author: Walker, Chancellor.

text:
    Caroline E. Hoyt, petitioner, v. John C. Hoyt, defendant.
    [Decided October 24th, 1917.]
    A final decree of divorce mine pro tune may be entered in favor of a successful petitioner, even after the death of the defendant, where the petitioner is still living and was entitled to have had such decree entered in the lifetime of the defendant.
    On petition, &c. On application to enter final decree nunc pro tunc.

      Mrs. Caroline E. Hoyt, pro se.

   Walker, Chancellor.

On August 8th, 1893, the petitioner filed a petition for divorce from her then husband, and such proceedings were had that the late Isaac S. Taylor, Esq., to whom the cause was referred as special master, took testimony, and in a report dated January 17th, 1894, certified that he was of opinion that all the material facts charged in the petition were true, and that a decree of divorce should be made in the case for the cause of desertion. Mr. Elemming (her solicitor) informed the petitioner of this finding of the special master, and said that she should pay $22.56, the special master’s fees. This the petitioner did not do, as she did not have the money. She, however, believed her divorce had been granted, and on December 25th, 1896, she was married to Martin Wright, a veteran of the civil war, who died on February 27th, 1900. The petitioner has now discovered that no decree of divorce was entered in the cause.

The master’s report, although dated January 17th, 1894, was not filed until January 17th, 1896, just two years after-wards. In the files of the papers in the case is a letter from Mr. Taylor, the master, to the late Vice-Chancellor Pitney, in which he acknowledges the receipt of a note from the vice-chancellor. In this letter Mr. Taylor states that he delivered his report to the solicitors (Elemming & Anderson) on, or possibly the day after, the report was dated (January 18th, 1894), and he says that in the then last January (1896) the chancellor showed him a letter which he had received from the petitioner, complaining about the long delay in her case. He further says in his letter that his fees had never been paid; that he had frequently sent a bill to the solicitors and that they said they were holding the report because they could get no money from their client. There is another letter in the files, one from Joseph Anderson, of the firm of Elemming & Anderson, dated January 24th, 1896, directed to the clerk in chancery, in which he informs him that, as surviving member of the firm, he desires that no order, formal or otherwise, be entered except upon personal application by him, as he did not want to be made liable for any more costs in the matter. Attached to the letter of Mr. Taylor to the vice-chancellor is a typewritten copy of the form of a letter directed to Mr. Taylor, dated January 28th, 1896, the day after the date of Mr. Taylor’s letter to the vice-chancellor. This typewritten copy is undoubtedly a copy of a communication which Vice-Chancellor Pitney sent to Mr. Taylor, the vice-chancellor having undoubtedly lodged the letter and copy with the clerk for preservation among the files. In the copy of the letter, apparently sent to Mr. Taylor, the vice-chancellor says that he would decline to advise the decree until the master’s fees were paid, and should say that inquiry should be made as to whether the petitioner had paid her counsel enough to cover those fees or not, and, if not, then she must pay them or establish her right to sue in forma pauperis.

The petitioner now applies to enter a final decree of divorce nunc pro iunc as of the date of the filing of the master’s report, January 17th, 1896, which is prior to her marriage to Mr. Wright, which took place on December 25th, 1896.

The court has power to grant this motion. Mr. Bishop, in his work on “Marriage, Divorce and Separation” (vol. 2 § 687), says: “There may be nunc pro tunc judgment when the case falls within the principles on which such judgments are allowed in other suits.”

Citing Mead v. Mead, 1 Mo. App. 247, 254; Webber v. Webber, 83 N. C. 280. The court in the Mead Case said:

“Since this opinion was written we have learned that Mr. Mead has died. He was alive, however, when the case was argued and submitted. Under these circumstances the judgment will be entered as of the day on which it was taken under advisement, which was January 28th, 1876. Such was the practice of the supreme court in the case of the Central Savings Bank v. Shine, 48 Mo. 456, following the ancient practice in England as laid down in Cumber v. Wane, 1 Stra. 426.”

And the court in the Webber Case said:

“It is suggested that the action for a dissolution of the marriage tie, the end and object of which are consummated by death rendering a judgment needless, does not fall under the control of fiction adopted for other and different purposes. While the suggestion is not without force, we can find no legal ground for its exemption from the operation of a principle applicable to all other actions.”

There is nothing in Dunham v. Dunham, 82 N. J. Eq 395, which militates against the entry of a decree for divorce nunc pro tunc on the application of the living petitioner, who was entitled to it at the time it could and should have been granted. The Dunham Case only decided that a pending divorce abates upon the death of either party without surviving interest in anyone, and that a decree nisi of divorce may not be made absolute by a final decree after the death of one or the other of the parties, and which could not have been entered during the lifetime of both. Of course, it could not, because the surviving party was not entitled to the decree in the lifetime of the other one. Not so in the case before me, for here the surviving petitioner was entitled to the divorce at and at all times after the day when the master’s report was filed.

Nor is there anything in the Divorce act of 1907 which would prevent the entry of a nunc pro tunc decree. By section 34 of that act it is provided that the act shall take effect January 1st, '1908, but that nothing in it contained shall affect proceeding in any suit pending at the time it goes into effect, so far as relates to the jurisdiction of the court, &c., but the further proceedings and practice in such actions shall be in accordance with that act as nearly as may be practicable. Now, one of the proceedings prescribed by the act of 1907 is, that if the court shall be of opinion that the petitioner is entitled to a decree of divorce, a decree nisi shall be entered. But it must be perfectly obvious that no decree nisi can now be entered in this case, and that, because the defendant is not alive, and, therefore, could neither appeal nor show cause against making the decree nisi final. But, more than that, the petitioner before me was entitled to a final.decree of absolute divorce some eleven years before the divorce nisi statute went into effect.

There is nothing in the following cases cited by me in Dunham v. Dunham which militates against the power of the court to grant a decree of divorce nunc pro iunc in favor of a living petitioner after the death of a defendant. In Chase v. Webster, 46 N. E. Rep. 705, it was held that the death of either party before a decree nisi has been made absolute,'and before the time it could be made absolute, puts an end to the suit. In re Crandall, 196 N. Y. 127, it was hold that an action for divorce abates with the death of the party bringing it. In Hunt v. Hunt, 75 Misc. R. (N. Y.) 209, it was held that an action for divorce abates upon the death of the plaintiff. In Byron v. Byron, 134 App. Div. (N. Y.) 320, it was held that if one party dies after the entry of the interlocutory decree, final decree thereafter entered is unwarranted, extra-judicial and ineffective. These cases, it must be perfectly apparent, hold only that no final decree of divorce majr be entered if the successful party were not entitled to it until after the defeated party has died. Of course, no final decree may be entered after the death of one of the parties whose marriage has already been dissolved by death, where the successful party was not entitled to a decree in the lifetime of the decedent, and that is all that was decided by me in the Dunham Case. There is nothing in these cases which suggests that the power of the court to enter a decree of divorce nunc pro iunc in favor of the successful party, after the death of the defeated party, where the successful party was entitled to have had a decree entered in the lifetime of the deceased party, does not exist, and, as seen, Mr. Bishop lays it down that there may be nunc pro iunc judgment in these cases; and in Mead v. Mead and Webber v. Webber such decrees were actually entered. These are the authorities which I have been able to find for the proposition, and I have found none to the contrary.

It is laid down in Dan. Ch. Pl. & Pr. (6th Am. ed.) *1017, that decrees nunc pro iunc will be made after very long intervals have elapsed, and incidents are cited of such entries being made after twenty-three and even after seventy-nine years. In Ruckman v. Decker, 27 N. J. Eq. 244, Chancellor Runyon, in 1876, ordered the filing nunc pro iunc of a decree drawn in conformity to an opinion delivered by his predecessor, Chancellor Zabriskie, and this some three years after the former chancellor’s term had expired; and Chancellor Runyon said in his opinion, quoting Lord Eldon in Donne v. Lewis, 11 Ves. 601: “The court will enter a decree 1iunc pro iunc if satisfied from its own official documents that it is only doing now what it would then.”

Nor is there anything in Seibert v. Seibert, 86 Atl. Rep. 535, in which our court of errors and appeals decided that where, pending an appeal by the wife from a decree of divorce nisi in favor of the husband, the wife died, the suit thereupon abated. It is to be observed that there was no final decree in that case, and as, pending the appeal from the decree nisi, no final decree could be entered, because the suit abated upon the death of the wife. Of course it did, because the time had not arrived when the ■ husband was entitled to a final decree, and, as already remarked, the court could not thereafter dissolve a marriage which had already been dissolved by death. The application in Seibert v. Seibert was for an order upon the respondent to pay counsel fees for services rendered the wife in her lifetime, and the court reached the conclusion that no order could be made as the suit had abated. In Seibert v. Seibert, as in the other cases above mentioned, the question of a nunc pro tunc entry of a decree was in nowise involved, and, consequently, in nowise ruled upon.

Finding, as I do, that the authorities hold that a final decree of divorce nunc pro tunc may be entered in favor of a successful petitioner for divorce, even after the death of the defendant, where the petitioner is still living and was entitled to have had such a decree in the lifetime of the defendant, and, finding no authority to the contrary, I am clearly of opinion that a decree of divorce may be entered in this case in favor of the petitioner against the defendant as of the date when the cause was submitted to the court, at which time, and for several years thereafter, the defendant was alive. Let a decree be entered accordingly.


source: Caselaw Access Project

license: Public Domain

text:
      W. D. Cashin & Company, a corporation, complainant, v. Alamac Hotel Company, Incorporated, a corporation, defendant.
    [Decided November 25th, 1925.]
    1. Equity, as a noun, means an equitable claim or right, such .a one as a party possessing it has a right to enforce, and the adversary party no right to thwart 'by anything less 'than a countervailing right, such an equity is not a chancellor’s sense of moral right or any vague or indefinite opinion as to altruism, but a right cognizable in the court of chancery, governed by established rules and fixed principles of equity jurisprudence.
    2. The rights and equities of the parties to a mortgage are settled by the final decree of foreclosure, after which defendant has no right to obstruct the process of the law invoked by the mortgagee for the collection of its debt.
    3. The legal pursuit of one’s right, no matter what may be the motive of the prosecutor, cannot be deemed illegal or inequitable.
    4. The abstract precepts of the moral code, disconnected from property and the rights of persons, are neither enforced nor noticed by courts of equity.
    5. The A. H. Co. ivas indebted to the B. T. Co. on a mortgage, which was overdue and unpaid, and solicited and received indulgence from the mortgagee to enable it to effect reorganization and raise money to pay' the mortgage debt; failing in that, foreclosure proceedings were commenced, resulting in a final decree upon which execution was issued, and two days before the sale was to be cried off'by the sheriff, counsel for receiver of the A. H. Co. obtained an order to show cause why the sale should not be continued to enable it to do the very same thing, namely, effect a reorganization and raise the money to pay the mortgage debt, with an ad interim stay of the sale. On application by the B. T. Co. to vacate the order to show cause and the ad interim stay — Held, that the receiver’s application disclosed no equity, and that he showed no right which clothed the court with power to stay the sale ; that the order to show cause and restraint was improvidently granted and should be vacated, to the end that the sheriff proceed with the sale as in the writ of ft. fa he was commanded.
    6. Parties and those in privity with them are concluded, not only as to every matter offered and received to sustain or defeat a demand, but as to any other admissible matter which might have been offered , lor that purpose.
    7. Defensive matter existing at the time a party is called upon to respond to an order to show cause, but not set up as a defense, cannot afterwards be made the ground of an application for an order to show cause to restore the status which the responding party lost by the making of the prior order to show cause absolute, the matter being res judicata.

    8. A mortgage covering real estate and chattels, but not recorded as a chattel mortgage, is valid as between the parties to the instrument and their privies, and as a receiver cannot impeach any act which the corporation could not itself successfully assail, and while he may have a claim upon the chattels for the benefit of creditors represented by him prior to the lien of the mortgagee upon the chattels included in the mortgaged premises, that right does not entitle the receiver, after decree, to stay the sale for the purpose of adjusting such rights and equities as he might have applied to have done in the decree, and still may apply to the court for such portion of the proceeds of sale as may be ascertained to represent the value of the chattels.
    9. A defendant has a right to have the debt due to the complainant, and the property upon which it is a lien, settled by the decree, but cannot require that the decree shall settle in advance as to who may be entitled to possible surplus money.
    10. Proceedings looking to stay of execution for the sale of the mortgaged premises should be entitled and taken in the cause in which the mortgage was foreclosed, and not in the cause in which a receiver for the insolvent corporation was appointed.
    Pn bill, &c. On application of mortgagee to vacate order restraining sale of mortgaged premises.

      Mr. Lee F. Washington and Mr. Emerson Richards, for the Bankers Trust Company, mortgagee.

      Mr. Edward Maxson, receiver pro se, and Mr. Israel B. Greene, for the receiver.

      Mr. Samuel Hershenstein, for the Charles Albert Company, Incorporated, creditors.
   Walker, Chancellor.

Edward Maxson, Esq., was duly appointed and qualified as receiver of the defendant corporation in this cause, and on March 3d, 1925, an order was made and entered herein granting leave to the Bankers Trust Company, likewise a corporation, to file a bill against the receiver for the foreclosure of the mortgage given by the defendant Alamac Hotel Company, Incorporated, November 10th, 1922, for $150,000, to the Bankers Trust Company, which was done, and such proceedings were afterwards had in such foreclosure suit (Bankers Trust Co. v. Alamac Hotel Co., 57— 615), that a final decree was entered therein on August 25th, 1925, and a writ of fi. fa. in pursuance thereof was duly issued, directed and delivered to the sheriff of the county of Morris, who advertised the mortgaged premises therein described for sale, which sale was to have been cried off on Monday, October 19th, 1925. Two days previously, and on October 17th, the receiver applied to one of the vice-chancellors and obtained from him an order on the Bankers Trust Company, and the sheriff, to show cause before this court at the chancery chambers, Jersey City, on October 26th, why the Bankers Trust Company should not be restrained from proceeding with the sale, with an ad interim stay. On the return day, counsel for the Bankers Trust Company appeared in the chancery chambers at Jersey City, and attended before the vice-chancellor who was hearing motions, for the purpose of opposing the making of the order absolute. In the meantime the receiver obtained from another vice-chancellor, who was sitting for the hearing of causes, an order continuing the order to show cause until January 6th, 1925. Neither party criticises the other with regard to this transaction, and I, therefore, conclude that there was an inadvertence with respect to it, which entirely excuses Mr. Washington from laches.

The order to show cause on October 17th, 1925, restraining the sale, was obtained upon an affidavit of William Harris, Esq., one of the attorneys for Mr. Maxson, the receiver of the Alamac Hotel Company. It stated, inter alia, that on October 17th he received a telephone call from Mr. Hershenstein, one of the attorneys for the Alamac Hotel Company, reorganized, to the effect that he believed that if the sale were adjourned for about four weeks the hotel company would take over the New Jersey hotel in such a manner that it would be for the best interests of all the creditors and stockholders; that if the property were sold on the day fixed there would be no assets left for the administration of the estate.

The sale being thus held up, Mr. Washington applied to me for an order on Mr. Maxson, receiver, to show cause why both the restraining order and the order of continuance should not be vacated and the restraint discharged, so that the sale might proceed according to the command of the writ of execution. Such an order was granted, returnable November 4th, 1925, and was duly served as therein provided. It was obtained upon the facts above recited, and also affidavits by Emerson Richards, Esq., president of the Bankers Trust Company, the mortgagee; Mr. Max Grossman, vice-president, and Mr. Washington. Mr. Richards deposed that, at the request of Mr. Harris, counsel for the receiver, and upon statements from him that the receiver expected to be able to reorganize the Alamae Hotel Company or fin'd a purchaser for the premises in question, the Bankers Trust Company consented to a number of adjournments of the application for permission to file the bill for foreclosure, namely, from January 9th, 1925, to March 2d, 1925, when the order was taken, because nothing had been done on behalf of the defendant company; that about June, 1925, Mr. Maxson, the receiver, fully discussed the matter with him, Mr. Richards, and it was then and there agreed between them that the Bankers Trust Company should proceed with its foreclosure and should enter its decree for the full amount due to it, the receiver requesting a delay of sale under execution until Labor Day, 1925, by which time he stated he hoped to be able to find a purchaser for the property in question; that the Bankers Trust Company had been compelled to expend $4,500 for fire insurance upon the mortgaged premises and nearly $500 for advertising the sale, which was done extensively to interest bidders; that since notice of the restraint herein counsel for the mortgagee had instructed the sheriff to adjourn the sale from week to week; that on September 18th, 1925, the deponent met the receiver and counsel representing the New York Alamac Company, and, at their request, agreed to a three weeks’ delay in the sale by the Bankers Trust Company, in order to permit a further -opportunity to reorganize the Alamac Hotel Company; that deponent procured a purchaser to bid upon the property a sufficient sum to at least cover the claim of the mortgagee; that as a result of the restraint herein, and the possible prospect of a continuance of such restraint, it had become doubtful if such a purchaser would continue interested much longer, as he was negotiating for the purchase of another hotel. Mr. Grossman’s affidavit was mainly a corroboration of that of Mr. Richards.

Mr. Washington, corroborating the other affidavits, deposed that, about June, 1925, he was present at a conference between Mr. Maxson, receiver of the Alamac Hotel Company; Mr. Richards, president, and Mr. Grossman, vice-president, of the Bankers Trust Company, at which the receiver requested that the sale under foreclosure be delayed until after Labor Day, so as not to interfere with the operation by him of the hotel during the summer season, stating that he was quite hopeful that he would have a purchaser for the hotel by the fall of 1925; ..that this was agreed to; that upon receiving the order restraining the sale, he at once telephoned the sheriff, instructing him to adjourn the sale from week to week, which he agréed to do. And this I understand the sheriff has done. There is a letter from Mr. Washington to Mr. Harris, dated and sent April 17th, 1925, attached to Mr. Washington’s deposition and marked an exhibit, which is significant of the negotiations in this case, and which reads in part as follows:

“Your letter of the 15th inst. to hand. Our board met to-day and I read your letter to them. I was instructed not to consent to stipulation extending time to receiver to answer, as you requested, and I accordingly must return both copies of stipulation to you herewith unsigned. My clients feel that they have too much money tied up in this proposition. In addition, the matter has already caused them very great inconvenience and expense. They feel that other parties in interest have had since last fall to act and have done nothing to date 'r * * If you can arrange with some other hank or trust company to take an assignment of our mortgage, paying to my client therefor all the sums due them under said mortgage, they will probably consent to assign such mortgage. They have instructed me, however, to insist upon payment to them at this time of all sums upon said mortgage in full.”

Then follows advice that if the mortgage is purchased the purchaser could be substituted as complainant and his representative as solicitor and counsel, and Mr. Harris is admonished that if he wished to take advantage of the suggestion he should act immediately..

On the hearing before me no factual defense was made by the receiver, he and his counsel conceding that the facts stated in the affidavits filed on behalf of the mortgagee were true. They simply stated that, if given about a month’s time, they felt sure they could raise the money to pay off the mortgage or secure a purchaser at the sheriff’s sale. At the conclusion of the hearing I made an order vacating the restraining order and the order for its continuance, and directed the sheriff to proceed to sell as in the fieri facias he was commanded.

The reasons addressed to me for staying the sale might well have been addressed to the mortgagee, and, in fact, they were, and with success for a considerable period; but the trouble with the receiver’s cause on this score is, that he is not possessed of any equity. Equity, as a noun, is defined to be “an equitable claim or right (Webs. New Int. Dic. 742), and such a claim or right a party possessing it has a right to enforce, and the adversary party has no right to thwart that enforcement by anything less than countervailing right. An “equity” is not a chancellor’s sense of moral right, or any vague or indefinite opinion as altruism, but is a right cognizable in a court of chancery, governed by established rule and fixed precedents. See, generally, 3 Words & Phr. 2444, 2446.

The time within which payment might be made in exoneration of the mortgaged premises from the debt due from the mortgagor to the mortgagee, was nominated in the bond and stipulated in the mortgage. The mortgagee could, and did, extend the time for payment until forbearance, in its judgment, ceased to be a virtue. Then it commenced its suit and the law gave additional time, namely, the period necessarily occupied' in the pendency of the suit, which is considerable, even when the suit is undefended; but the court has not power to further extend the time except for some sufficient cause, such as a defee* m the proceedings or the like. The law disfavors the hindering and delaying of creditors, and the court cannot be induced to assist defendant in any such attempt.

The argument on behalf of the receiver is to the effect that it is inequitable and unconscionable not to give the Alamac Hotel Company additional time before selling the property which it pledged for the repayment of the loan to it by the Bankers Trust Company, and that, therefore, more time should be extended. The trouble with this claim is that it does not rise to the level of a right. The rights and equities of the parties to the mortgage were settled by the final decree of foreclosure. After that the defendant in the foreclosure suit had no right to obstruct the process of the law invoked by the mortgagee for the collection of its debt.

The position taken by the receiver is, in effect, an assertion that the complainant is resorting to unconscionable and oppressive procedure against the defendant. Not so. It is, on the contrary, onfy pursuing an absolute right which it has under the law and statutes of this state, plus the rules of this court. The question is not an open one. It was set at rest long ago by the opinion of the late Chief-Justice Beasley, speaking for a unanimous court of errors and appeals in Davis v. Flagg, 35 N. J. Eq. 491.

In that case (Davis v. Flagg) the court of chancery had restrained the prosecution of a foreclosure suit (but only upon condition that if complainant refused to assign his mortgage to such person as defendant might designate on tender of the full amount due to him, his action should be stayed). Chief-Justice Beasley (at p. 494) said: “The-legal pursuit of one’s right, no matter what may be the motive of the promoter of the action, cannot be deemed either illegal or inequitable.' In the present case, whatever the purpose of this second mortgagee may have been, he did no illegal act; the purchase of the first mortgage was legal and the prosecution founded on it was legal, and the consequence is that his suit cannot be stayed unless the rule is to be sanctioned that an assignee of a mortgage has no right to foreclose it, provided it be shown that, in obtaining such encumbrance, he was actuated by ill-will or other immoral feeling. The abstract precepts of the moral code, disconnected from property and the rights of persons, are neither enforced nor noticed by courts of law or by courts of equity.” And (at p. 495) he quoted from the case of Morris v. Tuthill, 72 N. Y. 575, as follows: “The motives of the former owner of the mortgages in selling, or the plaintiffs in buying them, are not material, and the appellant has no concern with the consideration of the assignment. It is sufficient that the mortgage debt is due and is now owned by the plaintiff. He may have bought the mortgages from motives of malice toward the defendant and solely with a view to sue upon them, and the former owner from a like motive may have transferred them without consideration, but this would not constitute a defense to the action. The defendant can only arrest the action by paying the amount due, or tendering the same and bringing it into court. The facts stated do not constitute an equitable defense.”

The chancellor’s decree in Davis v. Flagg was, as stated, unanimously reversed. The rule therein laid down was enforced by Vice-Chancellor Green in McFadden v. Mays Landing Railroad Co., 49 N. J. Eq. 176, and by me in Bull v. International Power Co., 84 N. J. Eq. 6. While the facts in the case at bar differ from those in the reported cases just cited, as the facts in most cases differ from those in other cases, the principle enunciated in Davis v. Flagg, McFadden v. Mays Landing Railroad Co. and Bull v. International Power Co., are controlling. To give their doctrine effect in a given case requires that the complainant shall be permitted to proceed at all stages óf the prosecution whether at the start or at the finish, and that it shall not be hindered and delayed in the recovery of its claim by anything short of a sufficient defense before decree, or of defensive matter of some sort arising after decree, going to its enforcement.

The debtor always has the option of appealing to his creditor for indulgence, but the court has no right to extend any such altruistic benefit. The complainant may always insist upon his strict rights and demand their enforcement. The courts are not only required to do justice, but to execute it.

Suppose the debt of the Alamae Hotel Company to the Bankers Trust Company were evidenced by a promissory note instead of residing in a mortgage. Upon default in payment the creditor would sue at law, and, upon recovery of judgment, which would have been inevitable, can it be pretended that an application could be made to the law court, in which the judgment was recovered, to stay its execution for any such reason or reasons as are given in this case? Certainly not.

Because the application to the vice-chancellor for a stay was rested on no equity, the order to show cause w^as improvidently granted, and will therefore be set aside. Of course, the order of continuance, which seems to have been unreasonably long, must fall with it.

It may be said that this action is one by the chancellor reviewing the order of vice-chancellor. It is true that the chancellor in all ordinary cases will decline to make such reviewq and leave the objecting party to obtain relief by appeal. Gregory v. Gregory, 67 N. J. Eq. 7. It is also true that the present case does not fall within either of the exceptions mentioned in Gregory v. Gregory, viren the chancellor will not refuse such a reviewc And in the earlier case of Rusling’s Admr. v. Bray, 38 N. J. Eq. 398, Chancellor Runyon held that an application for rehearing of a decree advised by a vice-chancellor should be made to and entertained by the chancellor only in exceptional cases, not enumerating them. As to the chancellor’s absolute power to do so in any case I make no doubt, and I think that this matter is one in which the chancellor may with propriet}'' interfere, and that he should do so. The order to show cause containing the stay was clearly made without warrant of law or equity to support it, and, therefore, comes within that rare class of cases where the chancellor should entertain an application to review the advised order. Obviously, however, this departure from the usual course cannot be drawn into a precedent generally.

And, now, subsequent to the making and filing of the order vacating and discharging the order to show cause with ad interim restraint upon the sheriffs sale, and the order for its continuance, counsel for the receiver of defendant company have applied to me to again restrain the sale, because the mortgage, being secured upon both' real and personal property, was never recorded as a mortgage of personalty, and that, therefore, so far as that class of property is concerned, it is void as against creditors represented by the receiver. They claim that only since the discharging order just mentioned did they learn that the mortgage was upon chattels as well as the real estate of the defendant, and that they have only since that time acquired a copy of the advertisement of sale, which discloses that personal property on the premises will be exposed along with the real estate. It is admitted that the advertisement for sale is in the same general language describing chattels as that contained in the mortgage. It is perfectly apparent that knowledge by the receiver and his counsel of the existence of the mortgage as a lien on chattels could have been ascertained long prior to the time they said they got actual notice. It existed in the mortgage, it existed in the execution and it existed in the advertisement of sale, all of which they were interested in and should have investigated and examined. In any event, the receiver and his counsel are chargeable with notice of these facts. Their request for a stay of the sale under the execution at this time comes too late because, for the additional reason, the matter is res judicata.

In City of Paterson v. Baker, 51 N. J. Eq. 49, Vice-Chancellor Van Fleet, quoting from Cromwell v. Sac County, 94 U. S. 351, said (at p. 53 of 51 N. J. Eq.), “that parties and those in privity with them are concluded, not only as to every matter offered and received to sustain or defeat the demand, but as to any other admissible matter which might have been offered for that purpose; for example, a judgment rendered upon a promissory note is conclusive as to its validity and the amount due upon it, although it be subsequently alleged that perfect defenses actually existed, of which no proof was offered, such as forgery,” &c. Again, the same vice-chancellor, in the same case, quoting from Beloit v. Morgan, 7 Wall. 619, said (at p. 56 of 51 N. J. Eq.), “that the judgment of a court having jurisdiction of the parties and the subject-matter of the suit is conclusive, not only as to the res of that case, but as to all further litigation between the same parties touching the same subject-matter, though the res itself may be different.” The doctrine of the City of Paterson v. Baker was approved by the court of errors and appeals In re Walsh's Estate, 80 N. J. Eq. 565, 569, 570. And further (at p. 59 of 51 N. J. Eq.) : “The doctrine under consideration is not a mere rule of procedure, limited in .its operation, and only to be enforced in cases where a defeated suitor attempts to litigate anew a question once heard and decided against him, but a rule of justice, unlimited in its operation, which must be enforced whenever its enforcement is necessary for the protection and security of rights and for the preservation and repose of society.” See, also, McMichael v. Horay, 90 N. J. Law 142; Goekel v. Erie Railroad Co., 2 N. J. Adv. R. 1591; 126 Atl. Rep. 447; Margolies v. Goldberg, 3 N. J. Adv. R. 188; 127 Atl. Rep. 271.

It is obvious that this matter of the mortgage covering chattels, in addition to the real estate, was as available to the defendant upon the hearing of the order to show cause why the order for stay and its continuance should not be vacated, as it is now. And if it were available to the defendant as valid ground to sustain the order for stay and its continuanee, as it should have been urged then and not reserved as ground for granting again the same relief as that attempted in the order for stay, as, indeed, it cannot be. A chattel mortgage, void as to creditors for want of statutory affidavit and proper record, is a lien upon the property mortgaged so far as the rights of the parties to the instrument are affected. Fidelity Trust Co. v. Staten Island Clay Co., 70 N. J. Eq. 551. Bergen, vice-chancellor, said (at p. 552) that it is well settled in this state that the appointment of a receiver for an insolvent corporation gives to its creditors such a lien upon the assets of the company as to give a receiver representing such creditors a footing in this court to contest the validity of a chattel mortgage covering its personal assets. But a receiver stands for the corporation and cannot impeach any act which the corporation itself could not successfully assail. Kuser v. Wright, Receiver, 52 N. J. Eq. 825, 828. And as between mortgagor and mortgagee a mortgage of chattels is good without filing Williamson v. N. J. Southern Railroad Co., 26 N. J. Eq. 398. Filing, record or registration is not, in the absence of statute, essential to the. validity of a chattel mortgage as between parties. 11 C. J. 511 § 189. It is true that our present statute requires that a chattel mortgage to be valid as against creditors and srrbsequent purchasers .and mortgagee's in good faith (which shall not be accompanied by an immediate delivery and followed by an actual and continued change of possession of the things mortgaged) shall have annexed thereto an affidavit stating the considération, &c., of the mortgage and be recorded in the proper county, as provided in the act concerning chattel mortgages (Comp. Stat. p. 468 §§ 4, 5) : but this, of course, makes no difference as to the validity of the instrument between parties and privies.

A sale by a receiver, under an order directing a sale by public auction, without any mention of prior liens or encumbrances, will transfer the property to purchasers subject to liens or encumbrances that may be upon it, and the validity and extent of the lien of a mortgage may be determined on application for disposition of the proceeds of sale. See Hack ensack Water Co. v. De Kay, 36 N. J. Eq. 548. Applications within this rule are constantly heard and determined by this court, especially in receivership proceedings.

It is also contended for the receiver that the value of the chattels included in the mortgaged premises should be settled before sale so that prospective purchasers may know how to bid. Not so. The defendant has a right to have the debt due to the complainant, and the property upon which it is a lien, settled by the decree. Point Breeze Ferry Co. v. Bragaw, 47 N. J. Eq. 298, State Mutual Building and Loan Asso., v. O’Callahan, 65 N. J. Eq. 738. And that is done by the decree in this case. But defendant cannot require that the decree shall settle in advance as to who may be entitled to possible surplus money. Semenowich v. Melnyk, 93 N. J. Eq. 67 (at p. 68).

In taking leave of the subject it is proper to observe that the application for a stay should have been made in the foreclosure suit of Bankers Trust Co. v. Maxson, Receiver of Alamac Hotel Co., in which the decree was entered and the execution awarded, and not in this case of W. D. Cashin & Co. v. Alamac Hotel Co., Inc., in which the receiver was appointed. However, this, in and of itself, is not fatal to the receiver’s proceeding; besides, no point is made of it by counsel on either side.


author: Walfer, Chancellor.

text:
    Lillian M. Feickert, petitioner, v. Edward F. Feickert, defendant.
    [Decided January 8th, 1926.]
    1. Under the provision of the federal constitution requiring full faith and credit to be given in each state to the public acts, records find judicial proceedings of every other state, and the acts of con-gross passed in pursuance thereof, and our Divorce act (P. L. 1901 p. lfil¡. § S'S), a decree of divorce pronounced by a court of competen*; jurisdiction of the State of Nevada is valid in New Jersey, provided the Nevada court had jurisdiction over the parties and subject-matter, unless the adjudication of that court was procured by fraud.
    2. Fraud is never presumed; but must be strictly proved.
    3. A divorce can be granted only to parties who are married, and cannot 'be granted to those who are already validly divorced.
    4. When a resident of New Jersey sues for a divorce in this state, and the other party is prosecuting a divorce suit, or has obtained a decree of divorce m another jurisdiction, the petitioner in this court is required to plead the foreign proceedings and decree of divorce and prove that they are invalid, to be entitled to decree here sought.
    5. In the case at bar the petitioner is given leave to plead the foreign proceedings, and the decree of divorce reported to have been obtained against her and allege their invalidity or a disinterested solicitor will be assigned to plead them defensively.
    6. In ordinary cases the parties being sui juris must protect themselves and defend their own interests. But divorce cases being sui generis the public is a party to them, whose rights must be protected by the court. And as the law favors marriage and disfavors divorce, it is the policy of the law, legislative as well as judicial, that all proper defenses be made or compelled.
    On application for order of reference ex parte.

      Messrs. McCarter & English, for the petitioner.
   Walfer, Chancellor.

This is a suit for divorce for desertion. The petition was filed October 6th, 1925. In it Mrs. Feickert alleges that she married the defendant, Edward F. Feickert, December 6th, 1902; that he deserted her in December, 1922, ever since which time and íot more than two years then last past he had willfully, continuedly and obstinately deserted her; that she had been a bona fide resident of New Jersey continuously since the marriage, and had no means of support except from her own exertions. She prayed that the marriage between her and the defendant might be dissolved for the cause aforesaid, and the defendant compelled, by the decree of this court, to support her. The citation, tested October 8th, and returnable October 19th, 1925, was returned non est by the sheriff of Union county, who stated in the affidavit annexed that he had been credibly informed and verily believed that the defendant, Edward F. Eeichert, was then resident in Reno, Nevada. In obedience to the rules of the court, Mrs. Feickert and Mr, English, who is of counsel for her, made affidavits for the purpose of securing an order of publication. Mrs. Feickert swore that her husband was not then, and for several months last past had not been, resident within the State of New Jersey; that she had addressed a letter to his sister, Mrs. F. H. Hawkins, of Plain-field, this state, requesting her to tell deponent the residence and post-office address of the defendant, to which Mrs. Hawkins replied that the last address (of defendant) known to her-was 429 South Virginia street, Reno, Nevada; that she knew of her own knowledge that the defendant had gone to Reno, Nevada, because he had instituted a suit against her in the second judicial district court of that state, county of Washoe, the summons in which was dated December 29th, 1925. Mr. English swore that he was a member of the firm, who were solicitors of the petitioner; that prior to filing the petition Mrs. Feickert exhibited to him a copy of the summons and complaint in the suit brought by her husband against her in the second judicial district court of the State of Nevada, county of Washoe; that the name of the attorneys for the plaintiff in that suit, who is the defendant here, was given on the summons and complaint as Price & Hawkins; that thereafter he wrote to Messrs. Price & Hawkins, stating that his firm represented Mrs. Feickert, who had filed a petition for divorce in the court of chancery of New Jersey against Mr. Feickert, and understanding that they represented Mr. Feickert in a similar proceeding in Nevada, they requested information as to the address of Mr. Feickert so.that they might serve him with copies of the papers, the object of the inquiry being to give Mr. Feickert notice of this suit so that he might appear and defend, to which they replied that Mr. FeickerPs address was Yori Apartments, South Virginia street, Reno, Nevada, he being then presently absent from Reno, but they understo'od was expected back shortly.

On October 29th an order of publication was moved for and made, requiring Mr. Feiekert to answer Mrs. Feickert’s petition on or before December 30th, or in default thereof such decree would be made against him as the chancellor should think equitable and just; and it was further ordered that notice of the order, prescribed by law and the rules of this court, should, within twenty days thereafter, be published, and that a copy of the petition and of the order, as service substituted for personal service of process within this state, bp made upon the defendant as prescribed by the rules of this court. This was done, as appears by the proofs of publication and service filed in the cause, Mr. Feiekert being served personally with a copy of the petition and certified copy of the order of publication on November 14th, 1925, at the office of his attorneys, Messrs. Price & Hawkins, in Reno, Washoe county, Nevada. The defendant’s time for answering expired December 30th, 1925, and, he having defaulted in pleading, petitioner’s counsel now moves for an order of reference to a special master to take depositions and other evidence to substantiate and prove the allegations in the petition, and to bring on the hearing ’of the cause ex parte. This order will be denied, at least, at this time, for reasons hereafter to be stated.

The parties to this suit are prominent people, Mr. Feiekert in banking and Mrs. Feiekert in political circles. Consequently, their matrimonial infelicities have received considerable newspaper notoriety at various times. With the knowledge that has come to me through newspaper articles and that obtained from the affidavits filed in this cause, I cannot shut my eyes to the fact that the defendant in this cause, Mr. Feiekert, has obtained a divorce from his wife, the petitioner, in the State of Nevada. Current newspaper reports, which are doubtless true, are to the effect that Mr. Feiekert (undoubtedly relying upon his foreign decree and the validity of it) he has contracted another marriage.

Mrs. Feiekert assumes to treat the Nevada proceedings and decree as invalid. I am not permitted to indulge any such presumption. In law the presumption is the other way. If they are invalid it is because they are fraudulent, and fraud is never presumed, but always has to be strictly proved.

Mr. Feickert, through confidence in the integrity of his Nevada decree, or, perhaps, indifferent to it, has failed and neglected to answer in this suit and assert its validity as a bar to his wife’s proceeding. The Divorce act (P. L. 1917 p. Ifllj. § IS) provides that in all uncontested causes where the court may deem it necessary or proper, a disinterested solicitor may be assigned by the court actively to defend the ease. Now, I would do less than my duty if I did not see to it either that the petitioner amends her petition, alleging the Nevada divorce and pleading its invalidity, or appoint a solicitor actively to defend.

In ordinary cases the parties being sui juris must protect themselves and defend their own interests. In re Shreve, 87 N. J. Eq. 7; affirmed, Ibid. 710. But divorce cases being sui generis the public is a party to them, whose rights are represented and protected by the court. And as the law favors marriage and disfavors divorce, it is the policy of the law, legislative as well as judicial, that all proper defenses be made or compelled. See Grant v. Grant, 84 N. J. Eq. 81; Divorce act § 18, supra. Now, in the language of the law: “I am credibly informed and verily believe” that Mr. Feickert has obtained a divorce in the State of Nevada, and that it is, presumably, valid. Of course, it may be overcome for fraud. I am, therefore, constrained to insist that that divorce shall be pleaded and successfully attacked as invalid before a final decree can be made in this case in favor of the petitioner.

In Magowan v. Magowan, 57 N. J. Eq. 195, Vice-Chancellor Reed held that a divorced wife cannot maintain an action for maintenance against her former husband. And, of course, a divorced wife cannot maintain an action for divorce against her former husband. In this same Magowan Case on appeal (Magowan v. Magowan, 57 N. J. Eq. 322) the court of errors and appeals held that where a plaintiff in a suit for divorce is required by statute to have been a bona fidje resident of the state in which his suit is brought for a fixed period of time, in order to enable him to maintain his suit, the ascertainment by the coxtrt of the fact of such residence necessarily precedes a consideration of the merits of the case, and the determinatioix of that question by the court is final, not only in the courts of that state, but in every other jurisdiction where the validity of the judgment comes in question, unless such determination has been procured by fraud. When, however, the adjudication has been procured by fraud, it is without extra-territorial effect, and the judgment will be treated as void in the courts of a sister state.

That is the crux of this case: Is the Nevada decree fraudulent? If not, Mr. Feiekert’s divorce is as valid here as there. If it is fraudulent, it is invalid here, though it may be treated as valid there.

In Fairchild v. Fairchild, 53 N. J. Eq. 678, the court of errors and appeals held that the oixly ground upoxx which the judgmeixt of a court of general jurisdiction can be disregarded in another state is — first, where the adjudging tribunal had no jurisdiction over the person against whom judgment was pronounced, or over the subject-matter of the litigation; and second, where the adjudicatioxx of the foreign court has been obtaixxed by fraud. Axid (at p. 679) it was observed that that suit was begun ixx the court of chancery by the respondexxt for the purpose of compelling her husband to maintain her, axxd, incidentally, to have the decree of the Kansas court (divorcing them) declared null and void. In Magowan v. Magowan, supra, it was stated that the bill was for maintexiance by the appellant against her husband, and that as an antecedent to the primary relief prayed for she sought to have declared void a decree of divorce rendered by the district court of the Territory of Oklahoma ixx a suit brought by her husbaxxd agaixxst her.

In Cole v. Cole, 96 N. J. Eq. 206, this court held that a Nevada divorce decree, which shows that petitioxxer therein was a bona fide resident there, is valid here ixx the absence of axx allegation of fraud.

Our Divorce act (P. L. 1907 p.°4-71¡. § S3) provides:

“Full faith and credit shall be given in all courts of this state to a decree of annulment of marriage or divorce by a court of competent jurisdiction in another state, territory or possession of the United States when the jurisdiction of such court was obtained in the manner and in substantial conformity with the conditions prescribed in sections 5, 6 and 7 of this act. Nothing herein contained shall be construed to limit tbe power of any court to give such effect to a decree of annulment or divorce by a court of a foreign country as may be justified! by the rules of international comity; provided, that if any inhabitant of this state shall go into another state, territory or country, in order to obtain a decree of divorce for a cause which occurred while the parties resided in this- state, or for a cause which is not ground for divorce under the laws of this state, a decree so obtained shall be of no force or effect in this state.”

This provision that full faith and credit shall be given in all courts of this state to a decree of annulment of marriage or divorce by a court of competent jurisdiction in another state, territory or possession of the United States, is but declaratory of the full faith and credit clause of the federal constitution and acts of congress. And, according to all the cases, a decree of divorce obtained in a sister state by a person who has a proper residential status there, is valid everywhere, unless procured by fraud. If the Nevada decree in the Feickert Case contains recitals which, on their face, ascertain that Mr. Feickert had* proper residential status there to begin and prosecute his suit in that state, and the decree adjudges that fact and grants a divorce, it cannot be denied that that divorce is valid in New Jersey, unless procured by fraud.

Now, of course, New Jersey can grant a divorce only to parties who are married, and cannot divorce parties who are already validly divorced. To divorce parties who are not married would be a nullity. And the court will not do a vain thing. Zudiak v. Szuryk, 93 N. J. Eq. 559, 561.

I am aware that in several cases in chancery the provision of our statute above quoted has been given force and effect. See Jung v. Jung, 85 N. J. Eq. 372; Lister v. Lister, 86 N. J. Eq. 30; Thompson v. Thompson, 89 N. J. Eq. 70; Hol lingshead v. Hollingshead, 91 N. J. Eq. 261; Sechler v. Sechler, 94 N. J. Eq. 47; Garrabrant v. Garrabrant, 95 N. J. Eq. 136. But in each one of them all the facts were before the court. In this suit all reference to the Nevada case is omitted.

The point in this whole matter in its present situation is, that the petitioner’s pleading does not give the court to. be informed of the Nevada suit, and the decree of divorce apparently there obtained. The petitioner in this case may be advised and believe that the Nevada decree is void here, but, nevertheless, in my judgment, it is her duty to plead the existence of that decree and allege that it is fraudulent and void and no impediment to this court granting her a decree of divorce, as was done in the Fairchild and Magowan Cases, and as was done also in the Sechler Case. In the Hollingshead Case it appears not to have been done, but there the defendant appeared and set up the foreign decree as a defense. No question was made concerning the pleadings, and, the foreign divorce being before this court, it was necessarily considered by it.

Of course, if a resident of this state goes into another state to obtain a divorce and does not acquire a bona fide residence there, such divorce will be null here, but its nullity will have to be proved here. And it is not in every case of one going into another state for the purpose of obtaining a divorce that this court will adjudge such divorce fraudulent for that reason. Judge Yroom, speaking for the court of errors and appeals in Wallace v. Wallace, 65 N. J. Eq. 359 (at p. 364), said: “I concur entirely in the principle laid down by the special master in this case that a person may legitimately move to another state in order to avail himself of the laws of that state, and this includes, necessarily, the right to remove into the jurisdiction of this state for the purpose of procuring a divorce, the only requirements being absolute good faith in the taking up of such residence and the animus manendi; in other words, the facium of residence and the animus manendi proves the domicile.” Magowan v. Magowan, 12 Dick. Ch. Rep. 324; Harral v. Harral, 12 Stew. Eq. 285; see, also, Rinaldi v. Rinaldi, 94 N. J. Eq. 14.

The petitioner in this case could not be permitted to make proof of the Nevada proceedings and decree and attack them as invalid, without pleading them. Testimony to be relevant and admissible must be such as will tend to prove a fact or facts in issue. Marsh v. Marsh Heating, &c., Co., 57 N. J. Law 36; Perkins v. Perkins, 22 N. J. L. J. 174. The petitioner in the case at bar has not put the invalidity of the foreign divorce of the defendant in issue by pleading it. This will have to be done if she is to proceed.

To give effect to the above views the petitioner will be allowed twenty days in which to amend her petition by setting out the Nevada proceedings and decree and allege their invaliditjr, which she will, of course, be allowed to prove, or, in default thereof, a disinterested solicitor will be appointed under the Divorce act, section 18, to plead those proceedings and decree by way of defense.


author: Lea mino, V. C.

text:
    John F. Nolan, Sr., complainant, v. George W. Kirchner, defendant.
    [Submitted November 23d, 1925.
    Determined December 1st, 1925.]
    Where a contract for sale of land provides for liquidated damages, there must be something apart from the fact that (hero is such provision in the contract to show that the payment of the damages named is to be equivalent to performance, and that the contract is therefore an alternative one.
    By his bill complainant, as vendee, seeks to compel defendant, as vendor, to specifically perform a contract for the sale of real estate.

      A motion which has been made by defendant to strike ont the bill raises the single question whether a certain clause in the contract, a copy of which contract is annexed to the bill, and which clause stipulates a specific amount as liquidated damages in' case of breach, is operative to deny to complainant the remedy now sought.
    The clause relied upon in support of the motion is as follows :
    “It is further understood and agreed that each of the parties makes this agreement only upon the express agreement and understanding that in the event of default of the other party in performing the terms of this agreement the defaulting party shall be bound to pay unto the other party the sum of $2,000 as liquidated damages and not as a penalty to cover all damages for said breach.”
    On bill for specific performance. On hearing on -motion to strike out bill of complaint.

      Mr. William■ Harris, for the defendant.

      Messrs. Oarr & Carroll, for the complainant.
   Lea mino, V. C.

Since Crane v. Peer, 43 N. J. Eq. 553, it has been uniformly held in this state that the mere presence of a stipulation for liquidated damages for breach of a contract of this nature does not make the contract an alternative one. As expressed by Vice-Chancellor Reed in Avon-by-the-Sea Land Improvement Co. v. Thompson, 60 N. J. Eq. 207, 211, “there must be something apart from the fact that there is a provision for liquidated damages to show that its payment is to be the equivalent for performance.” The general view is that the primary object of contracts of this nature is deemed to be performance, not non-performance, and it is not to be presumed that stipulated damages for non-performance is intended to defeat that primary object in the absence of terms of the contract or its relation to the subject-matter which adequately disclose the contrary to have been the intent of the parties. The cases in this state supporting that view are the following: Crane v. Peer, supra; Brown v. Norcross, 59 N. J. Eq. 427; Avon-by-the-Sea Land Improvement Co. v. Thompson, supra; Myers v. Steel Machine Co., 67 N. J. Eq. 300; Resnick v. Campbell, 68 N. J. Eq. 348; American Ice Co. v. Lynch, 74 N. J. Eq. 298; Porter v. Williams, 93 N. J. Eq. 88; affirmed, Ibid, 505; Rittenhouse v. Swiecicki, 94 N. J. Eq. 36; Coltinuk v. Hockstein, 95 N. J. Eq. 513; Randolph v. General Investment Co., 96 N. J. Eq. 227. An extended review of authorities in other states will be found in 32 A. L. R. 584, et seq.

No circumstances are here disclosed in aid of the terms of the contract above quoted.

It is urged in behalf of the motion that the word “only,” as there used, adequately discloses an intent of the parties to give to the damage clause a force the reverse of that ordinarily attributed to clauses of that nature. The word “only,” as there used, may be given appropriate force in the defined purpose of the parties to fix a given amount as the measure of damages in the event of non-performance; consistently with the authorities above cited, the word, as there used, cannot be understood as disclosing an additional purpose of the parties to confer an exemption from performance at the option of the defaulting party.

In the motion which has been filed it is specified that the contract is not in the alternative. I have assumed that this was intended by counsel as a specification to the effect that the contract is in the alternative.


author: Leaking, Y. C.

text:
    Mabel P. Irwin, petitioner, v. Ralston T. Irwin, defendant.
    [Submitted December 1st, 1025.
    Determined December 17th, 1925.]
    1. While periodical payments for a wife’s support as stipulated in a separation agreement between husband and wife may be enforced by the wife against the husband, by such agreement the wife cannot preclude herself from invoking the aid of court to obtain more than has been agreed upon in the event of the husband's subsequent adultery and existing needs for a greater amount for the wife’s support.
    2. The same is equally true where, pursuant to the terms of a separation agreement, a sum in gross has been paid in discharge of ihe husband’s duty of support.
    3. Our statute does not empower the court of chancery to award a sum in gross as alimony, and exhibits an intention that the subject shall be continuously dealt with according to varying circumstances of the parties.
    4. The husband’s ability to pay for the support of his wife and the justice of the wile’s enjoyment of her right are subject to the change of circumstances which a court cannot anticipate, and, hence, complete justice requires that the court’s power to act shall be kept open so long as it shall be needed to direct just variation.
    5. A wife’s claim for alimony is a purely personal right, and not, in any sense, a property right, a right in its nature not susceptible of either assignment or enjoyment by her in anticipation.
    6. The conception of alimony as a just expression of matrimonial duties renders it impossible for a husband to purchase immunity from future liability, should conditions arise in which justice impels a reassertion of the rights of the wife.
    7. Alimony awarded after the payment of a sum in gross under a separate agreement.
    On final hearing on petition for divorce and alimony.
    The petition in this snit charges defendant with adultery, and prays for a divorce a vinculo matrimonii and alimony.
    The evidence establishes the fact that defendant is guilty of adultery as charged.
    The only question for present consideration is whether petitioner is entitled to alimony.
    September 16th, 1913, a decree of divorce a mensa el thoro was entered in this court in favor of petitioner and against defendant. In that decree defendant was ordered to pay to petitioner until the further order of the court for her support and the support of her minor child $25 per week. April 8th, 1915, without sanction of court, a formal agreement (in general form a separation agreement) was executed between petitioner, a third party as her trustee and defendant, in which $3,375 was agreed upon as a sum in gross to be paid by defendant in full satisfaction of all future claims against defendant for support of petitioner and her son. The amount so agreed upon was paid to the trustee and thereafter paid to petitioner. At this time the son has attained his'majority and petitioner is without means, and is again in need of support from defendant. No claim is urged that the engagements of petitioner and her trustee were not intelligently made.

      Mr. Lewis Siarr, for the petitioner.

      Messrs. Endicoll & Endicoll, for the defendant.
   Leaking, Y. C.

No adjudication in this state has been brought to my attention in which- it may be said that an agreement between husband and wife contemplating their living apart and stipulating the amount the wife shall be entitled to receive in satisfaction of the husband’s duty of support, has been recognized as operative to withdraw from this court the performance of its statutory duty when granting a decree of divorce for the subsequent adultery of the husband to award alimony to the wife in such amount as shall be found from “the circumstances of the parties and the nature of the case” * * * “fit, reasonable and just.” In Hires v. Hires, 91 N. J. Eq. 366; affirmed, 92 N. J. Eq. 451, adjudications are reviewed which disclose that, while such agreements may be enforced against the husband, the wife cannot preclude herself by her agreement from invoking the aid of the court to obtain more than has been agreed upon, in the event of necessity. Nor can the payment of a gross sum, which the wife has agreed to accept in discharge of her future claims to support, be regarded as standing on a different plane from agreements contemplating periodical payments. In Calame v. Calame, 25 N. J. Eq. 548, it was early held by our court of errors and appeals that our statute1 — now substantially the same as then — does not empower this court to award alimony in gross, and that view has since been given repeated recognition by the same court. That view flows, not only from the fact that our statute exhibits an intention that the subject shall be continuously dealt with according to varying circumstances of the parties, but also from the further fact, as suggested in Lynde v. Lynde, 54 N. J. Eq. 473, that the husband’s ability to pay and the justice of the wife’s enjoyment of her right are subject to the change of circumstances which the court cannot anticipate, and, hence, complete justice requires that the court’s power to act shall be kept open so long as it shall be needed to direct just variation. Consistently with that view our court of errors and appeals in Lynde v. Lynde, 64 N. J. Eq. 736, has defined a wife’s claim for an allowance of alimony as a purely personal right, and not, in any sense, a property right, as a right in its nature not susceptible of assignment by the wife to another, nor capable of enjoyment by her in anticipation. From this conception of alimony as the just expression of a matrimonial duty, it seems clear that what the court cannot admeasure as a finality the husband cannot limit by the purchase of immunity from future liability, should conditions arise in which justice impels a reassertion of the rights of the wife.

Touching the justice of an order for support at this time, it should be sufficient to say that petitioner is now without means, and the amount paid to her in settlement was less than one-fourth the aggregate amount she would have received had the weekly payments been continued as ordered by the court.

A decree nisi will be advised and the amount of weekly payments as alimony will be determined after an examination of a transcript of that part of the testimony relating to defendant’s income and earning capacity.


author: Teaming, Y. C.

text:
    Salim A. Loutuff and George A. Loutuff, complainants, v. Nathan Friedenberg and Fred Siris, defendants.
    [ Submitted November 10th, 1925.
    Determined December 4th, 1925]
    1. In a contract for the sale of land, which stipulated that settlement should be made “on or before” a specified date, and that possession should be delivered to the vendee at the time of settlement, it was hold that the provision for settlement before the specified date and the delivery of possession to the vendee at the time of settlement embodied the idea that any settlement before that date should be through the voluntary co-operation of the parties.
    2. In a contract for the sale of land, which stipulated that settlement should be made “on or before” a specified date, and that possession should be delivered to the vendee at the time of settlement, it was held that a 'bill filed by the vendee for specific performance before the specified date was prematurely filed and should be dismissed.
    On bill for specific performance. On hearing on motion to strike out bill.
    By the bill of complaint filed herein complainants, as vendees, seek specific performance of a contract for the sale of real estate. Defendants have moved to strike out the bill on the ground that its averments disclose that it has been prematurely filed.
    A copy of the agreement is annexed to and made a part of the bill. It bears date July 25th, 1925. The purchase price agreed upon is $39,000, payable as follows: $1,000 at the time of signing the agreement; an additional $1,000 within thirty days from the date of the agreement; $1,000 additional within sixty days from the date of the agreement; $9,400 by the assumption of a first mortgage now on the property; “$6,000 in cash at the time of final settlement as hereinafter provided”; the balance of the purchase price by a second mortgage of specified terms to be executed by the vendees. The time for settlement is provided for by the following clause:
    “Said settlement to take place on or before January 2d. 1926, or the deposit herewith made or any future deposits made on account hereof, at the option of the seller, shall be forfeited as liquidated damages or shall be applied to the purchase price.” * * * “Possession of the premises to be given on the day of final settlement.”
    The bill was filed October 10th, 1925, and discloses that the $3,000 cash payments have been made and that complainants are now desirous of making final settlement, and are now prepared to pay the final cash installment and execute the purchase-money second mortgage, but that defendants refuse to make-settlement until January 2d, 1926. Accordingly, the only question for determination at this time is whether defendants have obligated themselves to make final settlement before that date. If not the bill cannot be entertained.

      Mr. Raymond L. Siris, for the motion.

      Mr. Lewis Starr, opposed.
   Teaming, Y. C.

I am unable to read the clause of this contract touching the time for settlement as the equivalent of a clear and specific stipulation that the vendees shall enjoy the option to require settlement at a time prior to January 2d, 1926.

It will be observed that the clause is framed in the alternative and may be reasonably understood as intended as no more than a stipulation that unless settlement should be made by the vendees on or before the date named the vendors, at their option, should be privileged to appropriate the prior payments as liquidated damages or treat them as payments on account of the purchase price.

Other clauses of the contract may be said to strengthen that view. By the terms of the contract the vendors are required to convey the property free from encumbrances or liens, except the first mortgage, the payment of which vendees are to assume; until that conveyance is made the purchase-money second mortgage cannot be executed by vendees. So, too, is possession to be given on the day of final settlement. These are important duties, the time for the performance of which is demonstrated by common experience to be of substantial concern to a vendor. In these circumstances it should not be for a vendee to determine when it may be possible or convenient for his vendor to make title or deliver possession, in the absence of a stipulation clearly conferring that right.

It is suggested in behalf of complainant that a promissory note payable on or before a specified date contemplates the privilege of payment before the specific date. That is because the payment of the debt is the only obligation of such a contract. It has also been held that a contract for the sale of land in certain circumstances may be specifically enforced against the vendor before the day named for performance, but that was onty after the contract had been wholly repudiated by the vendor. Stein v. Francis, 91 N. J. Eq. 205. Here there has been no repudiation further than a refusal to perform before the day specifically named. Wall v. Simpson, 6 Marsh. J. J. (Ky.) 155, has been cited in support of the bill; but in that case, while the vendee agreed to pay on or before a specified date, the vendor was not required by his contract to surrender possession at the time of final payment, and the provision in the contract for the vendor to retain possession for a specified time after the vendee should have paid the full purchase price was by the court treated as intended for the protection of the vendor in case of payment before the specified date.

I entertain the view that in a contract of this nature in which the vendor has active duties to perforin at the time of settlement, such a delivery of possession or other duties which may make the time of settlement of substantial importance to him, a general provision for settlement on or before a specified day may be reasonably understood as embodying the idea that any settlement before the specific date named shall be through the voluntary co-operation of the parties, in the absence of a stipulation which clearly imports a contrary intent, and that the clause here in question, especially in view of its structural characteristics, when considered in its relation to the other provisions of the contract, cannot be said to clearly entitle either party to require p?' formance before the specific date named.


author: Backes, V. C.

text:
    Calvin M. Depew, complainant, v. C. W. Depew & Company et al., defendants.
    [Decided November 27th, 1925.]
    An unfiled conditional bill of sale made by a corporation is enforceable against its receiver if there be no creditor of the corporation having a lien upon the goods “by attachment or levy.”
    On motion to direct receiver to return goods sold on conditional bill of sale.

      Mr. Richard M. Glassner, for the motion.

      Messrs. Grossman & Kwaliclc, for the receiver.
   Backes, V. C.

The receiver has in his possession two Mack trucks sold to the defendant company by the Mack International Motor Truck Company under a conditional bill of sale. The first of the eighteen monthly installments was paid. Those due since are in default. The receiver declines to pay and refuses to surrender the truck because a copy of the conditional bill of sale, filed in due form and in the proper public office, did not bear the signature of the president of the defendant company, as did the original. His claim is that it is not a true copy. It is assumed, not decided, that the copy is defective. ' No creditor of the defunct company had a lien by “attachment or levy” upon the trucks when the receiver was appointed.

The conditional sale was good against the company without the filing of a copy of the contract. It is void, if not filed, only as against purchasers without notice and creditors who acquire liens “by attachment or levy.” 2 Comp. Stat. p. 3130. The receiver stands in the shoes of the company. As the company could not attack the contract, he cannot. Koerner v. U. S. Waxed Co., 94 N. J. Eq. 655; Falaenau v. Reliance Steel Foundry Co., 74 N. J. Eq. 325; Smith v. Hotel Ritz Co., 74 N. J. Eq. 616.

The receiver will be ordered to hand over the property.


text:
    William Heron Trippe et al., complainants, v. National Newark and Essex Banking Company et al., defendants.
    [Decided December 4th, 1925.]
    1. If an estate vests within the prescribed period, the postponement of the time of enjoyment beyond lives in being, and one and twenty years thereafter does not contravene the rule against perpetuties.
    2. If the time of payment offends the rule against restraint upon enjoyment the restriction is void, not the gift.

      Messrs. Blealcly, Stoclcwell & Burling, for the complainants.

      Messrs. Pitney, Hardin £ Skinner, for the defendants."

      Mr. Edward M. Colie, for the infant defendant.
   Backes, V. C.

William R. Trippe died May 20th, 1923, leaving a last will and testatment dated October 8th, 1922, duty probated. In the eighth paragraph of his will he gave to the National Newark and Essex Banking Company $100,000, in trust, to pay the income to his children, Luc3r, Grace and William H. Trippe, in equal shares, their children to take the parent’s share of the income if any should die before the termination of the trust; upon the death of one of his children without legal issue the income to be divided between the two survivors, and upon the death of a second of his children without legal issue,

“then one-half of the income of said trust fund shall be paid in like manner to the surviving child for and during the term of his or her natural life, and upon his or her decease leaving lawful issue, then to such lawful issue or his or her descendants until they severally attain the age of twenty-five years, at which time they are to receive the principal; the remaining half of the principal of this trust fund, together with any unexpended income thereof, or accretions thereto, shall be devoted, in conjunction with one-half the principal of another fund hereinafter directed to be established and held by my children or trustees, viz., the fund mentioned in section eleven to the establishment, uses and maintenance of a Working Girl’s Vacation Home, and shall be held .by the trustees and transferred, assigned and paid over to the corporation hereinafter more specifically mentioned for those purposes.”

By the eleventh paragraph he gave the residue of his estate to his executors (his three children) substantially upon the same trust imposed by the eighth paragraph, and then provided that — •

“The Working Girl’s Vacation Home is to be established in case any two of my children shall die, leaving no lawful issue who attain the age of twenty-five years, or legal descendants of the same who attain said age, with one-half part of the principal of the trust fund mentioned in the eighth section or paragraph of this will immediately upon the happening of that event, the remaining portion of the principal being held for the benefit of my surviving child, and his or her descendants, if any ; and, in like manner, one-half of the trust fund hereby directed to be established from the residue of my estate is to be devoted and applied to lliat purpose immediately upon the death of any two of my children, without lawful descendants; and if all of m.y three children die without lawful issue and without lawful descendants of any such issue who shall attain the age of twenty-five years, then the remaining portion of the trust fund mentioned in said eighth section or paragraph, as well as the remaining portion of the fund herein mentioned, with any accrued income or accretions, is to be applied and devoted to that purpose.” (Then follows directions for operating the home.)

By the twelfth and thirteenth paragraphs he testated as follows:

“Twelfth. Should all of my children die prior to May 1st, 1940, leaving no. lawful issue and no descendants of such issue, then the whole of said trust funds shall be used and devoted to the establishment, maintenance and purposes of said Vacation Home, under the conditions hereinbefore provided, in conjunction with a similar fund establshed by the will of my wife, Buoy Jewett Trippe, if the same comes into existence under terms of her will; and the trustees of said trust fund who may be appointed to succeed the last surviving child shall have power to sell, convey and lease any real estate that may then be unsold.
“Thirteenth. Should any of my children die leaving lawful issue, then the child or children of the deceased parent shall receive and take the parent’s one-third share of said trust fund, the income from which is to be applied to their support or added to tile principal, as may be deemed best, until they severally reach the age of twenty-one years; thereafter, and until they severally reach the age of twenty-five years, such income is to be paid directly to them, and upon their reaching the said age of twenty-five years the entire principal sum, with any accumulation of interest thereon or accretion thereto, of the parent’s share of the trust fund, shall be paid to them.”

The testator’s three children and an infant child of his son survived him. The two daughters, aged, respectively, forty-three and thirty-two, are unmarried.

The three children of the testator filed this bill, claiming that the trusts, in respect of gifts of corpus, violate the rule against perpetuities and are void, and, consequently, that the testator died intestate as to corpus, and that, as they hold the life interest and are next of kin, they are entitled to the estate.

A slight rearrangement of the structure of the will removes whatever confusion there may be as to the testator’s intent and purpose.

The income of the estate is given to testator’s children for life, in equal shares; at their death to their issue until they arrive at the age of twenty-five years, when they are to have the principal. Until twenty-one they may have the benefit of the income in the discretion of the trustees, and, thence, the use until they are twenty-five. If two of his children die without issue, the share of the survivor and his issue is increased to one-half; the other half is to go to the vacation home. The whole of the estate is to go to the vacation home if all three children die leaving no lawful issue or lawful descendants who reach twenty-five years of age or die before 1940. By legal issue the testator meant children. It will be noted that if only one child dies without issue intestacy follows as to its share.

The single question to be determined is whether the complainants are entitled to recover the corpus of the estate, and for answer we need look no further than the thirteenth paragraph of the will. By its provisions the lawful issue of the testator’s children are, on the death of their parent, to receive and take their parent’s one-third share of the trust funds. The gift of principal vests immediately upon the death of the parent, the enjoyment of the income being postponed until the issue severally reach twenty-one, and of the principal until they reach twenty-five, with possible beneficial use of the income until twenty-one. If an estate vests within the prescribed period, the postponement of the time of enjoyment beyond lives in being and one and twenty years thereafter does not contravene the rule against perpetuities. Dusenberry v. Johnson, 59 N. J. Eq. 336; Lembeck v. Lembeck, 73 N. J. Eq. 427; In re Smisson, 79 N. J. Eq. 233; Canda v. Canda, 92 N. J. Eq. 423. If the time of payment offends the rule against restraint upon enjoyment the restric-. tion is void, not the gift. Gray Perp. (3d ed.) 100, 503 Foulkes Perp. 292; Lembeck v. Lembeck, supra.

It would seem that the vested estates are subject to being divested or modified as to quantity, only, if two or all three children die without issue or descendants attaining twenty-five years of age. It is suggested, not decided, that if the gifts, upon these events, under the eighth and eleventh paragraphs are void for remoteness, which seems to be the principal contention of the complainants, then, the limitations over, if they are such, being void, there would be no divestment.

The gifts of corpus to the grandchildren under the thirteenth paragraph are independent of and not at all implicated with the alleged invalid gifts of corpus under the eighth .and eleventh paragraphs. McGill v. Trust Co., 94 N. J. Eq. 657.

We are not to assume that any of the three children of the testator will die without leaving issue, and, of course, not the more remote possibility that two or all of them will die without leaving lawful issue so as to bring into discussion the legality of the gifts of corpus under the eighth and eleventh paragraphs. It may well be, as complainants contend, that these gifts are void under McGill v. Trust Co., supra, but we are not at this time concerned with the disposition of the estate upon the events upon which they are predicated. Those contingencies have not arisen and may never happen. If they or either ever come to pass others may then have come into being and have the right to be heard. Nor are we to anticipate that all three children may die without issue before 1940, and what then would happen. It would be inappropriate to decide at this time the status of the trusts upon the happening of any of these contingencies. Nagle v. Conard, 79 N. J. Eq. 124; Tanner v. Boynton Lumber Co., 98 N. J. Eq. 85.

The contention of the complainants that the testator tied up the principal of his estate for the benefit of his grandchildren, in violation of the rule against perpetuities, is not sustained. His chief concern was the support of his children and his grandchildren, the latter until the3r arrived at mature judgment, and the postponement of enjo3mrent of the principal was in furtherance of his solicitude for his grandchildren during a period of possible indiscretion. Such restrictions upon enjoyment are permissible. 2 R. C. L. 347; Lembeck v. Lembeck, supra. At all events, the complainants cannot impeach them. The cestuis que trustent alone may. Foulkes Perp. 293.

The complainants are not entitled to the estate. Moreover, the gifts of the income to the legal issue of the testator's children are valid and would bar recovery, even if the gifts of corpus were void for remoteness. McGill v. Trust Co., supra.

Bill dismissed.


author: Baches, Y. C.

text:
    Abraham Kaufer, complainant, v. Jacob Rothman, defendant.
    [Decided January 7th, 1926.]
    A partner who wrongfully appropriates partnership assets must account for their real, value, not the sacrificed price for which he sold them. ■
    On exceptions to master’s report.

      Mr. Herman Krohn and Messrs. Stein, Stein & Hannoch, for the complainant.

      Mr. Philip J. Schotland, for the defendant.
   Baches, Y. C.

The parties to the suit were partners, retail dealers in furs. The partnership came to an abrupt end when the defendant made way with most of its merchandise on a Sabbath while his more orthodox and pious partner was at devotions in the synagogue. An accounting was ordered. An inventory taken nine days before showed merchandise assets of $6,444. The value of the remnant taken over by the receiver in the cause, three days after the business was wrecked, was $1,140. The defendant admitted selling some of the furs in bulk for $1,600, the market value of which was conceded to be $1,925. The master charged the defendant only with the goods he had sold and at the price he received, to which the complainant excepts. The master should have determined the value of the merchandise as of the day of the involuntary dissolution, and the value of the remnant in the receiver’s hands, and, after making due allowance for sales from the time the inventory was taken until the closing down of the business, charged the defendant with the difference, giving him opportunity to further discharge himself if he could. The inventory should have been taken as prima facie evidence of the stock and value. The burden of discharging himself of the difference was upon the defendant because of his responsibility for the confusion. The defendant is liable for the real value of the assets appropriated by him, not the price at which he sold them. Phillips v. Reeder & Prior, 18 N. J. Eq. 95. Exception sustained.

The defendant was allowed $647.23, which he claimed he paid to one Klein, a debt of the co-partnership. The proof rests solety on the testimony of the defendant, and it is not convincing. There is no satisfactory voucher. The exception is sustained, with leave to produce further evidence to support the discharge.

The master refused to charge the defendant with $94 cash alleged to have been in the safe of the firm on the day of the raid and taken by the defendant. The charge is not established ; the proof that the money was in the safe does not preponderate. Exception overruled.

The master charged the complainant with $250, the price of a fur coat — merchandise of the firm — sold by him to Mrs. Krumholtz. He received and accepted credit for the sum on interest due on a debt owed by him to the purchaser. Exception overruled.


author: Baches, V. C.

text:
    Edwin A. Schill, complainant, v. The Board of Chosen Freeholders of the County of Essex et al., defendants.
    [Decided January 8th, 1926.]
    A tenant of premises taken in condemnation proceedings ha® no right to a separate award for the value of his tenancy or the loss of business; he must look to the general award for his compensation.
    On motion for a preliminary injunction.

      Messrs. Lazarus, Brenner & Viclcers (Mr. Viclcers), for the complainant.

      Mr. Arthur T. Vanderbilt, for the defendants.
   Baches, V. C.

In condemnation proceedings instituted by the board of chosen freeholders of Essex county, the commissioners awarded to the complainant, his mother and two sisters, individually and as executors of the estate of his father, Ludwig Schill, deceased, $60,000, for their land Nos. 31, 33 and 35 Thirteenth avenue, Newark. The fee is in the children, dower in the mother, and the executors have power of sale. The complainant carries on the photographic business on the studio floor of No. 31 Thirteenth avenue, formerly conducted by his father, and given to him by his father’s will, which also gives him the right of occupancy of the studio floor, until the property is sold, at the rental prevailing in the father’s death.

The gravamen of the complaint is, that no separate award was made to the complainant for damages to his business and right of occupancy, which he estimates at $15,000, and that the board of chosen freeholders may pay the award into court and take possession of the land, which they threaten to do, before a verdict of a jury can be had on an appeal which has been taken to the circuit court. The prayer is that the board be restrained from taking possession. There was a preliminary restraint, which should not have been granted, and the board now moves to dissolve it and to dismiss the bill for want of equity.

The complainant is not entitled to a separate award. Upon an award 'of a sum, the equivalent of the value of the land and the damage, and its tender or payment into court, possession may be taken {Comp. Stat. p. 2181), and if the complainant has any particular estate or interest in the land for which he is entitled to special compensation, it must be made to him out of the general award. The rule is settled in this state. Bright v. Platt, 32 N. J. Eq. 362; Crane v. Elizabeth, 36 N. J. Eq. 339; Zimmerman v. H. & M. R. R. Co., 76 N. J. Law 251; Herr v. Board of Education, 82 N. J. Law 610. Whether the complainant is entitled to specific compensation for peculiar loss or damage must be decided on motion for distribution of the sum paid into court.

Whether he is entitled to damage for injury to his business. See Board of Freeholders v. Emmerich, 57 N. J. Eq. 535; Philadelphia and Camden Ferry Co. v. Inter-City L. R. R. Co., 76 N. J. Law 50.

The right of the county to take possession of the land without first making compensation has not been mooted.

The restraint will be dissolved and bill dismissed.


author: Backes, Y. C.

text:
    H. Windholz & Son, complainant, v. William J. Burke, defendant.
    [Decided December 24th, 1925.]
    1. Equity will, in a proper case, relieve against a forfeiture and restrain summary proceedings to dispossess a tenant even though there are legal defenses available in the suit at law.
    2. Equity will not refuse to interpose when the remedy is more nearly complete and perfect in equity than at law.
    Oil motion for a preliminary injunction.

      Messrs. Kraemer & Siegler, for the complainant,
    illr. John J. Bresli/n, for the defendant.
   Backes, Y. C.

The complainant leased from the defendant a factory building and covenanted, among other things, that it would not “make any alterations therein without the written consent of the landlord, under penalty of forfeiture and damage,” and stipulated that upon “a breach thereof the term herein shall immediately cease and determine at the option of the landlord as if it were the expiration of the original term.” The defendant lately filed a complaint in the district court for the second judicial district of the county of Bergen alleging “that said H. Windholz & Son, Incorporated, did breach and break said lease in that said company made certain alterations on said premises without the written consent of the deponent, and said H. Windholz & Son, Incorporated, have willfully destroyed and damaged the above premises,” and that written demand for possession of the premises had been made and refused. Summons issued directing the complainant to appear before the court and show cause why possession should not be delivered to the defendant. This bill is to restrain the prosecution of the action. The complainant admits it made certain alterations, specifying them, but sets up that the defendant participated and acquiesced therein, and that a certain other specified alteration, not acquiesced in, was necessarily made to comply with the health laws of the state, and, further, that the defendant, with notice of the alterations, accepted rent and thereby waived the forfeiture. It is further set up that the premises were not destroyed and damaged other than by said alterations. A temporary restraint issued, and the motion is for a preliminary injunction. The defendant denies, in his affidavit, previous knowledge of; consent to or acquiescence in,, the alterations first mentioned, but the proof in support of the bill leads strongly to the belief that he knew the alterations were being made and that he took rent with notice. As to the alterations made to conform to the health laws h°e says he had and has no knowledge. On the issue of fact the proofs of the complainant prevail, and it is entitled to- the protection of this court, unless it has, as the defendant contends, a complete and adequate defense at law.

The causes for action to dispossess are twofold for a breach of the covenant and for destroying the premises (laws of 1920, chapter 260), and in either aspect the right to recovery rests upon a forfeiture, to which a waiver would, undoubtedly, be a good defense at law (North v. Jersey Knitting Mills, 98 N. J. Law 157), ,and as to the alterations necessarily made to conform to the state health laws it could be pleaded that the covenant was not inclusive and was subordinate to the laws of the state, and that the penalty of forfeiture did not apply. The complainant could also, it would seem, succeed in overthrowing a judgment, on a review by certiorari, for want of jurisdiction in the district court to oust for breach of covenant (Smith v. Sinclair, 59 N. J. Law 84), and it could succeed, no doubt, in nullifying the proceedings for insufficiency of the complaint in stating the causes for action. Gray v. Reynolds, 67 N. J. Law 169. The nature of the alterations are not specified, nor is it stated in what respect the complainant wantonly destroyed and damaged the premises, nor is it alleged that a right of re-entry was reserved in the lease in the event of such destruction, as required by the act of 1920. The constitutionality of the act, for want of proper title, might, also, be successfully assailed, and there may be other grounds of which the complainant could avail itself and defeat the action at law, but it is not driven to such expediencies. Equity relieves against the forfeiture. 1 Pom. Eq. Jur. (4th ed.) 857; Thropp v. Field, 26 N. J. Eq. 82; Levy v. Blackmore, 67 Atl. Rep. 1022; Commercial Trust Co. v. Wertheim Coal Co., 88 N. J. Eq. 143. Furthermore, if the district court has jurisdiction, and erroneously should refuse to entertain or uphold the defense of waiver, or any other valid defense, its judgment would be final, the complainant’s possession would be lost to it, and its only remedy would be a suit for damages for unlawful ouster. McGann v. La Brecque Co., 91 N. J. Eq. 307. The proceedings are summary; there is no appeal on the merits, and, on certiorari, the only reviewable question is, had the court below jurisdiction. Cases in 4 Park. Dig. 7917. The relief the complainant presently stands in need of is the protection of its possession, not damages, and while the law may grant compensating damages for the injury now threatened, equity prevents the infliction of the injury altogether. It is obvious that the defense at law is not complete and adequate. Equity will not refuse to interpose when the remedy is more nearly complete and perfect in equity than at law. Hanwood v. Jarvis & Schafer, 27 N. J. Eq. 247.

There will be an injunction.