week the next summer [1897]. He asked you when was the last time he had sexual intercourse ?
“A. The last time was in the summer of 1897, at home.
“Mr. Tyndall — That was after the decree.
“The Court — After the decree, if she was willing to accept him as a concubine would a stranger—
“A. I didn’t know the divorce was granted.
“Q. (By the court.) He never told you the divorce was granted?
“A. He never told me, and' I never knew it any way, to be positive of it.
“Mr. Backes- — Did I understand the witness to say she didn’t know, and he never told her?
“A. He never told me, no, that the divorce had been granted; nobody ever told me.”

It is difficult to reconcile the very material variance between the testimony of the respondent given at two different times in the same cause. One thing, however, it does demonstrate, and that is the truth of the'vice-chancellor’s comment that the wife clearly is not to be implicitly believed. . ■

No attempt was made to reconcile these statements of the respondent, and in my opinion the respondent has failed to sustain the allegation of the petition and bill that she had only learned of the granting of the divorce in the year 1900, and she has no standing to urge it as new 'matter, then only brought to her knowledge, to enable her to file a bill of review.

The respondent having failed to make out a case either on the question of residence or of condonation and fraud, we are brought to the consideration of the very serious and important question of whether her laches and delay in petitioning for the filing of a bill of review has barred her right to the relief prayed for. The record in this case shows that the petition for leave to file a bill of review was not filed until nearly four years after the entering of the final decree in the suit for divorce, and the question to be determined is whether the laches and delay of the respondent in asserting her rights is a bar to this suit.

The rule in the English courts is that when twenty years have elapsed from the time of pronouncing a decree which has been signed and enrolled, a bill of review cannot be brought unless the plaintiff was under disability. 2 Dan. Ch. Pr. 1580; Mitf. Pl. 105; Lytton v. Lytton, 4 Bro. Ch. C. 441; Deloraine v. Brown, 3 Bro. Ch. C. 633.

And in the supreme court of the United States; in the case of Thomas v. Harris's Heirs, 10 Wheat. 146, Justice Washington, in commenting upon the question of the limitation of the light to file a bill of review, said: “It must be admitted that bills of review are not strictly within any act of limitations prescribed by congress, but it is unquestionable that courts of equity, acting upon the principle that laches and neglect ought to be discountenanced, and that in cases of stale demands its aid ought not to be afforded, have always interposed some limitation to suits brought in those courts.” And this case explicitly declares the rule, never since departed from in that court, as follows: “There is no statute expressly limiting bills of review, but the courts of the United States are governed in this particular by the analogous limitation of the right of appeal, and therefore a bill of review cannot be filed after the lapse of five years from the final decree.” Applying this rule to the practice in our state, after the lapse of three years leave would not be granted to file a bill of review.

There is, however, one exception to the general rule in England, as noticed by Mitford, and that is the discretionary power of the court in the case of newly-discovered evidence, and this exception Judge Washington recognizes in Thomas v. Harvie, supra, saying: “Whether a bill of review, founded upon matter discovered since the decree, is in like manner barred by the lapse of five years after such decree, is a question which need not be decided in the present case, since we are all of opinion that it is in the discretion of the court to grant leave to file a bill of review for that cause.”

My examination of the authorities leads me to the conclusion that the law as above laid down in the supreme court of the United States has been almost uniformly followed in this country.

The time of appeal having expired when this application for leave to file the bill of review was made, the petitioner was barred unless her case could be brought strictly within the exception of newly-discovered evidence, or of some special equity that would give the court the discretionary- power to make the order.

The question of fraud being eliminated from the case, there is left only one matter which could in legal contemplation have been urged either as a newly-discovered fact or as a ground of special equity upon which to rest an application for a bill of review, viz., the ignorance of the petitioner of the existence of a decree of divorce until after the time for appeal had expired. But it has already been- shown that this has no foundation in fact, for the petitioner, in her own testimony, admits and swears to her knowledge of the final decree in the divorce suit within a year after the entry of the same.

But in the court below the learned vice-chancellor said that he was unable to see how any delay beyond the time limited for taking an appeal on the part of the respondent could on any known principle affect her right to a declaration by the court that the decree of divorce was invalid and void at initio by reason of the lack of jurisdiction of the court of chancery to proceed in the cause. He then adds that where there is a lack of jurisdiction by reason of a .want of residential domicile on the part of both parties, combined with extraterritorial service and the absence of any formal appearance by the defendant, and that it followed that the decree was absolutely void. It was for this reason that he held that the respondent’s belief was not affected by her laches. But, as we have already shown, there was a residential domicile on the part of the appellant when he filed his bill for divorce, and although the service on the wife of process was extraterritorial, it conformed to the law of this state, and the decree, instead of being void, was valid and binding upon the parties.

There is, however, another consideration why the laches of the respondent should not be overlooked, and that is, that on the strength of the decree in the court of chancery the appellant has married again, so that other rights have now intervened, and an entirely innocent party will suffer should the decree be revoked.

I am clearly of the opinion that .the earlier decision of the court of chancery that the appellant had a legal domicile and residence in this state when he filed his bill for divorce has not been successfully impeached; that there was no condonation on his part of the adultery of his wife that she is now entitled to set up, and that the delay of the respondent in asserting her rights bars her from the relief prayed for by her.

The decree below should be reversed and the bill of review dismissed.

For affirmance — Pitney, Swayze — 2.

For reversal — The Chief-Justice, Dixon, Garrison, Fort, Garretson, Bogert, Vredenburgh, Vroom, Green — 9.


author: Per Curiam.

text:
    Josiah White et al., respondents, v. Josephine T. Weaver, appellant.
    [Argued November 28th, 1904.
    Decided March 6th, 1905.]
    1. Although a lease giving the lessee an option to purchase is signed by the lessor only, yet the lessee on entering into possession thereunder becomes liable for the rent, and may enforce the option in the same manner as if he had signed the lease.
    2. In order to defeat specific performance upon the ground that the vendee had notice at the timé the contract was made that the vendor could not make good title, such notice must be clearly proved,
    3. A vendee, as complainant in a suit for specific performance, may procure a decree for the conveyance of the vendor’s interest, with an abatement by way of compensation for defects in the title, although he knew of the defects when he began his suit.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Need, who filed the following opinion:
    On September 30th, 1897, defendant signed the following paper:
    “Received, September 30th, 1897, of Josiah White & Son, eighty dollars, being in full for six months’ rent, in advance, of the property which I own, lying upon both sides of the shore road from Pleasantville to Absecon, known as the Oapt. Sami. W. Weaver farm, containing ninety-five acres of land, more or less. This farm 1 hereby agree to lease to the said Josiah White & Son upon the following terms and conditions: Dor the first two years, viz., from October 1st, 1897, to October 1st, 1899, the rent is to be one hundred and sixty dollars per year, payable semi-annually, in advance. Dor the second two years, viz., from October 1st, 1899, to October 1st, 1901, the rent is to be two hundred dollars per annum, payable semi-annually, in advance. Dor the third two years, viz., from October 1st, 1901, to October 1st, 1903, the rent is to be three hundred dollars per year, payable semi-annually, in advance. I also give Josiah White & Son the option to buy the above-named property for the sum of eight thousand dollars at any time at or before the expiration of this lease, whenever they may so elect to purchase. And I agree to convey to them a perfect title, clear of all incumbrance, when they purchase the property. At the time of purchase the rent under this lease ceases. While the lease is in force I reserve the attic of the house, the front bedroom on 'the north side, second story, and the front and back rooms which communicate with folding doors, first story, for my use and storage of furniture. Also, the right of ingress and egress to the rooms through the halls and stairs of the house. Josiah White & Son are to have the entire use of the farm and buildings except what I reserve as above, with the privilege of building upon said property, of subletting, of using the fallen and dead wood, and in any manner they see fit, so as not to injure the property. No cutting of living timber to be done by either party unless by the other’s consent.”
    Mr. White went into possession, of the property shortly after the signing of this agreement. Soon after he built a poultry-house, and later, during the first year of his term,, a hogpen and slaughter-house, in which was a refrigerating-room. The poultry-house, he says, cost him about $500, and the hogpen and slaughter-house about $1,500. Eor the defendant one witness sa3's that the value of the slaughter-house was $407, and another says that if anyone gave $500 for it he would be badly stuck. On December 18th, 1902, Mr. White gave notice that he elected to purchase, and tendered to Mrs. Weaver the $8,000 -consideration. He had already learned, what appears to be the fact, that Mrs. Weaver owned only an undivided one-third interest in the property.
    It is first insisted that while an option to buy contained in a lease will be enforced (Page v. Martin, l¡-6 N. J. Eq. (1 Dick.) 585), 3ret when, as in this case, the lessee did not sign the lease and is not bound by the contract to pay rent, there is no consideration for the option given to him to purchase, and a court of equity will not enforce it: I am of the opinion that where a lease is signed by the lessor only, and the lease contains a clause giving the lessee an option to purchase, and the lessee enters into possession under the lease, that then the lessee stands in the same posture to the option as he would have stood had he signed the lease. As’soon as the lessee went into possession he became liable for the rent mentioned in the lease. 12 Am. & Eng. Encycl. L. (1st ed.) 986, notes.

    It is next objected that the complainant, at the time the contract was made, knew that defendant could not make a good title, and upon this ground a court of equity will not decree specific performance. Peeler v. Levy, 26 N. J. Eq. (11 G. E.

      Gr.) 330, 331. Mrs. Weaver says that she so told Mr. White before the lease was executed; and the sister of Mrs. Weaver says that she was present during a part of a conversation between the joarties before the lease was signed, and that she heard Mr. White say, “Will the children make any fuss about this property, about your renting it?” and that she heard her sister reply, “Oh, no; I have always rented it, and they agreed to it, whatever I do.” The testimony of George Weaver, who was a mere lad, I do not regard as important. Now, Mr. White denies that he had any knowledge that Mrs. Weaver did not own the entire title.
    I think before specific performance is defeated upon this ground it should be clearly proved that the person with whom the contract was made to convey the title had notice that the one who agreed to make the conveyance had not the ability to give a complete title. In my judgment, it does not so clearly appear in this case as to defeat the right of Mr. White to have what he bargained for.
    It is, of course, true that Mr. White had notice of the defect in Mrs. Weaver’s title when he brought this suit, and I am aware that there is a line of cases holding that the court will not award compensation for a defective title if the complainant knew of the defect in the title when the suit for specific performance was begun. I do not see any equity in this rule, and it was properly discredited in Ludlum v. Buckingham, 35 N. J. Eq. (8 Stew.) 71, 83,
    My conclusion is that there should be a decree for performance, with an abatement in the price by way of compensation. I will advise a decree that Mrs. Weaver convey her interest, which is a one-third undivided interest in the property, with compensation for the outstanding two-thirds interest. I think that the compensation in this case should eohsist of an abatement in two-thirds of the price bargained for, and that the complainant should pay Mrs. Weaver the one-third of $8,000.

      Mr. George A. Bourgeois, for the appellant.

      Messrs. Thompson & Cole, for the respondents.
   Per Curiam.

Tbe decree appealed from is affirmed, for tbe reasons stated in the opinion of Vice-Chancellor Reed, filed in the court of chancery.

For affirmance — The Chief-Justice, Dixon, Garrison, Fort, Garretson, Pitney, Swayzis, Bogert, Vredenburgh, Vroom, Green, Gray- — 12.

For reversal — None.


text:
    John Spille, appellant, v. Mary Spille, respondent.
    [Argued November 29th and 30th, 1904.
    Decided March 6th, 1905.]
    Where complainant, after a bond and mortgage as security for his payment of alimony awarded to the defendant had been given, invited her to return, to his house merely for the purpose of inducing her to have the mortgage canceled, her refusal to return was not a desertion entitling complainant to a divorce.
    On appeal from a decree advised by Vice-Chancellor Reed, who filed the following opinion:
    The evidence has not convinced - me that this separation amounted to an obstinate desertion by the wife. I do not think that either of the parties is free from fault, and I think that this husband and this wife, and their, children, should be living under'one roof, as one family.
    The question submitted is whether the separation, either at the time when the husband left to go to Philadelphia or subsequently, became a desertion by the wife.

      In the first place, the husband left his wife under circumstances which made it entirely proper to do so. He got work in Philadelphia, went there to attend to it. He then went to Piahway, under circumstances which seem to have made that an entirely proper thing for him to do. Railway was accessible to his work and New Brunswick was not.
    . He then rented a house in Rahway and the wife moved there. She found no preparation made, nor did she receive any assistance, nor was such assistance offered by her husband in locating herself there and in placing the furniture. In fact, all the circumstances show that her presence there was a great annoyance to him. He did. not want her there. He had rented the house, to be sure, but he evidently did not wish her to go, and when he found that she had come there he did not wish her to stay. She moved back again to New Brunswick, under circumstances which, in my judgment, made the husband the deserter and not the wife.
    Affairs remained in that position from that time until 1894, when the husband visited his wife with his friend, Mr. Sherry, and then made a request of his wife that she should go to Philadelphia'and live with him there. I do not think that he made that offer for the purpose of laying a foundation for subsequently filing a bill for divorce, but I do think that he made the offer for the purpose or in the endeavor to get rid of a bond and mortgage which his mother had given as security for his pajunent of the amount which this court had awarded on a bill for alimony and maintenance.
    ■ Then following his request for her to go to Philadelphia to live with him, and her promise to return to him, the letter was written by Judge Strong, her lawyer, and in that letter it was stated that they were satisfied that this offer of his was made merely fox the purpose of getting her to return and compelling her to have that mortgage upon his mother’s property canceled. Now, from that day to this, he has never made any reply to that letter; he never said that that was not his purpose, or that “it is a bona fide offer that I have made you, and I want you to come to me and live under my roof, and remain with me and become reconciled, so that we could live together as husband and wife;” not one single word from that time down to this has he written to her. When he left her on that occasion he left her under the impression that that'.was his purpose; that when he got her to Philadelphia he, by some means, after she was under his own roof, could get her to have that mortgage canceled:
    Now, taking that fact, the tone of his letters and the fact that he wrote the letters to his daughter and not to her, and all the circumstances surrounding the case, I think it is not proved that he ever made that offer for her to return to live with him in good faith, so as to lay a foundation for a divorce for desertion.
    If the husband should in the future lay such a foundation by making an offer which I think she ought to1 accept, then it can be put in such shape that if two j^ears should elapse from the time of making the offer, and she failing to accept it, I think it would be proper then to hold that she had deserted her husband. But, under the evidence as produced before me, I am not convinced that the separation has amounted to an obstinate desertion by the wife, and the bill must be dismissed, with costs.

      Mr. Theodore B. Booraem, for the appellant.

      Mr. Alan H. Strong, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons set forth in the opinion of Vice-Chancellor Reed, filed in the court of chancery.

For affirmance — The Chiee-Justice, Dixon, Garrison, Port, Garretson, Pitney, Swayze, Bogert, Vredenburgh, Vroom, Gray — -11.

For reversal — None.