source: Caselaw Access Project

author: Emery, V. C.

license: Public Domain

text:
    Carrie S. Buzby et al. v. Sarah Ann Roberts et al.
    1. On reference in partition under rules 166 and 29, the master is not concluded by the admissions of the bill and answer, as to the-answering defendant’s rights in the premises.
    2. A testatrix devised lands in trust for her son for life, “and at the time of my son’s death it is my wish and will to leave all the property of all kinds to be equally divided among my nephews and nieces on my father’s side according to law.” — Held, a grandniece, the daughter of a nephew dead at the time of making the will, is not entitled to any interest in the lands. Outcalt vOutealt, 15 Stew. Eq. 500, distinguished.
    On bill for partition &c., and exceptions to master’s report.

      Mr. Charles E. Hendrickson, for the exceptants.

      Mr. Samuel A. Atkinson, contra.

   Emery, V. C.

The question in this case arises upon exceptions to-the report of a special master in proceedings for partition. The master to whom it was referred to report on the right, title and interest of the parties in the premises of which partition was sought, has reported that two of the defendants, Mary C. Rue and John R. Rue, her husband, are not seized of or entitled to any part of the premises or interest therein. In the bill for partition, which was filed by two of the tenants in common, the defendant Mary C. Rue was alleged to be entitled to an undivided eleventh interest in the lands, and the interests of the other parties to the suit, including the complainant's own interest, were also specifically stated, being based upon the theory that the defendant Mary C. Rue was entitled to such one-eleventh interest. This defendant and her husband answered, admitting the allegations of the complainants' bill and asserting the right of Mary C. Rue to a one-eleventh interest. No other answers were put in except the usual formal answer of the clerk as guardian ad litem for five infant defendants, and a decree pro confesso was taken against all the other defendants. The order of reference was in' the form directed by rule 166, that on a decree pro confesso taken on a bill for partition, there shall be a reference to a special master to report as to the rights of the respective parties in the premises. The master reported that the defendants Mary C. Rue and her husband were not entitled to any interest in the premises, and in reference to the interests of the other parties to the suit other than the infants and including the complainant, reported that their respective interests were greater than alleged in the bill; this increase occurring by reason of the addition of the alleged one-eleventh of Mary C. Rue to the other shares. After the' report of the master, which also reported that a partition was impracticable and that a sale was necessary, and after the exceptions to the report, a decree for sale of the premises was made by the consent of the exceptants, reserving decision as to the interests of the parties, and directing payment into court of the money arising from the sale. The question therefore practically arises as upon application for a decree of distribution of the proceeds of sale. Counsel for the exceptants suggests the point, that in view of the admissions of the bill, that Mary C. Rue was entitled to an interest in the lands, and in view of the fact that. her answer accepted this statement as true, report or decree can regularly be made on this bill that she did not have any interest in the lands. But it is clear that the statement by one tenant in common in his bill for partition of the interests of one defendant cannot conclude the other defendants, or perhaps even himself. Even by decree pro confesso under the rules, a defendant who does not answer is entitled to the protection of the master’s report upon the rights of the parties, and the master must report the rights of the parties as they really are, irrespective of the admissions of the parties. It may be that a defendant whose rights are admitted by the bill and set up by answer, might, on the coming in of such adverse report, apply for a stay of the partition proceedings until his title could be tried at law, but where, as here, the. partition proceedings are allowed to continue, and a decree for sale is made by consent of the exceptant and the money paid into court, there can be no question as to the right of the court, in disposing of the proceeds of sale, to decide upon the real rights of the parties. Upon the merits of the case, the precise question is whether the defendant Mary C. Rue, a grandniece of the testatrix, is entitled to an interest in the premises under a devise made to the nephews and nieces of the testatrix. It is claimed that the language of the will is such as to show that it was the intention of the testatrix to include the children of deceased nephews or nieces within the description. Sarah Ann Livesey, the testatrix, died seized of the premises in question, seven lots of land in Burlington county, five of which were devised to her by her father, Moses Livesey. At the date of her-will and of her death, she had one son, Charles Moore, a feeble-minded person, and the disposition of her property was as follows:

“My will and wish is, and I leave my property, both real and personal, to my son Chai-les Moore as long as he lives, the said estate both real and personal I leave in charge of my nephew J. Stokes Coles and Abbie S. Buzby, as trustees of all my property and they to take full charge of my son Charles, and to see that he is well cared for as long as he lives, and at the time of my son’s death it is my wish and will to leave all my property of all kinds to be equally divided among my nephews and nieces on my father’s side according to law.”

This son of testatrix died in 1893, and the question now arises as to the disposition of the property after his death.

This will was dated December 14th, 1882, and at this time one of the testatrix’s nephews and one of her nieces were dead, each leaving children. Mary C. Eue, the exceptant, is the only child of Anthony Cuthbert, a nephew of testatrix, who died on July 7th, 1882, about five months before the making of the will. Hope Moore, a niece of testatrix, was also dead at the date of the will, but the precise time of her death does not appear. She left two children, Hannah Moore and Stacy Moore, who were not made defendants, but as to whom the master also reported that they had no rights in the laud. Ten nephews and nieces survived the testatrix, who died on October 8th, 1883, and between the date of testatrix’s death and her son’s death in 1893, some of the nephews and nieces living at testatrix’s death, died leaving heirs or devisees, who were made parties to the suit as succeeding to their respective interests. There is no evidence whether the testatrix at the time of making the will knew of the death of her nephew, Anthony Cuthbert, or of her niece, Hope Moore. The only evidence from which any inference at all in any direction is to be drawn, is the evidence of the defendant Mary C. Eue, that her father, Anthony Cuthbert, lived at Elesmere, in the adjoining county of Camden, and that her father and the testatrix were friendly; that she never knew of any trouble between them, and that her own relations with the testatrix were always friendly. As to the Moores there is no evidence whatever. As to the right of grandnephews and grandnieces to take under a devise to nephews and nieces, there can be no dispute as to the general rule that they do not take. Ho more liberal rule of inclusion could be applied to grandnieces and grandnephews than the rule applied to grandchildren claiming under a devise;or bequest to children, and as to these the rule is settled that the word “ children ” will not be construed to include grandchildren, unless there is something in the context to show that the testator intended to include them, or unless the devise or bequest to children will be inoperative unless construed to include grandchildren. Feit’s Exexutors v. Vanatta, 6 C. E. Gr. 84, and cases cited; 2 Jarm. Wills *152 (R. & T. ed. p. 697.)

And in reference to devises of real estate I find the precise question decided in this state in a case not referred to on the argument. Van Gieson v. Howard, 3 Halst. Ch. 462. In this case the testator devised his real estate to his widow for life and after her death ordered that it be sold and the proceeds equally divided between his brothers’ and sister’s children and one G., in equal portions, share and share alike. The testator had one sister and three brothers. Two of his nephews and one of his nieces had died before the making of the will, leaving issue. It was held that the issue of such deceased nephews and niece were not entitled to share in the proceeds.

The claim of the grandniece in this present case to take the share her father would have taken had he survived testatrix, is based upon the contention that, by the direction of the will that at the time of the son’s death all the property should be equally divided among her nephews and nieces on her father’s side according to law, the testatrix intended that the provisions of the law relating to the descent of estates to brothers’ and sisters’ children should be applied. Under the statute of descent (Rev. p. 297 § 2), a grandnephew or grandniece, being the grandchild of a brother or sister of the whole blood whose parent had died, would inherit the share the parent would have taken. In the present case, the nephews and nieces on the father’s side who were to take would be necessarily the children of brothers and sisters of the whole blood. Nephews and nieces on her mother’s side and not on her father’s could only be the children of her half-brothers and half-sisters, the issue of her mother’s subsequent marriage. The contention is that unless this meaning and force is given to the words “according to law” they have no meaning whatever, and in the construction of the will must be altogether discarded. On the other hand, it is claimed that, inasmuch as the will expressly directs the division to be made between the nephews and nieces, and directs the division to be equal between all the individuals of the class so entitled, the addition of the words “ according to law” cannot control this express direction, even if the.phrase be otherwise inoperative. My view is that the grandniece is not entitled to share in the division.

• The language of the will, as to the persons among whom the estate is to be divided, is entirely operative and it is so clear in its directions as to the persons who are to receive it, that no qualifications of this devise should be made, by construction from other parts of the will, unless it is apparent that the testatrix intended such qualification. I cannot attribute such intention to her by the mere addition of the words directing the division to be between these parties “ according to law.” The expression of an intention to substitute a child in the place of a deceased parent as an object of the gift, must be some expression of the testator, in the will itself, showing that this idea of substitution could fairly be considered as within the testator’s mind. In every .one of the cases on which counsel for exceptants relied, in his very full brief, there was in the will some expression of the testator which in itself indicated that this idea of substitution for a deceased parent was in the testator’s mind. Such cases were Outcalt v. Outcalt, 15 Stew. Eq. 500, and the cases there referred to. In Outcalt v. Outcalt the direction of the will was, that after the death of testator’s wife, the residue of his estate

“shall be divided among my several children, share-and share alike, and in the event of any of my said children dying before my wife and leaving issue them surviving, then such issue shall'be entitled to and receive the parent’s share, the same as the parent would receive were he or she living.”

It was held that the children of a son who died in testator’s lifetime before the making of the will, were entitled to take under this clause of substitution.

The rule laid down in the leading case of Christopher v. Naylor, 1 Meriv. 320, as to .the expression in the will sufficient to indicate the intention to substitute the children of persons dead at the date of- the will in place of the parents, was criticised, by Vice-Chancellor Malins in Adams v. Adams, L. R. Eq. Cas. 246 (1872), and by Sir George Jessel, in Sibley’s Trust, L. R. 5 Ch. Div. 494, and a more liberal rule was adopted by these judges, and these latter cases are relied on by Chancellor Runyon in Outcalt v. Outcalt, supra. The later English cases, however, In re Chinery, 39 Ch. Div. 614 (1887); Groves v. Musther, 43 Ch. Div. 569 (Court of Appeals, 1890), and In re Wood (1894) 1 Ch. 381 (Court of Appeals), approve the rule laid down in Christopher v. Naylor, and disapprove the criticisms of Vice-Chancellor Malins.

In the present case I am asked to decide that the testatrix, by the mere addition of the words “ according to law ” to the direction for division among her nephews and nieces, intended to incorporate as part of her will, and as a qualification of the devise, the provisions of the statute of descent, relating to the division of estates between the children and grandchildren of brothers and sisters of the whole blood. These qualifications of the express terms of the devise are so radical that the testatrix’s intention to make them should be made manifest by some direction in the will itself showing that they were in her mind. With this view as to the effect of the direct devise, I would be inclined to hold that even if the words “ according to law ” could have no effect or application, they must be rejected as meaningless or superfluous rather than attribute this effect to them. But it is not clear that the words “ according to law ” do not have some application to the devises directed between the nephews and nieces. If construed to relate to the mode of division between them, and as meaning that the estate must be divided between them according to the manner in which the law divides estates between any equal owners, and thus reading to be equally divided among my nephews and nieces according to law, the words would have some effect; and in Van Tilburgh v. Hollinshead, 1 McCart. 32 (1861), Chancellor Green held that, by the direction of a testator that, after the death of his son, lands given to the son for life be divided among his surviving children “according to law” the testator meant a division according to the law in force at the time of the vesting of the estate.

As, therefore, these words according to law ” added to the devise, do not necessarily interfere with the equal division among the nephews and nieces, I should not feel at all justified in imputing to the testatrix the- intention of using them for the purpose of qualifying the previous clear language of the will, and the report of the master excluding the grandniece, Mary' C. Rue, and her husband, is confirmed.

As to the Moores, the other grandnephews and grandniece, they are not parties to the suit, and no adjudication should have been made as to their rights. They have no interest in the proceeds of sale, and thei’e should be no attempt to bar any right they may claim in the lands by adjudication against them in this suit.

The exceptants are not injured by this declaration as to their rights, but the final decree should not confirm the master’s report as to these persons not parties.

The master also has failed to' make any report as to the rights of the infant defendants. They are excluded, however, from any right in the lands or proceeds, the share in which there might be claimed for them a contingent interest being reported by the master to belong to their parents absolutely, and no special report being made as to the infants’ rights. The question as to whether these infants have not rights to be protected or expressly adjudicated, should be brought before the court again on application for distribution, as the will under which they claim has not been sent up with the evidence.


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    John S. Barkalow, receiver of the Diamond Ice Company, v. John O. Totten et al.
    1. The court of chancery has the right, in proceedings to wind up the affairs of insolvent corporations, to direct the receiver to make a call upon subscribers to pay up their unpaid subscriptions to the capital stock

      2. Where such call has been made by the receiver, his right of action against such subscribers is a legal right to be pursued in a court of law. Hood, Receiver, v. McNaughton, 25 Vr. 425.

    3. An objection to the jurisdiction of the court of equity that the remedy at law was complete and raised by the answer will be sustained at the hearing.
    On bill, answer, replication and proofs.

      Mr. John R. Beam and Mr. Francis Scott, for the complainant-.

      Mr. John W. Griggs, Mr. Michael Dunn and Mr. Frank E. Pellet, for the defendants.
   Emery, V. C.

This is a bill filed by the receiver of an insolvent corporation, against fifteen stockholders, to recover the amount alleged to be due from them for their respective subscriptions to capital stock of the corporation.

The subscriptions had not been paid at the time the corporation was decreed to be insolvent, under the corporation laws, nor had any call or demand been made by the company for the payment of the subscriptions previous to the appointment of the receiver. On the application of the receiver in the insolvency suit, and on notice to each of the defendants, the chancellor, on January 29th, 1894, made an order authorizing the receiver to call the whole amount of the unpaid subscriptions, and to enforce payment of such unpaid subscriptions by suit, if necessary, against each of the delinquent stockholders. The order was made, however, expressly without prejudice to the rights of any of the defendants to any defence they might have to any action, legal or equitable, which might be brought against them on such alleged stock subscriptions. The receiver, after demand of payment from the defendants for the amount of their respective subscriptions, and their failure to pay, filed this bill against all of the defendants for the recovery of the amounts due from them respectively. Nine of the defendants have answered, six allowing decree pro confesso. Each defendant answering separately raises the objection that the complainant’s remedy is at law and also that the bill is multifarious in joining separate and distinct claims against other defendants with the claim against the defendant. The question whether there is a complete remedy at law is therefore preliminary, and the case does not come within the rule applied in some cases, that a court of equity may, in its discretion, retain a cause if the objection that the complainant has an adequate remedy at law is not made until the hearing. Lehigh Zinc and Iron Co. v. Trotter, 16 Stew. Eq. 185, 204 (Errors and Appeals, 1887), and cases cited.

That the complainant has a right to an action at law to recover from each subscriber the amount of his subscription, is established by the late case of Hood, Receiver, v. McNaughton, 25 Vr. 425 (Supreme Court, 1892).

This was an action at law by a receiver of an insolvent corporation proceeding under orders of the court of chancery, similar to those in this case, to collect unpaid subscriptions, and this decision governs the present case as to the existence of the remedy at law for claims of this character. Moreover, the remedy at law is precisely the same as the remedy now asked in' this suit, viz., a money recovery for the total amount of unpaid subscriptions, nor is there any suggestion in the bill of any equitable facts which are relied on to change the forum of control of the claim from law to equity. The cases of Wetherbee v. Baker, 8 Stew. Eq. 501 (Errors and Appeals, 1882), and Williams v. Boice, 11 Stew. Eq. 364 (Chancellor Runyon, 1884), and Bickley v. Schlag, 1 Dick. Ch. Rep. 533 (Errors and Appeals, 1890), which were relied on at the hearing to sustain the jurisdiction, are cases of a different character. Wetherbee v. Baker and Bickley v. Schlag are cases in which a judgment creditor of the corporation sought to enforce, for his sole benefit, the obligation imposed by section 5 of the Corporation law, which requires stockholders to pay in such proportion of the amount unpaid on their- capital stock as may be required for the payment of the debts of the company. The court held in these cases that, under this section, the suit should be for the benefit of all the creditors and that an accounting in equity was necessary, and that to such accounting, not only the creditors but also the corporation and the stockholders were necessary parties. But in Hood v. McNaughton it was expressly held that where the court of chancery had ordered the receiver to make a call for the whole amount of the subscription, its decree could not be called in question collaterally, nor would the court of law determine or inquire whether the whole amount was needed.

In Williams v. Boice, supra, the receiver filed a bill to reach funds in the hands of stockholders which were claimed to be unearned dividends. Such funds evidently could be reached only through the instrumentality of a court which, had the power to impress a trust on the fund so received, and the decision as to the jurisdiction was put upon this precise ground. See opinion of Chancellor Runyon, 11 Stew. Eq. 367.

In the present case, the right to recover the subscription is, from the nature of the subscription, a chose in action which is recoverable at law. The corporation, had it not gone into insolvency, certainly could not have filed a bill or bills against the delinquent stockholders, nor is any reason perceived why the receiver, in becoming the statutory assignee of the corporation’s rights in this respect, can claim that the character of the claim is changed, purely in his favor, from a legal to an equitable one, or that he has a double remedy for recovery of the claim where the corporation itself had but one. A court of equity has the undoubted right, in winding up the affairs of the insolvent corporation, to authorize the receiver to make a call where the corporation has failed to do so. Scoville v. Thayer, 105 U. S. 143, 155; Glen v. Marbury, 145 U. S. 499, and cases cited; Hood v. McNaughton, supra.

But this authority to the receiver to act in. the place and stead of the corporation in making the call, does not change the character of the stockholders’ liability on the call from a legal to an equitable obligation. It leaves the stockholder subject to the same kind of action by the receiver that he would have been subject to in favor of the company, but to no other. I must therefore hold that each of the defendants has the right to have the validity of the receiver’s claim for his subscription tried in the legal tribunal, and the bill must, as to the defendants who have answered, be dismissed. In view of the fact that the defence was not raised by demurrer, I will hear counsel as to costs.


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    The Trenton Passenger Railway Company v. Samuel K. Wilson.
    1. On a general demurrer to the whole hill for want of party defendants, if any one of the several claims on which the bill is based, appears in the bill to be a claim against the defendant alone, the demurrer must be overruled.
    2. As to one of the claims set out in the bill, which might be construed to be a joint and several claim against the defendant and another, the non-joinder of such other person is not ground of demurrer. Stockton v. Anderson, 13 Stew. Eq. 486, followed.
    On bill and demurrer.

      Mr. Robert S. Woodruff, Mr. James Buchanan and Mr. Frank Bergen, for the complainant.

      Mr. Samuel K. Robbins and Mr. David J. Pancoast, for the demurrant.
   Emery, V. C.

The bill in this case is filed by the Trenton Passenger Railway Company against Samuel K. Wilson, as sole defendant, and is demurred to on the sole ground that Lewis Perrine, junior, should be made a party defendant to the bill. This demurrer, for want of parties, seems to me to be based on a misconception of the gravamen of the claims against Wilson, upon which the bill is founded. The bill is filed by the corporation for an account of the money and other assets of the company alleged to have been taken by the defendant, in violation of his duties as a director and officer of the company. The bill charges several illegal appropriations of the company’s assets, and, with one exception, all of these appropriations are alleged to have been made by the defendant, nor is there any allegation that Perrine or any other person than the defendant took part in the withdrawal. The first claim is, that on October 1st, 1891, a promissory note for $130,000, purporting to have been made by the company, was obtained by the defendant, and the sum of $1,900 in cash was taken by him from the treasury, of the company, and without the knowledge, consent and authority of the board of directors, and that the complainant did not at the time of taking, or at any other time, owe the defendant any portion of these sums. The bill further charges that the defendant after-wards, by means of his position as vice president and director, obtained possession of $260,000 in mortgage bonds of the company, which had been issued for other purposes, and from the .proceeds of sale of some of these bonds received between June and September, 1894, $130,000, which was paid to him as an officer of the company and the custodian of the bonds, and was by him applied to the payment of the note above mentioned, without authority of the complainant and against the objection and protest of the company’s then president, who, as appears by other portions of the bill, was said Perrine. It is clear that there is no reason, apparent on the face of the bill, why Perrine should be made party defendant to the.claim based on this alleged misappropriation, to which he is said to have objected.

The second claim is based upon the charge that the defendant, between October 1st, 1891, and September, 1894, obtained from the company’s treasury, without the knowledge or authority of the directors, sums of money amounting to six per cent, interest for that period on the $130,000 note. The bill does not connect Perrine with this alleged misappropriation of the company’s money.

The third claim is one which, as stated in the bill, may be construed as a charge that Perrine and Wilson jointly misappropriated $12,153.08 of the company’s money. The money is alleged to have been, illegally and in violation of law, taken in 1891, and before the incorporation of complainant, from the treasury of the Trenton Horse Railroad Company, one of the constituent companies, by the said purchasing syndicate,” and applied to its use. This syndicate wás, by previous allegation in the bill, said to consist of Wilson and Perrine. The bill claims a joint and several liability for this amount so taken from the members of the syndicate, and under the rule settled in Stockton v. Anderson, 13 Stew. Eq. 486, failure to join Perrine is not ground of demurrer on Wilson’s part. Even if it were ground of demurrer as to this portion of the bill, the failure to join Perrine is not ground for general demurrer to the whole bill, for if there is any claim in the bill upon which, as therein stated, the defendant should answer, the general demurrer to the whole bill must fail. Romaine v. Hendrickson’s Executors, 9 C. E. Gr. 231, 238 (Chancellor Zabriskie, 1873).

The fourth claim also relates to seventy shares of stock in the company issued to the defendant, Wilson, with which Perrine does not seem to be in any way connected.

The contention of defendant’s counsel at the argument and in their briefs is, that Perrine should be joined as a party defendant,' because it appears by the bill that the alleged misappropriations were made for the joint benefit of Wilson and Perrine in carrying out the scheme of consolidation, and because it also appears by the bill that Perrine is the owner of a majority of the stock of the complainant company, and practically in control of the company and of the suit, and therefore the suit is substantially for the benefit of one tort-feasor against the other. With reference to this contention, I need only say now that, from the allegations of the bill, I do not think it cán be fairly inferred that any of the alleged misappropriations (except the third one mentioned) were made in pursuance of any arrangement with Perrine or with his consent, and as to the appropriation of the proceeds of sale of the bonds to the payment of the $130,000 note, there is the direct allegation that it was made against Perrine’s protest.

As the case stands in the bill, therefore, the company, whoever owns its stock, is entitled to an answer from the defendant as to all the charges, and the demurrer should be overruled, with costs.


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    The Mayor and Common Council of the Borough of Rutherford v. Martha B. Alyea, executrix, et al.
    1. Where a court of equity has jurisdiction of a bill for account against the principal on a bond, or his representatives, the sureties on the bond can properly be made parties for the purpose of the accounting, but no decree for payment can be made against them. Dorsheimer v. Rorback, 8 C. E. Gr. 46; United Security &c. Co. v. Vandegrift, 6 Dick. Ch. Rep. 400, followed.
    2. The sureties on several bonds cannot be joined in a single bill, nor can a bill be sustained on demurrer against the sureties on any one bond, unless there is a statement in the bill that the default of the principal occurred during the time covered by such bond.
    3. Where a bill is filed against an executrix and the alleged fraudulent grantee of decedent’s lands, and the allegations of the bill, admitted by the demurrer, show complainant to be a creditor of decedent, it is not necessary that the bill allege the presentation of the claim to the executrix and the admission of the claim by the executrix. Merchants and Miners' Transportation Co. v. Borland, 31 Atl. Rep. 272, followed.
    On bill and demurrer.

      Mr. Anderson Price, for the complainant.

      Mr. Addison Ely, for the demurrants Martha B. Alyea et al.

      Mr. Charles H. Voorhis, for the demurrants Charles Planer et al.
   Emery, V. C.

The bill in this case is filed by the borough of Rutherford against Martha B. Alyea, the executrix of Thomas W. Alyea, a deceased collector of the borough, and who is also his sole devisee, for an account of the amount due from the deceased collector, and to have certain lands owned by the collector at the time of his death, and devised to his executrix, sold for the payment of the amount found due. The lands were conveyed after testator’s death, by the executrix and devisee, to her husband, Garrabrant R. Alyea, through the medium of one Frank Koch. These conveyances are alleged to be fraudulent and void, and the bill prays that they may be set aside, and makes the husband and Koch defendants for this purpose. There are also added as defendants all of the sureties on the six several bonds executed annually by the deceased collector — the defendants Ross and Slingerland being sureties on one bond, that of 1888; the defendant James I). Brinkerhoff being surety on the bonds of 1888 and 1889; the defendant Planer on five bonds from 1889 to 1893 inclusive; and the defendant Haywood on four bonds from 1890 to 1893 inclusive. The five sureties, together with Koch, one of the alleged fraudulent grantees, have filed a joint demurrer, specifying in substance as the grounds thereof, that the complainant has a remedy at law, and that it has no lien, legal or equitable, upon the lands, but no objection is made on the ground of multifariousness. Martha B. Alyea, who was made defendant personally as well as devisee and executrix, and Garrabrant R. Alyea, have also filed a joint demurrer upon the same grounds.

The right to make a surety upon an administrator’s bond party to an equitable proceeding, involving an account against the principal or his estate, was declared by Chancellor Zabriskie, in Dorsheimer v. Rorback, 8 C. E. Gr. 46 (1872), upon the ground that the surety would be bound by the decree as to the amount due on the bond, and therefore had a right to defend, but, as he further declared, no decree for payment could be made against the surety in the suit. The general demurrer filed by the sureties in that case was therefore overruled (at p. 48). An appeal was taken by the complainant from the refusal of the chancellor to make a decree against the surety for' payment of the amount for which the administrators were held liable. See 10 C. E. Gr. 516, 519 (Errors and Appeals, 1874). The decree of the chancellor was affirmed upon this point, and no intimation was given in the opinion of Chief-Justice Beasley on the appeal that the decision of the chancellor upon the demurrer was not well founded. As to the question of relief against the sureties, he agrees with the chancellor as to the case in hand, and also questions the right of a court of equity to give a remedy against the sureties upon general grounds of objection to the equitable jurisdiction. See opinion, p. 520. But the decisions both in chancery and on appeal have been treated as authority for the rule that a person interested in the result of an accounting, as surety or otherwise, is a proper party for the purpose of being present at the accounting. United Security &c. Co. v. Vandegrift’s Administrator, 6 Dick. Ch. Rep. 400 (Vice-Chancellor Van Fleet, 1893).

These authorities settle the general rule adversely to the contention of the demurrants on this point. The rights of action against the sureties on the several bonds are, however, separate claims, which cannot be joined in a single suit, nor can the sureties on the different bonds properly be made parties to the same bill for the purpose of the account. Such joinder of valid claims against the separate sureties would render the bill so clearly multifarious that the court would, of its own motion, I think, raise the objection and dismiss the bill. But to make a bill multifarious, the allegations must be sufficient to make each of the several claims a valid, equitable claim. Varick v. Smith, 5 Paige 137, 160.

In the present case, in order to make a case against the sureties on any bond, it was necessary to state in the bill that the default of the collector occurred during the period covered by the particular bond. There is no such statement in this bill, as to any set of sureties, and therefore no equitable case is stated against the sureties on any one of the bonds, and as to all of the sureties, the demurrer must be sustained.

As to the other defendants, the executrix and devisee and her alleged fraudulent grantees, including Koch, the bill against them is well founded, provided the complainant, as a creditor of the deceased collector, has a lien upon the lands of which he died seized for the payment of the debt, and is thus enabled to come into a court of equity to attack the validity of the conveyance. Haston v. Castner, 4 Stew. Eq. 697 (Errors and Appeals, 1879), settles this right in favor of a creditor, whose claim has been presented under oath to the administrator, and is admitted by him, but the contention is, that, inasmuch as the bill fails to show that the claim has been presented or is allowed, the lien which is the foundation of the bill has not attached.

This point, however, has been decided adversely to this contention by Vice-Chancellor Pitney, in a case decided since the argument of this case, and where the same question was also raised on demurrer. Merchants’ and Miners’ Transportation Co. v. Borland et al. (March, 1895), 31 Atl. Rep. 272. The vice-chancellor holds that an allegation of presentation of the claim to the administrator is not necessary in order to establish the right to relief, where the allegations of the bill, admitted on demurrer, show the complainant to be a creditor.

The bill in this case alleges (paragraph 8) that at the time of his death the collector was in default $8,290.15, and (paragraph 10) that a payment of $5,000 was made on account of this deficiency after the collector’s death, leaving an apparent deficiency of $3,290.15. The demurrer admits these allegations which are, I think, sufficient to establish the complainant’s status as creditor; and, if it be a creditor, the lien on decedent’s land is expressly given by statute. Rev. pp. 766, 970; Haston v. Castner, supra.

The demurrers of these defendants should therefore be overruled. It is proper to add that in cases where creditors seek to follow decedent’s real estate under the statute, the bill, as stated in Haston v. Castner, 4 Stew. Eq. 697, should be filed on behalf of complainant and all other creditors similarly situated. No objection was made to' the form of the bill on that account, and it may be amended in this respect, as any decree on it should be made for the common benefit of the creditors entitled to the same. As to the sureties, the demurrers are sustained, with costs, and as to the other defendants, overruled, with costs.


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    George D. Pettingill v. Jane Hubbell.
    1. Where a complainant who purchased at foreclosure sale a portion of the mortgaged premises, files a bill for strict foreclosure against a defendant who purchased the same portion of the mortgaged premises from an owner of the whole premises, who was not made party to the foreclosure suit, and whose rights were not foreclosed, it is not necessary that the persons interested in the remaining lands, either as succeeding to the original mortgagor or mortgagee, should be made parties.
    2. In such bill of strict foreclosure, if it appears by the bill that the remaining lands are still owned by the defendant’s grantor, or were not conveyed by her previous to the conveyance to defendant, the defendant would appear to be entitled to have the remaining lands first sold to satisfy the mortgage, and the bill must allege that the mortgage was not paid by the sale of the remaining lands, and that the value of these lands is not sufficient to pay the mortgage debt. Demurrer sustained for want of such allegation.
    3. On such bill for strict foreclosure, the court will determine, upon the proof, the amount of the mortgage properly chargeable against the portion owned by the defendant.
    On bill and demurrer.

      Mr. Samuel A. Patterson, for the complainant.

      Mr. Aaron E. Johnston, for the demurrant.
   Emery, V. C.

The complainant in this case is the purchaser, at sheriff’s sale under foreclosure proceedings, of a portion of the premises covered by a mortgage, and a portion of the premises directed to be sold by the execution in these foreclosure proceedings. By force of this sale, the complainant, under the decree and foreclosure, has succeeded to the rights of the parties to the suit, complainant as well as defendants, in this portion of the mortgaged premises, and, so far as appears by the bill, is the only person interested in these lands as succeeding to such rights. The defendant is the purchaser of this same portion of the mortgaged premises, by deed from the person who owned the premises at the time of foreclosure, this deed being made subsequent to the foreclosure sale. The conveyance to defendant was made subject to the mortgage which was foreclosed. By mistake, this owner of the premises was not made a party to the foreclosure proceeding, and therefore neither she nor her grantee, the defendant in this suit, is cut off by the foreclosure sale. The complainant, who paid $250 for his lot at the sheriff’s sale, files this bill for strict foreclosure against the defendant, not making any other persons parties. The defendant demurs, first, because of the non-joinder, as parties defendant, of all the persons now interested in any portion of the entire mortgaged premises, as succeeding to the rights of the original mortgagor or of the original mortgagee. JSTo persons are named in the demurrer as such proper parties. This reason seems to me to be based on a false theory of the nature of this bill,, and of the rule of equity as to parties. The only persons interested in this particular property, so far as appears by the bill, are the complainant on the one hand, as succeeding to the interests of the mortgagee therein, and the defendant on the other, as succeeding to the interest of the mortgagor. There are no other persons interested in this land, and equity should not require the owners of interests in the other portions of the mortgaged premises to be made parties to this litigation. It is possible that in the adjustment of the rights of complainant and defendant in this suit, it may be necessary to inquire into the value of the remaining lands, and the time and order of the alienation of any of the remaining lands, for the purpose of determining what proportion, if any, of the mortgage debt, defendant is to pay; but this will not require complainant to join all the persons having interests in such remaining lands as parties to this litigation, relating to lands in which they have no interest whatever.

The second ground of demurrer is based on the complainant’s failure to state whether all of the mortgaged premises were sold at the foreclosure sale, what was paid at the sale, and what remained unsold, and the owners of any interest in any portion of the mortgaged premises. As to the latter, the only necessary object of stating the interests would be for making them parties, and this, as above stated, is unnecessary. Whether, in view of the ownership of the remainder of the premises as it is now left to be inferred from the bill, the complainant should not have stated that the sale of all the mortgaged premises failed to produce sufficient to satisfy the mortgage, is a question of more difficulty. So far as any ownership of the residue of the mortgaged premises is disclosed by the bill, this is now owned by Melissa Osborn, the owner at the. time of foreclosure. If this was the real condition of the title at the time of filing this bill, then by her' conveyance to the defendant, the balance of the premises was, as between defendant and Melissa Osborn, first chargeable with the payment of the mortgage. The statement in defendant’s deed that the property was conveyed to her subject to the mortgage, would only mean “ subject,” in the legal and equitable course. If, therefore, the whole mortgage was paid by the sales of the other portion of the mortgaged premises, or if the value of the remaining premises is equal to the whole amount due on the mortgage, the defendant’s property would be free from the payment of any portion of the mortgage. Eor while the decree and sale in the foreclosure proceedings may have made regular and valid, complainant’s succession to the title of the.mortgagee, and of the other parties to the suit, in the portion of the mortgaged premises which he purchased under foreclosure, it could not destroy the equity of the mortgagor’s grantee of the same premises, to have the mortgage first satisfied out of the portion remaining to grantor and her subsequent grantees. The relative rights of the other purchasers at the foreclosure sale, if any, and of the omitted owner, or her grantees of their lands, cannot be adjusted in this suit, but the complainant having by his bill shown title in Melissa Osborn in the remaining land, should by proper allegations show in his bill and prove as part of his case that the mortgage was not paid by the sale of the residue of the lands, and that the value of the lands remaining, after the conveyance to the defendant, is not sufficient to pay the amount now due on the mortgage. An analogous rule is followed in cases where a strict foreclosure is allowed to mortgagees, and where the mortgage debt is held to be satisfied only to the extent of the value of the premises foreclosed ; this value of the whole mortgaged premises being a matter of proof in an action to recover any balance alleged to 'be due on the mortgage debt. Spencer v. Harford, 4 Wend. 381, 385; Morgan v. Plumb, 9 Wend. 287, 292; 8 Am. & Eng. Encycl. L. 187, and note 13.

In the present case, the complainant, as mortgagee, may require the defendant, as mortgagor of the particular portion of the entire mortgaged premises in which they and they alone are interested, to redeem so much of the entire mortgage as may be equitable, but, as the complainant’s bill shows that the defendant’s title has the equitable benefit of the appropriation of the remaining lands to the payment of the mortgage debt, the bill, in order to state an equitable cause of action, must allege that the mortgage debt has not been satisfied by the sale of the remaining lands, and that the value of the remaining lands is not sufficient to satisfy it. An amendment will be allowed for this purpose.

The third and fourth causes of demurrer attack the complainant’s right to require the sum he paid for the premises at the foreclosure sale to be the measure of defendant’s obligation to free her property from the lien of the mortgage. But under the general prayer for relief, the court will adjust the amount to be paid for the redemption upon an equitable basis, and the claim of complainant to the payment of this specific sum is not ground for general demurrer. The court will determine, on the proofs in the cause, how much should be credited on the mortgage on account of the remaining lands, following in this respect its practice in cases where the mortgagee has purchased the mortgaged premises under sale on judgment recovered on his bond. Lydecker v. Bogert, 11 Stew. Eq. 136 (Chancellor Runyon, 1884).

The second cause of demurrer is therefore sustained, and the other causes overruled.


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    Caroline I. Price v. Cecilia M. McKay et al.
    1. Where the owner of the lot and the street number appear on the agreement, the omission of the name of the city or town in which the lot is located, does not render the description indefinite. Qiuzre — Whether the place named at the head of the agreement affords a presumption as to the location of the lands.
    2. The fact that portions of the agreement relating to tacts to be done by the vendor, other than the conveyance of the lot, are vague and indefinite, is no ground of demurrer to a bill for specific performance, where the bill asks no relief as to these provisions, but only a conveyance of the lot.
    On bill for specific performance. Heard on bill and demurrer.

      Mr. John C. Inwright, for the complainant.

      Mr. James P. Northrop, for the demurrant.
   Emery, V. C.

This is a bill for specific performance of an agreement for the sale of real estate, evidenced by a note or memorandum signed by the defendant and set out in the bill as follows:

“ J. City Feb. 19th, 94.
“Received from Mrs. F. E. Price fifty dollars ($50) in consideration of the purchase of a lot on Bramhall Ave. No. 470.
“The price for which is twelve hundred and seventy-five ($1275).
“Cecilia M. McKay.
In case anything should occur I promise that the stable shall be removed, also the privilege of access to my private sewer on property.
“C. M. McKay.”

No date was fixed by this paper for the delivery of the deed, but on the 19th of March, 1894, the complainant offered the balance of the purchase-money and requested a deed for the premises, which the defendant refused to give, and on the 31st of March, 1894, a formal tender of the amount was made by complainant to the defendant, and a request made for the delivery of the deed. The defendant again refused to accept the money or deliver the deed, and, on April 3d, 1894, conveyed the premises to the defendant Maxson. The bill charges that this conveyancé is without consideration, and that Maxson held the title to the premises for the use of the defendant McKay, and with full notice of the agreement between complainant and McKay. The defendant Maxson has answered, but the defendant McKay demurs to the bill. The principal cause of demurrer relied on at the argument, and in the briefs of counsel, is included in the first cause assigned, viz., that the agreement set out does not describe the lands with sufficient certainty to.satisfy the requirements of the statute of fraudá. The objection is that the description of the lands as “a lot on Bramhall avenue No. 470” is too indefinite, unless the city or town is indicated. It is urged •that the place named at the top of the receipt must be construed to apply only to the place of the receipt of the money, and cannot, by parol evidence, be shown to be applicable to the location of the lands. This is contrary to the rule laid down in the Massachusetts cases where it is held that the place of the date of a contract to convey real estate affords a presumption that the estate is situated in that place, but that this presumption is only a presumption of fact and may be rebutted by oral evidence locating the real estate elsewhere. Mead v. Parker, 115 Mass. 413. The bill in this case alleges that the lands are located in Jersey City, and if parol proof is admissible under the doctrine in Mead v. Parker, this allegation of. the bill, admitted by the demurrer, would dispose of this objection. But I think that no decision is necessary upon the application of this rule, for, independent of any aid from external evidence, and treating the date of the receipt to be in law applicable only to the place of receipt of the money, I think the writing itself indicates the lot sold with sufficient certainty to satisfy the statute and to require specific performance. In the first place, the receipt indicates the vendor of the property — the defendant — and the lot purchased is, therefore, a lot owned by the defendant. Next,. it is a lot No. 470 Bramhall avenue, owned by her, and these two marks are together sufficient to locate the property. Additional marks are furnished, if necessary, by the references in the agreement at the bottom of the receipt to a stable and also to a private sewer owned by the defendant. With these four marks or indications appearing upon the face of the paper itself, I think sufficient appears to indicate the property without reference to the place of date of the paper.

If the defendant had devised the property by this description in her will, it seems to me to be impossible to say that the lot would not have passed by the devise. Sir George Jessel, in Shardlow v. Cotterell, 20 Ch. Div. 90 (Court of Appeals, 1881), lays this down as a legitimate test of sufficiency of description under the English statute o’f frauds, and it seems to be a sound and safe rule to be applied under our statute.

That the agreement required by our statute may sufficiently appear in a receipt signed by the defendant, is settled in Lewis-, Administrator, v. Reichey, 12 C. E. Gr. 240, and that the description is not indefinite by reason of the mere omission to state the township or county in which the lands lie, is also settled in this court. Robeson v. Hornbaker, 2 Gr. Ch. 60.

In Ross v. Allen, 45 Kan. 231, relied on by the defendant, the court held that where a receipt was dated “Leavenworth, March 19th, 1887,” and the property was referred to therein as “Numbers 617 and 619 Delaware street, Block 74, city property,” the memorandum was defective in not giving the location in any state, county or city. This receipt was not, however, signed either by the owner, or by any person for the owner, and was, on this account, held invalid, and on the question of location the court says (at p. 574) • “ If the name of the owner or vendor had been given, it would have aided in the identification of the property, but her name nowhere appears in the writing.” This element for identification is present in the memorandum here signed by the defendant herself, and which must, therefore, be taken as a sufficient declaration that the contract refers to the No. 470 Bramhall avenue, of which she is the owner.

This cause of demurrer is, therefore, insufficient.

The second cause of demurrer is based upon the theory that the duty which the defendant is to perform, in relation to the stable and sewer, is so indefinitely expressed in the memorandum that the court will not decree performance of it. The answer to this contention is, that the complainant, by her bill, seeks only the performance of the agreement to convey the lot, without asking for any action or decree of the court with reference to the stable or sewer. The agreement to convey, if definite'as to the lot, cannot be made ineffective by reason of the indefiniteness of other provisions relating to acts or duties of the defendant which are not insisted on by the complainant. Defendants’ equities, either to resist performance or to obtain terms, on account of these provisions, if such equities exist at all, must be made to appear by answer, and cannot, on bill and demurrer, be held to be so certain as to invalidate the clear agreement to convey.

The other causes for demurrer were practically abandoned at the hearing, and, in view of the allegations of the bill, are so manifestly unsubstantial that none of them can be sustained.

I advise that the demurrer be overruled, with costs.


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    Andrew Kirkpatrick, receiver &c., v. Henry A. V. Post et al.

    1. Under the Chancery act (Rev. p. 106 § 18, amended P. L. of 1893 p. 199), the power of the court to order publication against non-residents extends to any bill filed and cannot be construed to be limited to bill filed to enforce demands upon which the court has jurisdiction to make final decree if the non-resident does not appear. Mutual Life Insurance Co. v. Pinner, 16 Stew. Eq. 52, followed as overruling Hoyt v. Thorn, 3 Halst. Ch 9.

    2. An order of publication under the statute against a non-resident, upon bill filed to enforce a personal demand, in which the non-resident defendants are charged as jointly and severally liable with resident defendants, is not unconstitutional under the fourteenth amendment of the United States constitution, and the decision in Pennoyer v. Neff, 95 U. S 714, as taking property without due process of law.

      On bill &c. On motion to set aside order of publication against Henry A. V. Post and George Blake, absent defendants, as illegally and improvidently entered.

      Mr. Richard V. Lindabury, for the motion.

      Mr. James E. Howell, contra.

   Emery, V. C.

The bill in this case is filed by the receiver of an insolvent corporation, against seven of the directors of the corporation, to establish, by decree of this court, their joint and several liability, under section 7 of the Corporation act, for the making and payment of dividends out of the capital of the company, and not from its surplus or net profits, and for an account of the assets and liabilities of the company, as far as necessary to determine whether these payments of dividends were so made. By the terms of this section, the directors under whose administration such payment of dividends from surplus or net profits or division of the capital among the stockholders shall happen, are liable jointly and severally to the corporation, and to the creditors thereof, in case of its dissolution or insolvency, to the full amount of the dividend made or capital stock divided. Rev. p. 178 § 7. By the bill, process of subpoena is prayed against seven of the directors as defendants, including George Blake and Henry A. V. Post. Subpoena against all of the defendants was issued, four of them were served by the sheriff of Essex, and three — George Blake, Henry A. V. Post and Caleb B. Knevals— were returned as non-residents, the affidavit of non-residence showing that Blake resided in North Carolina and Post and Knevals in New York. On this affidavit, an order of publication was made, on March 23d, 1895, against the three nonresidents,

that the said absent defendants do appear, plead, demur or answer to the complainant’s bill on or before the twenty-fourth day of May next, or that, in default thereof, such decree be made against them as the chancellor shall think equitable and just;”

and it was further directed that notice of the order as prescribed by law and the rules be within ten days served personally; on the absent defendants or be published or mailed to them as directed in the order.

The defendant George Blake, on May 22d, 1895,.two days before the expiration of the time fixed for his appearance by the order, and too near to that date to permit of giving the five days’ notice of motion to discharge the order, required by rule 141, filed a petition setting out the filing of the bill and its general object, his residence in North Carolina, and that he had not been served with a subpoena to answer in the cause, but that in lieu thereof, the above order of publication had been made, of which he had received notice by mail. The petition prayed leave to enter a special appearance in the suit for the sole purpose of applying to set aside the order of publication, that the order might be set aside as illegally and improvidently entered, and that all further proceedings in the action against him be stayed until the determination of the matter of his application. On filing the petition,' an order was made directing (1) that he have leave to enter a special appearance for the purpose of applying to set aside the order of publication; (2) that the complainant show cause why the order should not be set aside as illegally and improvidently entered; and (3) that all further proceedings in said action against him be stayed until the determination. A similar petition was filed and similar order made, on the same day and under the same circumstances, as to the defendant Post, and on May 22d, 1895, special appearances were entered on behalf of Post and Blake, for the sole purpose of applying to set aside the order of publication made against them respectively as absent defendants.

The receiver has filed an answer to the petition of Blake, setting out, in addition to. the facts stated in the bill, that Blake filed with the complainant as receiver, his claim as a creditor of the company in the insolvency proceedings; that he still is a shareholder and director of the company, and is possessed of a large amount of real and personal property in this state, and claiming, that in becoming a sharéholder and director of the eorporation, and filing his claim as creditor, he has submitted himself to the jurisdiction of this court for the purpose of all decrees made in the original suit in insolvency, or suits ancillary thereto, brought by the receiver for the purpose of winding up its affairs. Substantially similar allegations and claims are made in an answer by the receiver to the petition of the defendant Post, his claim against the corporation being, however, one which he holds as assignee of a creditor who has proved.

On the petition and answers, the counsel for petitioners move to set aside the orders — -first, because they are not authorized by the law of the state. This claim is based on the contention that the statutes of the state cannot be construed to authorize orders of publication in suits where the bill is founded on a purely personal demand, upon which the court has no jurisdiction to make a decree in the suit, unless the defendant is served within the jurisdiction or voluntarily appears j seoond, because the fourteenth amendment to the federal constitution provides that no state shall deprive any person of property without due process of law, and the order violates this provision of the federal constitution as construed by the United States supreme court, and is, therefore, illegal. This assertion of an alleged right under the federal constitution was not made in the petition or on the record, but is raised at the hearing.

The motion to set aside the order of publication must be denied upon the following grounds

First. The order for publication was issued under the express authority of the statute (Rev.p. 106 18) amended March 10th, 1893. P. L. of 1893 ch. 114 p. 199 § 1.

This statute, so far as relates to the character of the suit in which publication might be made against an absent defendant, was the same as the Chancery act of February 29th, 1820 (Rev. p. 702 2), and confers the power “ in case of a bill filed against any defendant or defendants ” &c., without any limitation as to the character of the bill. This was.an enlargement of the-power conferred by the original Chancery act of 1799 (Pat. L. p. 430 16)-, which extended only to cases where

“any person shall file a bill against a defendant or defendants residing within the state in which it shall be proper or necessary to join other defendant or defendants residing out of this state, whether in the United States or any other country” &c.

The present- bill, it will be perceived, comes within the scope of the act of 1799. For the receiver was entitled, under the seventh section, to insist upon a joint liability of the directors implicated, and for this purpose a joinder of all such directors in the bill was proper. The joinder of non-resident debtors charged to be jointly liable with the resident directors, and the exhaustion of all the statutory power of bringing the nonresidents into court by service or publication, is, I think, necessary as the foundation of any decree for joint liability against the resident directors, even if no final decree can be made against the non-residents under the decree pro confesso expressly authorized by the statute. In Madox v. Jackson, 3 Atk. 406, Lord Hardwicke says: “ The general rule of the court is, where a debt is joint and several, the plaintiff must bring each of the debtors before the court, because they are entitled to the assistance of each other for taking the account.” 1 Dan. Ch. Pr. (3d Am. ed.) 264; Gifford v. Thorn, 3 Halst. Ch. 90, 94 (Chancellor Halsted, 1848).

That the terms of the present statute extend to cases where the bill prays a decree in personam against a non-resident on a personal demand, as to which a court of equity has power to adjudicate against a resident, is settled in this court by the decision of Vice-Chancellor Van Fleet in Mutual Life Insurance Co. v. Pinner, 16 Stew. Eq. 52 (1887). In this case a non-resident defendant applied to set aside a decree for deficiency which had been rendered against him in a foreclosure suit on notice given to him under this statute. The vice-chancellor denied this upon the ground (at pp. 57, 58) that every independent government had the right to declare by what means parties to suits should be brought before its tribunals, that the method of notice to resident or non-resident was a “subject over which the law-making power of each government had supreme control,” and therefore a decree against a non-resident, pronounced under the notice prescribed by statute, was iu all respects as valid and effectual for all local purposes as a decree made against a defendant brought into court by personal service of process. Chancellor Halsted, in Hoyt v. Thorn, 3 Halst. Ch. 9, 15, said that the statute of 1820 could only apply to “ cases in which the court has jurisdiction of the subject-matter of the suit,” and set aside an order of publication against a sole defendant living in New York. This was a bill filed to set aside an assignment of an interest in a decedent’s estate, made in this state, and to recover the money received by defendant under the assignment. This case appears to have been argued as if on application to proceed to decree in the cause (see argument of counsel, at p. IS, and opinion, at p. Ilf) and thus to get in advance the opinion of the court as to what it had the right to decree, if the defendant did not appear. But, if treated as a construction of the statute, adding by construction words limiting the express terms of the act, it must yield to the later decision of Vice-Chancellor Van Fleet and the cases cited by him on which he relied.

If the question of construction were res nova and the present bill were filed against non-residents alone, my own view would coincide with that of the late vice-chancellor. The rule limiting by construction the words of a statute sometimes applies in cases where the construction of the statute is not clear, and where the statute, as enacted, is within the authority of the legislature. That the clear language of the act should be followed was the rule of construction applied in the court of appeals in chancery on a similar question in Drummond v. Drummond, L. R. 2 Ch. App. 32. (1866). The court of appeal here held that the rule of court authorizing the court to order service out of the jurisdiction of a copy of a bill on a defendant in any suit,” and which rule had, by statute, the effect of an act of parliament, could not be restricted to suits relating to land, stock or shares in England, as provided by previous acts of parliament. Lord Westbury’s decision in Cookney v. Anderson, 1 De G., J. & S. 365, limiting the operation of the rule of court to the cases mentioned in the previous statutes, was overruled. Mr. Justice Lindley says, In re Anglo-African Steamship Co., 32 Ch. Div. 348, 351, that the question of service out of the jurisdiction depends on the statutes or rules having the force of a statute.

It is to be noted also that since the decision of Chancellor Halsted the legislature has, by several acts, expressed its intention and policy of making non-residents and foreign corporations parties by publication to suits founded on personal demands, recoverable in common-law courts.

Act of March 3d, 1853 (Rev. p. 477 5), allows publication against non-resident heirs and devisees of a testator or intestate in a suit by a creditor on contract, and on default of appearance, the entry of a judgment for the debt and damages, without proof of lands descended. Rev. p. 193 § 88 ¶¶ 3, 6 &c., provides for publication against foreign corporations not served with summons.

Act of 1878 (P. L. of 1878 p. 14-1; Rev. Sup. p. 813 30) provides for publication against non-resident defendants where the cause of action arose in this state, and is one denominated local. This would reach to all local actions founded on a personal demand or cause of action.

Act of March 20th, 1895, ch. SOI,- provides for publication against non-residents or foreign corporations &c., who own or control property in this state, where the cause of action arose in this state and the plaintiff resides in this state.

The legislative intention, evidenced by these later acts, negatives the idea that in any of the acts upon this subject it was intended to leave to the courts the power to limit their express language by constructive additions, confining their operation to the cases where the court might make final decree or judgment. It was not intended, I think, that the ■ question of the power to enter the ultimate decree or judgment should enter into the question of the right to give notice of the suit to a non-resident, or that this question of jurisdiction should be settled on a motion to discharge the order of publication. The complainant is entitled to have the question of jurisdiction settled by a final decree.

Second. Neither the statute nor the order of publication is invalid by reason of the fourteenth amendment of the constitution of the United States, providing that “no state shall deprive any person of * * * property without due process of law.”

This provision, by its language, reaches only to the protection of property, and can be properly invoked only where the record shows that the taking of property is a direct issue on the record. Such taking was directly involved in Pennoyer v. Neff, 95 U. S. 714 (1877), the leading case upon the application of the amendment to judicial proceedings in the state courts. Here a judgment was obtained in Oregon upon a personal money demand against a non-resident, and the judgment was rendered upon publication of notice to the non-resident pursuant to the Oregon statutes. The defendant in the action did not appear, judgment by default was entered and an execution issued thereon, and the purchaser at the sheriff’s sale under the execution entered into possession of the lands sold. The defendant in the Oregon suit brought ejectment for the lands, in the circuit court of the United States, against the purchaser, who set up the title under the Oregon judgment and execution. The supreme court (Field, J., atp. 788) held that the property was taken without due process of law upon the ground that.in a suit involving merely a determination of personal liability, the defendant must be brought within the jurisdiction of the court by service of process within the state, or by his voluntary appearance. The judgment here was attacked as being rendered without due process of law, and so in all the other cases in the supreme court following this case, and relied on by counsel, final judgments had been rendered, and either by force of the judgment itself or of the proceedings under it, properly had been taken and the question whether it was taken without due process of law was directly involved in the right set up either by the plaintiff or defendant.

The courts of the state cannot, in the absence of an authoritative decision of the supreme court of the United States, construe this provision of the fourteenth amendment as bringing within its scope the forms of procedure in state courts prior to the rendition of judgment, and which are adopted by the state for the purpose of acquiring, or attempting to acquire, jurisdiction over nonresidents. To construe it to apply to these forms of procedure which may or may not result in a final judgment against a nonresident, and the taking of his property, would, it seems to me, be an unwarranted extension of its provisions. The supreme court itself has, by its own decisions in York v. Texas, 137 U. S. 15 (1890), and Kauffman v. Wootlers, 138 U. S. 285 (1891), declared the operation of the amendment to be confined to cases where property is taken, or attempted to be taken, by process issued under judgment, and that the benefit of its protection cannot be claimed against statutes of a state which merely regulate procedure in cases prior to the final judgment. In the first case service.in a suit brought in a Texas district court was made in St. Louis on a non-resident defendant. This defendant so served filed a special plea to the jurisdiction. Texas statutes provided that on such limited appearance, if the judgment was against the defendant, the appearance should be considered voluntary for all purposes. The district court of the state decided against the defendant on the plea to the jurisdiction, and the defendant relying solely on this plea, the district court gave final judgment against defendant. On appeal to the supreme court of the state this judgment was affirmed, and on writ of error from the United States supreme court to the state supreme court the judgment was also affirmed, the United States supreme court holding that the entry of this judgment did not deprive the defendant of property, in the absence of proof that the statutes or decisions of the Texas courts would prevent his attacking the validity of this judgment for want of jurisdiction. Mr. Justice Brewer, delivering the opinion of the court, says on the point now in question (at p. W): “But the mere entry of a judgment for money which is void for want of proper service, touches neither person nor property. It is only when process is issued thereon, or the judgment is sought to be enforced, that liberty or property is in present danger. If, at that time of immediate attack, protection is afforded, the substantial guarantee of the amendment is preserved, and there is no just cause of complaint. The state has full power over remedies and procedure in its own courts, and can make any order it pleases in respect thereto, provided that substance of right is secured without unreasonable burden to parties and litigants.”

If the non-resident defendant in the present ease should fail to appear, and final decree should be eventually entered against him, then, or perhaps not until the attempt to enforce the decree by process against his property, the question of his right to protection under the fourteenth amendment may properly arise, but I cannot hold that it has arisen by virtue of making the order of publication for the purpose of acquiring jurisdiction of the non-resident defendant and allowing him to come in to defend if he wishes. Eliot v. McCormick, 144 Mass. 10, and Needham v. Thayer, 147 Mass. 536, hold that judgments which are invalid, within the rule laid down by the United States supreme court in Pennoyer v. Neff, can no longer be held valid in the state courts since the fourteenth amendment. The question of the application of the amendment and of the decision in Pennoyer v. Neff, was not raised or considered by Vice-Chancellor Van Fleet in Mutual Insurance Co. v. Pinner, supra, nor have I been referred to any decision in this state which rules upon the question. But the general rule, that a judgment or decree, void for want of jurisdiction appearing on the record, may be set aside on direct application or ignored in collateral proceedings, is recognized.in this state, both at law and in equity. Munday v. Vail, 5 Vr. 218; Consolidated Electric Storage Co. v. Atlantic Trust Co., 5 Dick. Ch. Rep. 93.

In view of the character of the bill in this cause as filed against residents and non-residents claimed to be jointly and severally liable, and of the character of the decree which is prescribed by the statute to be entered when notice is given as directed by the order, it seems clear that the order cannot be held to deprive the non-residents of any property in violation of the fourteenth amendment.

Under the view I take of the case, it is not necessary to decide the question whether the non-resident defendant, by becoming a director in the New Jersey company, and thereby having become subject to the duties and liabilities of a director, expressly imposed on him by the act of incorporation of the company, has impliedly consented, so far as relates to the enforcement of these duties and obligations, to the provisions of the New Jersey laws authorizing service on non-residents by publication. I therefore express no opinion on this point.

The application to set aside the order of publication must be denied, and the order to show cause discharged, with costs.


text:
    The Inhabitants of the Township of Franklin v. The Nutley Water Company.
    1. Under the General Water Company act, April 26th, 1876 (Rev. Sup. p. 650 &c.), amended March 5th, 1884 (Rev. Sup. p. 653), the consent of the township committee of the township in which the water-pipes are to be laid is a condition precedent to the right to lay the pipes in the public streets or roads of the township.
    2. The consent of the township authorities to the incorporation of the water company under the second section of the act, does not relieve the water company from the necessity of obtaining the additional consent of the corporation to the laying of the pipes in the streets, wjrich is, by the second proviso of the twelfth section, expressly made a condition precedent to the right to lay pipes in the streets.'
    3. Where such right of previous consent to the use of public streets is conferred by statute upon a municipality, it is entitled to a preliminary injunction to prevent the laying of pipes without consent, as the only method of securing to it a full, adequate and complete protection of its public right. Raritan Township v. Port Reading Railroad Co., 4 Dick. Ch. Rep. 11, and American. Union Telegraph Co. v. Town of Harrison, 4 Stew. Eq. 627, distinguished.
    On motion for preliminary injunction. Heard on bill, affidavits and answer and affidavits.

      Mr. Alfred F. Skinner and Mr. Joseph Coult, for the complainants.

      Mr. Benjamin A. Vail and Mr. Joseph L. Munn, for the defendant.
   Emery, V. C.

The bill in this case is filed by the inhabitants of the township of Franklin, in the county of Essex, against the Nutley Water Compány, to restrain the defendant from laying its water-pipes in certain portions of streets of the township without obtaining the consent of the township committee, and from obstructing the streets for this purpose without such consent. The answer admits the intention of the water company to lay the pipes in these streets without obtaining such consent, and claims the right to lay the pipes without the consent of the township committee, and to obstruct the streets, to the extent necessary for this purpose. This obstruction, as the defendant claims, will not be more than ten days’ obstruction on one side of the street, and will not be sufficient to prevent travel on the remaining portion of the streets. On this application for preliminary injunction there are, as I consider the case, two questions involved — -first, whether the company is required by statute to obtain the consent of the township committee to laying these pipes; and if such statutory consent is imposed, then, second, whether the township, for the protection of this statutory right, is entitled to a preliminary injunction.

As to the first question, I consider it clear that the statute under which the water company was organized and is operating expressly requires the previous consent of the township committee. The water company was incorporated in 1889, under the act entitled “An act for the construction, maintenance and operation of water works for the purpose of supplying cities, towns and villages of this state with water,” approved April 26th, 1876 (P. L. of 1876 p. 318; Rev. Sup. p. 650 &c.), and the act of March 5th, 1884 (P. L. of 1884 p. 42; Rev. Sup. p. 653), amending the same. This act, thus amended, authorized, by its first section, the formation of a company for the purpose of constructing, maintaining and operating water works in any city, town, township, village or seaside resort in this state having a population of not more than fifteen thousand nor less than five hundred inhabitants, and for the purpose of supplying such city, town, township, village or seaside resort and the inhabitants thereof with water.

The second section of the act (Rev. Sup. p. 650) requires the persons desirous of forming the company to execute a certificate stating the corporate name of the company, the amount of the capital stock, term of existence, number of directors, the managers of the company for the first year, and the name of the town, city or village in or for which such works are to be constructed and the business of the company carried on. This section then further provides—

“Such certificate shall be filed in the office of the secretary of state, together with the consent, in writing, of the corporate authorities, if any, of the town or city proposed to be supplied with water.”

Section 3 provides—

“When such certificate and consent shall have been filed as aforesaid, the persons who shall have signed and acknowledged the same, and their successors, shall be a body politic and corporate, and shall have power as such, to take and divert any and all such springs and streams of water and build, erect, alter, repair, enlarge and maintain all such reservoirs and works and lay down all such pipes and conduits for water, at such times and in such places as shall be necessary and proper to enable said corporation to carry into effect the purposes of its corporation.”

This section does not expressly regulate the right of the company in the public streets or highways, and as to this subject (Rev. Sup. p. 652 § 12), provides—

“That such company be and they are hereby fully authorized and empowered to lay their pipes beneath such public roads, streets, avenues and alleys, as they may deem necessary for the purposes aforesaid, free from all charge to be made by any person or persons or body politic whatsoever for said privileges, and also such hydrants at the crossings or intersection of said streets or alleys ; provided, that the said pipes shall be laid at least three feet below the surface of the same, and shall not in any wise unnecessarily obstruct or interfere with the public travel or damage public or private property; and provided, that the consent shall be obtained of the corporate authorities, if any there be, of any town through which the same may be laid.”

The water company was incorporated in 1889 pursuant to the provisions of the second section, its certificate containing merely the particulars especially required by the section, and to this certificate was annexed the consent of the township committee of the complainants to the incorporation; no terms or conditions were imposed by the township in giving its consent.

Subsequent to the incorporation, and previous to March, 1895, the water company, before laying its pipes in any of the streets or roads of the township, applied to the township committee for its consent, and procured this consent before laying its pipes. It applied again in March, 1895, for permission to lay its pipes in certain streets for the purpose of connecting with the mains of the East Jersey Water Company, but this permission not having been granted, the water company now claims that the consent or permission applied for is not necessary, and it had placed its pipes along the disputed streets for the purpose of laying them, when it was enjoined by the ad interim stay ordered on filing the bill. In addition to the statutory right of previous consent claimed to have been conferred by the provision in the twelfth section of the Water act, the township also claims additional statutory right to previous consent by virtue of the act of 1893 (P. L. of 1893 ch. 70), increasing the power of township committees. This act provides (section 1, paragraph 6) that the township committees of the several townships of this state shall thereafter have power (among other things): “ To lay and regulate, or prohibit the laying of water or gas or sewer pipes in or under the streets and roads or any part thereof in said township.” And the act further provides (section 2) that to enforce these provisions the township committees may pass such ordinances as they shall think proper to carry into effect the powers conferred for this and other purposes of the act. The township committee, as appears by the affidavit to the bill, have passed an ordinance regulating the use of the streets under this act, and declaring that no person or persons shall use er obstruct the streets, lanes, alleys or public grounds of the said township, or break up or displace any pavement therein for the purpose of placing water-pipes or making connection therewith without the consent of the township committee first had and obtained. The complainants complain that, even if their previous consent is not required under the twelfth section of the Water act incorporating water companies, yet the act of 1893 is to be considered as a further legislative modification of the right of the water company to lay pipes in townships after the passage of this act, and that the act of 1893, with the ordinance thereunder, gives the complainants an express statutory right of previous consent.

Upon the question of the statutory rights of the complainants and defendant with reference to this consent of the township committee, my opinion is that the second proviso of the twelfth section applies to the case, and that by the statute incorporating the defendant, and which it accepted as its charter, the consent of the township committee must therefore be obtained previous to the laying of the pipes in the streets in question. The contention of the defendant is, that the consent of the township to the incorporation of the company, given under the second section of the act, when filed with the certificate, gave it, by virtue of the third section, the power to lay its pipes under the streets of the township, without any further or additional consent. But it is clear, I think, that the consent of the township to the formation of a company under the second section relates to a different object from the consent required under the twelfth section, and the consents specified in the two sections are treated as distinct and different consents in Davis v. Harrison, 17 Vr. 84.

The legislature having expressly made the consent of the municipality a condition precedent to the exercise of the power to use the public streets granted to the company in the twelfth section, and the consent to the incorporation specified in the section section, being beyond any question applicable to some objects other than the conditions for the use of the streets by the company, I have no right to conclude that the express consent of the twelfth section embraced only matters included by implication in the consent under the second section, and must therefore be eliminated from this section of the statute by judicial construction. That the word “town” in this proviso of the twelfth section includes townships is established by the rule laid down in Brown v. East Orange, 20 Vr. 104 (Supreme Court, 1887), and the cases there cited.

The previous consent of the township committee being thus required as a statutory condition of exercising the defendant’s franchise upon the highways under the committee’s charge, an injunction against the use without such previous consent, seems to be the only way of affording a full, complete and adequate remedy to the township for enjoyment of their statutory rights. Neither an indictment nor an action of ejectment is an effectual remedy for securing to the township committee the full benefits of the right of previous consent, which the legislature has conferred on them for public purposes and upon public trusts.

The same previous consent of the authorities is required in the laying of gas-pipes (Rev. p. 463 § 17) and for the operation of trolleys (P. L. of 1893 ch. 182 § 1), and of street railways, act of March 14th, 1893 (P. L. of 1893 p. 302), May 16th, 1894 (P. L. of 1894 p. 374), and in relation to other franchises which require the use of the public streets.

For the full protection of the statutory rights of the municipalities, a preliminary injunction is necessary, and in this respect the case rests upon the same basis as the right of the court of equity to interfere by preliminary injunction where a public company, under cover of statutory authority, attempts to appropriate the lands of another without complying with the legal conditions precedent, either constitutional or statutory. Ross v. Elizabethtown and Somerville Railroad Co., 1 Gr. Ch. 422; Browning v. Camden and Woodbury Railroad Co., 3 Gr. Ch. 47; Higbee v. Railroad Company, 4 C. E. Gr. 276; Morris Canal and Banking Co. v. Jersey City, 11 C. E. Gr. 294. In each of these cases a preliminary injunction was granted, and this exercise of the jurisdiction was approved in Hart v. Leonard, 15 Stew. Eq. 417, 419 (Errors and Appeals, 1886). The right of a court of equity to interfere by injunction in cases where consent is required by statute, is also recognized by the following cases: Mayor of Davenport v. Plymouth &c. Tramways Co., 53 L. T. R. 161, cited Mews Sup. Dig. 989, where a preliminary injunction was granted; Wandsworth Board of Works v. United Telephone Co., 13 Q. B. Div. 904 (Court of Appeals, 1884); see opinions of Brett, M. R. (at p. 907), and Bowen, L. J. (at p. 924), as to right of injunction if consent is required by statute, without regard to amount of injury. Township of Plymouth v. Chestnut Hill &c. Railway Co., 32 Atl. Rep. 19. Where the statutory right is clear, it seems to me it would imperil the public control of highways and deprive municipalities of the powers and advantages intended to be given by statutes, if, on the mere claim of right to occupy the streets without consent, this court should decline to interfere pending the final determination upon the claim.

A preliminary injunction restraining interference pending final hearing, is the more equitable in this case for the reason that hitherto the company has always applied for this consent, and has never laid its pipes without obtaining the consent. This practical construction of the law, made by the parties while granting and receiving valuable privileges, upon the basis of the right and necessity of the 'municipal consent, should be continued, I think, until the right is determined on final hearing.

The cases relied on by the defendant’s counsel (Township of Raritan v. Port Reading Railroad Co., 4 Dick. Ch. Rep. 11 (Chancellor McGill, 1891), and American Union Telegraph Co. v. Town of Harrison, 4 Stew. Eq. 627 (Vice-Chancellor Van Fleet, 1879) differ from the present case, in that no right of consent was conferred by the statute in either case, and in the first case an indictment for the alleged obstruction was, under the circumstances of the case and the previous decisions of the court, an effective remedy. In the latter case the township had only the right of designating the route or location of the poles without the right to prohibit, or refuse consent, or impose conditions. Where a constitutional or statutory right of previous consent is conferred upon the municipality, its authorities are entitled to the right of affixing such lawful conditions as the public interests require, before the exercise of the right to lay the pipes, which are only conferred upou the company on the condition of previously procuring such consent.

Nor does the granting of a preliminary injunction in this case for the purpose of securing these municipal rights disregard the rule emphasized in Haggerty v. Lee, 18 Stew. Eq. 255 (Errors and Appeals, 1889), that a preliminary injunction will not be granted where either the complainant’s right is in doubt, or where the injury which may result from the invasion of that right- is not irreparable. That case and the cases cited in the opinion were all cases where the injury was to private property or interest. They do not, as I understand the rule, apply to cases where the defendant is attempting to exercise statutory powers without complying with express and clear conditions precedent. In this class of cases the right has always been protected by preliminary injunction. Ross v. Elizabethtown and Somerville Railroad Co. and other cases, supra.

I should add that in granting this injunction I proceed upon the basis that the bill is to be treated as a bill to enforce the law requiring consent of the township. There is one allegation in the bill that this law under which the defendant claims its right to lay pipes in the streets is unconstitutional, and this claim was insisted on at the argument by counsel for complainant. But the application for preliminary injunction, based on the theory that the defendant, with the consent of the township authorities, had been for several years appropriating portions of the street without any legal existence or claim of right, would evidently involve considerations different from those upon which I have relied in treating the bill as a bill to enforce and not to set aside the law.

I will advise that an injunction issue against laying the pipes without the complainant’s consent, on the terms that if the defendant desires to appeal the complainant must consent that the appeal may be heard at the present term.