text:
    Lucy Galante, complainant, v. Samuel Silverstein, defendant.
    [Decided July 16th, 1925.]
    1. A devise of all the residue 'of testator’s real estate to his wife, “to have and to hold the same forever,” passes a fee, and a subsequent devise of the residue of testator’s real estate to his children on the death of his wife is void, as inconsistent with the wife’s estate.
    !2. Where a testator devises all the residue of his real estate to his wife “to have and to hold the same forever,” and by a subsequent devise devises the residue of his real estate to his children on the death of his wife, the devise to the wife, being a fee-simple, at common law, is unaffected by section 36 of the Wills act, which dispenses with the word “heirs,” upon the devise of an indefinite estate, and creates a fee unless a different intent appears.
    3. Two clauses in a will devising the same estate are not repugnant, so that the last clause will prevail as the later expression of the testator’s will, when the estates devised do not take effect at the same time.
    On bill, &e.

      Messrs. Stickel & Naughright, for the complainant.

      'Mr. Samuel S. Fersier, for the defendant.
   Backes, Y. C.

The defendant agreed in writing to buy the complainant’s land, and this bill is to compel him to perform his contract. ■ He is willing and anxious, but, being doubtful of the complainant’s power to convey a fee, refuses to do so until it is decided that the complainant has title. The complainant claims under her husband’s will, which reads, after providing for debts, as follows:

“Second. I give, devise and bequeath unto my ¡beloved wife, Lucia Galante, all my household furniture, and all the rest 'of my personal property, and also all the residue of my real or mixed estate of which I shall be seized or possessed or to which I shall be entitled to at the time of my decease, to have and to hold the same, to her executors, administrators or assigns forever without any litigation on the part of my children or their heirs.
“Third. I- 'give and bequeath unto each and every of my surviving children all the residue and remainder of my estate, real and personal or mixed, after my wife, Lucia Galante, is death, share and share alike.”

The devise to the testator’s wife vested in her an estate in fee. Den v. Schenck, 8 N. J. Law 29; Den v. Bowne, 18 N. J. Law 210; Jarm. Wills (5th ed.) 31, 43. The later devise over to the testator’s children was probably intended that if at the wife’s death anything remains, it should go to the children, but he did not thereby mean to, nor did he, cut down her fee. The devise over is void. Den v. Gifford, 9 N. J. Law 46.

It is claimed that as the devise to the wife does not contain words of inheritance, and because there is a further devise of land to the children, only a life estate passed to the wife. Section 36 of the Wills act (Comp. Stat. p. 5878). At common law the words ‘Teirs and assigns” were not necessary to pass a fee by devise. Swinb. Wills (6th ed.) 174; 8 Jarm. Wills (5th Am. ed.) §§ 30, 48; Den v. Bowne, supra. Any words denoting an intention to pass the whole interest of the testator will carry an estate of inheritance. 3 Jarm. Wills 48. The statute is remedial, and applies only, as its language indicates, to devises where “no expressions are contained in such will and testament whereby it shall appear that such devise was intended to convey only an estate for life, and no further devise thereof being made of the devised premises after the decease of the devisee to whom the same shall be given.” It does not apply to wills, certain in their language, devising a fee. Den v. Bowne, supra. The common law rule of construction -is that a devise of land without words of limitation or description of the extent of the interest devised, creates a life estate only, in the absence of a contrary intent. Technical terms are not necessary to show such intent. The effect of the statute is to change the common law rule of construction and make an indefinite devise without any words of perpetuity annexed pass an estate in fee-simple instead of a life estate. It reverses the common law rule. Formerly an estate for life only would pass by an indefinite devise unless a contrary intention could be inferred from the will. Now, an estate in fee will pass by such devise unless an intention to pass a less estate appears by construction or operation of law. 30 Am. & Eng. Encycl. L. 745, 747; 8 Jarm. Wills 48; Den v. Bowne, supra; Den v. Schenck, supra; Elle v. Young, 24 N. J. Law 775.

It is also suggested that the devise to the wife of the residue of the real estate and the later devise to the children of the same property are repugnant, and that the latter prevails as the later expression of the testator’s intention. Johnson v. Haldane, 95 N. J. Eq. 404. The devise to the wife took effect on the death of the testator, that to the children, on the death of the wife. The rule of construction has no application where repugnant devises do not take effect at the same time. Den v. Gifford, supra.

The complainant is vested of a fee, and a decree specifically enforcing the contract will be advised.


source: Caselaw Access Project

author: Baches, V. C.

license: Public Domain

text:
    Ralph W. Skinner, as substituted trustee under the last will and testament of Adonijah S. Boyd, deceased, &c., complainant, v. Jane H. Boyd et al., defendants.
    [Decided July 23, 1925.]
    1. A devise or bequest to “issue,” without more, includes all descendants, and they share equally. A devise or bequest to the “issue” of a deceased nephew or niece “legally represented by such issue” means to heirs or next of kin.
    2. A bequest of the income of a trust fund to a class and upon the death of a member his share over to the survivors and their “issue;” upon the death of a survivor the share so taken passes to his personal representative.
    3. Profits on the sale of securities taken for a debt are to be apportioned between the principal and income in the ratio which the principal sum involved bears to the interest due on the debt at the time when the securities are realized upon.
    4. Upon a devise of lands, a power of sale, exercised, does not operate as a conversion of the realty into personalty, and the devisees take the proceeds as land subject to the inchoate right of dower and curtesy of their spouses.
    On bill, &c.

      Messrs. Edward M. & Runyon Colie, for the complainant.

      Mr. Richard Boardman, Messrs. Congleton, Biallman & Hoover, Messrs. Hurts, Quinton & Heine and Messrs. Bradner & Laird, for the defendants.
   Baches, V. C.

The complainant, administrator cum testamento annexo of Adonijah S. Boyd, deceased, and as substituted trustee thereunder, and as agent of the cestuis que trustent therein, filed this bill to settle his accounts, and to be advised as to the true meaning of the will and the manner of distributing the estate.

The testator by the fourth clause of his will gave to Adelaide Barling for life his homestead in Hackensack and the furnishings. By the fifth clause he devised and bequeathed the residue oE his estate to William E. Skinner, in trust, during the lifetime of Adelaide Barling, to pay the net income, one-seventh to Adelaide Barling and a one-seventh to each of his two nephews and four nieces, James Boyd, John Quackenbush, Kate Hopper, Fannie Price, Sophie Benjamin and Jane Boyd, and then added:

“And if any of my said nephews or nieces shall die during the lifetime of said Adelaide Barling, leaving issue, to pay to such issue the share of said remainder which my said nephews or nieces legally represented by such issue would have been entitled to receive if living ; and if any of my said nephews or nieces shall die during the lifetime of said Adelaide Barling without leaving issue to pay the share of said remainder which my said nephew or niece, who shall so die, would have been entitled to receive if living, to the survivors or survivor of my aforesaid nephews and nieces, and to the issue of any of them who shall have died leaving issue, in equal shares, share and share alike, except that issue paid under this provision shall be paid only that share, which my said nephew or niece who shall be legally represented by such issue would have been entitled to receive if living.”

By the sixth clause, upon the decease of Adelaide Barling, he devised and bequeathed the rest and residue of his estate to his two nephews and four nieces in equal shares, and added:

“And if any of my said nephews or nieces shall have died during the lifetime of the said Adelaide Barling, leaving issue who shall be living at the time of the decease of said Adelaide Barling, I do hereby give, devise and bequeath to such issue the share of my said nephew or niece legally represented by such issue. And if any of my said nephews or nieces shall have died during the lifetime of said Adelaide Barling without leaving issue, or leaving issue who shall have died prior to the decease of said Adelaide Barling, I do hereby give, devise and bequeath the share of my said nephew or niece, who shall have so died, to the survivors or survivor of my said nephews and nieces, and to the issue of any of them who shall have died leaving issue who shall be living at the time of the decease of said Adelaide Barling, in equal shares, share and share alike, except that issue taking under this provision shall take only the share of my said nephew or niece, who is legally represented by such issue.”

He further provided:

“And in case it shall be necessary, in order that a satisfactory and fair division of my estate be made among my devisees and legatees aforesaid after the decease of said Adelaide Barling, then I do hereby order and direct and empower the hereinafter named executors of this my last will and testament, or the survivor of them, to sell all my real estate at public or private sale for the highest price that can be obtained by them, or the survivor of them, for the same, and to make, execute and deliver to the purchasers thereof good and sufficient deeds of conveyance in the law for the same, and the proceeds of said sales, and my personal estate, or what shall be realized therefrom, to distribute and pay over to my said devisees and legatees in the proportion hereinbefore stated.”

Adelaide Barling died February 11th, 1923. James Boyd, Kate Hopper and Eannie Price predeceased her, and in that order. James Boyd left two sons, one of whom had children and a grandchild. Kate Hopper died childless. Eannie Price left a son and daughter; the son had two children.

1. The first question is, Did the testator intend that, upon the death of his nephews and nieces in the lifetime of Adelaide Barling, their issue should take the income and principal per stirpes or per capita? Uncontrolled, “issue” includes all descendants, and they share equally. Weehawken Ferry Co. v. Sisson, 17 N. J. Eq. 475; Inglis v. McCook, 68 N. J. Eq. 27. It is contended, on the one hand, that the words “legally .represented by such issue,” as used four times in the will, limits the issue, while, on the other hand, it is insisted that those words simply define the share the issue were to take. They, obviously, do not limit the share the issue were to take, because the restriction as to the share is otherwise specifically defined as the share the nephews or nieces “would have been entitled to receive if living.” On the contrary, they were intended to and do limit the issue to those who legally represent a deceased nephew or niece — ■ that is to say, those who would take personalty under the Distribution act and those who would take realty under the Descent act. Chasy v. Gowdy, 43 N. J. Eq. 95; Howell v. Gifford, 64 N. J. Eq. 180; Howell v. Westbrook, 69 N. J. Eq. 641; Coyle v. Coyle, 73 N. J. Eq. 528; Platt v. Johnson, 87 N. J. Eq. 403. If the testator, a lawyer, had intended that all the descendants of deceased nephews and nieces should take share and share alike, he would not have been at pains to qualify issue as those by whom the deceased nephews and nieces are legally represented. The qualifications would have been unnecessary. In the interpretation of wills every word must be given due consideration, and where, as here, in a gift to a class, such as issue or descendants generally, superadded words tending to define or limit the class must be given significance, and when the ordinary meaning of issue clearly appears to have been modified, effect must be given to the modification in the sense in which it carries out the intention of the testator. Children of deceased nephews and nieces take to the exclusion of their descendants.

2. The next question is, Did so much of the share of income bequeathed to Mrs. Hopper, which upon her death passed to Mrs. Price, go to the latter’s issue upon her death? The bequest of the income over to the surviving nephews and nieces was an independent gift; it vested in Mrs. Price, and upon her death became a part of her estate, payable to her executor. Boggs v. Boggs, 69 N. J. Eq. 497; Trenton Trust and Safe Deposit Co. v. Cook, 88 N. J. Eq. 516.

3. The estate held two mortgages, and, pending foreclosure, the mortgagors conveyed to the trustee, who since has sold the premises at a profit. The profit is to be apportioned between the principal and income in the ratio which the principal sum involved bears to the interest due upon it at the time when the security was realized upon. Hagan v. Platt, 48 N. J. Eq. 206; Tuttle’s Case, 49 N. J. Eq. 259; Parker v. Sealey, 56 N. J. Eq. 110; Trenton Trust and Safe Deposit Co. v. Donnelly, 65 N. J. Eq. 119.

4. The remaining question is, Was there a conversion of the realty into personalty? The reason for this query is, that some of the takers under the will have spouses who claim inchoate rights of dower and curtesy. The real estate was devised directly to the testator’s nephews and nieces and they held vested estates, subject to being divested if they died in the lifetime of Adelaide Barling, and, consequently, dower and curtesy attached. There was no conversion at the death of the testator and none by the exercise of the power of sale by the trustee, who has since sold some of the land. There is nothing in the will to indicate that the testator intended the land to be converted, and so converted to be distributed as personalty. The power of sale was only for the convenience of the estate and the purposes of the will. The sales did not disturb the rights which were vested in the takers under the will at the termination of the trust estate, nOr those which at that time inured to the respective spouses. The proceeds must be regarded as land and distributed accordingly. Cook v. Cook, 20 N. J. Eq. 375; Moore v. Robbins, 53 N. J. Eq. 137; Alabone Estate, 75 N. J. Eq. 527; Meeker v. Forbes, 84 N. J. Eq. 271; affirmed, 86 N. J. Eq. 255; Albright v. Van Voorhis, 104 Atl. Rep. 27.

The spouses of those who died in the lifetime of Adelaide Barling are not entitled, because their • spouses were not seized.

The divorced wife of Rodman Price, one of the takers under the will, sets up that his divorce is invalid, and that she is entitled to an inchoate right of dower in the land of which he became seized under the will. That issue has yet to be tried.


author: Baok.es, Y. C. •

text:
    Leon S. Harkavy, complainant, v. Dreamland Park Company, defendant.
    [Decided October 20th, 1925.]
    1. A lease for land for more than three years, signed by an agent whose authority is not in writing, is a lease at will only.
    2. Where leased premises are not defined -with certainty in the lease, occupation by the tenant, acquiesced in by the landlord, fixes the location.
    3. Where the tenant was forcibly ejected from the land leased by him, his remedy is by suit at law for damages and not by an accounting in equity.

      On motion to dismiss bill.

      Mr. Benjamin M. Weinberg, for the complainant.

      Mr. Charles M. Mason, for the defendant.
   Baok.es, Y. C. •

This motion is to strike out the bill for want of equitjc The bill alleges that the Dreamland Park Company owns an amusement park, and that on July 6th, 1922, it entered into an agreement with the complainant to lease to him a certain lot and space of land on the property of Dreamland Park Company, Incorporated, marked on a map of said park as automobile parking space, for five years, with an option for an additional five years, for the purpose of conducting in the park the business of automobile parking. That at the time of the lease there was no map of 'the park in existence. That it was agreed, however, between himself and the authorized agent of the corporation, that the complainant should be permitted to use any space in Dreamland Park which should thereafter be designated on any map and set aside for parking automobiles. That the complainant should pay to the company fifty per cent, of the gross income. That during the season of 1922 the company set aside a parking space in its park, and that later the parking space was shifted to another part of the park and designated on a map of Dreamland Park as automobile parking space. In the seasons of 1922, 1923 and 1924 the complainant operated the parking spaces and paid to the company its percentage of the gross receipts. That at the beginning of the season of 1925 the company barred him from the parking space and its use. He prays an injunction restraining the company from interfering with his quiet use of the parking space; for an accounting; for a construction of the lease and a determination of his rights thereunder, and for a reformation of the agreement defining the location of the parking space with certainty.

A copy of the lease is annexed to the bill and is made a part of it. It shows that the lease was signed “Dreamland Park Company, by 0. Devany, General Manager.” Section 1 of the statute of frauds (Comp. Stat. p. 2621) requires that all leases, except those not exceeding the term of three years, shall have the force and effect of the leases at will only, unless they be in writing, signed by the parties, or their agents, lawfully authorized by writing. It is not alleged that the general manager had authority in writing to sign the lease, and power to bind the company is not to be implied from his position of general manager. Clement v. Young-McShee, 70 N. J. Eq. 677.

. The complainant’s tenancy at will was not, however, brought to an end by the forcible means used by the defendant. The complainant was entitled to notice terminating his term, and his right of occupancy remains unimpaired. McEowen v. Drake, 14 N. J. Law 523; Sayre v. Roseville Motor Co., 85 N. J. Law 10.

The claim of the defendant that the leased premises were 'not defined with certainty in the lease, and, that it is a nullity, is inadmissible. Though there was no map upon which the parking space was marked at the time the lease was made, and to which it referred, the parties,’by their conduct, located the leased premises, first in one place, then another, and they became as fixed and certain as if they had been described in the lease.

There, of course, can be no reformation embodying in the lease the general manager’s promise that the leased premises should be the parking space as shown on any map thereafter adopted by the company. The promise as made contemporaneously with the execution of the written agreement, and the latter, prevails. The omission to include it in the written document Avas not the result of a mutual mistake. Green v. Stone, 54 N. J. Eq. 387.

The complainant’s remedy is at law for damages for the invasion of his rights. He is not entitled to an accounting for the income from the parking space, for it appears that the defendant took the income in its own right adversely to and not in right of the complainant. One-half of the net income may form the basis for the measure of damage at law. The law courts have adequate means for ascertaining the income.

The bill will be dismissed.


author: Backes, Y. C.

text:
    The Arlington Realty Company, complainant, v. Amelia R. Gluck et al., defendants.
    [Decided October 20th, 1925.]
    1. A judgment on a mechanics’ lien is void unless the issuing of the summons is endorsed on the lien.
    2. A judgment in a mechanics’ lien suit voided because the issuing of the summons was not endorsed on the lien, is attackable in a suit to quiet title to the land. The purchaser at a sheriff’s sale to enforce his judgment acquired no title by his deed.
    3. To maintain a suit to quiet title to land the complainant must be in peaceable possession. When the possession of the complainant is disputed the bill will be dismissed.
    On final hearing.

      Mr. G. Herbert Walker, for the complainant.

      Mr. Michael J. Tansey, for the defendants.
   Backes, Y. C.

This bill is to quiet the title to land. The Bynda Development Company agreed in writing to sell the lot to the Chemtec Company, in which it was stipulated that the purchaser be let into possession. Permission was given to construct a dwelling. The Chemtee Company contracted debts in the construction of the building, and Salmon & Company, materialmen, filed a lien claim, recovered judgment specially against the land, and, under execution, the property was sold and conveyed to the complainant. In the meanwhile the Chemtee Company transferred its contract to Amelia B. Gluck, and the Bynda Development Company arranged, to convejr the land to her. Mrs. Gluck negotiated with a New York concern for a mortgage; the time was fixed for the passing of title at the office of the lender’s attorney in New York, and the deed was left with the attorney to be delivered on payment of the balance of the purchase-money. The mortgage loan was not effected; the purchase price was not paid, and the deed was surrendered by the attorney to the Rynda company. Before delivering the deed to the New York attorney, Maurice B. Gluck, Mrs. Gluck’s husband, a New York lawyer, who represented her in all the transactions, persuaded the representatives of the Rynda company to permit him to have a photostatic copy of it made, upon the representation that it would be a protection against the New York attorney. Gluck then had his wife execute a mortgage to one Erieda Horn, and annexed to it the photostatic copy of the deed, and recorded it in the Essex county clerk’s office. The Glucks made the claim that the deed was delivered, but that is false. The bill is filed to rid the record title of the cloud of the supposed deed and mortgage, as well as any other supposed interest the Glucks and Miss Horn may claim to have in the property. A previous effort was made to this end. After the sheriff struck off the property to the Arlington Realty Company, and before delivering the deed, the Rynda company and the Arlington company joined in a bill to remove the cloud from the title, which was later amended into a bill to quiet the title. It was dismissed because the complainants failed to show peaceable possession. The Chemtec Company had been let into possession, to which Mrs. Gluck apparently succeeded, and neither had been ousted, at least, not to the extent of showing that the complainants were then in peaceable possession. The Arlington company thereafter took the deed from the sheriff, and, after recording it, filed the present bill to quiet the title, which, after amendments, was brought to a hearing on the issue of peaceable possession. Later, the defendants were given permission to set up their title, and they put in proof to support it. I now notice, for the first time, that in their answer they ask for a trial by j'ury. That request comes too late.

The record of the mechanics’ lien suit shows that the issuing of the summons was not endorsed on the lien claim, as the statute requires, and, consequently, the lien was discharged. Wheeler v. Almond, 46 N. J. Law 161. The judgment is a nullity and the Arlington Realty Company took nothing by the sheriff’s deed. The judgment is attackable in these proceedings. Raymond v. Post, 25 N. J. Eq. 447; Gerard v. Birch, 28 N. J. Eq. 317. Under the statute to quiet title there are no necessary pleadings except those therein provided for. At the hearing the complainant set up its title under the sheriff’s deed to defeat the defendants’ rights under their contract of sale, and it was quite admissible to attack the judgment on which the deed rests to show the futility of the complainant’s efforts.

The Arlington Realty Company is no better off than it was when it, with the Rynda company, filed its bill to quiet the title, which was dismissed because peaceable possession in them was not shown. The adverse right of possession of Amelia R. Gluck then shown has not been changed. It is true that the Arlington company has entered and finished the building, but the entry has at all times been adverse to Mrs. Gluck’s claim. Barry v. Tunick, 97 N. J. Eq. 281.

The complainant has failed to meet the statutory requirement, and the bill will be dismissed.


author: JBackes, Y. C.

text:
    Samuel Gross et ux., complainants, v. William Yeskel et al., defendants.
    [Decided October 10th, 1925.]
    1. Contracts for the sale of land will not 'be reformed in respect of matters required by the statute of frauds to be in writing, and then enforced, but equity will so reform to defeat an inequitable suit for a breach. If suit is not threatened the plea is premature.

      2. To warrant a reformation of a contract on the ground of mutual mistake, the proof must be clear and convincing that a mistake had been made, and that it was mutual.
    On final hearing.
    Jlíessrs. Silberm.an & Grossman, for the complainants.

      Mr. Philip J. Schotland, for the defendants.
   JBackes, Y. C.

The complainant Gross bought the old Trefz brewery from the Krueger Company, and in his agreement of sale with, and his deed from, the Krueger Company, covenanted not to use the property for a brewery. Before he got his deed he sold the property to the defendant, and in a memorandum agreement between them it was stipulated that “the property is to be delivered the same way as the agreement held by said Samuel Gross.” The following day a formal agreement of sale was entered into in which the stipulation was omitted.

Complainant prays that the agreement of sale be reformed to include the covenant, and as reformed that it be specifically enforced. Contracts for the sale of land will not be reformed in respect of matters required by the statute of frauds to be in writing, and then enforced. Wirtz v. Guthrie, 81 N. J. Eq. 271; Vogt v. Mullin, 82 N. J. Eq. 452; Schwartzman v. Creveling, 85 N. J. Eq. 402. Complainant later waived this prayer for performance and now asks reformation to protect him against a possible suit for a breach of the contract as written. While equity refuses to reform such a contract for the purpose of prosecution, either at law or in equity, it will reform to defeat an inequitable suit for a breach. Suit is not threatened and the plea is premature.

The proofs do not show that the defendant agreed to take title to the property subject to the restrictive covenant, nor that the stipulation in the memorandum agreement that the properly was to be delivered in the same way as Gross was to receive it, means that the defendant was to take title subject to the covenant. The Krueger Company had reserved the right to remove some appliances, and it would appear that the stipulation, as its language indicates, embodied the understanding of the parties that the defendant was to take the property, minus the articles, as the complainant had agreed to do with the Krueger Company. The defendant also testified that he did not know of the covenant until the day fixed for the passing of title, although the complainant’s real estate agent, who negotiated the sale, testified that he had shown him the Krueger Company contract before the memorandum agreement was signed, and also that he had shown it to the scrivener of the agreement of sale before it was drafted. Both deny seeing it. Had she known of the covenant it would not have been notice to the defendant, nor evidence that he had agreed to 'the covenant. The scrivener, an efficient clerk in the office of the defendant’s attorney, prepared the agreement of sale, as she says, in ignorance oE the stipulation or the covenant. It was sent, signed, to the attorney of the complainant, who, after criticism and correction, returned it executed by his client without, as he says, noticing the omission. To warrant a reformation of a contract on the ground of mutual mistake the proof must be clear and convincing that a mistake had been made and that it was mutual. Green v. Stone, 54 N. J. Eq. 387; Birch v. Baker, 81 N. J. Eq. 264.

If the stipulation had been incorporated in the agreement of sale the defendant would not, upon the case as made, have been compelled to accept the title subject to a burden of which he had no notice.

The bill will be dismissed.


author: Gbteeik, Y. C.

text:
    M. Howard Bronsdon, complainant, v. William F. Shupe, defendant.
    [Submitted April 29th, 1925.
    Decided May 6th, 1925.]
    Where A entered into an agreement in writing with B, providing that B should purchase certain shares of stock in a corporation, A agreeing to take back the stock at an advanced price within one year if B should become dissatisfied with his purchase, and before the end of the year B became dissatisfied with his purchase and demanded that A should take his stock at the price named in the agreement, this court has jurisdiction to enforce specific performance of the agreement where there is no market for the stock and its value not easily ascertainable.
    On bill,. &c.

      Messrs. Lichtenstein & Lichtenstein, for the complainant.

      Mr. Harry A. Avgenblick, for the defendant.
   Gbteeik, Y. C.

The bill in this canse is filed to recover from the defendant the sum of $6,250 on an. agreement entered into between the complainant and defendant on January 26th, 1923, a copy of which is as follows:

“Shupe Terminal Corporation,
Lincoln Highway and Passaic River, Kearny, N. .T.
January 26, 1923.
In consideration of the purchase by Mr. M. Howard Bronsdon, Jr., of five thousand dollars [$5,000] worth of stock of the Shupe-Terminal Corporation at $50.00 per share, we hereby agree to employ him at a salary of $50.00 per week;
And furthermore, should be be dissatisfied with his purchase and elect to dispose of the said stock, I hereby agree to redeem the said stock within one year fiom date at a price of $62.50 per share, or $120.00 for every $100 invested hy him in the Shupe Terminal Corporation.
It is also agreed that Mr. Bronsdon will be elected to the Board of Directors at the next meeting.
[Signed] Wit. F. Shupe,
Feed Nolta.”

The complainant bought one hundred shares of stock and paid $5,000 for the same. Afterwards, ¿nd before the end of the year, he became dissatisfied with his purchase and was discharged in August, 1923. He made a demand upon the defendant for $6,250, and tendered a return of the stock, which tender was refused.

The bill was filed on September 7th, 1923.

The sole question presented is whether the complainant has an adequate remedy at law, thus ousting this court of jurisdiction ? This point is not directly raised hy the answer. In the fifth defense the defendant says: “In lieu of a motion to strike out the bill of complaint in this case defendant reserves the right, at or before the hearing of this cause, to move to strike out the bill of complaint on the ground tha.t it presents no grounds of equitable relief.” Objection is made by the complainant that this clause in the answer does not raise the question of jurisdiction, and, therefore, should not be considered. I have concluded, however, not to consider this objection, hut rather to decide the case on its merits.

The defendant concedes that the only point to be decided by the court is that of jurisdiction, and waives the other points raised hy his answer. He also concedes “that the general rule in this country is that where stock cannot be readily obtained except from a party to the contract, by the prevailing rule in this country specific performance may be had,” but contends that that relief can only be granted to the vendee and not to the vendor, and asserts, as a preliminary point, that the court will not enforce specific performance for lack of mutuality. I may readily pass this point with the observation that when the complainant filed his bill, exercising his option, the contract then became mutual. Richards v. Green, 23 N. J. Eq. 536; McVoy v. Baumann, 93 N. J. Eq. 360 (at p. 378); Rittenhouse v. Swiecicki, 94 N. J. Eq. 36 (at p. 40).

The complainant contends that the court has jurisdiction because this stock is not procurable in the market, and its pecuniary value is not readily ascertainable. The defendant, on the other hand, contends that it is “on the market,” and its value readily ascertainable. No stock of the company was attempted to be sold, except to a few persons in small lots, prior to August 20th, 1923, and this stock was sold by the company or its officers. It was not, in any sense, placed “on the market" for sale. The first attempt to sell the stock, apparently, appears from an insertion of an advertisement in the “Newark Sunday Call" of September 16th, 1923, which was after this bill was filed. It is perfectly apparent, from, the whole case, that prior to August 20th there was no market for the sale of this stock, excepting to the defendant and its officers. It was a close corporation, the defendant holding 'twenty-six thousand shares of the common out of a total of thirty thousand, of which latter four thousand the company retained two thousand six hundred, and of the one thousand four hundred remaining shares I assume that five hundred were those purchased and held by the complainant. Under such circumstances, I cannot see where there was such a “market” for this stock, in the eye of the law, that the complainant would be bound to sell the same at any price he might obtain and sue the defendant for the deficiency. This court, therefore, has jurisdiction to compel specific performance of the contract. Safford v. Barber, 74 N. J. Eq. 352; Rothholz v. Schwartz, 46 N. J. Eq. 477.

The decree will be for the complainant.


author: Gijubtust, V. C.

text:
    Frank Ulikowsky, complainant, v. Amelia Casper, Cloward J. Casper and Jacob Mistak, defendants.
    [Submitted April 14th, 1925.
    Decided May 12th, 1925.]
    Complainants entered into a contract with the defendants, Casper, to purchase certain lands. Title was not passed on the date agreed upon, apparently, because complainants did not 'have the $1,000, balance of the purchase-money. Two months after the date fixed for passing- title, Caspers gave a notice requiring the passage five days later, or the contract would be at an end, and- thus attempted to make time the essence of the contract. About a month later the contracting parties met, and a question arose touching three mortgages covering the premises in question and other property. The Caspers requested ail attorney to adjust the mortgage matters with the mortgagee if possible. He afterwards reported' to the Caspers that the mortgagee would not accede to his request. The Caspers did not give further reasonable notice making time of the essence of the contract, and the complainant remained quiescent. Two months later the -Caspers made a contract until the defendant, Mistak, to sell the premises and other property. Three days later t'he complainants learned of this contract and wrote the Caspers concerning it, and three days thereafter the contract with Mistak was recorded. The contract of the complainants with the Caspers was not recorded, and Mistak said he knew nothing- about it. Two or three days after tlie Mistak contract was signed, Mistak went to the premises and told the complainants that he wanted to buy it, and complainants said nothing. Two or three days after the deposit was made, Mrs. Mistak talked with the complainant and his wife, and said, “probably you will be angry because I bought this property,” and Mrs. Ulikowsky said, “I would buy that but I haven’t got the money.” The complainant delayed filing his bill until after the conveyance by the Caspers to Mistak, some fifty days after be had knowledge of the facts. Weld, (1) that the conversations between the Caspers and tlie Mistaks constitute sufficient inquiry to satisfy the law, and justified the Mistaks in taking title; (2) that the delay of fifty days before filing the bill after complainants had full knowledge of the facts constitutes inexcusable delay; (3) under the circumstances of this case, th-e bill should be dismissed without prejudice to any rights which the complainants may have against the Caspers.

      On bill, &c.

      Messrs. Eichmann & Seiden, for the complainant.

      Messrs. Bauer & Banker, for the defendants Casper.

      Messrs. Lichtenstein & Lichtenstein, for the defendant Mistak.
   Gijubtust, V. C.

On November 6th, 1922, the complainant entered into a contract with the defendants Casper for the sale of certain lands at Secaueus. Passing over the great many mistakes made in this contract as to the time of passing title, counsel agree that the title was to be passed on December 6th, 1922. The title was not passed on that date because the complainant did not have the $1,000 required to be paid upon the passing of the title. On February 14th, 1923, counsel for defendants Casper wrote a letter to the complainant fixing February 19th, 1923, as the date of passing title, or the contract to be at an end. This period may have been too short. Orange Society v. Konski, 94 N. J. Eq. 632.

During the month of March, 1923, the parties met at Mr. SafveFs office and discussed the question of the three mortgages then existing on the premises in question and other property. Mr. Safyer was fearful of passing the title with the mortgages so situated, although, on the record, they appeared to be $4,000, $500 and $500, respectively. Seven hundred and fifty dollars had been paid on account, making the whole sum due $3,250, which amount the complainant, by the terms of the contract, was to assume. It was then agreed that Mr. Safyer, representing the defendants Casper, should see the mortgagee and endeavor to adjust the matter so that the $3,250 of mortgage should be a lien solely upon the premises in question. He afterwards reported to Mrs. Casper that the mortgagee would not accede to his request and desired that the loans be discharged, they being then past due. Nothing further transpired in the matter, the Caspers did not give a further reasonable notice making time of the essence of the contract, and the complainant remained quiescent. It is apparent that the complainant’s difficulty was in paying the $1,000. Matters remained in this shape until May 15th, 1923, when the Caspers made a contract with the defendant Jacob Mistak to sell the premises in question and another tract for $9,000, title to pass on June 15th, 1923. On May 18th, 1923, Mr. Safyer, representing the complainant, wrote to Mrs. Casper, saying, “my client has informed me that he is ready to take title to) the premises sold by you to him in Secaucus, New Jersey, and pay the $1,000 cash as agreed.” And then he says: “I desire to say that I have received indirect information that you have disposed of this property to another purchaser, I would advise that if this is so you may get yourself into litigation, and therefore suggest that you call to see me immediately.” Mrs. Casper did not call in pursuance of this request. Three days thereafter, namely, on May 21st, 1923, the contract between Casper and Mistak was recorded. Mr. Degelman, who, apparently, acted for the Mistaks, says he knew nothing about the contract with the complainant, but does not deny that Safyer telephoned him, and, in response to this message, he said he represented Mr. Mistak.

The defendants Mistak say that they knew nothing about the contract of the complainant, and that two or three days after the contract with the Mistaks was signed, he (Mistak) went up to the premises to look them over, and saw Ulikowsky, and told him “I want to buy it,” and that Ulikowsky said nothing. Mrs. Mistak also said that she talked with both the complainant and his wife, two or three days after the deposit was made, and said, “probably you will be angry because I bought this property,” and that Mrs. Ulikowsky then said, “I would buy that, but I haven’t got the money.” Ulikowsky swears that he never had a conversation with the Mistaks. I presume he meant before the deed was delivered, because he did have a conversation with them after the deed was delivered, when Casper introduced Mistak to the tenants, and he then made no claim. It is significant, however, that Mr. Safyer’s letter, three days after the date of the contract to Mistak, speaks of his information as to the sale of the property, which, in effect, corroborates the Mistaks as to this conversation.

I am satisfied, therefore, that when the Mistaks spoke to the complainant about the purchase of the property he did not assert any claim' against it, and this was a. sufficient inquiry to satisfy the law and justify the Mistaks in taking the title.

But there is another point which is not disputed, namely, the laches of the complainant in not'commencing his suit earlier. The Mistaks knew nothing about the contract with the complainant. The contract was not recorded. The complainant had knowledge, within a day or two after the Mistaks made their contract,' of the fact of the Caspers selling, or contracting to sell, the property, as evidenced by the letter of May 18th, 1923. An examination of the record could have disclosed the record of the contract of May 21st, 1923, providing for the passing of the title on June 15th. The title was not passed on June 15th, but on July 9th, and the deed was recorded on the same date. Complainant filed his bill on July 10th, one day after the recording of the deed from the Caspers to the Mistaks. Taking the date of the record of the contract, May 21st, complainant did not file his bill until sixty days after he had this knowledge. I think that this delay is sufficient to estop the complainant from asserting his claim against the Mistaks. Had he proceeded promptly and had a decree in his favor, the Mistaks would have been protected, for, out of the $1,000 which complainant was to pay the Caspers, the $200 deposit made by the Mistaks could have been returned; and, by his delay, he permitted the Mistaks to pay, in addition, $3,800 (or $4,000 on or prior to the delivery of the deed), and to give a mortgage for $5,000. The delay of sixty days before filing the bill, to my mind, constitutes inexcusable delay, and the complainant was guilty of laches. It should not have taken more than a week to prepare and file the bill, and the complainant was bound to file his bill before the time fixed in Mistakes contract for passing the title, or, at least, before the title passed. This he failed to do, and should not now be permitted to assert his claim against the Mistaks. Houghwout v. Murphy, 21 N. J. Eq. 118; affirmed, 22 N. J. Eq. 531, 549; Penrose v. Leeds, 46 N. J. Eq. 294, 296, and cases cited; Fry Spec. Perf. 524, et seq.

In dealing with this question of laches, I am not applying it to the case as if it was between the complainant anct the Caspers; the application has reference only to that as between the complainant and the Mistaks, who purchased in good faith, without knowledge of the claim of the complainant, after making what might be deemed inquiry on the premises. I am dealing with this question of laches because it was argued by counsel.

I might add that the Mistaks state that they did not buy the hog shed, and a reasonable time will be allowed to the complainant to remove the same.

After the cause was tried Mrs. Mistak was made a party to the suit.

I will advise a decree that the bill be dismissed without prejudice to any rights which the complainant might hare against the Caspers.


author: Griffin, V. C.

text:
    Louis Peragallo, complainant, v. Philip Oneto and Josephine Oneto, defendants.
    [Decided May 26th, 1925.]
    The complainant, on .September 25th, 1913. loaned to the defendant husband $600 on his note. On July 6th, 1914, the above note being unpaid, complainant loaned $1,700 additional, taking from the husband a note for $2,300, which included the amount due on first note, endorsed by the wife. The complainant sued the defendants at law. The wife pleaded her coverture, that she endorsed the note as surety and that her separate estate received no benefit, &c., which resulted in a dismissal of the suit against the wife. Judgment was entered against the 'husband. The complainant took out execution and levied on the premises in question. Prior to the commencement of the suit at law, the complainant demanded payment of the note. Shortly thereafter the husband, through an intermediary, transferred the premises to his wife, both defendants claiming that the property was bought with the wife’s money, intending that title should be taken in the wife’s namie >but iwias, in fact, taken in that of the husband, by means whereof a resulting trust arose in favor of the wife. The purchase price of the premises when purchased by the husband wras paid in cash, substantially all of which came from the wife and the balance was covered by a mortgage. The $1,700 loaned, or some portion of it, was used in converting the building from three to four stories. At the time that the $2,300 note -was made the defendants both told complainant that the 'husband was the owner of ..the premises. In this suit the wife sets up that the conveyance to her was to carry out the resulting trust in her favor. This is contrary to her defense at law, for had she so pleaded that she did not sign the note as surety but for the benefit of her separate estate, in ■which case judgment at law would have passed against husband and wife, and complainant could have issued execution against both. She also says in this suit, contrary to her admission at law, that she did not endorse said note. Held. (1) that in her plea at law she practiced a fraud on the court, and should not now be permitted to prevail by her changing her position; (2) that her conduct in stating to complainant that the property was that of her husband in order to induce the loan, and permitting the property to remain in his name for hvelve years, during which time she knew her husband was not successful in business, estops her from claiming title as against the complainant.
    On bill, &c.

      Mr. Anthony P. La Porta, for the complainant.

      Messrs. Sluhr é Vogt, for the defendants.
   Griffin, V. C.

The bill in this cause is filed to set aside two conveyances as against the judgment of the complainant, one made by Philip Oneto and wife to Mary Dillon, dated and recorded September 12th, 1922, and the other made by Mary Dillon, single, to- Josephine Oneto, the wife of Philip, bearing date and recorded on the samé day as the prior deed.

The premises in question were acquired -by Philip Oneto, the husband of-Josephine, from one Oscar Pflug, on May 2d, 1910. lie retained title until the two conveyances above mentioned, which vested the title in his wife, Josephine Oneto, were made.

The complainant, on September 25th, 1913, loaned to the defendant Philip Oneto, $600, and took his promissory note for that amount, payable in six months after date. On July -6th, 1914, the last mentioned note being unpaid, the complainant took the note of Philip Oneto for $2,300, payable six months after date, which included the $600 note above mentioned and $1,700 then and there advanced in cash. This note was endorsed by Philip Oneto and his wife, Josephine Oneto.

The complainant commenced suit at law in the supreme court against Philip and Josephine on the last mentioned note, in which suit Josephine pleaded, admitting that she endorsed the note, but that she was the wife of Philip, and that the endorsement was made by her as surety, and that her separate estate received no benefit in consideration thereof. This, apparently, resulted in a dismissal of the suit against Josephine, and the case then proceeded to judgment against Philip, which judgment was entered on April 28th, 1923, for $2,084.34, and execution issued and a levy was made on the premises in question.

Shortly prior to the commencement of the suit at law, the complainant demanded payment of the said note, and shortly thereafter the two conveyances above mentioned, sought to he set aside, were made, which vested the title in the defendant Josephine. Josephine says that in 1910, when Pflug conveyed to Philip, the purchase-money was advanced by her, and that it was the intention of the parties that the title should be taken in her name; but Philip- took the title in his own name. T have carefully, examined the evidence in support of the wife’s contention, and have come to the conclusion that $1,533.56, which was drawn by Josephine from the Bank for Savings, in New York City, on April 14th, 1910, was actually used as part of the consideration. The purchase price is uncertain. It appears to have been $9,500 or $9,700, which was paid by giving a purchase-money mortgage for $6,700, and the payment of the balance ($2,800 or $3,000) in cash. There are other items which were drawn from the wife’s bank accounts about the time o£ passing of title, which, if applied on account of the purchase price, would substantially equal the sum paid in cash. But I have been unable, with any. certainty, to determine that these additional items were used for that purpose.

Josephine says that, upon the conveyance to her husband, she repeatedly asked him to put the deed in her name, but they could not find time to do so, and did not have the money to pay for the drawing of the deed, &c. She also says that she knew that her husband had taken title in his own name within one year after the conveyance to him.

On June 15th, 1915, she signed a mortgage to the Hobo-ken Bank for Savings for $4,500, on which day the mortgage to Pflug was canceled of record. She also, on November 16th, 1915, executed another mortgage to Bernard Yizetti for $2,400. At either of these times she could readily have had the property placed in her name if she and her husband had desired to do so. But both defendants delayed doing this thing until a short time before the complainant demanded payment of the note and commenced suit; and then the transfers sought to be set aside were made.

The complainant says that the $1,700 was borrowed, among other things, to make alterations in the house and to pay some, bills. He also says that both Mr. and Mrs. Oneto, before he took the $2,300 note,- told him that Oneto was the owner of the property. This they both deny. The building, after this loan, was changed from three to four stories. Philip says that the only thing that was done to effect this change was to put in a stove. How a building could be changed from three to four stores by merely putting in a stove is beyond comprehension. Mrs. Oneto does not say that the building was no-t altered.

In this case, Josephine swears that the endorsement of her name on the $fe,300 note is not her signature. It is quite apparent that in the suit at law, when she admitted in her answer that the endorsement on the $2,300 note was made by her, but that she was an accommodation endorser, and that her separate estate received no benefit, she took a position quite in conflict with that which she takes in the present case. She says, in this case, that the endorsement is not her signature, and that the property was bought in trust for her and should have been in her name from the beginning. I am satisfied, however, that the endorsement on the note is her signature, and that $1,700 in cash, loaned at the time of the making of the $3,300 note, or a great portion thereof, was used in the alteration of the building on the premises which Josephine now claims as owner.

Having admitted, in the suit at law, that the endorsement was her signature, if she had there stated what she now claims in this case, namely, that the said building was her property, and admitted that the $1,700, or a portion thereof, was used in the alteration of the premises, it is quite plain that she would be liable on the note, and judgment would have gone against her (Fisch v. Weinberg, 3 N. J. Adv. R. 274), in which case the complainant here might have levied on the premises and sold the interest of husband and wife to pay the debt. If what she now says be true, she practiced a fraud on the law court, and should not now be permitted to prevail here by changing her position.

Passing from the question of the effect of her conduct in the suit at law, in pleading in variance with her plea in this suit, and assuming that she did advance the purchase-money, when the $2,300 note was made, I am satisfied the defendants told the complainant that Philip was the owner of the property. I am also satisfied that she knew that her husband was heavily indebted, and that he owed the moneys to the complainant from the date of the making of the note, and that her husband was in a losing business. She also permitted the title to remain in his name for a period of twelve years, during eleven of which she knew that the title was in her husband’s name, and had ample opportunity, before the making of the note, to have the property transferred to her own name. Instead of doing this, she permitted the title to remain in her husband’s name, stating to complainant that it was her husband’s property, thus bolstering up his credit, and when he was about to be sued, seeks to protect herself by having it transferred to her in such manner as to defeat his creditors. In such situation she is estopped. Besson v. Eveland, 26 N. J. Eq. 468; City National Bank v. Hamilton, 34 N. J. Eq. 158, 162; Mertens v. Schlemme, 68 N. J. Eq. 549, 550; Cramer v. Cale, 72 N. J. Eq. 210, 215.

A decree will^be advised for the complainant.


author: GrRTFFIN-, Y. C.

text:
    Philip Derechinsky, complainant, v. Louis Epstein et al., defendants.
    [Decided March 20th, 1925.]
    3. The assignor of a mortgage may foreclose, making the assignee a party, especially where the mortgage was assigned as security, or pledged for a loan less than the amount of the mortgage.
    2. The acceptance of interest on a mortgage is not a- waiver of a default for non-payment of taxes and water rents, and the right to foreclose for such default vests unless the default has been occasioned by the acts or declarations of the complainant, the burden of proving, which is on the defendant.
    Oil bill, &C.

      Messrs. Stilhuell & Stilhuell, for the complainant.

      Messrs. Lazarus, Brenner & Vickers, for the defendants Louis and Dora Epstein.
   GrRTFFIN-, Y. C.

The bill in this cause was filed for the foreclosure of a purchase-money mortgage given by Louis and Dora Epstein to-the complainant. The mortgage contained the usual thirty days’ interest and ninety days’ tax, water rent and assessment clauses. The taxes and water rents remaining unpaid for more than ninety days after they became due, the complainant says that this gave him a right to file his bill before the due date mentioned in the bond and mortgage.

Prior to the filing of the bill the mortgage had been assigned to the defendant Blumenthal as collateral security for the payment of a debt of $3,000, the amount due on the mortgage being $3,700, which debt was paid during the pendency of the suit. Mrs. Blumenthal, who was a party defendant, did not answer, but no’ decree pro confesso was taken against her. During the pendency of the suit, and after her debt was paid, without a written assignment, the bond and mortgage was delivered by her attorney to the complainant, and she is. not further interested in the suit, and she so testified in this case.

The first point made by the defendants, the Epsteins, is that the complainant, having assigned the mortgage as collateral security, cannot maintain his bill. They cite no authorities on this point, and it does not seem to be supported by any law. On the contrary, it was held in Norton v. Warner, 3 Edw. Ch. 106 (L. Ed. 589 and note), that the assignor may foreclose making the assignee a party, especially where the mortgage is assigned as security, or pledged for a loan less than the amount of the mortgage. See, also, 9 Encycl. Pl. & Pr. 295, tit. "Assignment as Collateraland eases cited.

The second point is that, by Mrs. Blumenthal accepting the interest after the thirty days’ period had elapsed, it operated aS a waiver of the default for the non-payment of taxes and water rents. This is not the law. The complainant might have accepted the interest and still declared a. default for non-payment of the taxes and water rents. Bergman v. Fortescue, 74 N. J. Eq. 266; 69 Atl. Rep. 474; Union Trust Co. v. New Jersey Water and Light Co., 93 N. J. Eq. 562; 117 Atl. Rep. 155; affirmed, 94 N. J. Eq. 446; 120 Atl. Rep. 329.

The last point made by the defendant is that Epstein would have paid these taxes and water rents within the ninety days were it not for the statements of the complainant that he need not do so.

The right to foreclose for non-payment of taxes in advance of the due date vests in the complainant unless the default has been occasioned by the acts or declarations of the complainant. De Groot v. McCotter, 19 N. J. Eq. 531; Spring v. Fisk, 21 N. J. Eq. 175; Ackens v. Winston, 22 N. J. Eq. 444; Voorhis v. Murphy, 26 N. J. Eq. 434; Industrial Land Development Co. v. Post, 55 N. J. Eq. 559; Arkenburgh v. Lakeside Residence Asso., 56 N. J. Eq. 102; Neale v. Albertson, 39 N. J. Eq. 382; Security Trust and Safe Deposit Co. v. New Jersey Paper Board, &c., Mfg. Co., 57 N. J. Eq. 604; Leipziger v. Van Saun, 64 N. J. Eq. 37.

But the defendant is met here with a complete denial by the complainant, and as the burden of proof is on the defendant to prove that his failure to pay the taxes was due to- the statements of the complainant, and having failed to sustain this burden, he must fail.

The decree should be for the complainant.


author: Buci-ianan, V. C.

text:
    Willis P. Bainbridge, complainant, v. Thomas D. Warburton et al., defendants.
    [Decided June 16th, 1925.]
    The rights of a chattel mortgagee of an automobile under a mortgage by a conditional vendee are superior to those of a subsequent assignee from the mortgagor under assignment made after execution and delivery to him of absolute bill of sale from the conditional vendor.

      On final hearing.

      Mr. Oassel R. RiMman, for the complainant.

      Mr. W. Holi Apgar, pro se, for the defendant Warburton.
   Buci-ianan, V. C.

April 7th, 1922, defendant Warburton purchased and obtained delivery of an automobile from Petry Motor Sales Company, on conditional sale agreement, which was filed in, the county clerk’s office, April 10th, 1922. He, subsequently, April 20th, 1923, axid before completing the payments due. on the conditioxxal sale agreement, gave a chattel mortgage, oxi the automobile to complainant as security for complainant’s endorsement of his note, representing himself as the owner of the ear, and making no mention of the conditional sale agreement.

Thereafter, on May 1st, 1923, defendant Warwick paid to the Petry company $88.39, being the balance then unpaid of the purchase price of the car, and the Petry coxnpany gave Warburton a bill of sale (uxider P. L. 1919 ch. 168 p. 857), Warburton immediately assigned and delivered the same to defendant Warwick, by written assignment (under the same statute).

Still later, oxi March 8th, 1924, on Warburton’s default, complaixiant was compelled to pay, and did pay, a balance of $350 due on the endorsed note, and caused the automobile (which was in Warburton’s possession) to be seized and advertised for sale under the chattel mortgage.

Defendant Warwick then claimed the machine. Complainant tendered her, without prejudice, the $88.39 which she had paid the Petry company, as before stated, but the tender was refused; later, by agreement of the parties, the automobile was turned over to the defendant Warwick upon her depositing $375 with the defendant Apgar, as trustee, as security for complainant’s claim under the chattel mortgage, if such claim should be determined to be valid. The present suit is to obtain such determination, and a disposition of the trust fund1 accordingly.

The theory of complainant is that while his interest as chattel mortgagee from Warburton was, of course, subject to the prior rights of the Retry company under the conditional sale (as is certainly the ease under the Uniform Conditional Sales act, P. L. 1919 ¶. 461), still, Warburton’s interest was also subject, secondarily, to complainant’s chattel mortgage; that when the balance due on the conditional sale was paid, the prior rights under the conditional sale were discharged and complainant’s mortgage became the first lien on the car, and is ahead of the rights of Mrs. Warwick under the subsequent sale and as assignment from Warburton to her.

Mrs. Warwick contends that the chattel mortgage of complainant is of no force or validity, at least, as against her, because Warburton did not own the car at the time of the mortgage, and, therefore, could not, under the Conditional Sales act, mortgage it, and because the mortgage purports to assign and convey, by way of security, the car itself, not Warburton’s interest in the car, and, hence, it is not valid as a mortgage of Warburton’s interest in the car, and because the mortgage does not in terms cover after-acquired property, and, hence, did not attach to the car when full title and ownership passed to Warburton on May 1st, 1923.

The chattel mortgage does not purport to cover after-acquired property, but, in my view, that is not a material circumstance. This is not a case of after-acquired property; by that term is meant property in which the mortgagor had no interest at the time of the mortgage, but in which he, subsequently, acquired an interest. In the present case the mortgagor did have an interest at the time of the mortgage. '

That interest he had the power, and the right under certain conditions, to mortgage, as is clear from section 13 of the Conditional Sales act. That section, it is true, says that prior to the performance of the condition he “shall not sell, mortgage or otherwise dispose of his interest in the goods” unless notice be given the conditional vendor. But it does not say that any such sale or mortgage shall be void, and it has the further provision that if he “does so sell, mortgage or otherwise dispose of his interest in the goods,” without such notice the conditional vendor may take possession of the goods as on default. Clearly, then, such a mortgage is not void. It is effectual as between the mortgagor and mortgagee, though it cannot affect the conditional vendor to his detriment.

It would seem that the mortgage must be equally effective as between the mortgagee and anyone claiming, subsequently, under the mortgagor, unless affected by the statutory provisions as to recording. The interest which was in Warburton and passed under the operation of his mortgage to complainant was an equitable interest, similar to the equity of redemption; it was a right to the legal title upon payment of the purchase price. His interest, subsequent to the mortgage, was an equity subject to the conditional vendor’s title and interest as security for the purchase price, and subject, also, to the interest of the chattel mortgagee. '

When the -legal title later passed to Warburton from the conditional vendor, it enured to the benefit of the chattel mortgagee. Warburton could not be heard to contend that, by acquiring this legal title, he had acquired an interest superior to that of the mortgagee, espeeialfy in view of his covenant of general warranty which the chattle mortgage- contains. Cf. Tully v. Taylor, 84 N. J. Eq. 459; Ripley v. Schenck, 96 N. J. Eq. 547. Nor can anyone, such as the defendant Warwick, claiming as a subsequent assignee from the mortgagor, be heard so to contend, for she could acquire no greater rights than her assignor, unless some other facts intervened to raise a superior equity.

None such appears in the present case. The chattel mortgage was duly recorded, and the defendant Warwick, therefore, took with notice of the rights of complainant under his mortgage.

It follows that complainant is entitled to have paid to him out of the fund in the hands of the trustee, the amount of his debt and interest, to wit, $350 plus interest, from March 8th, 1924. Costs will be awarded complainant and the trustee as against defendant.


author: Eielder, Y. C.

text:
    Rudolph L. Tanner et al., complainants, v. Boynton Lumber Company et al., defendants.
    [Decided June 18th, 1925.]
    1. A person named as a party defendant in a bill of complaint filed under the Uniform Declaratory Judgments act (P. L. 19%,k oh. lJ/O) may move to strike out the bill on the ground that the facts alleged therein do not show that complainant has rights against such defendant with respect to which complainant is entitled to present relief.
    2. If it appears from a bill of complaint filed under said act, that complainant can have no relief as against a party named as defendant, such defendant should not be forced into a litigation which can have no final result in favor of complainant, especially when such litigation will delay defendant in the enforcement of his rights as against complainant.
    3. The court of chancery should not, under said act, undertake to decide or declare the rights or status of parties upon a state of facts which is future, contingent and uncertain.
    On bill, &c. On motion to strike out bill.

      Mr. Orlando II. Dey, for the motion.

      Mr. Earl A. Merrill, contra.

   Eielder, Y. C.

The bill of complainant alleges that on September 15th, 1934, a mechanics’ lien judgment was entered in the Union circuit court in favor of Boynton Lumber Company generally against John T. Evans, builder, and against the complainants, as owners, specially to be made of their building and lands, which judgment was affirmed by the court of errors and appeals (128 Atl. Rep. 180); that after the last material was furnished for which the lien was claimed and before the mechanics’ lien suit tyas commenced, Evans, the builder, executed and delivered to the Boynton Lumber Company a chattel mortgage to secure the indebtedness upon which the lien claim was founded, and that about the same time Evans also assigned a chose in action to the Boynton Lumber Company. It is not alleged that the chose in action was assigned to secure -said indebtedness or in part payment thereof. The bill further alleges that Boynton Lumber Company has not attempted to collect its general judgment against Evans, and that it has not applied any part of the collateral given it by Evans, on account of said judgment. Complainants claim that Boynton Lumber Company should apply the security given it by Evans in payment or reduction of said special judgment against complainants, but that the company refuse to make such • application. The bill further alleges that complainants are uncertain as to their rights and status, and prays a declaration by this court as to whether Boynton Lumber Company should not be required to apply the securities received by it from Evans in payment or reduction of the judgment, and whether complainants may be subrogated to the rights of the Boynton Lumber Company in any security given it by Evans. The bill makes Evans and Boynton Lumber Company defendants and prays subpoena ad respondendum against and answer by them and for such other relief as shall be equitable and just.

The defendant Boynton Lumber Company now moves to strike out the bill on the ground that it discloses no cause of action, in that it sets forth no facts which would entitle complainants to have the securities received by it from Evans applied to the payment or reduction of its judgment against complainants, or which would entitle complainants to be subrogated to the rights of said defendant in any securities given it by Evans, and on the further ground that the matters involved in the bill are res ad judicata under the decision of the court of errors and appeals, and that the bill prays for no specific relief against said defendant.

The bill is filed under P. L. 19H ch. HO, known as the Uniform Declaratory Judgments act, which empowers courts of record “within their respective jurisdictions * * * to declare rights, status and other legal relations, whether or not further relief is or could he claimed.’5 To entitle complainants to have this court consider the situation set out in their bill, and to render a declaratory judgment thereon, it should appear, from the facts alleged, that they have present rights against the persons whom they made parties to the proceedings, with respect to which they may be entitled to some relief. If it appears from the bill that the complainants can have no relief as against any party they have named as a defendant, such party should not be forced into a litigation which can have no final result in favor of complainants, especially if such litigation will delay the party defendant in enforcing rights which have already been established in his favor as against complainants.

The bill shows that in a mechanics5 lien suit Boynton Lumber Company recovered a general judgment against the builder and a special judgment against complainants, to be made specially of complainants5 building and lands, which judgment has been affirmed by the court of errors and appeals. This judgment fixes definitely the rights and liabilities of the parties, and it is not within the jurisdiction of this court to interfere with such rights and liabilities by determining them to be otherwise than the court of errors and appeals said they were.

Hnder the Mechanics5 Lien act (Comp. Stab. p. 8291) Boynton Lumber Company is not required to first attempt to collect its general judgment by issuing execution against the builder, but (section 27) it may issue a separate execution on its special judgment, by virtue of which (section 28) the sheriff shall advertise, sell and convey complainants5 building and lands in the same manner as directed by law in case of lands levied on for debt." This is a statutory right given to this defendant, and this court cannot, by a declaratory decree, determine, as complainants suggest, that the company shall proceed, in the first instance, on its general judgment against the builder before proceeding to sell complainants5 building and lands.

The further claim which complainants make to equitable consideration is that Boynton Lumber Company holds other security for the debt on which the judgment is founded, which complainants suggest should be first applied to the payment or reduction of the judgment before recourse is had to complainants’ building and lands. The Mechanics’ Lien law was, in effect, written into and became a part of the contract under which complainants’ building was erected, with the same effect as if actually incorporated therein in express terms. By failing to file their contract in the county clerk’s office, as provided by the law, complainants impliedly agreed that their building and lands should be liable for the material furnished by Boynton Lumber Company to the builder. Under the law the builder’s debt became a lien upon complainants’ building and lands from the time such material was furnished and the proceedings in the circuit court, so far as complainants were concerned, was an action quasi in rem to establish and foreclose the lien which complainants had, by virtue of the law, given the Boynton Lumber Company. The lien having been established by judgment, complainants cannot now say that Boynton Lumber Company must look to some other fund or security for the satisfaction or reduction of the judgment before proceeding to collect thereon.

Complainants seem to invoke the doctrine of marshaling of assets or securities. This doctrine is that if a creditor has a lien on or interest in two funds for a debt, and another creditor of the same debtor has a lien on or interest in but one of the funds, the latter has a right in equity to compel the former to resort to the other fund, in the first instance, for satisfaction, if that course is necessary for the satisfaction of the claim of both creditors. But that is not the situation here. There are not two funds in question belonging to the builder, nor are complainants creditors of the builder until they pay the judgment. They seek to escape payment of their debt to Boynton Lumber Company by compelling that company to look to another fund in which complainants have no interest. Moreover, the doctrine of marshaling of assets or securities does not apply when it will trench upon the rights or operate to the prejudice of the party entitled to the double fund. Boynton Lumber Company has the right to resort to the most speedy and efficacious mode of obtaining satisfaction of its debt, and it should not be put to any loss, delay or additional expense in collecting. Foreclosure of its chattel mortgage security may demonstrate that it is adequate security for its debt, but, on the other hand, how far the mortgagor’s title to the chattels is good, or encumbered, or whether the chattels will be available to answer the debt, are all matters of uncertainty and their determination will mean delay, risk and expense for the benefit of complainants.

Complainants cannot ask to be subrogated to the rights of Boynton Lumber Company in its general judgment against the builder, or in its chattel mortgage and assigned chose in action security, until they first satisfy the Boynton Lumber Company judgment. If complainants pay the judgment, it is possible that Boynton Lumber Company will, on demand, assign such security to complainants. Until the judgment is satisfied and demand for the collateral is refused, there is no dispute between complainants and Boynton Lumber Company, and this court should not determine an hypothetical question, namely, whether if complainants pay the judgment, Boynton Lumber Company should assign the collateral in question to him. This- court, even under the provisions of the Uniform Declaratory Judgments act, should not undertake to decide or declare the rights or status of parties upon a state of facts which is future, contingent and uncertain.

The. bill of complaint will be dismissed as to Boynton Lumber Company, with costs.


author: Fielder, Y. 0.

text:
    Mary H. Mullen, complainant, v. Thomas J. Mullen et al., defendants.
    [Decided June 29th, 1925.]
    1. The intent and effect of P. L. 1880 p. 82 (Comp. Stat. 3288 § 8-0) is to authorize a married woman, living in a state of separation from her husband, to make a valid conveyance of her interest in lands, without her husband joining therein, but not thereby to cut off his estate by the curtesy when she conveys an estate of inheritance. A conveyance by her, under the act, of an estate of inheritance, must be subject to her husband’s right of possession for his life, in case he survives 'her and issue has been born of the marriage.
    2. Where land in which a married woman is seized of an estate of inheritance as a tenant in common is sold in partition proceedings, the husband’s right of curtesy attaches to the proceeds of sale which retain the character of real estate for the purpose of distribution.
    3. Where the husband does not consent, the court of chancery has no authority to order payment of the proceeds of sale in partition to a married woman, owner of an undivided share in the lands sold, or to ascertain the value of her interest in the fund and to order the same paid to her, or to ascertain the value of the husband’s contingent interest, and to order either that such gross value be paid to him or be held to await the contingency of the prior death, of the wife.
    4. Where the husband does not consent to accept a sum in gross in lieu of his right of curtesy, the proceeds of sale in partition of a married woman’s estate of inheritance -in land must be invested, and the income paid to her during the joint lives of the husband and wife, and to the husband during hie life, if he survives her, and after his death the principal will be paid to the wife’s heirs; or, on the death of the husband during his wife’s life, she will be entitled to have the principal paid to her.
    On bill for partition. • On petition, &c.

      Mr. Merriil Lane, for the petitioner, Mary H. Mullen.

      Messrs. IIowe & Davis, for the defendant Thomas J. Mullen.
   Fielder, Y. 0.

This is a partition suit in which the lands involved have been sold under a decree for sale, which adjudged that the complainant, Mary H. Mullen, was seized of and entitled to one equal undivided half of the lands, subject to the interest therein of her husband, Thomas J. Mullen, by the curtesy initiate. She now petitions for an order directing payment to her of her share of the proceeds of sale, and that the right, if any, of her husband therein, be settled and determined.

The parties were married in 1895 and have had issue. They have not lived together since March, 1920, and since that date the husband has not supported his wife. He opposes her application; states his willingness to support her if she will live with him; declines to accept a sum in gross in lieu of curtesy, and insists that the whole proceeds of sale shall be held in court until the time arrives for its ultimate disposal. They disagree as to which of the pair is at fault for separation, and, for the purpose of this decision, I do not consider it necessary to determine which spouse deserted the other, nor what bearing the husband’s offer of support has on this application. The lands in question were devised to the wife by her father in fee-simple, as a tenant in common.

The wife bases her claim to the whole of her share of the proceeds of sale on the Married Woman’s act (Comp. Siai. p. 8225), and particularly on P. L. 1880 p. 82, approved March 3d, 1880. Comp. Siai. 8225 § 8-o. The act of 1880 provides that any married woman living in a state of separation from her husband, and who is entitled to any interest in real estate, excepting an estate that may have come to her from her husband, may, without the consent or concurrence of her husband, receipt for, convey, sell or devise any interest, estate or right she may have in any real property, the same as though she were a feme sole.

It might be remarked that the complainant-petitioner did not assert the right to sell her interest or estate in the lands under this act, but chose to file a bill for partition, in which proceedings the lands were sold because they could not actually be partitioned. Had the partition been made, her husband’s interest or estate would have attached to the portion of the lands set-off to her.

The proceeds of the sale retain the character of real estate for the purpose of distribution (Geldhauser v. Schulz, 116 Atl. Rep. 791), and, assuming that the act of 1880 applies to the situation which the petitioner has created by filing her bill for partition, it becomes necessary to ascertain what interest her husband had in the lands, and, if he had any, whether the wife could have conveyed the lands free from such interest by virtue of the provisions of that act. In this connection, we must refer to the Married Woman’s act of 1874. Gomp. Stai. p. 8225. Under that act the real property owned by a married woman, and the income therefrom, became her sole and separate property as if she were a single woman, but section 14 of that act provides that nothing in the act contained shall enable any married woman to convey her real property without her husband joining in her conveyance, (except in certain instances provided for in the act), and that no convéyance by any married woman shall impair or affect the right of the husband in her lands as tenant by the curtesy after her death. The Married Woman’s act therefore abolished the right which the husband had at common law to the possession of his wife’s lands during their joint lives, but left him the right to possession for his life in case he survives her and there is issue born of the marriage. Hackensack Trust Co. v. Tracy, 86 N. J. Eq. 301; Bucci v. Popovich, 93 N. J. Eq. 121; affirmed, 98 N. J. Eq. 511. She cannot deprive him of this right by her own conveyance, nor can he be divested by an involuntary sale of her lands under judicial proceedings. Riley v. Riley, 92 N. J. Eq. 466; Bucci v. Popovich, supra.

By a proper act the legislature may abolish curtesy, and, in legislating for the purpose described in the act of 1880, the legislature could have provided that in a situation covered by the act a husband, whose marriage was solemnized after the passage of that act, should have no curtesy in the lands of which his wife is seized of an estate of inheritance. Is it the intention of the act to so provide? The act is entitled “An act for the better securing of the property of married women living in a state of separation from their husbands.” If’ one of its purposes is to abolish curtesy in a situation therein described, its constitutionality is in question, because it embraces more than one object, and one of the objects, namely, the intention to abolish curtesy, is not expressed in its title. Reese v. Stires, 87 N. J. Eq. 32.

.But passing that question and taking up the question whether the intent and effect of the act of 1880 is to repeal section 14 of the Married Woman’s act, and to authorize a married woman, under conditions described in the act, to sell and convey her lands free from her husband’s right of curtesy. The act of 1880 contains no express repealer, and I can find none implied by its terms. The act deals only with the wife’s interest in lands, and authorizes her to receipt for, convey and sell only “any interest, estate or right she may have” therein, thus negativing the idea that the purpose of the act is also to deal with the husband’s estate or interest and to deprive him thereof through, a conveyance by the wife. In the absence of such a law as this, a married woman cannot make a valid conveyance of any interest or estate she may have in lairds, unless her husband joins in the conveyance, and it seems to me that the purpose of this act is to authorize her, under conditions mentioned therein, to make a valid conveyance of her interest in lands without her husband’s consent, but not thereby to cut off his estate by the curtesy when she sells and conveys an estate of inheritance. In re Riva, 83 N. J. Eq. 200. Leaving out of consideration the effect which a separation brought about by her fault and the williness of her husband to live with and support her, might have in construing the act, I would say that, whether her interest or estate in lands be an estate of inheritance or less, she may sell and convey under this act without her husband’s consent, and receive the full consideration which a purchaser is willing to pay for the interest or estate conveyed, but if her estate be an estate of inheritance, her sale and conveyance must be subject to her husband’s right to possession for his life, in case he survives her and issue has been born of the marriage. I conclude that, under the act in question, the petitioner could not have sold and conveyed her land free from her husband’s interest, and that the sale under partition in this cause will not operate to defeat his right, but that such right attaches to the proceeds of sale. Riley v. Riley, supra.

The petitioner claims — first, the right to have the money in court paid to her in-full and to dispose of it as she pleases, without regard to her husband’s interest therein, and, if she shall dispose of it, that her husband’s interest is gone; or, second, that the money be paid to her, less such sum as will represent the gross value of his curtesy if she were now deceased and he were entitled to his curtesy at once, such sum to remain in court until the death of one of them, in the meantime she to receive the income therefrom; if she survives him, the principal to be paid to her, but if he survives her, he to receive the then gross value of his curtesy, or the income for life on the sum in court, and upon his acceptance of a sum in gross, or upon his death, the balance remaining to be paid to her heirs.

I know of no statute which, under the circumstances here present, authorizes the court to order payment to the wife of the whole sum in court, or to ascertain the value of her interest in the fund and to order the same paid to her, or to ascertain the value of the husband’s contingent interest and to order either that such gross value be paid to him or be held to await the contingency of the prior death of the wife. Section 52 of the Partition act (Comp. Slal. p. 3912) provides that estates by the curtesy and dower may be sold by decree of the court and a certain sum ordered paid in satisfaction thereof, or that a share of the proceeds of sale be invested for the benefit of the person entitled to such estate, as provided by the rules and practice of this court. This section, however, applies to cases where curtesy has become consummate byothe death of the wife and under the rules and practice of this court, a sum in gross for curtesy consummate can be fixed only when the husband files a written consent to accept a gross sum. But counsel for the wife contends that, because of the provisions of the act of 1880 and in the absence of any other statute, this court has power to order that a gross sum be now paid to the wife, and he cites, in support of this contention, Leach v. Leach, reported in 69 N. J. Eq. 620, and 72 N. J. Eq. 571. That case was a foreclosure suit in which title to the lands was in the wife, who applied for payment to her of a sum in gross out of the surplus moneys. The learned vice-chancellor held that the refusal of the husband to consent to such payment was no bar to granting her application, and he based his conclusion that she was entitled to such gross sum on section 60 of the Chancery act (Comp. Stat. p. 433) which provides that, when money is paid into court in foreclosure proceedings, the owner of an estate for life may have payment of a gross sum in lieu thereof. It will be noted that in Leach v. Leach the application was made under a statute which applies only to surplus money arising in foreclosure suits. In Ross v. Adams, 28 N. J. Law 161, where the purchase price of lands taken in eminent domain proceedings was paid into court, the supreme court, in the absence of any statute, directed payment of a sum in gross for the value of a wife’s interest -in the lands taken, a sum in gross for her husband’s contingent right of curtesy, and directed that the balance of the fund be invested for the benefit of the children of the marriage. This case was reversed by the court of errors and appeals on the ground that the interests in the fund had not been properly declared by the supreme court, the husband not being entitled to any part thereof, and the judgment reversing directed that the fund be invested for the benefit of the wife for life and after her death for the benefit of the children, and at their death to be paid to another party to the cause, or to her heirs. Although the learned vice-chancellor in Leach v. Leach, supra, apparently relied upon section 60 of the Chancery act when he adjudged that a sum in gross could be paid to the wife from the surplus money in foreclosure, he expressed the opinion that the decision of the court of errors and appeals in Ross v. Adams cannot be considered as an adjudication overruling the opinion of the supreme court as to the power of the court to direct payment of gross sums out of a fund in court without statutory authority or the consent of the parties in interest. Nevertheless, I prefer to accept the decision of the court of errors and appeals, when applied to the circumstances of the instant case, as indicating that this court has no power to order a gross sum paid to the wife out of the fund in court, in lieu of her estate for life. Had title to the lands here in question remained in the wife, or had she sold and conveyed her interest or estate under the act of 1880, the lien (if I may so call it) of her husband for his curtesy would have remained on the lands, and, in case he-survives his wife, he would be entitled to receive all the net rent and profits of the lands for his life. The lands having been sold under judicial proceedings, his lien follows and attaches to the proceeds of sale, and he will be entitled to the same interest in the proceeds as he had in the lands, and that interest, in case he survives his wife, is the net income of the whole fund. The wife insists that the intention of the Married Woman’s act is to free the married woman from the hardships under the common law, which subjected her real estate so largely to her husband’s control, and to give her the sole use and enjoyment of her separate estate, and that such legislation should be liberally construed in her favor, so that all the benefits intended shall inure to her (Bucci v. Popovich, supra), and she further insists that since she was entitled to the possession of the real estate and the rents and profits therefrom, free from the control of her husband, she should now be put in possession of the proceeds of the sale of the real estate, or of. a substantial portion thereof. But the Married Woman’s act should not be so liberally construed as to give her husband’s estate as well as her own. To put her in possession of the fund might defeat the husband’s curtesy, because she may dissipate it. In fact, she claims the right to dispose of it after it comes into her possession, and that, it she does, her husband’s interest is gone. To direct payment of a gross sum to her would deplete the fund by taking a large part of the principal on which he will be entitled to income in the event that he shall live to receive it. If the fund be held in court, the rights of both parties will be protected. The wife can receive the entire income from the fund during her husband’s life, being all that she would have been entitled to had she allowed the lands to remain lands, except that she will not have the actual possession of the fund while her husband lives.

The proceeds of sale should be invested and the income arising therefrom paid to the wife during the joint lives of the husband and wife and to the husband during his life if he survives her, and after his death the principal will be paid to the wife’s heirs, or, on the death of the husband during the wife’s life, she will be entitled to have the principal paid to her.


author: Chukoh, Y. C.

text:
    Helen E. Csipo, petitioner, v. Louis Csipo, defendant.
    [Decided June 9th, 1925.]
    Evidence examined, and held that the adultery charged against the husband is proved, and that the adultery charged against the wife is not proved.
    On petition for divorce.

      Mr. J ohn A. Delaney, for the petitioner.

      Messrs. WoTber & Gilhooley (by Mr. Gilhooley), for the co-respondent.

      Mr. Thomas Brown, for the defendant.
   Chukoh, Y. C.

This is an action brought by the wife against the husband on petition for divorce on the ground of adultery, and a counter-claim by the husband on account of the adultery of' his wife.

It appears that a young girl, co-respondent mentioned by the wife, was taken into the household and lived there for some time. It also appears that she gave birth to a child, which, subsequently, died. The wife alleges that her husband was the father of this child. This the girl denies, and insists that the father of the child was the brother of Mrs. Csipo. This the brother, in turn, denies.

The wife testifies that she discovered her husband in improper relations with the co-respondent, and this is corroborated by a servant in the house, who says that on a certain occasion she saw, in company with Mrs. Csipo, Mr. Csipo enter the house with the co-respondent and go upstairs, and afterwards she, the servant, with Mrs. Csipo, followed them -upstairs and found them in bed together.

There is also evidence that the co-respondent resided at the Y. W. C. A. in Newark, and that, during her residence there, Mr. Csipo came frequently and took her out in his automobile, and that they went to theatres and restaurants, and also took rides to Caldwell, stopping at the Monomonock Inn.

Certain affectionate letters were introduced in evidence, which were written by the co-respondent to Mr. Csipo, couched in very endearing terms. The explanation of these letters were so astonishing that I commented upon it from the bench. It is that Mr. Csipo, fearing that he was losing the affection of his wife, dictated these letters to the co-respondent, who took them down stenographically and then wrote them out and sent them to him, and he placed them where his wife would find them, the idea being that he would thus arouse her jealousy and regain her love. I reiterate that-this explanation, to my mind, is absolutely ridiculous, and I feel that, having distorted the facts as to this phase of the case, he has probably distorted all the other facts.

I cannot escape the conclusion that Mr. Csipo committed adultery with the co-respondent.

As to the counter-claim, without analyzing the testimony in detail, I am of the opinion that no wrong-doing on the part of Mrs. Csipo has been proved.

During the trial, which lasted several days, I was able to observe carefully the witnesses and their demeanor on the stand, and I am confident that the story of the wife is true and that of the husband is open to great suspicion.

I shall therefore advise a decree granting the petition of the wife and dismissing the counter-claim of the husband.


author: Church, Y. C.

text:
    Riley & Downer, Incorporated, a corporation of the State of New Jersey, complainant, v. United Pepsin Gum Company, a corporation, and Peter Steiger, defendants.
    [Decided June 9th, 1925.]
    Where immediate delivery of the goods mortgaged follows the execution and delivery of a chattel mortgage, the affidavits attached to the mortgage may not be inquired into to ascertain if the true consideration is therein set up.
    On petition, &c.

      Messrs. Howe & Davis, for the complainant.

      Mr. Abraham Henig, for the defendants.
   Church, Y. C.

On the 11th day of August, 1923, the defendant in this ease entered into an agreement with the Pepsin Gum Corporation to take over the plant of said company and operate its business. The defendant was to invest the sum of $15,000. For that purpose, and to secure the defendant for any losses which he might sustain, the Pepsin Gum Company delivered to the said defendant a chattel mortgage on the machinery and fixtures. This mortgage was dated the 11th day of August, 1923, and duly recorded.

Immediately upon the execution and delivery of the mortgage, the defendant Peter Steiger took possession of the property and began to operate the said business, which he continued to do for a period of time. When he found the business could not be conducted with a profit, the defendant Peter Steiger thereafter foreclosed the chattel mortgage.

The chattel mortgage is attacked by the complainant because the allegation is that the affidavit attached to it is insufficient. Section 4 of the Chattel Mortgage act says:

“Every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery, and ■ followed 'by an actual and continued change of .possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, having annexed thereto an affidavit or affirmation made and subscribed by the holder of the mortgage, his agent or attorney, stating the consideration of said mortgage, and, as nearly as possible, the amount due and to grow due thereon, be recorded as directed in the succeeding section of this act.”

It should be noted that the Chattel Mortgage act says that unless immediate delivery of the things mortgaged is accomplished, that the affidavits may be inquired into, and that the consideration must be set up in full. Therefore, I think the question in this case is whether or not immediate delivery was made.

The testimony clearly shows that Mr. Steiger took possession of the mortgaged goods and immediately commenced to operate the plant. This, it seems to me, shows that, having taken possession, the technical objections as to the mortgage itself have been waived.

I shall therefore find that there is no merit in the petition of complainant and shall recommend a decree accordingly.