author: Backes, V. C.

text:
    Harry D. Gihon et ux. v. James H. Morris et al.
    [Decided October 24th, 1918.]
    1. Where sellers of real estate innocently misrepresent to the'buyers that the title was all right and marketable, and the buyers, relying on this representation part with their money, equity will grant them relief by rescission of the sale.
    2. If such sale is rescinded, the buyers must account for the use of the property and the sellers for the interest on the price paid.
    8. Tlie evidence in this case shows that the price of the property was $5,500 and not $5,000.
    Oil bill, &C.

      Mr. Charles J. Falcey and Mr. John IT. Ilajes, for'the complainants.

      Mr. Frederick W. Gnichiel and Mr. Barton B. Hutchinson, for the defendants.
   Backes, V. C.

This bill is to rescind a contract for the sale of land on the ground of misrepresentation and to recover the purchase price.

The defendants sold to the complainants a dwelling-house on Bellevue avenue, Trenton, in 1908, for $5,500. The complainants occupied it as their home and recently, just before the bill was filed, sold it to one Barlow for an increased sum, and upon the title being examined by the purchaser it was found to be defective and ho refused to carry out his bargain. The defect' in the title was this: The vacant lot upon which the complainants’ house and three others were erected by the defendants was owned by Thomas J. Donogliue, now deceased, who by his will gave his real estate to his widow for life, and by the ninth section devised as follows:

“After the decease of- my said wife, I give and devise all my said lands and real estate to said five children above mentioned, to wit, Joseph Doran, Mary T. Doran, John J. Doran, Thomas Donoghue and Joseph Donoghue, in equal shares; and if either of them be then deceased and leaving lawful issue,/said issue shall bé entitled to take the share of his or her parent, and "if either of them be deceased without leaving such issue'/the survivors shall take the whole of said estate in equal shares.”

Joseph Donoghue convoyed to the widow. John died without issue. The widow and the remaining three devisees, Mary T. Horan, John J. Doran and Thomas J. Donoghue, who are still living, conveyed the premises in 1906 to James H. Morris, who held it for the defendants, as co-partnership property. It is quite apparent that the defendants did not acquire and had not a clear title to the property conveyed to the complainants. Mrs. Donoghue had but a life estate- and the remaindermen’s vested fee is liable to be divested upon their dying before the life tenant, leaving children. One John J. Doran has two children.

When the complainants bought the property they placed a inortgage on it for $3,500 a3id paid the difference in cash. They sue to recover the $2,000 on the grotuid that the title was misrepresented to them. William J. Morris negotiated the sale with Mr. Gihon, and upon the latter suggesting that he would secure a lawyer to search tire title was told that it was unnecessary, that the title was all right, meaning, as Mr. Morris admits he intemled, to convoy that the title was free from defect, that it was clear a3id marketable. .There can be no doubt, from the testimony of the two who made the bargain, that the representation was that the title was perfect in the defendants in all respects, nor that it was untrue, in fact. The complainants’ counsel argues that the representation was a'more expression of opinion, but I cannot accept that view; it was, as well, a representation of a fact, and was so regarded, and was 33itended to persuade Mr. Gihon of the needlessness of having the title examined. For such a misrepresentation, upon which the complainants relied and parted with their money, equity will grant relief. Eibel v. Von Fell, 55 N. J. Fq. 670. An effort was made to show that the representation was knowingly false and intentionally made to deceive, in which, however, the complainants have failed. The Morrises paid the fair market value for the vacant lot and expended a large sum of money in building houses on it. It is barely possible that they suspected that complete ownership was not in their grantors and that all was not right, and took a “gambler’s chance,” but the heavy expenditures they made is a powerful argument in favor of their belief in the integrity of the title. It was not necessary, though, for the complainants to go to that length to entitle them to recover. Proof of willful falsehood was not essential. It is sufficient that the representation was one of fact, that it was false and that the party relying upon it suffered in consequence. Eibel v. Von Fell, supra; DuBois v. Nugent, 69 N. J. Eq. 149; Straus v. Norris, 77 N. J. Eq. 33. As stated by Sir George Jessel, in Redgrave v. Hurd, 20 Ch. Div. 1, cited by Yice-Chancellor Emery in DuBois v. Nugent: “According to the decisions of courts of equity it was not. necessary, in order to set aside a contract obtained by material false representation, to prove that the party who obtained it knew at the time when the representation was made that it was false. It was put in two ways, either of which was sufficient. One way of putting the case was: A man is not to be allowed to get a benefit from a statement which he now admits to be false. Pie is not to be allowed to say, for the purpose of civil jurisdiction, that when he made it he did not know it to be false; he ought to have found that out before he made it.’ The other way of putting it was this: ‘Even assuming that moral fraud must be shown in order to set aside a contract, you have it where a man, having obtained a beneficial contract by a statement which he now knows to be false, insists upon keeping that contract. To do so is a moral delinquency; no man ought to seek to take advantage of his own false statements.’ The rule in equity was settled, and it does not matter on which of the two grounds it was rested.”

'There will be a decree for.the complainants. The complainants must account for the irse of the property; the defendants for the interest on the purchase price.

After deciding the main issue the defendants asked for a further hearing, setting up that the consideration price for the property was $5,000 and not $5,500, and that they were liable only for $1,500. Although William J. Morris and his wife testify that the price was $5,000, they have no definite recollection and speak only from impressions, while, on the other hand, Mr. and Mrs. Gihon'are positive of the amount they paid and fortify their recollection.by circumstances regarding which it is doubtful that they can be mistaken. The clear weight of the evidence favors the complainants. Mrs. Morris, a very esteem-able lady, who was not present when the transaction was consummated, and who knows little of the matter other than what was told her by her husband, affirms that the price was $5,000, mainly upon her understanding that the purchasers of the remaining three houses paid $5,500, and that there was a reduction made to the Gihons of $500 because of their friendly and intimate relations. Mr. Morris is of the same opinion and for the same reason. Both witnesses are absolutely honest in their belief in this circumstance and mean to tell the truth, but are mistaken, and this is established by a Mrs. Weeden, who purchased the adjoining house and who testified that she paid $6,-000 for it. If the defendants favored the complainants to the extent of $500, it was by reducing the asking price from $6,000 to $5,500. Now,‘the Gihons rely on a circumstance to corroborate their statements, which furnishes a firm and convincing basis for their recollection. They sold their home, the only property they owned, for $1,700, to buy the new one from the Morrises. Out of the proceeds they paid $1,500 and gave a note for $500, which, together with the $3,500 raised by mortgage, made up the $5,500. The cash and note were paid to Mr. William ,T. Morris in the Gihon old home in the presence of Mr. and Mrs. Gihon, and they so testify. It is not at all strange that Mr. Morris should not remember this, for it appears that his memory is not especially tenacious in regard to the details. He neither admits nor denies nor speaks specifically of facts calculated to induce belief, but rather he reasons from the standpoint, no doubt honestly enough assumed, that the selling price of the group of houses was $5,500 each, and that because of the supposed reduction made to the Gihons he received but $5,000 from them. He is in error, as I have shown, in his hypothesis and necessarily in his conclusions. It is not remarkable that his memory fails to serve him and that he should have fallen into this mistake, nor is it unbecoming that I should place reliance in the circumstances supporting the testimony of Mr. and Mrs. Gilion. The Morris brothers are, and have been for years, extensively engaged in the building and selling of dwelling-houses. In carrying on their business, dwelling-houses were a commodity, while with the Gihons the transaction was epochal; it was for them the purchase and acquisition of a home, and it is but reasonable to deduce that their recollection of what they paid is keener and that their memory is more reliable than that of the merchant who, out of hundreds of like sales, attempts to recall the price of this one. There are also these two things in the case that strongly persuade me that the truth is with the Gihons. Lt is alleged in the bill, and virtually admitted by the answer, that the purchase price was $5,500. On the first day’s hearing there was not the slightest challenge of this allegation. After the hearing was over Mr. Morris said to Mr. Gihon that he, Gilion, was mistaken in his testimony of the manner in which the $2,000 had been paid, that the note given in part payment was not for a thousand dollars, as Mr. Gihon had testified, but that it was for $500, and that $1,500 was paid in cash. That testimony stands in the case uncontradicted and I must give it due weight.

As I understand, the parties regard the use of the house and . the interest on the purchase price as a stand-off, and a further accounting will not be necessary.

Some testimony was given to the effect that a fireplace was torn out and a window installed by the Gihons. This has increased rather than diminished the value of the property.

There will be a decree directing the defendants to pay to the complainants $2,000 on the 4th day of June next at two o’clock at the office of Mr. Gnichtel, at which time the complainants will deliver a deed of conveyance without covenant, unless other arrangements convenient to the parties are made. Possession-must also be given at that time.

The complainants are entitled to costs.


source: Caselaw Access Project

license: Public Domain

text:
    Charles R. Rogers v. Mary Rogers Lippincott et al.
    [Submitted September 24th, 1918.
    Decided October 3d, 1918.]
    1. A beneficiary under a will directing the sale of property who was not made a party to a foreclosure whereby the interests of the other beneficiaries were extinguished, and who is therefore the only person interested in the exercise of a power of sale, has a right to defeat that power by electing to take the land.
    2. Where he elects to take his interest in the land in lieu of specie under the bequest in the will, he has the right to enforce his election by filing a bill for partition, being a tenant in common with the holder of the title secured through the foreclosure suit.
    3. Beneficiaries under a will directing the sale of land, by mortgaging their interests in the land, elect to reconvert the personalty into real estate'.
    William A. Bogers, the complainant’s grandfather, died seized of the land sought to be partitioned, leaving surviving a widow and five children. By his will he gave his propert}^ real and personal, to his widow during widowhood and empowered his executors, after the death of his wife, to sell his real estate and divide the proceeds among his children “that may be living at that time, or to the lawful issue of any that majr have died leaving such issue.” The widow died leaving surviving her the defendants-Mary Bogers Lippincott and Thomas I. Bogers, children, and the complainant, a son of a deceased child, the only surviving heirs-at-law of the testator. During the lifetime of the widow a mortgage made by the testator covering the premises was foreclosed in this court and the property sold to one Dechert who forthwith conveyed it to the defendant Mary Bogers Lippincott. The complainant, who was then an infant, was, for some unexplained reason, not made a party to the suit, although all the other heirs and beneficiaries were joined.. The executors have not exercised the power of sale and the complainant, who is now of age, has elected to take 1ns undivided third interest in the land in lieu of specie under the bequest in the will and to enforce his election, has filed this bill for a partition. The defendant Mary Rogers Lippincott moves to dismiss the bill on the grounds that the complainant
    “has no interest in the lands disclosed in said bill that is capable of being partitioned. His interest, if any, being only in the proceeds of said land when sold according to the terms of the will of William A. Rogers."

      Mr. Bayarcl Stockton, for the motion.

      Mr. William J.. Baches, for the complainant.
   Backes, V. C.

The argument in support of the motion is that the complainant cannot defeat the power of sale by electing to take the land unless all of the beneficiaries join in the election. Condict v. Condict, 73 N. J. Eq. 301. The principle that land equitably converted into personal property cannot be reconverted into realty by the owners of the fee entitled to the personalty unless by unanimous consent, is of no assistance to the defendant because the interests of the beneficiaries under the will in question, except that of the complainant, and their estate in the land, as heirs of the testator, have been extinguished by the foreclosure suit under a superior title arising out of the mortgage made by the testator, and as to them the power of sale has been exhausted. The only person now interested in the exercise of the power of sale is the complainant, and, as his interest in the proceeds of sale is identical with his estate in the land, he has the right to defeat the power by electing to take the land. Doyle v. Blake, 77 N. J. Eq. 142. Thus, as a tenant in common with the defendant Mary Rogers Lippincott, he may maintain the bill to partition the premises.

Moreover, it appears by the allegations of the bill that the defendants executed mortgages upon their several interests in the land. This was an election on their part to reconvert the personalty into real estate. Gest v. Flock, 2 N. J. Eq. 108; Maddock v. Progressive Investment Co., 84 Atl. Rep. 575.

The motion is denied, with costs.


text:
    Jeremiah Ahern v. John Littl et al.
    [Submitted. November 11th, 1918.
    Decided November 21st, 1918.]
    1. Emblements are covered by a mortgage until severance, but belong to the mortgagor afterwards, unless pledged specifically and expressly.
    2. The provisions of the mortgage under consideration did not give the mortgagee a lien in the crops after they were cut.
    On motion for directions to receiver.

      Mr. Edmund A. Hayes, for tlie mortgagee.

      Mr. George E. Pace, for the mortgagor.
   Backes, V. C.

In this foreclosure suit of the first mortgage on a farm a receiver was appointed to take the growing crops of wheat and rye, and also grain then cut but not gathered. The farm was in the possession of the mortgagor and the crops were raised by him. The mortgaged premises .have been sold and there is a large deficiency on the second mortgage. The holder of this mortgage now moves that the receiver be directed to deliver to him all of the crops or proceeds thereof when sold.

The rule is that the mortgagee is entitled to the standing-crops, and the mortgagor to those severed, at the time the mortgagee, or the receiver in his stead, takes possession, or when possession is lawfully demanded .by the mortgagee and refused. The mortgagor, until foreclosure or possession taken by the mortgagee;. is entitled to the emblements, and, when they are severed, has an absolute right to them without any liability to account for them. They are covered by the mortgage until severance, but belong to the mortgagor afterwards. Jones Mort. § 697.

The mortgagee, however, claims that his mortgage gives him a lien on the cut crops and for this he relies upon the usual set form, in print Upe, immediately following the description of the landj viz., “together with all and singular the profits, privileges and advantages, with the appurtenances to the same belonging, or in anywise appertaining.”

To -entitle a mortgagee to the emblements, after severance, or an accounting for their value, they must be pledged expressly and specifically. Wilt. Mori. For. § 806. Manifestly, the formula quoted does not import such an undertaking. In legal effect the terms add nothing to the mortgage security. They mean no more than the law implies in such instruments, that after default and upon entry, only, the growing crops pass with the land. Similar provisions in mortgages, and some more explicit, have frequently been the subject of judicial consideration. Jones Mort. § 771. Mr. Justice Harlan, speaking for the United States supreme court in Freedman's Saving Co. v. Shepherd, 127 U. S. 494, says of them: “It is, of course, competent for the parties to provide in the mortgage for the payment of rents and profits to the mortgagee, while the mortgagor remains in possession. But when the. mortgage contains no such provision, and even where the income is expressly pledged as security for the mortgage debt, with the right in the mortgagee to take possession upon the failure of the mortgagor to perform the condition of the mortgage, the general rule is that the mortgagee is not entitled to the rents and profits of the mortgaged premises until he takes actual possession, or until possession is taken in his behalf by a receiver (Teal v. Walker, 111 U. S. 242; Grant v. Phœnix Life Insurance Co., 121 U. S. 105, 117); or until, m proper form, he demands and is refused possession. Dow v. Memphis Railroad Co., 124 U. S. 652, 654. See, also, Sage v. Memphis and Little Rock Railroad Co., 125 U. S. 361.”

The receiver will be directed to deliver the harvest of the growing crop to the mortgagee, and of that which was cut when he took possession, to the mortgagor.


text:
    Abigail Q. VanFleet v. Martha Quicksall and William H. Haines, executors of George W. Quicksall, deceased.
    [Decided November 23d, 1918.]
    1. Where all of the estate of a life tenant charged with the payment of a legacy to remaindermen was bequeathed to one of the remainder-men, his executors must respond, although the legacy has no ear-marks of identification.
    2. If the life tenant got the entire principal of the legacy, where she had the right to use as much thereof as was necessary for her support, the fact that she mingled the legacy with her own funds would not, in the absence of fraud, require the executors of one to whom she bequeathed her entire estate, chargeable with the payment of the legacy, to account for the entire amount.
    On bill, &C.

      Mr. IF. Iloli Apgar, for the complainant.

      Mr. Linion Sabtertluoaibe, for the defendants.
   Backes, V. C.

This bill is to recover a legacy. Elizabeth Zelley-died in 1874, leaving an estate inventoried at $2,224. She directed her executrices, her two sisters, Jemima and Julia A. Zelley, to invest $2,-000, they to receive the income for life, and

“if it should so happen that said income' with that from their other moneys is inadequate for their support, they and the survivor of them are authorized to use so much of the principal as they or she may need, even if it should take the whole.”

Of what remained, $100 was given to her nephew James R. Zelley, the residue to be equally divided among her niece Elizabeth Z. Quicksall, and her two nephews George W. Quicksall and Aaron Quicksall. The executrices did not account.

Jemima Zelley died intestate, in 1879, and her net estate of $1,923.24 was distributed among her next of kin by Julia, her administratrix.

Julia died in 1890 testate, bequeathing her residuary estate to her nephew George W. Quicksall, whom she appointed executor. He qualified and accounted, charging himself with a net balance of $3,073.82. He paid the bequest of $100 to James R. Zelley.

George *\Y. Quicksall died in 1901 testate, leaving his estate to his executors, the defendants, in trust to pay the income to his widow for life, with remainder over to various legatees. The executors accounted in the orphans court and now hold $3,218.52 in trust under the terms of the will.

Elizabeth Z. Quicksall and Aaron Quicksall, two of the beneficiaries, in remainder, of the $2,000 legacy created by the will of Elizabeth -Zelley, died in 1879 intestate. Aaron left, surviving him the complainant, his daughter and administratrix, who sues to recover the share bequeathed to her father. She claims it upon the theory that the full amount of the legacy came to the possession of Julia, and upon her death to George W. Quicksall, her executor, and, upon his death, to his executors, from whom she seeks an accounting. If the whole or any part of the fund held by Julia came 'to the hands of George W. Quicksall, his executors, undoubtedly, must, respond. The defendants insist that the court is without jurisdiction and that there can be no recovery unless the trust fund held by Julia can be traced and identified among the assets of George W. Quicksall in the hands of his executors, the defendants, and cite the following cases to support the proposition: Ellicott v. Kuhl, 60 N. J. Eq. 333; Collins v. Lewis, 60 N. J. Eq. 488; Heinisch v. Pennington, 73 N. J. Eq. 456; Harrison v. Fleischman, 70 N. J. Eq. 301; Pierson v. Phillips, 85 N. J. Eq. 60; Fidelity Trust Co. v. Federal Trust Co., 87 N. J. Eq. 550; Bank Commissioners v. Security Trust Co., 70 N. H. 536; Little v. Chadwick, 151 Mass. 109; Lowe v. Jones, 78 N. E. Rep. 402; Hewitt v. Hayes, 91 N. E. Rep. 332; Lincoln v. Morrison, 90 N. W. Rep. 905.

Upon 'examining these authorities it will be found that they deal with efforts to gain preferences by impressing trusts upon the assets of estates held for the benefit of creditors generally, or to impress a- trust upon specific property to which the fund held in trust bore no direct relation. This case is of neither sort. Here the object is to establish a claim against the executors, to the amount of a' trust fund which came to the hands of their testator- and which he applied to his own use. To entitle the complainant to a recovery, in such circumstances, requires no “ear-marks” of identification. All of Julia’s estate charged with the payment of a legacy came to the possession of the defendant’s testator, for which he, if living, could have been called upon to account, and that duty is now devolved upon his executors. Smith v. Moore, 4 N. J. Eq. 485; Carpenter v. Gray, 37 N. J. Eq. 389; Evans v. Evans, 57 Atl. Rep. 872. See, also, Lightfoot v. Davis, 198 N. Y. 261.

The question, then, is: For what sum must the estate of George W. Quicksall respond? Surely for no more of-the legacy than came to the hands of Jul-ia, and for no more thereof than remained unexpended at the time of her death, for she had the right to use the whole of it. Now, how much did she get? Elizabeth Zelley’s estate of $2,231- comprised a bond, notes, household goods and wearing apparel. How much of this was realized in cash, and what was used to pay funeral expenses and debts, there is no means of knowing. That $2,000 in cash was available for the legacy is doubtful. Moreover, did Julia re-, ceive all that remained or did her co-executrix take some, and how much? This is beyond establishing.

Even if we assume that she got $2,000, she had the right to use it. She and her sister were authorized to use as much of the principal of the legacy as they might need, if the income thereof, together with that from their own moneys, was not adequate for their support. The two sisters, Jemima and Julia, lived together. The sum of their combined estates was small. It is barely possible, but highly improbable, that the income was sufficient for their maintenance. Julia was an invalid for years, and I have little doubt that many times they had to call upon the principal to square deficiencies. To say how often, and to what extent, would be mere guess-work. It is claimed, however, that it was Julia’s duty to keep a strict account of her trusteeship, and for her failure to do so, the accounting should be for the full amount she charged herself with by her inventory of Elizabeth Zelley’s estate, viz., $2,224. Vice-Chancellor Pifney’s ruling in Hunt v. Smith, 58 N. J. Eq. 25, .is relied upon, but the measure of accountability there applied, under somewhat different circumstances, and which, as a rule, is enforced only when dereliction of duty appears is too rigorous in circumstances like the present, where the trustee’s power over the funds was tantamount to ownership. The more equitable doctrine is that of Cox v. Wills, 49 N. J. Eq. 573. There the testator gave a legacy to his widow, of which she was by will to distribute among his near relatives so much as she should not use for her comfortable maintenance. She mingled the legacy with her own funds, and rrpon a bill filed by her executrix, for instructions, Mr. Justice Scudder, speaking for the court of errors and appeals, said: “That she should have kept the trust fund received from her husband’s estate separate from her own, and charged the expenses of her maintenance to this fund, is now evident. But by mingling this with her own she incurred no penalty or forfeiture, without fraud, of which there is no pretence in the case. Pratt v. Douglas, 11 Stew. Eq. 516, 540. Equity will follow and separate them and will put upon thp trustees the burden of distinguishing what is his. Central Bank of Baltimore v. Connecticut Mutual Life Insurance Co., 104 U. S. 54; Perry Trust § 447."

It is impossible, of course, at this late date to make an accurate separation. Enough appears, however, to> show that from Elizabeth Zelley’s death, in 1874, to the death of Julia, in 1890, at least all in excess of $1,000 was absorbed under the authority of the will for the support of the life tenants. More may have been, but I stop at that amount, and for this reason: On March 25th, 1879, Julia invested $1,000 on a bond and mortgage of Benjamin E. Schuyler’s, executed to her as “surviving executrix of Elizabeth Zelle3, deceased.” The bond and mortgage came to the possession of George W. Quicksall, and his executors, the defendants, collected $500, the balance then due. Five hundred dollars had been previously paid to Julia on January 14th, 1890, a little more than a month before she died, and, undoubtedly, forms part of the inventory of her estate, under an item of “Cash in Burlington Bank, $1,000.” One thousand dollars of the legacy was untouched at Julia’s death and passed to the hands of the defendants’ testators and • eventually to the defendants. Of-this $100 was paid to the nephew James R. Zelley, as already stated. The complainant is entitled to a decree for one-third of the remaining $900, with interest from the date of Julia’s death, with costs.

The answer sets up that the complainant is in laches, but this defence was not advanced on the argument, and counsel has since informed me that he purposely refrained from pressing it, and, evidently, for the reason that during her minority, the complainant’s mother applied to George W. Quicksall, the defendants’ testator, for payment of the legacj^, which he refused. Later on the complainant and her mother consulted counsel and were advised that she had no claim. Upon this she relied until recently, when she was correctly informed of her rights. In the meantime there has been no- change in the situation, and the delay has caused no embarrassment to the defendants in presenting their proofs. . • •

The administrator of Elizabeth E. Quicksall is entitled to one-third of the legacy. Elizabeth died single and the complainant is entitled to one-half of her estate, but as her administrator has not asked for jelief, no decree can be made in his favor.


text:
    Dona Anderson v. Broad Street National Bank, Trenton, et al.
    [Argued October 29th, 1918.
    Decided December 2d, 1918.]
    1. An insured cannot affect the rights of a beneficiary named in his policy of insurance by assigning the policy, although he reserved the right to change the beneficiary. An assignment is not a change of beneficiary.

      2. An “assignment” clause in a life insurance policy — Held, not to reserve dominion over the policy in the insured by implication so as to give an assignment the effect of a change of beneficiary.
    On bill, &c.

      Mr. Frederic B. Brace, for the complainant.

      Mr. George 17. Macpherson, for the defendant bank.
   Backes, V. C.

The question in this case is, Who is entitled to the proceeds of life insurance policies, the beneficiary named in the policies or the assignee of the insured? The proceeds are in court. The facts stipulated by counsel are:

The New York Life Insurance Company, at the instance of William O. Anderson, issued to him two policies in each of which it

“Promises to pay at the Home Office of the Company in the City of New York, upon receipt at said Home Office of due proof of the death of AVilliam O. Anderson, herein called the insured, Five thousand dollars, less any indebtedness hereon, to the Company and any unpaid portion of the premium for the then current policy year, to Dona, wife of the Insured, beneficiary, with right of revocation.”

Two pertinent clauses of the policies are: .

“Change of Beneficiary. When the right of revocation has been reserved, or in case of the death of any beneficiary under either a revocable or irrevocable designation, the Insured, if there be no existing assignment of the Policy, made as herein provided, may, while the Policy is in force, designate a new beneficiary with or without reserving right of revocation by filing written notice thereof at the Home Office of the Company, accompanied by the Policy for suitable endorsement thereon. Such change shall take effect upon the endorsement of the same on the Policy by the Company. If any beneficiary shall die before the Insured the interest of such beneficiary shall vest in the Insured.”
“Assignment. Any assignment of this Policy must be filed with the Company at its Home Office. The Company assumes no responsibility as to the validity of any assignment.”

Anderson owned and operated a corporation, and to secure for it a line of discount to the amount of $10,000 assigned the policies to the hank as security. The assignment was filed at the home office of the company. It was filled out on a blank form of assignment furnished for that purpose by the insurance company. The bank advanced $8,800 and this amount was unpaid at the time of Anderson’s death.

The bank’s claim to the proceeds is rested upon the theory that the insured by reserving the right of revocation retained the absolute ownership of the policies and the right to dispose of them by assignment, and that that right is recognized by the clauses above stated.. On the other hand, the beneficiary, admitting that the insured had the power to deprive her of her interest, contends that her right remains undisturbed because the power was not exercised in the manner provided by the “Change of Beneficiary” clause; that the assignment was not an appointment of a new beneficiary under this provision, and that the bank took by it only the increments of the policies and the contingent rights of the insured if he outlived the beneficiary.

Sullivan v. Maroney, 76 N. J. Eq. 104; affirmed, 77 N. J. Eq. 565, is, in its legal aspect, on all fours with this case and is controlling unless some differentiating elements demand the application of other principles. In that case the insurance on the life qf Mrs. Cahill was payable to her children, if living, and if not, then to her personal representatives. The. insurance was effected and paid for by the assignee under an agreement that the policy was to be assigned.to her by the insured, which was done. The right to revoke the beneficiaries was not in terms reserved, but the policy afforded that privilege and provided for assignments by clauses substantially like those above quoted. There, as here, the right of the beneficiaries was conditional and defeasible. Cooley Briefs Ins. 3755. Vice-Chancellor- Garrison, in awarding the proceeds to the beneficiaries, rested his decision upon well-established principles, viz.: That in an ordinary life policy the interest of the beneficiary is vested and cannot be divested without his consent; that where a policy reserves the right to the insured to change the beneficiary and prescribes the method, the interest of the named beneficiary can be defeated only by pursuing that method; and that an assignment of the policy by the insured is not a compliance with the requirements for effecting a change of beneficiary and does not accomplish that result. The assignment was featured and given prominence as operating only upon the contingent interest of the insured and not upon that of the beneficiaries, and the reviewing court regarded this as decisive of tire case, quoting from the opinion below: “There were, therefore, always two sets of interests in this policy — the beneficiaries (who would get the money if they were living at the death of the insured) and the representatives of the insured (Lo whom the money would come if the insured outlived the beneficiaries). Each of these interests was undoubtedly subject to assignment. Neither one could, in my view, assign anything excepting that which would come to that one; and the assignment of neither could possibly impinge upon the rights of the other. In other words, the beneficiaries, if of age, could undoubtedly assign their interests, under the policy, and the insured could, undoubtedly, as against- her estate; and so as to bind it, assign that interest — i. e., the interest which would come to her estate.” In the present case there were two such interests. In the case cited the contingent interest of the insured was payable to her personal representative, while here the policies provided for payment to the insured if the beneficiary predeceased him. The court of errors and appeals noted the fact that the assignment was written on a form issued by the company, as was the case here, and was “manifestly drawn to comply, not with the provisions of the policy for change of beneficiary, but with those relating to assignment, properly so called,” and agreed with the vice-chancellor that “this paper must be treated as an assignment and is not available to affect a change of beneficiary.” It furthermore declared that “if it had been intended to work a change of beneficiary,-the method of doing so was. cléarly pointed out and should have been followed. The paper that was executed being not a change of beneficiary but an assignment, and by its very terms conveying only the right, title and interest of Mrs. Cahill, is conclusive of the intent of the parties and should not be extended by construction.” The court’s remark that it agreed with the vice-chancellor “that as a general rule the interest of a beneficiary is vested and cannot be divested by an assignment of the policy by the assured.” sug■gests a reservation that caused me to pause and to consider whether such an assignment would divest the interest of a beneficiary that is conditional only. After a careful examination of the authorities, I am of the opinion that whether the interest be regarded as vested and defeasible, contingent, a mere expectancj', or whatever the characterization may be, if the policy stipulates the course by which the beneficiary’s interest is to be .nullified, he cannot be deprived of his right unless the prescribed mode for its destruction is followed, and that the assignment in this case by the assured had not that effect. The judgment in the Sullivan Case rests as securely on this as it does on the ground that the assignment by Mrs. Cahill appertained only to her title. The latest authority upon this phase of the law of insurance, brought to my attention, is Johnson v. New York Life Insurance Co., L. R. A. (1916) 868. The cases arc gathered in the opinion and the editor’s note.

The text in 14 R. C. L. § 171, that “it would seem clear that the insured may assign the policy where he has reserved the right to change the beneficiary,” is not supported by the note nor the cases cited. In the two Kentucky cases referred to the "insured reserved the right to assign the policy as well as to change the beneficiary.

The doctrine of the text-books and decisions, that the insured retains control of the policy and may dispose of it at will, where the right to change the beneficiary is reserved, will be found upon an examination of the cases to be subject to the qualification that the power may be exercised within the prescribed limits of the contract only. The extent of this power is perhaps best illustrated by the rule defining the beneficiary’s interest in such circumstances, as laid clown in the note and cases referred to in 14 R. C. L. § 171, thus: “Where, however, the right to change the beneficiary is reserved by the terms of the policy to the insured the beneficiary takes subject to this provision, and his title to the policy may be defeated Ty the terms of the contract-naming him a beneficiary. It is a condition of the contract and his right is therefore subject to it.’ ”

The bank calls attention to the fact that in the assignment of the policy in the Sullivan Case, the assignment was of the right, title and mieiest of the insured, while.here the policies were assigned. I can observe no distinction in legal effect. In either case the assignor assigned only that which he possessed.

The point is also made that in the policies with which we are dealing the right of revocation was expressly reserved, whereas ■in the cited case the “Change of Beneficiary” clause was stipulated as a privilege. The formal reservation does no.t, in my opinion, enlarge the insured’s control over the policy. Rather, it limits the privilege and forms one of the conditions under which the right to change the beneficiary may lie exercised in the manner provided hv “Change of Beneficiary” clause.

And so as to the “Assignment” clause and the reference to assignments in the “Change of Beneficiary” clause. They do not by implication reserve dominion over the policy in the insured. The former comprehends only such assignments as either the insured or the beneficiary may make of their respective interests. In the latter the reference to assignments means simply that when there is an outstanding one by the insured his' right to revoke is not to he exercised without the assent of the assignee. In other words, he is not permitted to substitute one or more beneficiaries whose expectancy of life is better than the named beneficiary, to the detriment of the assignee, without his consent. Circumstances have persuaded courts to variously interpret the condition of the clause “if there he no existing assignment of the policy,” but I can attribute to it, in this case, no other function.

I am unable to distinguish this case from that of Sullivan v. Maroney, in principle, and am, therefore, authoritatively bound to advise a decree in favor of the complainant. This result does not effectuate the intention of the parties to the assignment whose obvious purpose was, as it was in the Sullivan Case, to transfer the entire property in the policy. But it must he borne in mind that the relations of the parties to the policies are purely contractual and alterable only according to their terms, and, as the available means for effectuating the intention were not employed, it is not within the power of the court to supply the deficiency. The duty of the court is to construe instruments, not to make them.

The ease of Mutual Beneficial Life Insurance Co. v. Swetl, in the United States circuit court of appeals, reported in 222 Fed. Rep. 200, is strongly urged by the bank as supporting its position and to which I. will briefly refer. The wife was the beneficiary and a.bank held the policy by assignment to secure money loaned to the insured. The wife had joined her husband in the assignment and the question of its office and efficacy came before the court, in. a dispute over the fund, on the effort of the wife to avoid the assignment on the grounds that as to her it was without consideration, and that she was a surety only, and that the lien acquired by it was released by extensions of time, without her consent, of the notes which it was given to secure. The statement of facts discloses that the policy by its terms was assignable, and also that it reserved to the insured the right to change the beneficiary. Tire court in sweeping aside the contentions declared that as the ownership of the policjr was in the insured, and the absolute right to assign it was lodged in him, and as the wife’s interest was inchoate, a mere expectancy, she parted with nothing of appreciable value entitling her to a consideration, and that she did not become surety for her husband because she had nothing to pledge. The formula reserving the power of disposition to the insured does not appear, but that it was something apart from the right to change the beneficiary, and independent of it, seems clear from the opinion, an opinion in entire accord with well-established doctrines, and is emphasized by what the court said in declining to determine whether the assignment amounted to a change of beneficiary: “The assignment of a policy and a change of beneficiary are not the same, but different, things. An assignment is the transfer by one of his right or interest in property to another. It rests upon contract, and, generally speaking, the delivery of the thing assigned is necessary to its validity. The power to change the beneficiary is the power to appoint. The power of appointment must be exercised in the manner agreed upon in the contract of insurance. Nib. Ben. Soc. & Acc. Ins. (2d ed.) § 173. Swett made an assignment of the policy. He did not exercise, or attempt to exercise, the power to appoint another beneficiary.”

A decree will be advised awarding the proceeds of the policies to the beneficiary.


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    James M. Dunlop v. Emma L. Chenoweth et al.
    [Decided December 13th, 1918.]
    1. The only question to be decided on objections to confirmation of a sale of lands under foreclosure of a mortgage is whether the price was the best that the property would then bring for cash.
    2. In a proceeding for confirmation of sale of lands under a foreclosure suit, in view of the purchaser’s lien thereon for money expended, a bid — Held, not so grossly inadequate as to shock the conscience and prevent confirmation.
    3. Where the objection to the confirmation of sale was that the holder of a junior mortgage was prevented by illness from being present and bidding a specific price, and such mortgagee refused to make a deposit to guarantee his bid, the objection and bid must be held not bona fide.

    4. That a person appeared at the sale and urged the sheriff to delay the sale, stating that the money due on the decree could be secured, but refusing to state for whom he was acting, did not require the sheriff to delay the sale.
    On objections to a sale of mortgaged premises.

      Mr. Norman Grey, for the objections.

      Mr. David O. Watkins, contra.

   Backes, V. C.

This matter came before me on objections by the defendants Chenoweths to the confirmation of 'the sale of lands under these foreclosure proceedings. The sheriff sold the mortgaged premises under a writ to execute the decree advised in 88 N. J. Eq. 496. They were struck off to Colonel George G. Green, owner of the decree, and also of the decree of foreclosure of a second mortgage. Souder v. Chenoweth, Docket 39, 612. His decrees amount to $15,128.22, and are subject to unpaid taxes on the land of $1,200. He took up the decrees to help the Cheno- > weths to save their home and got himself into a peck of trouble. Appealed to in 1915 he bought the second mortgage decree under which the property was then about to be sold. In January last the premises were again advertised for sale, this time under the execution in this suit, and beseeched he advanced the funds, temporarily, to give the Chenoweths a further chance to turn themselves. They were not successful in raising the money, as they had hoped, and after the sale had been adjourned from week to week, to February 28th, the property was put up and sold to Colonel Green. On objections to confirmation, and upon a bill filed by the Chenoweths to set aside the sale, Colonel Green consented to a decree of resale on June 17th. He waited for action by the Chenoweths until July 15th, when he again advertised the sale for August 9th. Upon their application a week’s adjournment wás granted, upon their assurance that the matter would be adjusted in the meantime. On the day of the sale another adjournment was requested and refused and the property was struck off to Colonel Green on his bid of $2,000, which was the only one made. The ground of objection is “that the property was sold for a grossly inadequate price and leaves a large deficiency hereafter to be paid by the defendants.” Three real estate operators gave as their opinion that the property was worth from $20,000 to $25,000. The affidavit of Louis Steel-man, the holder of a third mortgage, and who was cut off by the sale, stated that had he been able to be present at the sale he would have bid $16,000, and that he was prepared to bid that sum at a resale.

The sale was conducted fairly, and in all respects according to law. The price was the highest and best that the property would, at the time of the sale, bring in cash, an,d as this was the only thing to be decided on objections a confirmation was advised. In Oakley v. Shaw, 69 Atl. Rep. 462 Chancellor Walker (then vice-chancellor) held “that the only office of a written objection to the confirmation of a sale in foreclosure under the act of March 12th, 1880, and rule 205 (now 218) of this court, is to urge the overthrow of a sale upon the sole grounds that the property did not bring the highest and best price that could be obtained for it in cash, and that an attack upon the sale on any other ground must he made the basis of independent action, either by bill or petition.” This practice rule was accepted with approval by Vice-Chancellor Garrison in Cropper v. Brown, 76 N. J. Eq. 406, and by Vice-Chancellor Howell in Koegel v. Koegel, 83 N. J. Eq. 179.

It was not necessary to determine whether under the practice the court may refuse to confirm a sale where the bid is so grossly inadequate as to shock the conscience. I have no doubt that it may, and would, in a proper case, but that situation was not before me. The sale was not of a $20,000 property for $2,000. The bid was made to protect the purchaser's liens of $16,000 plus, and the difference between that sum and the estimated value of the property is a prominent and, most times, and in this case a controlling, factor on an appeal to the conscience on the ground of gross inadequacy of price.

This technical rule of practice, however, would not have been permitted to stand in the way if there- had been a meritorious complaint. Confinnation would have been held and leave given to file a petition or bill. Erom' statements made by counsel, unsupported by proof, I gathered that the best that could be put for fh under correct procedure was that Steelman, the owner of the third mortgage of $3,000, was ill on the day of sale, and but for that he would have bid at least $16,000; and, further, according to his affidavit above referred to, he was ready to bid that sum on a resale. Such a bid would not have been sufficient to satisfy the prior liens, unless it was meant to be exclusive of the taxes, and would not at all have helped the Chenoweths'' unless they had had some secret understanding with Steelman that he would hold their equity of redemption in trust. But 1 concluded to test- Steelman’s offer with the idea of suggesting a petition if it were bona fide — Colonel Green’s counsel having intimated that all his client desired was his money. Steelman was called upon to deposit, as I now recall, either $500 or $1,-O'OO with the clerk of the court to insure his proposed bid. This he declined to do, saying that he would not bind himself other than by the offer contained in his affidavit.

The statement by counsel that except for illness Steelman would have bid $16,000 at the sale was highly questionable. It appeared that on the day of sale, Steelman was represented by one Spencer Simpson, a disbarred lawyer, not to bid but to seek a further adjournment. To persuade the sheriff that funds to pay the execution were within reach, and to induce him to exercise his discretion as to an adjournment, Simpson produced a form of bond and mortgage, made out to him as trustee, evidently executed, or about to bej by the Chenoweths, on the mortgaged property, or, perhaps, it was by Steelman on some of his property, upon which Simpson asserted the money was about to bo raised. Simpson refused to state for whom he was trustee, resenting the inquiry by stating that it was none of their business, referring to Colonel Green and his counsel. Manifestly, this was but another step in the process of delay theretofore persistently practiced and patiently submitted to, and the sheriff rightly declined further favors.

Steelman also filed objections, but, as his counsel failed to appear, and upon representations made in open court that he had abandoned them, which Steelman verified by his silence, they were dismissed for failure to prosecute.


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    Lydia B. Bullis v. Mary B. Pitman.
    [Submitted November 6th, 1918.
    Decided December 12th, 1918.]
    1. An agreement between a widow and a daughter to divide the principal oí the estate of a deceased equally, held fair, made without concealment or effort at overreaching,'and will not be set aside at the suit of the widow, but will be specifically enforced as prayed by the daughter.
    2. The will involved in this case created no trust, and an agreement to divide the estate equally between the widow and the daughter is valid.

      On bill, &c.

      Mr. Clarence L. Cole, for the complainant.

      Mr. Frank S. Ealzenbach, Jr., for the defendant.
   Backes, V. C.

William Bullís bequeathed his estate to his widow and daughter in trust to collect the income and during their joint lives to divide it equally, and upon the death of either the principal to go to the survivor. The two were appointed executrices. They agreed to divide the principal of the estate equally. The widow now wants the agreement set aside and the daughter prays that it be specifically enforced. The estate is valued at approximately $73,000, and consists of first-class bonds and mortgages readily divisible. The grounds for impeaching the agreement, as alleged in the bill, are that—

“I. Complainant has never had any business experience, and at the time she signed said agreement she was in great mental distress over the death of her husband, which had occurred only a few days before, and she did not fully know or fully appreciate the purport of her act in signing said agreement. She was not advised as to its legal effect and neither sought nor had legal advice as to the character and legal effect of the instrument she was asked to sign. Said agreement was drawn by counsel for said Mary B. Pitman. Complainant did not read the agreement, nor was it read to her; if it was she did not hear it, she being somewhat deaf.

“5. Said agreement is contrary to the express terms of the will, and contrary to the wishes of the testator, and is not enforceable in law or in equity.”

The circumstances surrounding the making of the agreement are few and are practically undisputed. Mr. Bullís, seventy-seven years of age, married the complainant, forty-one j^ears of age, on September 29th, 1916. He had been a widower about a year and a half. By his former marriage he had one child, Mary B. Pitman, the defendant, who was then fifty-four years old. Five days after the marriage Mr. Bullis, nervous and excited, called upon Gardner H. Cain, his legal adviser for many years, and requested the preparation of his will, which was at once drawn and executed. Three days later he suicided by drowning in Sanhican creek. He left a note addressed to his wife, stating that he intended to commit the act, and alarmed, she took it to Mr. Cain, to whom her husband had told her to go if she needed help or advice. Later in the day she gave him the will. Mrs. Pitman took Mrs. Bullis to her home where she'remained until the day after the funeral, which took place on October 10th. On the day of the death Mrs. Bullis informed Mrs. Pitman of the contents of the will, and the latter expressed herself as dissatisfied and that she was going to have the estate divided if she could, stating that the arrangement of the will would be all right between a mother and daughter, but was not at all right between Mrs. Bullis and herself. Mrs. Bullis consulted an uncle, David B. Barrett, with whom she had lived many years, and told him of what Mrs. Pitman had said. Mr. Barrett advised her to do what Mrs. Pitman wanted, evidently meaning to submit to a division of the estate, because, as he said to her, if she did not, they would probably break the will and her share would be reduced to one-third. After the funeral it was arranged to go to Mr. Cain’s office the following morning. Mrs. Bullis asked her uncle to accompany her, which he did. At the meeting were Mrs. Bullis and her uncle, Mrs. Pitman, her husband and Mr. Frank S. Ka.tzenbacb, Jr., her counsel, and Mr. Cain. After the will was read by Mr. Cain, and after Mr. Ivatzenbaeh made clear his position as attorney for Mrs. Pitman, he stated his client’s objections to the will, because of her disinclination to be associated with Mrs. Bullis in the management of the estate (which Mrs. Bullis already knew), and spoke of the disadvantages, and of the advantage of a division into two equal parts, each of the parties to take absolutely one-líalf and to release the interest that the other had by way of remainder. Mr. Barrett asked Mr. Cain whether such a course would loe legal, and being assured that it would, Mrs. Bullis and Mrs. Pitman agreed to a division. In the presence and hearing of all the agreement was dictated to a stenographer, who reread her notes aloud, and after it was transcribed it was ag'ain read aloud by Mr. Ivatzenbach. Mrs. Bullís expressed herself as satisfied, as did Mrs. Pitman, and they signed it in duplicate, and Mrs. Bullís took away with her one of them. To effect the division the agreement provided that the will was to he probated and letters issued to the executrices, and this was done on November 21st, 1916.

This action was not begun until June, 1918, and by the bill, after setting forth that she and Mrs. Pitman entered into the agreement under their hands and seals, the complainant makes the bare allegations above ’quoted. No misrepresentations, undue pressure, or fraudulent conduct of any kind, on the part of the defendant, is charged. The case as made by the pleading rests exclusively upon the complainant’s deficiencies, out of Avhich, because of the alleged inequality of the contracting parties, it is sought to evolve some sort of “oppression” or moral delinquency, or constructive fraud on the part of the defendant, against which equity will give relief. And the case as made by the proofs is no stronger. Even the allegations that are made are not supported by the evidence. There can be no doubt that the agreement was read to or by the complainant, for she admits that she fully understood its terms and its effect upon the rights of the parties under the will and that at the time she Avas satisfied and so expressed herself. There Avas no “great mental distress” due to bereavement and not much, if any, Avas to be expected under the circumstances, for Cupid did not officiate alone at the nuptials. ' There certainly were no manifestations of grief by the avíJoav, and for that matter none on the part of the daughter, so fax as the evidence discloses. Both women Avere calm and self-possessed and calculating. They Avere intent solely upon making a financial adjustment, mutually satisfactory, if possible, in a trying and painful'situation. There Avas'no sjunpathy and nothing of the sentimental-in their dealings. They dealt at arm’s length.

Although the agreement followed closely upon the death of Mr. Bull is, the complainant Avas not taken by surprise. It was not “sprung” on her as her counsel asserts. She had noticed from the time she first told Mrs. Pitman of the will that the relation created by it was objectionable, and that it would be severed promptly by a division of the estate, if that could be done. She was forewarned long before going to Mr. Cain’s office of what was likely to happen there, and she knew that Mrs. Pitman, in her desire to rid herself of a distasteful association, was impersonal. Any other stepmother would have been just as objectionable. The proposition was squarely made and without the slightest reservation. There ivas no concealment or effort at overreaching. The cards were spread on the table. There was ■ neither persuasion nor importuning to a hasty decision. The complainant was absolutely free to act, and after consulting with her uncle and being advised by him, she decided deliberately and voluntarily.

The bargain of an equal division was not unfair because of 'the disparity in ages of the contracting parties. Measured by the rule of expectancy of life the complainant will outlive the defendant and succeed to the.estate, but this probability she doubtless had in mind and discounted the chance.

The bargain was not only fair, but it may be called generous when we reflect that but for the events of the week before her father’s death the defendant would have' come into the entire fortune, and when, further, w.e consider the suddenness of the complainant’s windfall, and the possibility of being deprived of it, partly or wholly, upon issues of Mr. Bullis’ testamentary capacity and his ability to contract marriage. These contingencies entered into the calculations of the widow and her uncle and influenced them profoundly," I have no doubt. Her position was not invulnerable and of this they entertained no false notions. There was no intimation by the defendant of a contest on this score, but the possibility of it was in the atmosphere and they naturally were apprehensive. Mrs. Bullis dreaded the notoriety of a judicial, inquiry and fearful of the outcome, compromised understandingly. And then she waited until the time was up for contesting the will before repudiating the agreement, which is an added reason why she should not now be heard to complain.

There is no force in the argumentative statement of the fifth paragraph of the bill that the agreement is not enforceable in law or equity because it is contrary to the express terms of the will and contrary to the wishes of the testator. The argument is that the will creates a trust, which the executrices are bound, in conscience, to observe. The bequest is to the widow and daughter “in trust,” but these inapt words do not create a trust. No person can be both trustee and cestui que trust at the same time. Lew. Trust's 14; Perry Trusts § 13. The possession and enjoyment of the property was in the two during their joint lives with remainder over to the survivor, and it-was theirs to do with as they pleased.

Counsel for the complainant also argues that if he has not made out a case of fraud sufficient to induce an annulment of the contract, at all events, a specific performance should not be decreed. To accede to this would leave the complainant as much the victor as if her prayer were sustained and the contract set aside. The agreement was fairly procured and its enforcement will work n'o injustice or hardship. “The remedy by specific performance is discretionary; the question is not what must the court do, but what, in view of all the circumstances of the case in judgment, should it do to further justice. When the contract has been fairly procured, and its enforcement will work no injustice or hardship, it is enforced almost as a matter of course; but if it has been procured by any sort of fraud or falsehood, or its enforcement will be attended with great hardship or manifest injustice, the court will refuse its aid.” Plummer v. Keppler, 26 N. J. Eq. 481.

If counsel cannot agree upon a division of the assets, I will make it. If the values of any of the securities are questioned the matter will be referred to a master for investigation. Costs to the defendant.


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    Eugene Ciccarelli v. Fredericka Hofmann, administratrix, &c.
    L Submitted January 6th, 1919.
    Decided January 9th, 1919.]
    1. Where the single issue tendered by a bill is whether notes sued on at law are without consideration, that issue is triable at law, and this court will not interfere by injunction to restrain the suit at law on the notes.
    2. On a motion to strike out a bill for want of equity, the court can consider only what appears on the face of-the bill.
    On motion to strike out bill.
    . Mr. George Frankenstein and Mr. Maximilian T. Rosenberg, for the motion.

      Mr. Alberico O. CiccareUi and Mr. Leon Abbeil, lor the complainant.
   Backes, V. C.

Motion is made to strike out the bill oí complaint lor want of equity, and equity cognizance.

The bill is filed by the complainant in his individual capacity, in which he sets up that he is a stockholder, director and vice-president of the Phelan Engineering and Construction Company, a corporation of this state; that Albert Hofmann, the defendant decedent, was also a stockholder, director and officer of said company and had charge of its financial affairs and of its office in Hoboken;' that the complainant was in charge of the company’s works in S.yracuse; that to raise funds for the company Hofmann caused the company to issue its promissory notes, signed by the complainant as its vice-president and endorsed by him, individually, and by one Thomas E. Carey and Hofmann and discounted at various banks by Hofmann, the proceeds of which he, in part, appropriated to his own use; that renewal notes were issued, endorsed and discounted from time to time, Hofmann transacting the business; that Hofmann received the income of the company; that with the funds of the company Hofmann paid, or should have paid, some of the promissory notes of the company, endorsed by the complainant, “and some other obligations of the company, for which complainant had assumed personal liability,” but what the funds amounted to, or what amounts were paid on said notes and other obligations, complainant is unable to state; that in April or May, 1917, complainant executedand delivered to Hofmann the company’s twenty-four blank form promissory notes, signed by him as vice-president and bearing his individual endorsement, to enable Hofmann to more conveniently renew the company’s notes then falling due from time to time; that Hofmann died in 1917, and his administratrix, the defendant, brought an action against the complainant impleaded with the company and Carey to recover on twenty-three promissory notes of the company, endorsed by the complainant and the said Carey, aggregating in amount $53,-958.22; that these notes are some of the twenty-four notes of the company, endorsed by the complainant and issued and delivered to Hofmann in blank; that Hofmann diverted the said notes from the purpose and use for which they were signed and endorsed ; that he filled in and altered them after the complainant had endorsed them; that no consideration passed from Hofmann to the complainant for the complainant’s endorsement and that his endorsement was obtained by the misrepresentations of Hofmann that the notes were to be used in renewal of outstanding and maturing notes of the company endorsed by the complainant, which the complainant believed and relied upon; that the company is not indebted to Hofmann or his estate in the amount of said notes and that there was no consideration for said notes; that the action at law was sent to a referee, who is now hearing the cause. The prayers are (1) that the defendant administratrix may answer; (2) that she may discover all promissory notes of the company, endorsed by the complainant, in her possession or of which she may have knowledge; (3) that the twenty-three notes in suit at law may be delivered up for cancellation; (4) that the action at law may be perpetually enjoined, and (5) that the defendant administratrix account for all moneys that came to the hands of Hofmann as the proceeds of notes of the company upon which the complainant was endorser.

The 'single issue tendered by this bill as framed is whether the notes sued on are without consideration and that question is obviously triable at law. If this bill were filed by the company or upon its refusal by the complainant in behalf of the company for a general accounting of Hofmann’s stewardship and therein involve the notes as a part of the dealings.between the principal and agent; or if the-bill were one. by the complainant individually to compel Hofmann’s estate to account for the funds of the company- which came to his hands to be ápplied to the pay- • ment of the company’s notes, upon which the complainant is secondarily liable and to have, upon an accounting, the amount found due so applied, in relief of the complainant’s liability, as surety, a- case would have been made justifying this court in intervening, but the bill in nowise counts on any such, equities. The statement that Hofmann had funds of the company with which he paid, or should have paid, notes endorsed by the complainant and other obligations of the company, personally assumed by the complainant, and that he was ignorant of the amounts received and paid out, and the prayers for a discovery of the notes of the company, upon which the complainant is still endorser, and for an accounting of the proceeds of notes so endorsed by him, disclose no equitable defences to the notes involved in the action at law nor any equitable grounds for this court to interfere. In disposing of the motion, I am strictly confined to what appears upon the face of the bill. If matters disclosed by the affidavits and statements of counsel, upon the motion for a temporary injunction, were incorporated in the bill, the bill might be retained on the ground that the accounts between the parties are too complicated to be fully and properly tried at law (Cranford v. Watters, 61 N. J. Eq. 284.)■), or on the ground that relief at law was not adequate, in that the complainant is entitled to have the notes surrendered and canceled, which the law courts cannot compel. Metler v. Metler, 18 N. J. Eq. 270; Smith v. Smith, 30 N. J. Eq. 564; Chase v. Chase, 50 N. J. Eq. 143. As already stated, the defence to the notes is —so far as is shown by the bill — that they, were issued in blank and delivered to Hofmann, the defendant’s decedent, for a specific purpose and as to him and the defendant, as his representative, are without consideration. A single legal defence, the truth of which the law court can conveniently decide, and with the same facilities as this court possesses, especially as the cause is before a referee and not a jury. Chase v. Chase, supra.

The bill will be dismissed, with costs, but without other prejudice.


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    Tunis Hummer v. Thomas Buerk et al.
    [Decided February 6th, 1919.]
    1. Sixty years unbroken adverse possession sets at complete rest a title to lands.
    2. Where parties entered into an enforceable contract for sale of lands, the time for performance of which was twice extended because of a mutual mistake as to the marketable character of the title to the lands involved, such contract will be enforced even if the terms of the extension agreements were not fully complied with, especially when it appears that the doubt as to the character of the title was raised by the defendant’s lawyer and agent, who afterwards acknowledged his mistake, and advised the defendant to accept the title offered.
    On bill, &e.

      Messrs. Smith & Brady, for the complainant.

      Mr. Osiris D. McConnell, for the defendants.
   Backes, V. C.

This suit is to compel Thomas Buerk, one' of the defendants, to specifically perform his contract to purchase of the complainant his farm,; and to enjoin him from further prosecuting his suit at law for damages for an alleged breach, of the contract.

The complainant is the owner of a small farm made up of six tracts, which the defendant agreed, in writing, to buy and pay. therefor $2,100. On the daj fixed for the transfer the lawyer, employed by the defendant to examine the records, reported that he had found a serious defect in the title of two of the tracts, and also an uncanceled mortgage, and advised his client not to perform unless the matters were cleared up, which, he said, could he done by proceedings in chancery. The complainant and defendant accepted his representations without question and, upon his suggestion, entered into a supplemental agreement, stipulating that the defendant was to be let into possession of the farm and the complainant was to quiet the title by bill, and to this end the complainant directed the lawyer to take the necessary steps. Further, and according to stipulation, the complainant executed to the defendant his warranty deed for the farm and delivered it to the Citizens National Bank of Bloomsbury, and the defendant deposited with the bank $1,545, the balance of the consideration price (the difference having been previously adjusted). The bank was to transfer the deed and money when notified by the lawyer that the title had been perfected in the manner agreed upon, and if it were not cleared up by the .day fixed, the bank was to return the deed and the money to the respective parties, and the complainant was to forfeit to the defendant $250. The lawyer neglected to file the bill and a further agreement was made extending the time of performance to March 1st, 1918, with the modification that $500 instead of $250 was to be the forfeit. Before the time expired the lawyer discovered that he had erred in judging the title to be defective and that the uncanceled mortgage was a cloud upon it, and so informed his client, the defendant, stating that a suit in chancery was unnecessary and advised him to consummate the deal. The defendant, evidently because he felt he had made a poor bargain, refused. He stood flatly upon the terms of the supplemental agreements, and by his present solicitor brought an action in the supreme court against the complainant and the bank to recover the deposit of $1,545, the $500 forfeit and $1,500 for breach of the contract. Upon the filing of this bill the suit at law was stayed.

The things the lawyer found in his examination of the county records were these: Holoway Gano acquired the land in 1853. He died in September, 1855, and by his will gave his-estate, real and personal, to his widow, Liveria, her heirs and assigns forever, “recommending (sic) to her if any of said property remained at her decease that the same shall descend to my children, Joseph J. Gano, George Gano, Martin Gano and Cornelia Francis Gano, share and share alike.” There is no record of a deed by the widow devisee or her heirs and therein is the break in the title. Wesley Johnson, the executor of the will, presumed to convey the land to John Butler, by deed dated March 31st, 1856, in which it was recited that

“whereas the said Holoway W. Gano, deceased, did in and by his last will and testament order and direct ‘that after all of my just debts and funeral expenses be paid, all of the remainder of my property, both real and personal, I give, devise and bequeath to my beloved wife, Liveria. to her. her heirs and assigns forever.’ * * * Now this indenture witnesseth, that the said Wesley Johnson as aforesaid, in pursuance of the authority and power given him in and by said will, did advertise the real estate of said Holoway W. Gano, deceased, to be sold on Friday, the 9th day of November, 1855, and then and there did proceed to sell the said real estate, and the said John Butler did then and there bid for the same the sum of $800, and no one bidding more I did strike off and sell the same to the said John Butler, the highest bidder.”

Butler went into possession and, in 1869, his administrator, under orphans court authority, conveyed to Christiana Butler, who, in June of 1869, conveyed to David W. Dilts. Dilts conveyed to Johnson Hummer, the father of the complainant, in 1876, and Johnson Hummer’s heirs conveyed to the complainant on March 31st, 1884. The uncaneeled mortgage of $150, payable in one year, was made by Holoway Gano to one Peter Plardy, March 30th, 1855.

The evidence is that the record title holders have been in peaceable possession of the tract from Gano to the complainant, inclusive, for a period of more than sixty years. The complainant, now sixty-six years old, who lived on an adjoining farm, recalls that, as a boy of seven or eight, John Butler (who bought in 1856) occupied the place. In this, and in his statement that Butler and all subsequent title holders, in their turn, were in possession, he is not denied. As to the uncanceled mortgage he says, and it is not disputed, that he never heard of it in the thirty-four years of his ownership. It is suggested that sixty years of continuous possession by the title holders is not made out absolutely, in that the complainant’s recollection of Butler’s occupancy, at the most, goes back to but fifty-eight or nine years. Admitting this to be so, it must be assumed at this distant date that Butler at that time was in possession under his title, good or bad, and that he went into possession forthwith after he got his deed, more than sixty years ago. It is also established that when the lawyer advised the defendant not to perform the original contract he was wholly unaware of sections 28 and 29 (Comp. Stat. p. 3172) of our statutes of limitations, the former of which provides that

“sixty years’ actual possession uninterruptedly continued by occupancy, descent, conveyance or otherwise in whatever way or manner such possession might have commenced or have been continued, shall vest a full and complete right and title in every actual possessor or occupier,”

and the latter of which provides that thirty years of such possession obtained by a fair bona fide purchase of any person in possession and supposed to have a legal right and title to the land, shall vest an absolute right and title in the actual possessor and occupier. The latter section contains a proviso that if any person having a right or title to the lands, be within the age of twenty-one, feme' covert, non■ compos, imprisoned or without the United States of America at the time the title first descended or accrued, shall have his action, notwithstanding the limitation, provided it be brought within five years after the removal of the disability. Whether the lawyer knew of sections 16 and 17 of the same statutes, and their bearing upon the uncancel ed mortgage of $150, was not disclosed, as I recall the evidence, but it is a fair assumption that he did not.

Now, it is obvious that the provision of section 28 operating upon the unbroken, adverse possession for more than sixty years, sets at complete rest the complainant’s title. And aside from this the operation of section 29 upon the complainant’s personal possession of more than thirty years certifies his absolute ownership. And, furthermore, there is an equitable side that works against the defendant and which should have appealed to him. Li vori a Gano was not, of course, divested of her title by the conveyance of Holoway Gano’s executor, but judging from the recitals in the deed that the lands were sold at public vendue, after advertisement, under supposed powers given by the will, there can be little doubt that she acquiesced in his efforts and enjoyed the fruits. That she, or her heirs, are presently within the protection of the five-year extension of the twenty-ninth section of the Limitation act, is incredible. In a somewhat similar situation where the adverse possession was for only forty years, Vice-Chancellor Emery held that the possibility was too remote to cast a doubt on the marketability of the title. Day v. Kingsland, 57 N. J. Eq. 134.

That the complainant has a clear and marketable title is not controverted, nor is it questioned that the fuss created by the lawyer was clue to his ignorance of the law, nor that due to his mistaken advice, the supplement agreements were entered into by the parties under a mutual misapprehension of the true state of affairs. But the defendant takes the position that the contract as modified requires that the scars on the title, sores long since healed by the statutes, should be doctored and obliterated by a bill quia, timet, and that because the remedy, though entirely' useless and unavailing, was not applied, he is no longer bound. This attitude and insistence altogether loses sight of the established facts of the case that the title was unimpaired, that the main contract was enforceable, and that the modifications were the results of erroneous impressions of the law, mutually entertained by the parties and under the influence of which they acted. Equity relieves against the consequences of mutual mistakes of law, particularly where, as here, they are produced by the agent of the party seeking to take advantage of them. Green v. Morris and Essex Railroad Co., 12 N. J. Eq. 165. In Freich necht v. Meyer, 39 N. J. Eq. 551, the power of courts of equity to relieve from mistakes of law is upheld.

The only course open in order to do justice to both parties, or as nearly as the circumstances of the case will permit that to be done, is, as I see it, to enforce the contract and to perpetually enjoin the action at law. The guiding principle in the exercise of the jurisdiction is that declared in Plummer v. Keppler, 26 N. J. Eq. 481, and repeated in numerous cases. “The remedy by specific performance is discretionary; the question is not what must the court do, hut what, in) view of all the circumstances of the case in judgment, should it do to further justice. When the contract has been fairly procured, and its enforcement will work no injustice or hardship, it is enforced almost as a matter of course; but if it has been procured by any sort of fraud or falsehood, or its enforcement will be attended with great hardship or manifest injustice, the court will refuse its aid.” The sales agreement was fairly entered into in all respects, and since the defendant was chiefly, if not wholly, responsible for the later happenings that led up to this litigation, it will do him no injustice to compel him to stand by his bargain, even though he be slightly out of pocket by the delay and his own shortcomings. The lawyer who threw the wrench into the machinery was his agent. He readily enough took his counsel which, in the filrst instance, carried him and the complainant far astray, and he ought to have been as willing to take his better judgment and advice, which would have led them safely out of the complication. He accepted the advantages of his agent’s mistake and in reason, and rightly, should have foregone them when his agent acknowledged the mistake. The lawyer was the defendant’s adviser and the relation was not terminated by the complainant engaging him to file the bill in equity. I-lis employment by the complainant was only in a limited capaeitjq in entire subordination to the agency,' and merely to overcome obstacles fancied by him as the agent of the defendant.

To refuse a specific performance of the' contract would, on the other hand, work hardship to the complainant. As already told, the defendant went into possession of and still occupies the farm. He has failed to till it according to the usual manner of husbandry, and it lias admittedly suffered in consequence, so that the complainant cannot be fully restored. Furthermore, a refusal of relief would abandon the complainant to the law courts, where, according to the strict rules of their jurisprudence, his equities are inadmissible, and where he might be, in resisting the defendant’s effort to collect the forfeiture and damages, at the mercy of whimsical and capricious jurors — a hazard to which, he ought not be exposed.

A decree will be advised accordingly, with costs.


text:
    Catherine Bowers, by her next friend, v. Annie Bowers et al.
    [Submitted November 11th, 1918.
    Decided February 4th, 1919.]
    1. A married woman may, with her husband, mortgage her land to secure the payment of a debt of his, or of any other person, for the payment of which she is in no way liable. Merchant v. Thompson, 34 N. J. Eq. 73, followed.
    2. The evidence in this case does not prove that there was no consideration for the mortgage in question, nor that it was a voluntary conveyance, and void under the statute of frauds.
    3. If a second purchaser of a mortgage with notice, acquire title from a first purchaser who was without notice and Ztona fide, he succeeds to all the rights of his immediate grantor.
    On bill, &e.

      Mr. Hdwarcl P. Johnson and Mr. Hugh IÍ. Gaston, for the complainant.

      Mr. Worrall F. Mountain, for the defendant Newark Trust Company.

      Mr. George F. Clymer, for the defendants Boses, Bowerses and Promt.
   Backes, V. C.

This is a creditor’s bill. The facts are few and undisputed. Catherine Bowers, the complainant, held the defendant Annie Bowers’ due bill for $500, upon which she sued and recovered in the supreme court. Under execution the undivided one-third interest of Annie in lands in Somerset county was sold and conveyed to Catherine. While the suit was pending Annie and her husband executed their bond and 'mortgage on Annie’s interest in the land to Allen W. Eose for $3,500 to satisfy a debt of Annie’s husband. Eose assigned the bond and mortgage to William Prout, and Prout assigned them to the Newark Trust Company as collateral security for his debt. Catherine filed this bill to set aside the mortgage as fraudulent and the trust company counter-claimed, praying a foreclosure and sale. The bill charges that the mortgage was without consideration, and was given to protect the property from the claim of Annie’s creditors, and to prevent the complainant from collecting her debt; that a.s against Catherine, a then existing creditor, it was a voluntary conve3ance and constructive^ fraudulent, even though there was consideration; and that it was void because given by a married woman as surety for the debt of another — her husband in this ease.

1. The last ground may be disposed of by quoting from well-recognized authority: “It is established that a married woman may, with her husband, mortgage her land to secure the payment of a debt of his or of any other person, for the payment of which she is in no way liable.” Merchant v. Thompson, 34 N. J. Eq. 73, and eases there cited.

2. The charge that there was no consideration for the mortgage, and that it was given, intentionally, to cheat the complainant, is not borne out by the testimony. These facts are established to my entire satisfaction. Eose lent to Henry Bowers, Annie’s husband, from time to, time nearly $3,500. The, first loan was for $1,000, for which a promissory note was given. Two items of $500 each were advanced upon the security of a deed made by Bowers to Eose for twenty lots at Eagle Bock Terrace, and the remainder was lent in dribs, ranging from $25 to $100 and upwards, for which due bills were taken. The loans were made over a period of four years next before the mortgage was given, April 26th, 1910. Rose and Bowers were friends engaged in the same line of business, real estate, and Rose, who had some money then, let Bowers, who was hard up, have it as lie could spare it. There came a time when Rose needed funds and Bowers offered the only thing he could furnish in payment, a mortgage on his wife’s interest in the lands in Bernardsville. For the bond and mortgage Rose gave up the deed for the twenty lots, the note for $1,000 and' the due hills, and as the accounting showed a balance of some $50 or $60 in favor of Bowers he paid that. Mr. Clymer, a reputable member of the bar, witnessed the negotiation of the bond and mortgage for the deed, note, due bills and cash. As to the creation of the debt we have the testimony of Rose and Bowers taken in New York. I have read the depositions with careful attention, and checked it up with great care, having in mind that possibly it might have been manufactured, but, after thorough search, I am convinced that Bowers owed Rose $3,500, less the $50 or $60 that Rose paid when he got the mortgage. I am also satisfied that Mrs. Bowers gave the mortgage entirely without thought of the complainant’s debt, and that she gave it solely to aid her husband, and that Rose had no knowledge of the debt or of the complainant’s suit when he took it. There are, as a rule, in cases of this kind where fraud upon creditors is charged, peculiar circumstances that excite suspicion and provoke litigation, and this one is not an exception. The mortgage was given by Annie to Rose while the suit at law against her was pending and shortly before it was brought to trial. It was assigned to Prout, Annie’s attorney, on the very day it was executed, and the trial was permitted to go by default. Further, the assignment was not recorded until seven years afterwards, 1917. It looked like a bald fraud, but this is the explanation and it is plausible and acceptable. Rose, as I have said, knew nothing of the law suit, nor of Prout’s relation to Annie Bowers. Prout had been Rose’s attorney and Rose owed him some eight hundred dollars for professional services. When Bowers offered him the mortgage Rose turned to Prout, who held out promises that he could dispose of it for cash, and it was forthwith assigned; the inducement to Prout being that he Was to deduct what was due to him. Prout was unable to sell the mortgage, and it was then arranged that he should pay Bose as his limited means would permit, and that took seven years to do. In the meanwhile Prout held the mortgage and assignment and Bose held the bond, the agreement having been that the as-, signment was not to be recorded until Bose had been paid in full. The inquiry into whether Prout paid Bose, and how he paid him, is, of course, of no moment, except, perhaps, as it bears upon the integrity of the transaction between the Bowerses and Bose that led to the execution of the mortgage. That the mortgage was given on the eve of the trial of the law suit, and that the defence was abandoned, aroused more than curiosity. It created mistrust. But at that time Prout held the mortgage, which more than covered all his client possessed, and he felt no longer interested in the outcome. It is not amiss to say that had the defence interposed in the law suit, that the due bill sued on was given by Annie to Catherine as a surety for her husband’s debt, been pleaded and proved here, it would have gone far, notwithstanding the' judgment at law, toward establishing Annie’s good faith in giving the mortgage to Eose and would have been a complete answer to the claim, next to be considered, that the mortgage was voluntary, for then the equities of Catherine and Eose would have been on a par and Bose’s legal title would have prevailed.

3. The mortgage was not a voluntary conveyance and void under the statute of frauds, within the principle laid down in Haston v. Castner, 31 N. J. Eq. 697, that a voluntary conveyance is void by the force of the statute with respect to debts existing at the date of such conveyance. That the mortgage was given by Annie while she was indebted to Catherine Bowers we must assume to be established by the judgment, and that she was under no legal or moral obligation to give it and that it was in nature and effect a gift to her husband is clear, and if it had been given to secure his pre-existing debt a different question would have arisen. But here the mortgage was given in payment of her husband’s debt. Eose took the mortgage in satisfaction of his debt, and not only acquitted Annie’s husband of his liability, but also gave up his securities and paid cash besides, and all this he did not knowing of Catherine’s claim against Annie. That he is precisely within the definition of a bona fide purchaser for a valuable consideration, it seems to me caunot be questioned. Big. Fraud. Con. 532. I do not mean to intimate that had Rose had knowledge of Annie’s debt he would not have liad the standing of a bona fide purchaser for a valuable consideration, assuming, of course, that the mortgage was given in absolute good faith without intention to defeat her creditors, for it is a matter of common knowledge and of daily practice that debtors lend their credit and property for another’s' undertakings, and that such transactions are uniformly upheld by the courts when made in good faith. In such event' that question is solely one of fact. If it had appeared in the case that Rose knew that the property Annie mortgaged to him for her husband’s debt was all that she possessed, and that she was indebted to others, the good faith of the parties would have been seriously impeached.

The complainant’s right to relief — that is, to supplant the superior legal estate of Rose and his assigns, rests exclusively upon the twelfth section of the statute of frauds and perjuries (Comp. Stat. p. 2818) by which conveyances of lands or chattels made for the purpose of delaying or defrauding creditors are declared to be void as against such creditors. But the fifteenth section provides that the act shall not extend to any conveyance made in good faith and for a valuable consideration to a person not having notice of a fraud. As Rose’s mortgage and Rose himself are-within the category of the saving clause, the statute fails of operation.

That Prout when he took the assignment from Rose knew of the complainant’s debt, and realized that the mortgage would prevent its collection, cannot affect the stability of the mortgage. The rule is that if a second purchaser with notice acquires title from a first purchaser, who was without notice and bona fi\de, he succeeds to all the rights of his immediate grantor. Pom. Eq. Jur. (4th ed.) § 754; Holmes v. Stout, 4 N. J. Eq. 492; Rutgers v. Kingsland, 7 N. J. Eq. 178, 658, and Roll v. Rea, 50 N. J. Law 264-

The bill will be dismissed and the counter-claim of the Newark Trust Company will be sustained, with costs.


text:
    Louis Chassman v. Richard Wiese and Alma Wiese.
    [Submitted December 30th, 1918.
    Decided February 19th, 1919.]
    A married woman’s contract lor the sale of lands is not enforceable in equity unless it lias been acknowledged by her in compliance with the statute.
    On bill, &C.

      Mr. Jacob B. Joselson•, for the complainant.

      Mr. Edmund A. Hayes, for the defendants.
   Backes, V. C.

This is the usual bill for the specific performance of a contract for the sale of land. The title to the land is in the defendants, husband and wife. They agreed to convey it to the complainant in exchange for his land. The contract is in writing, but it is not acknowledged.

I have already disposed of the defences that the contract was executed under misapprehension as to its purport, and that it was procured by fraudulent misrepresentations, adversely to the defendants. The remaining question, upon which counsel submitted briefs, is whether a married woman’s contract for the sale of land, unacknowledged, is enforceable in equity under the law as it now stands. In Corby v. Drew (1897), 55 N. J. Eq. 387, followed by Schwarz v. Regan, 64 N. J. Eq. 139, and Ten Eyck v. Saville, 64 N. J. Eq. 611, Vice-Chancellor Stevens held that an acknowledgment, in the manner prescribed by the statute, was an essential and indispensable requisite to a conveyance of land by a married woman, and that her contract to convey could not be enforced. Later, in Goldstein v. Curtis, 63 N. J. Eq. 454, Vice-Chancellor Pitney held that by virtue of the statute as then revised, a married woman’s contract, duly acknowledged, was enforceable. The law as it stood when these cases were decided was (section 39 of the Conveyance act, substantially) that no estate of a married woman in lands shall pass by her deed without a previous acknowledgment made by her on a private examination, apart from her husband, before an officer authorized to take acknowledgments, that she signed, sealed and delivered the same as her voluntary act and deed, freely and without any fear, threats or compulsion of her husband. In 1916 (P. L. 1916 p. 321) the legislature, by supplement to the Conveyance act, enacted that conveyances of land ma.y be executed and delivered by any married woman of the age of twenty-one years without a private examination, apart from her husband, and without an acknowledgment made by her that she signed, sealed and delivered the same as her voluntary act and deed freely without any fear, threats or compulsion of her husband. And in 1918 (P. L. 1918 p. 119) section 39 of that act was amended, to conform to the provision of the supplement, eliminating the requirement of a separate examination.

Counsel for the complainant argues that this modification removes the protection that the separate examination formerly gave to a married woman as against her husband’s compulsion and sweeps away the reason upon which Corby v. Drew and the later cases were decided. This is only partly true. The barriers were let down, but not altogether. The statute (section 39, as amended) still requires an acknowledgment bj a married woman in order to effectuate a convejranee of her land, and it is as much of the essence of her conveyance as it was before the separate examination was dispensed with. The principle underlying the cases is still applicable and the decisions are controlling.

The bill will be dismissed, with costs.