/ New Jersey equity Reports. VOLUME XXXIII. STEWART, 6. REPORTS CASES DECIDED IN THE COURT OF CHANCERY, THE PREROGATIVE COURT, AND, ON APPEAL, IN The Court of Errors and Appeals, STATE OF NEW JERSEY. JOHN H. STEWART REPORXEa VOL. VI. TKENTON, N. J.: W. S. Sharp, Printer and Stereotyper. 1881. y Entered, according to act of Congress, in the year 1881, by JOHN H. STEWART, In the office of the Librarian of Congress at Washington, D. O. CHANCELLOR DUKINQ THE PEKIOD OF THESE EEPOETa Hon. THEODORE RUNYON. VICE-CHANCELLOE. Hon. ABRAHAM V. VAN FLEET. CLEEK IN CHANCEEY. HENRY S. LITTLE, Esq. lUDGES OF THE COURT OF ERRORS AND APPEALS. Hon. EX-OFFICnS JUDGES. THEODORE RUNYON, Chancellor MERCER BEASLEY, Chief Justice. DAVID A. DEPUE, BEXNET VAX SYCKEL, EDWARD ^y. SCUDDER, MAXXING M. KXAPP, JOXATHAX DIXOX, ALFRED REED, WILLIAM J. MAGIE, JOEL PARKER. V Associate Justices of the Supreme Court. JUDGES SPECIALLY APPOINTED. Hon. EDMUXD L. B. WALES, JOHX CLEMEXT, FRAXCIS S. LATHROP, AMZI DODD, CALEB S. GREEN, MARTIN COLE. CLERK. HENRY C. KELSEY, Esq. NOTE. This volume contains the opinions delivered in the Court of Chancery and Prerogative Court, at October, 1880, and Febru- ary, 1881, Terms, and also those on appeal, in the Court of Errors and Appeals, at November, 1880, and March, 1881, Terms. By the Chancellor's direction, the opinions in the following cases have not been published : Weber v. Weber ; Menagh v. Sharp ; Coryell v. Moore. NEW JERSEY REPORTS, WITH THEIR ABBREVIATIONS. LAW REPORTS. COXE, 1790-1795, PENNINGTON (Pen.), 1806-1813, SOUTHARD (South.), 1816-1820, HALSTED (Hal.), 1821-1831, GREEN (Gr.), 1831-1836, . HARRISON (Hare.), 1837-1842, SPENCER (Spen.), 1842-1846, . ZABRISKIE (Zab.), 1847-1855, DUTCHER (Dutch.), 1855-1862, VROOM (Vr.), 1862- 1 vol. 2 2 7 3 4 1 4 6 13 EQUITY REPORTS. SAXTON (Sax.), 1830-1832, GREEN (Gr. Ch.), 1838-1845, HALSTED (Hal. Ch.), 1845-1852, . STOCKTON (Stock.), 1852-1858, . BEASLEY, (Beas.), 1858-1861, . McCARTER (McCart.), 1861-1862, C. E. GREEN (C. E. Gr.), 1863-1877, STEWART (Stew. Eq.), 1877- 1 vol. 3 " 4 " 3 " 2 " 2 " 12 " 6 " CASES REPORTED. Abbott, Hutchinson v 379 Adams v. Beideman 77 Allen, Williams v 584 Andrews's Case 514 Andrews, Thorne v 457 Atha V. Jewell 417 B. jr Bacon v. Bonham 614 Balen, Brown v 469 Bamber, Mallet v 253 Bartles's Case 45 Bartlett, Clement v 43 Beckman, Hoboken Bank v 53 Beideman, Adams v 77 Belden v. Belden 94 Bentley v. Heintze 405 Bibby v. Bibby 56 Blair, Snyder v 208 Blakeley v. Blakeley 502 Bohde V. Lawless 412 Bonham, Bacon v 614 Bonham v. Bonham 476 Bouxquin v. Bourquin 7 Boyd, Pinnell v 190, 600 Brown V. Balen 469 Brown v. Brown 650 Budd V. Van Orden 143, 564 Burnet Mfg. Co., Mechanics Bk.v. 486 O. Camden Horse R. K. Co. v. Citi- zens Coach Co 267 Campbell, Tompkins v 362 Carlton v. Vineland Wine Co 466 Carpenter v. Hoboken 27 Casper v. Walker 35 Central E. R. v. Standard Oil Co 127, 372 Chetwood, Wood v 9 Citizens' Coach Co. v. Camden HorseE. R. Co 267 Qark, Davis v 579 Clark, O'Neill v 444 Clark, Putnam v 338 Clement v. Bartlett 43 Colt V. Miller 362 Coates, Murphy v 424 Conover v. Euckman 303 Courter v. Howell SO Crater V. Welsh 362 Crosland v. Hall HI Cubberly V. Cubberly 82 Cummings Car Works,Woolsey v. 432 D. Danser V. Warwick 133 Davis V. Clark 679 Davis V. Howell 72 Davis V.Sullivan 569 Del., L. & W. E. E. v. Oxford Iron Co 192 Dickerson, Van Doren v 3S8 Dickinson V. Trenton 63 Doremus's Case 234 Doughty V. Somerville 1 E. Eddy's Case 574 Eldridge, Wanzer v 511 CASES REPORTED. [33 Eq. Ellison V. Lindsley 258 Emery v. Gordon 447 Emson v. Lawrence 286 F. Finev. King 108 Fisler, Thompson V 480 Flaacke v. Jersey City 57 Foley V. Kirk 170 Forraan, Newark Sav. Inst, v 436 Freck, Westervelt v 451 Freeholders of Warren, Frome v. 464 Fi ome V. Freeholders of Warren 464 Fuller V. Fuller 583 a. Gaines v. Green Pond Mining Co. 603 Gardner v. Jersey City 622 Gesner, Tillotson v 313 Gill V. Eoberts 474 God.lard, Mat. Life Ins. Co. v.... 482 Gordon, Emery v 447 Green Pond Mining Co., Gaines v. 603 Haines, Joyce v 99 Hall, Crosland V Ill Haiikinson v. Hankinson 66 Haydock v. Haydock 494 Heath, Kise v. 239 Heintze, Bentley v 405 Hendee v. Howe 92 Hitchcock V. Midland E. E 86 Hoag V. Sayre 552 Hoboken, Carpenter v 80 Hoboken Bank v. Beckman 63 Hoff, Eed .Jacket Tribe V 441 Home Ins. Co., McGregor v 181 Howe, Hendee V 92 Howell, Courterv 80 Howell, Davisv 72 Hoxsey v. Midland E. E 119 Hutchinson v. Abbott 379 Hyde, Johnston v 632 J. James v. Lane. 30 Jersey City, Flaacke v... 57 Jersey City v. Gardner 622 Jewell, Athav 417 Johnson v. Somerville 152, 621 Johnston V. Hyde 632 Jones V. Knauss 188 Joyce V. Haines 99 King, Finev 108 Kingon, Pillsbury V 287 Kip V. Kip 213 Kirk, Foley V 170 Kise V. Heath 239 Knauss, Jones v 188 L. Lane, James v 30 Lawless, Bohde v 412 Lawrence, Emson V ... 286 Lewis's Case 219 Lindsley, Ellison v 258 Lothrop's Case 248 Lydecker v. Palisade Land Co... 415 M. Mallett V. Bamber 253 McClung V. McClung 462 McGill v.O'Connell 256 McGregor v. Home Ins. Co 181 McKeown v. McKeown 384 Mechanics Nat. Bk. v. Burnet Mfg. Co 486 Merrill V. Eush 537 Midland E. E., Hitchcock v 86 Midland E. E., Hoxsey v 119 Miller, Colt v 362 Miller, Nat. Trust Co. v 155 Morris and Essex E. E., Zabris- kiev. 22 6 Stew.] CASES REPORTED. Mount V. Van Ness 262 Murphy v. Coates 424 Mut. Life Ins. Co. v. Goddard.... 482 Mut. Life Ins. Co. v. Sturges 328 N. Nat. Bk. of Frenchtown, Poul- sonv 250, 618 Nat. Trust Co. v. Miller 155 Newark, Smith v 545 Newark Sav. Inst. v. Forman 436 O'Connell, McGill v 256 O'Neill V.Clark 444 Opie, Schmidt V 138 Oxford Iron Co., Del., L. & W. E. R. V 192 P. Palisade Land Co., Lydecker v.- 415 Peacock, Eichardson v 597 Perrine v. Vreeland 102 Petty, Youmans V 532 Pillsbury V. Kingon 287 Pinnell v. Boyd 190, 600 Post, Van Houtenv 344 Poulson V. Nat. Bk. of French- town 250, 618 Putnam v. Clark 338 R. Eed Jacket Tribe v. Hoff. 441 Eedman v. Phila., M. & M. E. E. 165 Eeeves, Stevens v 427 Eeibolt, Schaedel v 534 Eichardson v. Peacock 597 Eoberts, Gill v 474 Euckman, Conover v 303 Euckman v. Euckman 354 Eush, Merrill v 537 S. Sayre, Hoag v 552 Schaedel v. Eeibolt 534 Schanck v. Schanck 363 Schmidt V. Opie 138 Schrass, Wesling v 42 Sergent v. Sergent 204 Sharp, Wagner v 520 Skean v. Skean 148 Smith V. Newark 545 Smith V.Smith 458 Snyder V. Blair 208 Somerville, Doughty v 1 Somerville, Johnson v 152, 621 Staats, Wilson V 524 Standard Oil Co., Central E. E. V 127, 372 Standard Oil Co., United E. E.v. 123 Stevens v. Eeeves 427 Sturges, Mut. Life Ins. Co. v 328 Sullivan, Davis v 569 T. Thompson v. Filler 480 Thompson v. Thorpe 401 Thome v. Andrews 457 Thorpe, Thompson v 401 Tillotson V. Gesner 313 Tompkins v. Campbell 362 Townsend, Weiland v 393 Trenton, Dickinson v 63 Tucker v. Tucker 235 U. United E. E. v. Standard Oil Co. 123 Van Doren v. Dickerson 388 Van Honten v. Post 344 Van Ness, Mount v 262 Van Orden v. Budd 143, 564 Van Orden, Bpdd v 143 Vineland Wine Co., Carlton v.... 466 Vreeland, Perrine v 102 zu CASES REPORTED. [33 Eq. W. Wagner v. Sharp 520 "Walker, Casper v 35 AVanzer V. Eldridge 511 Warwick, Danser v 133 Weiland V. Townsend 393 Wells V. Wells 4 Welsh, Crater v 362 Wesling V. Schrass 42 Westervelt v. Freeh ~ 451 Williams, Allen v 5S4 Wilson V. Staats. 524 Wood V. Chetwood. 9 Woolsey v. Cummings Car Works, 432 Y. Youmans v. Petty ^ 532 Z. Zabriskie v. Morris & Essex B. K. 22 CASES CITED A. Abbott V. Jenney 18 N. H. 109 296 Allis V. Billings 6 Mete. 415 508 Alpaugh V. Eoberson 12 C. E. Gr. 96 299 Altemus V. Elliot 2 Pa. St. 62 588 American L. I. & T. Co. v. Kyerson 2 Hal. Ch. 9 392 American Docjc Co. v. Trustees 5 Stew. Eq. 428 44 Am. Leading Cases Vol.2 p. 579 643 Anderson V. Doolittle 11 Conn. 283 296 Anon 2 Roll. 173 293 Arnold v. Eichmond Iron Works 1 Gray 434 508 Arnold v. Steveus 24 Pick. 106 642 Ashley v. Pond 18 Pick 268 642 Astry V. Ballard 2 Lev. 185 608 Atkins V. Boardman 2 Mete. 457 648 Att'y-Gen. V. Metropolitan E. R 125 Mass. 515 276 Babcock v. Booth 2 Hill 181 296 Bagot V. Bagot 32 Beav. 509 609 Ballentine V. Poyner 2 Hayw. 110 612 Bank V. Dugan 2 Bland 254 482 Banks V. Goodfellow L. E. (5 Q. B.) 549 461 Bangor & P. M. Slate Co L. E. (20 Eq.) 59 185 Bardwell V. Perry 19 Vt. 292, 74 Barford V. Street 16 Ves. 135 81 Barker v. Greenwood 4 M. & W. 421 26 Barnes v. Taylor 12 C. E. Gr. 259 21 Barned v. Barned 6 C. E. Gr. 245 427 Bartlett v. Drew 57 N. Y. 587 163 Batton V.Allen 1 Hal. Ch. 99 346 Bayard V. Hoffman 4 Johns. Ch. 450 298 Bell V.Fleming 1 Beas. 13 531 BeU V. Newman 5 S. & E. 78 74 Bell V. Gilmore 10 C. E. Gr. 104 441 Belford v. Newark M. Co 1 C. E. Gr. 117 194 Belknap v. Trimble 3 Paige 577 640 xiii xiv CASES CITED. [33 Eq. Felton V. Belton 11 C. E. Gr. 449 71 Benbow V. Townsend 1 M. & K. 506 136 Benedict v. Goit 3 Barb. 459 278 Berry v. Van Winkle 1 Gr. Ch. 269 443 Beestone v. Waite 5 E. & B. 985 644 Bethel v. Stanhope Cro. Eliz. 810 293 Bidlack v. Mason 11 C. E. Gr. 230 159 Bill V. Cureton 2 Myl. & K. 503 299 Billings V. Taylor 10 Pick. 460 611 Black's Appeal 44 Pa. St. 503 74 Black V. Black 5 Stew. Eq. 74 310 Black V. Del. & R. C. Co 9 C. E. Gr. 456 162 Blatchford v. Kirkpatrick 6 Beav. 232 326 Board of Chosen Freeholders v. State Bank 2 Stew. Eq. 268 46 Bolles V. Beach 3 Zab. 6S0 263 BoUes V. State Trust Co 12 C. E. Gr. 308 215 Bonney v. Sealy 2 Wend. 481 211 Bonslough V. Bonslough 68 Pa. St. 495 295 Borst V. Empie 1 Seld. 33 642 Boston Franklinite Co. V. Condit 4 C. E. Gr. 394 27 Bowlby V. Bowlby 10 C. E. Gr. 406 71, 369 Bowne v. Bitter.. 11 C. E. Gr. 456 210 Boyse v. Eossborough 6 H. of L. Cas. 2 244 Brewer V. Wilson 2 C. E. Gr. 182 657 Brewster V. Striker 2 X. Y. 19 25 Brinkerhoff v. Franklin 6 C. E. Gr. 334 381 Brinckerhoff V. Thalheimer 2 Johns. Ch. 486 392 British Museum V. White 2 Sim & Stu. 595 230 Brolasky V. Miller 1 Stock. 814 191, 602 Brookfield v. Williams 1 Gr. Ch. 341 422 Brooklyn Cent. E. E. v. Brooklyn City E. E 32 Barb. 358 279 Brown v. Bissett 1 Zab. 46 73 Brownell v. Curtis 10Paige210 298 Browning v. Camden & W. R. E 3 Gr. Ch. 47 166 Buchler V. Gloninger 2 W^atts 226 295 Buflfalo E. E. V. Leighton 10 Eeporter 149 282 Butcher v. Churchill 14 Ves. 567 211 Butcher V. Harrison 4 B. & Ad. 129 297 Cadogan v. Kennet Cowp. 432 312 Caldwell v. Fifield 4 Zab. 150 490 Camden & A. E. R. v. Stewart 3 C. E. Gr. 4S9 319 Cammack V. Johnson 1 Gr. Ch. 163 '3 Camp V.Grant 21 Conn. 41 "4 6 Stew.] CASES CITED. xv Campbell v. Campbell 3 Stew. Eq. 415 *263 Campbell V.Gardner 3 Stock. 423 483 Campbell V. Macomb 4 Johns. Ch. 534 392 Cannon v. Cannon 11 C. E. Gr. 316 359 Carlisle v. Cooper 6 C. E. Gr. 676 626,640,641 Carlisle v. Cooper 4 C. E. Gr. 256 642 Casher v. Peterson 1 South. 317 490 easier v. Shipman 35 N. Y. 533 641 Cawley v. Leonard 1 Stew. Eq. 467 331 Chambers V. Tulaiie 1 Stock. 146..... 327 Childs V. Jordan 106 Mass. 321 136 Citizens Coach Co. v. Camden H. E. Co. 2 Stew. Eq. 299 131 Clark V. Kosenkrans 4 Stew. Eq. 665 414 Claveringv. Clavering 2 P. Wms. 388 608 Clay V. Eufford 19 E. L. & E. 350 326 Clement v. Kaign 2 McCart. 48 561 Cleveland v. Boerum 24 N. Y. 613 572 Clinan v. Cook 1 Sch. and Lef. 41 660 Clow V. Taylor 12 C. E. Gr. 418 657 Coates V. Cheever 1 Cow. 460 611 Cook V. Cook 2 Beas. 263 206 Cook V. Field 15 Q. B. 460 617 Cole V. Potts 2 Stock. 67 660 Colgan V. McKeon 4 Zab. 566 179 Collins V. Tounley 6 C. E. Gr. 353 256 Colyear v. Mulgrave 2 Keen 94 299 Commonwealth v. Temple 14 Gray 76 278 Conover v. Hobart 9 C. E. Gr. 120 191 Conover v. Lewis 6 C. E. Gr. 230 391 Cooper V. Carlisle 2 C. E. Gr. 530 657 Cornish v. Cornish 8 C. E. Gr. 208 98, 369 Corning V. Troy Iron Co 40 N. Y. 191 641 Cornish v. Bryan 2 Stock. 146 175 Corwine v. Corwine 9 C. E. Gr.57y 78 Cose of Water Courses 2 Eq. Cas. Abr. 522 643 Coster V. Monroe Mfg Co 1 Gr. Ch. 467 581 Coursen's Will 3 Gr. Ch. 408 247 Crane v. Freese 1 Harr. 305 307 Crawford v. Bertholf. Sax. 458 359 Cromwell v. Seldon 3 Comst. 253 642 Cross V. Brown 51 N. H. 486 296 Cross V. Morristown 3 C. E. Gr. 305 3 Croseley v. Lightowler L. R. (2 ch.) 478 642 Crowder, Ex parte 2 Vern. 706 73 Crowell V. Hospital 12 C. E. Gr. 650 265 Cumberland Bank v. Hall 1 Hal. 215 343 Cumberland V. Codrington 3 Johns. Ch. 229 264 Curran v. Arkansas 15 How. 304 163 xvi CASES CITED. [33 Eq. Curtis V. Hollingshead 2 Gr. 402 73 Curtis V. Curtis 1 Sw. & Tr. 192 460 Ciishing V.Blake 3 Stew. Eq. 689 215 Cutler V. Tuttle 4 C. E. Gr. 549 387 Cutting V. Dana 10 C. E. Gr. 271 655, 660 D. Dale V. Birch 3 Camp. 347 308 Davis V. Mahany 9 Vr. 104 309 Davis V. Vanderveer 8 C. E. Gr, 558 522 Davies v. Marshall 10 C. B. (N. S.) 697 643 Den v. Morris Canal Co 4 Zab. 587 827 Dickey's Appeal 73 Pa. St. 218 86 Dobbs V. Norcross 9 C. E. Gr. 327 327 Doe V. Ball 11 M. & W. 531 297 Doe v. Cafe 7 Exch. 675 25 Doe v. Willan 2 B. & Aid. 84 25 Doe V.Williams 11 Q. B. 688-700 644 Dolman v. Cook 1 McCart. 63 191 Doughty V. Somerville & E. E. R 1 Zab. 442 168 Doughty V. Somerville & E. R. R 3 Hal. Ch. 51 169 Doughaday v. Crowell 3 Stock. 201 422 Drinkwater V. Drinkwater 4 Mass. 354 296 Durant v. Prestwood 1 Atk. 454 521 Duke of Devonshire v. Eglin 84 Beav. 530 643 Dysart V. Dysart 1 Rob. Eq. 106 460 E. Eads V. Williams 4 De G., M. & G. 691 153 Eagle Fire Co. v. Lent 6 Paige 635 392 Eaton V.Cook 10 C. E. Gr. 55 136 Eaton V. Eaton 8 Vr. 113 504 Easton v. New York & L. B. R. R 9 C. E. Gr. 49 376 Elias V.Griffith L. R. (4 App. Cas.) 465 610 Emanuel v. Bird 19 Ala. 596 74 Esterbrook Co. v. Ahem 4 Stew. Eq. 3 573 Everett v. Read 3 N. H. 55 296 Eyster v. Gaff. 1 Otto 521 572 Farlee V. Farlee 1 Zab. 279 359 Fawkner v. Watts 1 Atk. 407 346 Field V. Mayor of New York 2 Seld. 179 617 Findlay v. Smith 6 Munf. 134 612 Fitzpatrick V. Jersey City 7 Vr. 120 626 6 Stew.] CASES CITED. xvii Flagler v. Blunt 5 Stew. Eq. 518 296 Fletcher V. Holmes 40 Me. 364 296 Folly V. Van Tuyl 4 Hal. 153 653, 359 Forshaw V. Welsby 30 Beav. 243 229 Fountaine v. Pellett 1 Ves. 343 588 Freeholders v. Ked Bank Co 3 C. E. Gr. 93 277 Freeman V. Scofield 1 C. E. Gr. 28 337 French v. Griffin 3 C. E. Gr. 279 469 G. Gamsey v. Mundy 9 C. E. Gr. 243 229 Garr v. Bright 1 Barb. Ch. 157 45 Garrard V. Lauderdale 3 Sim. 1 299 Garretson V. Brown 2 Dutch. 425 301 Gest V. Flock 1 Gr. Ch. 108 26 Gibson V. Loper 6 Gray 279 508 Gihon V. Belleville Lead Co 3 Hal. Ch. 531 392 Gilbert V. Trustees, &c 1 Beas. 204 660 Girrerv. Bastaid 2 Phil. 619 326 Globe Ins. Co. v. Lansing 5 Cow. 380 210 Glass V. Hurlburt 102 Mass. 28 660 Goldbeck v. Goldbeck 3 C. E. Gr. 42 205 Gray v. Fox Sax. 259 237 Green v. Blackwell 5 Stew. Eq. 768 331 Green v. Tantum 4 C. E. Gr. 105 141 Green v. Eichards 8 C. E. Gr. 32 320 660 Guest V. Hewitt 12 C. E. Gr. 479 573 GuUck V. Gulick 10 C. E. Gr. 32 39 H. Hall V.Hall 2 McCord's Ch. 269 75 Hall V. Oldroyd 14 M. & W. 789 641 Hall V.Lund 1 H. &C. 676 646 Hall V. Piddock 6 C. E. Gr. 311 422 Haggerty V. McCanna 10 C. E. Gr. 48 34,179, 536 Haight V. Proprietors 4 Wash. C. C. 601 643 Halsted V. Meeker 3 C. E. Gr. 136 237 Hamilton V. Cummings 1 Johns. Ch. 517 175 Hanford v. Stone 2 Sim. & Stu. 196 482 Hartshome v. Hartshorne 1 Gr. Ch. 349 212 Hasten v. Castner 4 Stew. Eq. 697 296 Hastings V. Crimckleton 3 Yeates 261 612 Haughwout V. Murphy 7 C. E. Gr. 531 140, 447 Hawes v. Leader Cro. Jac. 270 292 Hayes v. Stiger 2 Stew. Eq. 196 210 XVIll CASES CITED. [33 Eq. Hetfield v. Central K. E 5 Dutch. 571 274 Higbee v. C. & A. R. E. Co 5 C. E. Gr. 435 626 Hill V. Beach 1 Beas. 31 310 Hinchman v. Patereon H. R, E 2 C. E. Gr. 75 274 Hobyv. Hoby 1 Vera. 218 608 Hogan V. Eighth Ave. R. R 15 N. Y. 380 279 Holland v. Cruft 20 Pick. 321 295 Holmea t. Penney 3 K. & J. 90 297 Holmes v. Steele 1 Stew. Eq. 173 48S Hooper v. Eylea 2 Vern. 480 34 Hooper V.Holmes _ 3 Stock. 122 136 Houghton V. Reynolds 2 Hare 264 337 Howell V. Teel 2 Stew. Eq. 490 75 Hughes V. Morris 1 Deg. M. & G. 355 560 Humphrey's Will 11 G. E. Gr. 513 244 Hunt V.Gray 6 Vr. 227 343 Huntington V. Savings Bank 96 U. S. 388 162 Innea v. Lansing 7 Paige 583 '. 482 Irwin V. Corode 12 Harris 162 612 Irwin V. Farrer 19 Ves. 86 >^1 Izzard v. May's Landing Co 4 Stew. Eq. 511 443 J. Janson V. Bury Bunb. 157 521 Jennings v. Jennings 2 Beas. 38 206, 369 Jersey City & B. E. R. v. J. C. & H. R. E 5C. E. Gr. 61 166,275, 279 Jersey City v. Hudson 2 Beas. 420 277 Jersey City v. OCallaghan 12 Vr. 340 390 Johnson V. Hubbell 2 Stock. 332 327 Johnson v. Jacqui 10 C. E. Gr. 410 ; Hid. 328; 12 Id. 552 644, 045 Jones V. Naughright 2 Stock. 298 489 Joslin V. New Jersey Car Co 7 Vr. 141 86 Judge V. Eeese 9 C. E. Gr. 387 146 Kay V. Kay 3 Gr. Ch. 495 39 Kimball v. Morton 1 Hal. Ch. 26 136 King V. Whitely 10 Paige 465 265 Kingsbury v. Wild 3 X. H. 30 296 Kirk V. Eddowes 3 Hare 509 347 Klapworth V. Dressier 2 Beas. 62 265, 440 6 Stew.] CASES CITED. xix L. Langton v. Horton 1 Hare 549 617 Lansing V. Goelet 9 Cow. 346 210 Laingv.Laing 6 C. E. Gr. 248 152 Lathrop V. Smalley 8 C. E. Gr. 192 237 Lawrence V. Nelson 21 N. Y. 158 163 Lee V. Stiger 3 Stew. Eq. 610 191 Lehigh Valley E. K v. McFarlan 4 Stew. Eq. 706. 627 Lewis V. Smith 9 K Y. 502 63 Lewis V. Keichey 12 C. E. Gr. 240 319 Liggins V.Inge 7 Bing. 682 643 Linford v. Lin ford 4 Dutch. 113 73 Lloyd V. Tench 2 Ves. sen. 213 521 Lockhart v. Van Alstyne 31 Mich. 76 184 London Lidia Kubber Co L. K. (5 Eq.) 519 184 Loweree v. Newark 9 Vr. 151 169 Lozear v. Shields 8 C. E. Gr. 510 503 Luttrell's Case 4 Coke 86 641 Lyman v. Sale 2 Johns. Ch. 487 392 Lynch v. Clements 9 C. E. Gr. 431 496 M. Mackie v. Cairns 5 Cow. 547 298 Macknet v. Macknet 11 C. E. Gr. 258 14 Mahon y. Freeholders of Hudson 10 Vr. 640 628 Marsh v. Marsh 2 Stew. Eq. 296 5 Matter of Water Commissioners of Jersey City 2 Vr. 73 628 Mathews v. Dragand 3 Desauss. 25 588 Matlack v. James 2 Beas. 126 73 Mattison v. Demarest 1 Eob. (N. Y.) 717 482 Mayor v. Attorney-General 5 Stew. Eq. 815 187 M.& E. E. E. Co. V. Pruden 5 C. E. Gr. 530 626, 643 McCahill v. Equitable Co 11 C. E. Gr. 531 66, 210 McCormack's Appeal 55 Pa. St. 252 74 McDonald v. O'Connell 10 Vr. 318 252 McDougald v. Dougherty 11 G^o. 570 482 McLaren v. Pennington 1 Paige 102 163 McLean V. Weeks 61 Me. 277, 65 Me. 411 296 McLearn v. McLellan 10 Pet. 625 266 McLenahan v. McLenahan 3 C. E. Gr. 101 263 Meldowney V. Meldowney 12 C. E. Gr. 328 206 Mercer & S. E. E. v. Del. & B. E. E.... 11 C. E. Gr. 464 168 Metier v. Metier 3 C. E. Gr. 270 175 Mettler v. Easton & A. E. E 10 C. E. Gr. 214 166 XX CASES CITED. [33 Eq. Mettler v. Easton & A. K. K 8 Vr. 222 168 Metropolitan R. R. v. Quincy R R 12 Allen 262 279 Metropolitan Bank V. Durant 7 C. E. Gr. 35 489 Miller v. Henderson 2 Stock. 320 431 Miller v. Mackenzie ~ 2 Stew Eq. 291 160 Miller v. Mackenzie 2 Stew. Eq. 291 302 Milward v. Earl of Thanet 5 Ves. 720 153 Mittnight v. Smith 2 C. E. Gr. 259 73 Moncure V. Harrison 15 Pa. St. 385 298 Monhouse v. Corporation 17 Ves. 380 375 Montville v. Haughton 7 Conn. 542 442 Moores v. Moores 12 Vr. 440 26 Moores v. Moores 1 C. E. Gr. 275 71, 206 3Ioore v. Bonnell - 2 Vr. 90 300 Moore v, Blauvelt 2 McCart. 367 496 Morgan v. Skidmore 55 Barb. 263 74 Morris and Essex RH. v. Hudson Cc 10 0. E. Gr. 84. 166 Morris and Essex R. R. v. Newark 2 Stock. 352 273 Morris and Essex R. R. v. Prnden 4 C. E. Gr. 386 274 Morris and Essex R. R. v. Sussex R. R, 6 C. E. Gr. 542 278 Morris and Essex R. R. v. Pruden 5 C. E. Gr. 530 > 643 Morris Canal Co. v. Fagan 7 C. E. Gr. 430, 436, 437 626 Morse V. Copeland 2 Gray 302 643 Munday v. Vail 5 Vr. 418 65 Murray v. De Rottenham 6 Johns. Ch. 52 588 N. Kathan V. Whitlock 3 Edw. Ch. 215., 163 National Bank v. Sprague 5 C E. Gr. 13 „ 75, 330 Neel v.Neel 7 Harris 323 612 Kew Jersey Southern R. R. v. Long Branch Commissioners 10 Vr. 28 130 Nightingale v. Goulburn 5 Hare 484 230 Nightingale v. Meginnis 5 Vr. 461 382 Norcutt V. Dodd 1 Cr. & Ph. 100 297 North River Co. v. Shrewsbury Church, 2 Zab. 424 343 Norwood V. De Hart. 3 Stew. Eq. 412 ., 265 Gates V. National Bank 100 U. S. 239 187 O'Connor v. Spaight 1 Sch. & Lef 659 O'Neil V. Freeholders of Hudson 12 Vr. 161 628 Olmstead v. Loomis 5 Seid. 423 642 Osborne v. Moss 7 Johns. 161 298 Osborne v. Tunis 1 Dutch. 633 211 Ower V. Field 102 Mass. 81-114 642 6 Stew.] CASES CITED. Palys V. Jewett 5 Stew, Eq. 302 443 Palmer v. Thayer 28 Conn. 237 298 Palmer V. Palmer 7 C. E. Gr. 88 152 Paterson & P. H. R. E, v. Paterson 9 C. E, Gr. 158 275 Paterson V. O'Neil 5 Stew. Eq. 386 404, 416 Peacock v. Newbold 3 Gr. Ch. 61 21 Pemberton v. Topham 1 Beav. 316 482 Perrine V. Applegate 1 McCart. 531 256 Peter v. Daniel 5 C. B. 567 646 Plummer v. Keppler 11 C. E. Gr. 482 153 Plympton v. Boston Dispensary 106 Mass. 544 180 Pomfret V. Eecroft 1 Wms. Saund. 323 646 Post V. Stiger 2 Stew. Eq. 554 139, 414 Potts V. Whitehead 5 C. E. Gr. 85 657 Prall V. Lamson 2 Allen 275 642 Pratt V. Vattier 9 Pet. 413 154 Prescott V. Waite 21 Pick. 341 646, 648 Pringle v. Pringle 59 Pa, St. 281 359 Proprietors &c. ads. Jones 7 Vr. 206 262 «ruden v. Williams 11 C. E. Gr. 210 86 B. Raderv. Eoad District 7 Vr. 273 441 Radcliff V. Warrington 12 Ves. 332 655 Randolph v. Daly ,. 1 C. E. Gr. 313 75 Earitan & D. B. E. E. v. Del. & E. C. Co 3C. E. Gr.546 278, 282 Earitan Water Power Co. v. Veghte.... 6 C. E. Gr. 463 643 Redmond v. Dickerson 1 Stock. 507 163 Reeve v. Elmendorf. 9 Vr. 125 203 Eeed v. Norris 2 Myl. & Cr. 362 211 Eeed v. Eeed 1 C. E. Gr. 248 612 Eeeves V. Cooper 1 Beas. 223 488 Reg.v. Clark 5 Q. B. 887 590 Ridgeway v. Wharton 6 H. L. Cases 238 657 Rigby, Ex parte 19 Ves. 463 335 Robert v. Hodges 1 C. E. Gr. 299 140 Rogers v. Rogers 3 C. E. Gr. 445 205 Rogers Locomotive Works v. Erie Eail- wayCo 5 C. E. Gr. 379 640 Rosewell v. Bennett 3 Atk. 77 347 Ross's Trust L. R. (13 Eq.) 286 522 Rutland Y. Paige » 24 Vt. 181 442 xxii CASES CITED. [33 Eq. S. Salisbury v. Andrews 128 Mass. 336 649 Sanborn v. Adair - 2 Stew. Eq. 338 191 Saunders v. Newman 1 B. & Aid. 258 641 Sawyer V. Hoag 17 Wall. 610 163 Sayre v. Fredericks 1 C. E. Gr. 205 136 Schenck V. Schenck 1 C. E. Gr. 174 27, 335 Schenck V. Conover 2 Beas. 31 374 Schomp V. Schenck 11 Vr. 195 86 Scull V. Alter 1 Harr. 147 73 Scull V. Beeves 2 Gr. Ch. 84 299 See V. Zabriskie 1 Stew. Eq. 422 216 Seton V. Slade 3 Lead. Cas. in Eq. 67 327 Shann v. Zimmerman 3 Zab. 150 309 Shears v. Eogers 3 B. & Ad. 362 294 Shipman v. ^tna Ins. Co 29 Conn. 245 298 Shreve v. Joyce 7 Vr. 44 335 Silver v. Campbell 10 C. E. Gr. 465 210 Smith V.Alton 7 C. E. Gr. 572 331 Smith V. Clay 3 Bro. C. C. 639 154 Smith V. Smith 3 Stew. Eq. 564 175 Smith v.Kav 7 H. of L. Cas. 750 337 Smyles v. Hasling 22 N. Y. 217 642 St. Mary's Church v. Stockton 4 Hal. Ch. 580 327 Stackhouse V. Horton 2 McCart. 202 541 Stanley V. Stanley 1 Atk. 455 521 Starr V. Camden & A. R. B 4 Zab. 592 273, 168 State V.Foley 31 Iowa 527 279 State V. Laverack 5 Vr. 201 275 Stella V. Conover 3 Stew. Eq. 640 262 Stephenson v. Taverners 9 Gratt. 393 4S2 Stevens v. Erie Railway Co 6 C. E. Gr. 259 626 Stewart v, Kearney 6 "Watts 453 295 Stilwell V. Doughty 2 Bradf. 311 180 Stilwell V. Homer 6 Vr. 307 642 Stokoe V. Singers 8 E. & B. 31 643 Storm V. Davenport 1 Sandf. Ch. 135 298 Stoudinger v. Newark 1 Stew. Eq. 446 277 Stoughton V. Leigh 1 Taunt. 402 608 Stratton v. Allen 1 C. E. Gr. 229 489 Strike's Case 1 Bland 57 482 Stuyvesant V. Hall 2 Barb. Ch. 151 3:i5 Swift V. Thompson 9 Conn. 63 298 6 Stew.] CASES CITED. Tail V. Hartford P. & F. E. E 8 E. I. 310 184 Tate V.Tate 11 C. E. Gr. 55 205 Taylor V. Taylor 1 Stew. Eq. 207 71, 206 Taylor v. Corp. of St. Helen's 6 Ch. Div. 271 644 Terhnne v. Taylor 12 C. E. Gr. 80 382 Test V. Test 4 C. E. Gr. 342 205 Thelluson v. Woodford 4 Yes. Til , 230 Thomas v. West Jersey E. E 101 U. S. 74 162 Thompson V. Thompson 1 Sw. & Tr. 231 205 Townshend v. McDonald 2 Kerr. 381 642 Tichenor v. Dodd 3 Gr. Ch. 454 265 Tice V. Annin 2 Johns. Ch. 125 212 Titus V. Titus 11 C. E. Gr. Ill 479 Trenton Ins. Co. V. McKelway 1 Beas. 133 160, 162 Trotter V. Hughes 12 N. Y. 74 265 Trustees V. Trenton 3Stew.Eq.683 46, 403, 416 Trusdell v. Jones , 8 C. E. Gr. 121 382 Tucker v. Tucker 2 Stew. Eq. 286 236 Tucker v. Tucker 6 Stew. Eq. 235 532 Turmo v. Trezerant 2 Desauss. 264 74 Turner v. Cheesman 2 McCart. 243 496 V. Vandnyiiv.Vreeland 3 Stock. 370 661 Yan Doren v. Eobinson 1 C. E. Gr. 263.....*:. 153 Van Keuren v. McLaughlin 6 C. E. Gr. 163 303 Van Walkenburgh v. Eahway Bank.... 4 Hal. Ch. 725 375 Varick v. New York 4 Johns. Ch. 53 4 Varick v. Smith 5 Paige 136 442 Vaughn V. Johnson 1 Stock. 173 488 Viner V. Vaughan 2 Beas. 466 G09 Vreelandv. Vreeland 1 C. E. Gr. 512 237 Vreeland V. Blauvelt 8 C. E. Gr. 483 327 Wade V.Miller. 3 Vr. 296 65 Walburn v. Engilby 1 M. & K. 61 377 Walford V. Waiford L. E. (3 Ch.) 812 375 Walker V. Easterby 6 Ves. 612 188 Walsh V. Walsh 1 Eq. Cas. 249 521 Wanmaker v. Van Buskirk Sax. 685 427 Wart v. Maxwell 5 Pick. 27 508 Warwick v. Dawes 11 C. E. Gr. 548 602 xxlv CASES CITED. [33 Eq. Washburn v. Burns^ 5 Vr. 18 215 Watts V. Kelson L. K. (6 ch.) 166 641 Wheeler V. Wheeler 9 Cow. 34 335 Whitfield V. Benitt 2 P. Wms. 242 603 Whitfield V. Levy„ 6 Vr, 149 319 Wilder v. Keeler.„ 3 Paige 167 74 Wilkins V. Kirkbride 12 C. E. Gr. 93 65, 392 Willard v. Harbeck 3 Denio260 58 Williams v. Earl of Jersey 1 Cr. & Ph. 91 643 Williamson v. Johnson 7 Hal. 86 490 Williamson v. Wilson,, 1 Bland 418 482 Willink V. Morris Canal Co 3 Gr. Ch. 377 45 Wilson V. King 8 C. E. Gr. 150 263 Wills V, Cooper,. 1 Dutch. 137 27 Wintermute'B Will 12 C. E. Gr. 447 256 Winthrop v. Royal Asa. Co 1 Dick. 282 188 Wisham v. Lippincott.- 1 Stock. 353 „ 75 Withers V. Yeaden 1 Eich. Eq. 324 396 Woddrop V, Price 3 Desauss. 203 74 Wood V. Dummer„ 3 Mason 308 - 163 Wood V. Westfall Younge 305 482 Woodruff V. Black Sax. 338 „ 212 Woodruff V. Depue 1 McCart. 168 431 Woodward v. Woodward 1 C. E. Gr. 83 38 Wright V. Carter 3 Dutch. 76 277 Wyckoff V. Gardner- Spen. 556 215 Wright V. Puchett. 22 Gratt 374 660 Yeatman v. Yeatman L. R. (1 P.& D.) 489 370 CASES ADJTJDGED IN THE COURT OF CHANCERY OF THE STATE OF NEW JERSEY, OCTOBER TERM, 1880. Theodore Runyon, Esq., Chancellor. Abraham V. Van Fleet, Esq., Vice-Chancellor. Eugene S. Doughty V. The Board of Commissioners of Somervillb. Complainant moved back a fence along a public street, and threw out a strip of land six feet in width, thereby rendering the street more dangerous for travel, by throwing a ditch running along the fence nearer the centre of the street. Thereupon the street commissioners began to cut away part of the strip of land, in order to alter the ditch and render the passage of the street safer. — Held, that complainant could not enjoin the acts of the commissioners in that matter, because — (1) If he had dedicated the strip of land, the commissioners had authority (under the act for " the improvement of Somerville ") to improve it; and (2) If he had not dedicated it, such injury was not irreparable, and he could obtain adequate redress at law. — Held, also, that since such commission- ers had power to remove encroachments on highways only by resolution or ordinance, their threatened removal of complainant's fence so as to add to 2 CASES IN CHANCERY. [33 Eq. Doughty V. Commissioners of Somerville. such higliway an additional strip of land from five to nine feet wide because of an alleged encroachment to that extent, without any oflScial direction by resolution or ordinance, and without first ascertaining whether there was an actual encroachment, the complainant and his grantors having been in quiet possession of the premises for thirty years, might be enjoined. Bill for injunction. On bill and answer. Motion for pre- liminary injunction. Mr. A. A. Clark, for complainant. Mr. J. J. Bergen, for defendants. The Chancellor. The complainant prays an injunction to restrain the defend- ants from tearing up a ditch and drain in a street known as Raritan road, along the front of his property in Somerville, and from in any way intermeddling with the ditch or drain, and from removing the fence in front of his premises. The com- plainant's property is a very valuable one, handsomely improved for private residence, and has a front of about eight hundred feet on the road. "Within a year past he removed his road fence about six feet back. Before its removal the fence stood on the edge of a ditch, which was at the side of and in the road. The removal of the fence appears to have made the ditch dangerous to public travel, and the defendants set about altering and im- proving it, and in so doing proposed to cut away part of the six feet thrown out by the complainant, so that the side of the ditch next to his property will be from two to three feet nearer to that property than it was before. They also propose and intend to remove the complainant's fence on the road from five to nine feet back along the whole line. They claim that he and those under whom he derives his title, have unlawfully encroached to that extent upon the road. If they carry this design into effect, they will render it necessary for him to remove those of his orna- mental trees which stand on the strip that they propose so to reclaim for public use. When the bill was filed the defendants 6 Stew.] OCTOBER TERM, 1880. 3 Doughty V. Commissioners of Somerville. had already done part of their intended work upon the ditch. It would appear, by the statements of the bill, that the complain- aut gave the six feet thrown out as before mentioned to the public. The defendants are empowered by the statute from which they derive their authority (P. L. of 1868 p. 4-'^9) to cause to be constructed, enlarged, repaired and extended, any cul- verts, sewers, drains or ditches in or along any of the public streets or roads within the limits of the town. If the complain- ant has dedicated the six feet to the use of the public as part of the street (he says he is willing that it should be used as a side- walk), the defendants have a right to alter the ditch as they propose. But if not, and the strip thrown out is the complain- ant's private property, the injury complained of in this con- nection is not irreparable, and he can obtain adequate redress at law, and, under the circumstances, he is not entitled to the inter- vention of this court by injunction. Cross v. Morristown, 3 C. E. Gr. 305. But as to the proposed removal of the fence the case is differ- ent. The defendants are empowered by the statute before re- ferred to, by resolution or ordinance, to prevent and cause to be removed all obstructions in the streets or roads of the town ; but tJiey do not claim to have passed any resolution or ordinance on the subject of the alleged encroachment. They admit that they intend to remove the fence so as to regain for the road from the land within it claimed by the complainant to be his private property, and which it would appear has been claimed by him and those under whom he derives his title, as their private prop- erty for at least thirty years, a strip of from five to nine feet in width along his entire front. They say in their answer that they are willing that the true location of the street should be ascertained by surveys and measurements tb be made by a com- petent civil engineer, to be agreed upon by the parties or to be appointed by this court. It does not appear that they have taken any steps to ascertain whether the alleged encroachment in fact exists. Indeed, it seems not improbable that they are in error as regards the history and origin of the road in front of the complainant's property. The complainant, under the circum- 4 CASES IN CHANCERY. [33 Eq. Wells V. WeUs. Stances, is entitled to the aid of this court by its injunction to pro- tect him against the threatened removal of his fence. Gross v. Morristown, ubi supra ; Varick v. New York, Jf. Johns. Ch. 53. There will be an injunction accordingly. Joseph K. Wells V. Marie Lottise "Wells. 1. The act of 1880 (P. L. of 1880 p. 52), " that in all civil actions, in any court of law or equity of this state, any party thereto may be sworn and examined as a witness, notwithstanding any party thereto may sue or be sued in a repre- sentative capacity ; provided, nevertheless, that this supplement shall not extend so as to permit testimony to be given as to any transaction with, or statement by any testator or intestate represented in said action," does not, by virtue of its provision that any party to any action may be sworn, remove the prior statu- tory disqualification of a husband or wife, in a suit for divorce on the ground of adultery, to testify to anything except the fact of marriage. 2. In a suit by a husband for divorce from his wife on the ground of adultery, a non-resident detective had been employed by the husband, and ex- amined by him in reference to one matter only, and cross-examined by the wife's counsel, after which he left the state. — Held, that the court would not order the husband to p<-oduce him again for examination by the wife as to other matters ; nor would the husband be ordered to produce the correspondence between himself and such detective during the latter's employment by the husband, such letters being in the hands of the detective and not at all under the husband's control. Bill for divorce a vinculo. Mr. I. W. Scudder; for complainant. Mr. J. D. Bedle, for defendant. The Chancellor. In the course of the examination of witnesses in this cause, two questions have arisen : One as to the admissibility of the defend- 6 Stew.] OCTOBER TERM, 1880. Wells V. Wells. ant (the suit is for a divorce on the ground of adultery) as a witness, to disprove the crime charged upon her; and the other as to whether the court will require the complainant to bring again upon the witness-stand, for examination by the defendant in her defence, James Irving, a detective officer, who has been examined as a witness by the complainant, and, having been cross-examined and having signed his testimony, has left the state ] and to produce certain documents which, it appears from Irving's testimony, he has in his possession or under his control, being letters from the complainant to him, and copies of his answers thereto. By the third section of the act concerning evidence {Rev. p. 378), it is provided that parties may be wit- nesses in their own behalf, except when the opposite party is prohibited by any legal disability from being sworn as a witness, or either of the parties sues or is sued in a representative capacity, except as subsequently provided by the act. By the fifth section, the husband or wife of a party or other person interested in a suit is made a competent witness for such party or person, and it is provided that he or she may be compelled to give evidence for such party or person, but that nothing contained in the section shall render any husband or wife competent or compellable to give evidence for or against the other in any criminal action or proceeding, or in any action or proceeding for divorce on ac- count of adultery, except to prove the fact of marriage, or in any action for criminal conversation, or compellable to disclose any confidential communications made by the one to the other during the marriage. In Marsh v. Harsh, 2 Stew. Eq. 296, it was held by the court of errors and appeals, construing the act, that in a suit for divorce for adultery, neither husband nor wife is a com- petent witness to prove or disprove the charge. But it is insisted that by the supplement to the act (P. L. of 1880 p. 52), that dis- ability is wholly removed. The supplement provides that in all civil actions, in any court of law or equity, any party thereto may be sworn and examined, as a witness, notwithstanding any party thereto may sue or be sued in a representative capacity ; provided, however, that it shall not extend so as to permit testi- mony to be given as to any transaction with or statement by any 6 CASES IN CHANCERY. [33 Eq. Weils V. Wells. testator or intestate represented in such action. Neither directly nor by implication does this supplement remove the disability imposed by the fifth section of the act. It obviously was intended merely to remove the disability specified in the proviso of the third section of the act. As the act stood when the supplement was passed, a party might be sworn and examined as a witness in his own behalf, provided the other party was not under any legal disability from being a witness, or was not suing or being sued in a representative capacity, and a wife or husband of a party was competent and might be compelled to give evidence in a suit, except that no husband or wife should be competent or com- pellable to give evidence for or against the other in any criminal action or proceeding, or in any action or proceeding for divorce on account of adultery, except to j^rove the fact of marriage, or in any action for criminal conversation, and should not be compellable to disclose confidential communications made by the one to the other during the marriage. The supplement, while it partially removes the disability of parties which was occasioned by the fact that the adversary sued or was sued in a representative char- acter, goes no further, and does not remove or affect the disability and privileges declared by the proviso of the fifth section. By its terms it is manifestly confined in its operation to the partial repeal of the disqualifying exception just referred to in the third section. The defendant is not a competent witness in the cause to disprove the charge of adultery. She insists that the court should require the complainant to pro- duce the witness Irving, who resides out of this state, for examina- tion by her in her behalf, and to produce, also, the letters received by Irving from the complainant, and the copies of those written and sent by him to the complainant during the period of his em- ployment by the latter as a detective, in reference to the matter in controversy in this suit. The complainant examined Irving about a certain ring alone, and it is not claimed that the letters are to be used to contradict his testimony in reference to that matter, but they are to be used to show condonation by the com- plainant of the defendant's adultery, if indeed she was guilty of that oiFence. That is to say, the defendant asks that the court 6 Stew.] OCTOBER TERM, 1880. 7 Bourquin v. Bourquin. shall not only require the complainant to produce the witness, to be examined by her in her behalf, but shall require him to see to it that the witness produces at the same time, for inspection by her, the letters which the complainant sent to the witness, and the copies of the letters sent by the witness to the complainant. It is not claimed that these letters and copies are in the hands of the complainant or under his control. It is proved that they are in the hands or under the control of the witness. I can see no principle on which this application can be granted in either of its branches. The complainant is not bound to keep his witness in court until the defendant may have determined whether she will examine him in her own behalf or not. If a witness residing out of the state is here to testify for one party, and the other desires to take Lis testimony in his behalf while he is here, the statute points out a way to obtain it ; and, apart from the statute, the court would, on application, effectively aid the party in obtaining the testimony. When a party has kept his witness in court until the cross-ex- amination is ended, he may then suffer him to depart ; he is not bound to detain him longer. Nor can he be required to see to it that the witness produces, at the demand of the other party, documents for use by the latter as part of his proof, unless they become so upon legitimate cross-examination of the witness. The application is denied. Kate C. Bouequin. V. GOEDON M. BoUEQUESr. Proof that a husband and wife have lived separate, and that the husband has not supported his wife, does not establish willful, continued and obstinate desertion, so as to authorize a divorce. Bill for divorce. 8 CASES IN CHANCERY. [33 Eq. Bourquin v. Bourquin. The Chancellor. This case comes before the court ex parte. The bill alleges that the defendant willfully deserted the complainant in July, 1875, and that such desertion has been obstinately continued ever since. The complainant swears that she and her husband boarded together at 55 Sands street, in Brooklyn, on the 12th of June, 1875, and that he then left her, but that she remained there till the 8th of December following. She says he left her without any support, but, in the next sentence, says that he paid her board up to the 8th of December, though he did not live with her from the 12th of June. She says she returned from Brooklyn to her father's house, in Camden, at her husband's solicitation, on the 8th of December ; that he said that if she returned to Brooklyn, he would pay her board and all her ex- penses ; that she returned to Brooklyn, and went to board* at 193 Prince street; that he came to see the lady of the house, a few days after she got there, about making arrangements to pay her board ; that he never came to live with her there, and did not pay her board. Again, she says that in July, 1876, he ceased to support her ; that she again left Brooklyn, on the 8th of September, 1876, and returned to Camden, and that she has received no support from him since the 12th of July, 1876. She further says that she has not seen him since September, 1876, and yet, in a former part of her testimony, she seems to testify that she has seen him twice in the street in Brooklyn. In this connection, it may be remarked that lier sister says that the com- plainant has supported herself since she returned home in Sep- tember, 1876, and adds that she has seen th6 complainant and defendant together, presumably since that date. Albert Hughes testifies that the defendant left the complainant in the early part of June, 1875, and adds that he does not know that they lived together after that. He subsequently, indeed, says positiv^ely that he knows that the defendant has never returned to the com- plainant, and does not now live with her ; but how he has obtained his knowledge on the subject does not appear. In all this testimony there is no proof of desertion. The proof is that the parties have lived separate, and that the defendant has not 6 Stew.] OCTOBER TERM, 1880. 9 Wood V. Chetwood. supported his wife since September, 1876. That is not enough. To entitle the complainant to a divorce on the ground of deser- tion, it must appear that the defendant had willfully, continu- ously and obstinately deserted his wife for three years before this suit was begun. The bill will be dismissed. Mary G. Wood V. George R. Chetwood. An account of an executrix and her husband, guardian of the share of the daughter of the former, was settled by the daughter (the ward) and her husband thirty-four years before the filing of the bill, which was by the daughter, (whose husband was dead,) for an account of her share. The ground relied on waa errors in the account which was settled, and the fact that the daughter was when it was settled, a minor. — Held, that the claim was a stale one, and that, under the circumstances, she was bound by the settlement, notwithstanding her minority. Bill for an account. On final hearing on pleadings and proofs. Mr. W. J. Magie, for complainant. Mr. F. H. Teese and Mr. C. Parher, for defendant. The Chancellor. Dr. Oliver H. Spencer, of (then) Elizabethtown (now the city of Elizabeth), in this state, died May 19th, 1824, leaving a widow and three children, Robert D., Mary G. and Susan W. D. He had property both in Louisiana and in this state, and he left two wills — one, the earlier, made in New Orleans, and the other, supplementary and as a codicil thereto, at Elizabethtown. By the former, he gave all his property in Louisiana to his children in equal shares, with gift over in case of the death of all of them 10 CASES IN CHANCERY. [33 Eq. Wood V. Chetwood. without issue. By the latter, he confirmed the Louisiana will, and directed that no part of his estate should be sold, excepting two certain lots in Elizabethtown, the sale of which he author- ized, but that it should remain as it then was until all his chil- dren should have reached the age of twenty-one years. He gave his executors (who were his wife and Peter Kean and Oliver M. Spencer) power to sell those lots and invest the proceeds in stocks, and to sell such parts of his furniture or stock as they might think would not be wanted, and to invest the proceeds of the sales in stocks ; and he declared that it was his will that, in case of the remarriage or death of his wife, all his plate and household furniture of every kind should be sold, as well as all his slaves, horses, carriages, farming utensils and stock of every description, and that the proceeds should be invested in stocks. He constituted his wife guardian of the persons and estates of his children, during their minority, and provided that, in case of her death or remarriage, Peter Kean should take her place. After certain restrictions upon his wife as to endorsing, &c., in and while managing his estate, and making provision for the custody of the valuable papers of the estate, &c., he gave direc- tion as to the education of his son, and ordered that he receive, on arriving at his majority, $1,000 out of his personal estate and one thousand acres of choice land in Ohio, more than his other children. He then gave to his wife, "for her support, and for the purpose of maintaining and educating" his "children during their respective minorities, the use of the whole of his estate, both real and personal," and gave the residue to his chil- dren, to be equally divided among them as they should arrive at the age of twenty-one years, or, in case of marriage, at eight- een; aud provided that, after such division, his wife should have oue-third of the use of his real estate, and the sum of $600, to be paid to her annually, in lieu of dower and all other de- mands. The New Jersey will was proved by the widow and Peter Kean. The other executor never, so far as appears, acted as such. In 1828, Peter Kean died. He never accounted for his administration of the estate. The widow married the defend- 6 Stew.] OCTOBER TERM, 1880. 11 Wood V. Chetwood, ant, Dr. Chetwood, July 29tli, 1828. Robert D. Spencer died in 1855, leaving children. He received his share of the estate in 1835. The complainant attained her majority April 2d, 1838, and her sister Susan in February, 1840. The complain- ant was married to William N. Wood, February 22d, 1837. He died in 1865. Susan was twice married. Her first husband was Captain George H. Pegram, and her last Gilbert R. Flem- ing. He died after the commencement of this suit. Mrs. Chetwood is now dead also. In 1831, Dr. Chetwood was duly appointed guardian of the complainant and her brother and sister. An inventory of the estate of the testator was filed in 1825, by Mrs. Chetwood (then Mrs. Spencer) and Peter Kean. No account was ever filed ; but in 1837, a few months before the complainant attained her majority, and after her marriage to Mr. Wood, an account of the amount due her from the executors was given to him, at his request, and a settlement was then thereupon made by him with Dr. Chetwood and his wife, the executrix, of the complainant's share of the estate, and a receipt, under date of August 31st, 1837 (the complainant came of age the 2d of the following April), written beneath the account, and signed by Mr. Wood and the complainant, was given, by which they acknowledged that they had received from Mrs. Chetwood, executrix of Dr. Spencer, and Dr. Chetwood, guardian of the complainant, $12,957.90, by a transfer of stocks, assignment of bonds and mortgages, and a note and draft, on account of the complainant's share of the personal estate of her father, and that the balance due, stated in the receipt to be $3,772.14, was to be paid by Dr. Chetwood's giving his bond (to be secured by mort- gage) therefor, payable in one year, with interest from that date. That balance was subsequently so secured and duly paid. Like accounts and settlements, with payment, were made with the two otiier children, Susan and Robert, on their marriage or attaining to majority. In September, 1833, Dr. Chetwood, as guardian of the children, sold part of the Ohio land, in pursuance of authority obtained by him from the legislature of that state. The price obtained was $9,000. He accounted, in the settlements to the children, for their shares of the proceeds, after deducting 12 CASES IX CHANCERY. [33 Eq. "Wood r. Chetwood. $443.62, for the cost of obtaining the law and commissions, &c., paid by him on the sale. The bill is filed to obtain an account of part of the complain- ant's share of the estate. It is based on the allegation that the executrix and her husband ought to have accounted to the chil- dren for all the income of the estate over and above what was necessary for her and their support and their education, after her remarriage, and that, in the respects and particulars hereinafter mentioned and considered, and some others abandoned on the hearing, the account of 1837 given to Mr, "Wood should be sur- charged and corrected. The complainant insists that, inasmuch as she was, at the time of the settlement of that account, a minor, she is not bound by it, and that the receipt of her hus- band could extend no protection to Dr. Chetwood and the executrix beyond the amount actually received. The executrix and Dr. Chetwood, by their answer, deny the allegations of the complainant as to the alleged errors, and resist her claim to an account ; and they plead, in the answer, the great lapse of time as an equitable bar. In 1872, about seven years after the death of her husband, the complainant cited Dr. Chetwood to account, in the orphans court of Essex county, as her guardian. He, in December of that year, filed, as his account, a statement of the settlement before mentioned, and alleged that the balance which was then found due from him had been paid. In March following, the complainant filed exceptions to the account, but they were not proceeded upon, and on the 16th of April, 1875, tliis suit was begun. Soon after the citation out of the orphans court was served on him. Dr. Chetwood left the country and went to France, where he has ever since resided and remained. To consider the objections made to the account of 1837. Though others are stated in the bill, they, as before stated, were abandoned, and those insisted on are the following: That neither the complainant nor her husband has ever had an ac- count of what she claims to be her share of the income of the estate after July 29th, 1828, the date of the marriage of the executrix to Dr. Chetwood ; that there should have been chargeil against the executrix the sum of §1,027.40, which the complain- 6 Stew.] OCTOBER TERM, 1880. 13 "Wood V. Chetwood. ant alleges was collected by the executrix, June 24th, 1828, on a claim of the estate against the estate of her father, Gen. Jonathan Dayton ; that the executrix and Dr. Chetwood have not accounted for so much money as they ought in respect to the Ohio land sold under legislative authority, as before mentioned. The complain- ant alleges that that property was worth from $16,000 to $20,000, but it was sold for $9,000 ; and she insists that it was sold in violation of duty, because the will directed that it should not be sold until all the children should have attained their majority. She further alleges that if the conduct of the executrix and Dr. Chetwood in making the sale be approved, they have not ac- counted for enough ; that they have not accounted for all the interest received on certain notes made by John Dick, and be- longing to the estate, nor for the money — $221.77 — which, at the testator's death, stood to his credit in his bank account in the State Bank at Elizabeth ; that a charge of $200 for repairs to a house called the Hale house, is unjust, because the house, at the date of the charge, did not belong to the estate ; that a charge of $1,960, for money alleged to have been paid by the executrix on account of a note held by David Rogers, is unjust. The com- plainant insists that the money was paid by Gen. Dayton, who was liable as principal therefor ; that a charge for repairs to a house of the estate on Jersey street, in Elizabeth, is unjust, be- cause the executrix and Dr. Chetwood occupied the house at the time of making the repairs (in 1836), and did not account for the rent ; and that the loss (it occurred in 1835) on certain in- surance stock should have been borne by the executrix and Dr. Chetwood, or one of them, and not by the estate, and the com- plainant insists that therefore the charge of $521.30 against her in the account, in respect to that loss, was erroneous. She insists that the stock was the property of Dr. Chetwood, and not of the estate, and that the executrix had no authority to invest the money of the estate in insurance stock. As to the first of these objections : The will gave to the widow, for her support, and for the purpose of maintaining and educat- ing the children during their respective minorities, the use of the whole of the estate. It provided for the payment to each child, 14 CASES IN CHANCERY. [33 Eq. "Wood V. Chetwood. on his or her becoming of age, or in case of marriage, at eighteen, of his or her share of the estate, and that after the youngest had been paid, the widow should have the use of one- third of the real estate and an annuity of $600. That is to say, the estate, except one-third of the real estate, to be reserved for the widow for life, and a sum which would ])roduce for her a life annuity of $600, was to be divided among the children as they arrived at age or were married, if not under eighteen. The plan adopted in settlement, as to the personal estate, appears to have been to divide it, taking security for the annuity. The complainant, then, if she received the full amount of her siiare of the personal estate in the settlement of 1837, took away one- third of that estate, leaving in the hands of her mother the other two-thirds, in which the complainant had no interest. As to the income received from the estate prior to that settlement, it was clearly, by the terms of the will, given to the widow so long as she remained guardian. And she was not bound to account for it during that time, so long as she discharged the duty in respect to which it was bequeathed to her. Machnet v. MacJcnet, 11 C. E. Gr. 258; S. C. on appeal, 12 C. E. Gr. 5H. The will provided that in case of her remarriage her guardian- ship should cease, and that Peter Kean should be guardian in her stead. Peter Kean, according to the bill, died a few months after her remarriage, and he appears never to have assumed any duty as guardian. The widow continued her care of the children and their education until they attained their majority or were married. No question appears to have been made as to her right to the income at any time, until it was made by the complainant in 1872, over thirty years after the youngest child attained to majority. No charge was made in any of the settlements for the support or education of the children, nor were any commissions charged by the executrix or guardian. The income may not have been in excess of the amount which would have been allowed to the widow, under the circumstances, for the support and education of the children. But however that may be, no account was, so far as appears, ever even suggested, but the ap- propriation of the whole income, as compensation for the support 6 Stew.] OCTOBER TERM, 1880. 15 Wood V. Chetwood. and education of the children, seems to have been acquiesced in. It would, therefore, obviously be highly inequitable, under such circumstances, after so long a period of acquiescence and delay in making the claim, to require the widow, were she living, to come to an account as executrix, or Dr. Chetwood as guardian, of the excess of income, if any there was, over and above what would have been allowed for support and education. It would probably be impossible to give such an account. And here it may be re- marked that the complainant's interest in the estate was looked after by her husband, who was a lawyer and abundantly compe- tent to do so ; and, moreover, the share became his own on his reducing it to possession. Susan's first husband, too, was inter- ested in like manner as to her share, and it may be presumed that he looked after her interest carefully. Robert was a lawyer. It is hardly to be supposed that this matter of the right to the income did not receive due attention in behalf of the children. The claim that certain money, alleged to have been received on account of a demand of Dr. Spencer's estate against that of Gen. Dayton, has not been accounted for, is not sustained. It appears that under an agreement of the creditors, or some of them, of the Dayton estate, certain land in Ohio was purchased for them at the administrator's sale thereof, and the title taken and held in trust accordingly ; and though $1,027.40 were re- ceipted for in the transaction, by the attorney of the executrix to the administrator, as so much money paid by the latter to the attorney, yet it appears to have been receipted for as part of the purchase money of the property. The account shows a charge against the executrix of $800, for money received from the con- veyance of the land, and $126 for the balance of the dividend of twenty per cent, paid by Gen. Dayton's estate. There is no evi- dence of any error in this matter. The sale of Ohio land owned by the testator was, according to the evidence, made at a time when it appeared very desirable and for the interest of the children as owners of it, that it should be made. The price obtained was regarded as an excellent one at the time. There appears to have been no concealment in the transaction. Indeed, it would seem that concealment, under the 16 CASES IN CHANCERY. [33 Eq Wood V. Chetwood. circumstances, was hardly practicable. In the conveyance that was made the executrix joined, to release her dower. The prop- erty was sold in accordance with what appears to have been the judicious advice of a competent and careful adviser — it was sold in 1833 — and the proceeds were accounted for in the settlement with the children. The exhibits in the cause account for all of the $443.62 charged for expenses of obtaining the law and com- missions for selling, except $108.88. This charge of $443.62 was in the account of 1837, and was of course subject to scrutiny then. The interest on the Dick notes appears to have been accounted for up to the death of the testator, and the interest which accrued after that was probably claimed by the widow as income due her. The money was collected in 1825 and 1826 ; the interest was collected in the latter year, and that was two years before her remarriage. The balance (said to be $221.77) of the testator's bank account does not appear to have been accounted for, but it is not in the inventory which, according to the bill, was made and proved by the executrix and Peter Kean, and it is not probable that money in bank was overlooked in making and proving the inventory. It is suggested that the money may have been used to pay funeral expenses, for which tliere is no charge in the account. It may have been expended for them and other usual concomitant family expenses. It is also suggested that it may have been only an apparent balance, and was exhausted by checks given by the testator, but not paid till after his death. But, not to deal with conjectures, it would have been too much to require the executrix, at her advanced age when the bill was filed (she appears to have been about eighty-five years old when this suit was begun), to account for or explain this. She is now dead. Dr. Chetwood is about seventy-eight years old. He is not charged with knowl- edge of the matter. The inventory was made four years before he married the widow. The charge for repairs to the Hale nouse has not been ex- plained. It seems to have been dated in 1831, while the deed for the property to Dr. Chetwood and his wife is dated in No- 6 Stew.] OCTOBER TERM, 1880. 17 Wood V. diet wood. vember, 1832. The property was regarded as belonging to the estate, and not only the proceeds of the sale of it were accounted for, but the profit made upon it also. Certain it is that this charge of $200 for repairs to the Hale house was made under date of 1831 in the account given to Mr. Wood, and if it had been so obvious a mistake as is now contended, it must have chal- lenged his attention. It appears also in the account rendered to Susan. By one of the exhibits put in by the complainant, the repairs appear to have been, in whole or in part, putting in a new front to the house, painting it, and putting a new roof on the back shed. Though the charge is not found in the account rendered to Robert, it appears, by a statement made by Dr. Chet- wood, given in evidence by the complainant, and which came from among Mr. Wood's or her sister Susan's, or Dr. Chetwood's papers, that it, with several other payments there specified, was overlooked in the settlement with Robert. It will be convenient here to deal with the objection made to the charge for repairs to the Jersey street house. That house was occupied by the widow when the repairs were made (1831), and it is insisted that she was bound to make them because she had the use of it, but — and this remark is equally applicable to the repairs to the Hale house, in respect to which the same sug- gestion is made on the ground that she received tiie rents — she was not a life tenant, but seems to have claimed to be entitled to the use of the income of the property for a limited period (during the minority of the children), and that claim appears to have been allowed, at least by acquiescence. What are called repairs in this instance, it may be added, appear to be, in part at least, the building of an ice-house and new fences. Dr. Spencer was liable as surety with his father-in-law, Gen. Dayton, on a promissory note held by David Rodgers. On Sep- tember 11th, 1824, the fall after Dr. Spencer's death. Gen. Dayton received from his daughter, the executrix, $1,960 for investment. By his receipt to her therefor, he promised to invest the money for her, as soon as practicable, in New York state securities, or, if the investment could not be advantageously made, to return it to her on demand. Judgment was recovered against him and 2 18 CASES IN CHANCERY. [33 Eq. Wood V. Chetwood. Dr. Spencer by Rodgers, on the note, in the supreme court of this state, May 13th, 1823. On the 13th of September, two days after he received the $1,960 for investment, he paid exactly that sum of money to Rodgers's attorney, on account of the judg- ment. If the money so paid was hers, and it was applied by her father, with her consent, to the payment of the judgment, it was a payment by the executrix for Dr. Spencer's estate. The claim was made in the account delivered to Mr. "Wood, and it is to be found in those delivered to and'settled by Susan and Robert. In the account delivered to Robert it is under the date of September 11th, 1824, the date of Gen. Dayton's receipt to Mrs. Chetwood, and it is specifically charged as a payment by her to Rodgers. It would be enough to say, however, that it is not only not estab- lished that she did not pay the money, but the circumstantial evidence indicated that she did. The charge for loss on stock of the Equitable Insurance Company seems to have been dis- cussed between Mr. Wood and Dr. Chetwood, and they appear to have submitted the question to Theodore Frelinghuysen for his opinion. He gave it, under date of August 7th, 1837 (the receipt from Mr. and Mrs. Wood is dated August 31st, 1837, and the opinion therefore preceded it), to the effect that any losses which had been sustained in insurance stock, by reason of the then late great fire in the city of New York, should fall on the estate, and not on the executrix. The will directed that certain funds should be invested in stocks. It is said that no charge for this loss is made in the account rendered to Robert, but the paper which is treated as being that account is dated in November, 1835, and his receipt for his share is dated the 11th of that month. The fire had not then taken place; it occurred in December following. The stock is put down as part of the assets in that account. The question of the propriety of the investment in insurance stock was submitted to Mr. Frelinghuysen, and de- cided by him then, before the settlement of 1837 was made, and his decision was acquiesced in and submitted to by Mr. Wood. According to the inventory and the account rendered to Mr. Wood, the estate owned but forty-three shares of the stock of the State Bank at Elizabeth. The complainant, however, insists that 6 Stew.] OCTOBER TERM, 1880. 19 Wood V. Chetwood. there were sixty-three, and that Dr. Chetwood should account for the difference. It appears by the books of the bank that at the death of the testator there were sixty-three shares standing in his name, and that in September, 1824, twenty shares were trans- ferred to Caleb Halstead, jun. It also appears thereby, that in August, 1822, Halstead transferred twenty shares to Dr. Spencer. It is not necessary to query whether the latter were assigned to the testator as collateral security for a debt subsequently paid, or were held by him in trust, or to conjecture what is the reason ot the discrepancy. It existed when the account was delivered to Mr. Wood. In that account, and in the other accounts, it is said that of that stock the estate held only forty-three shares. The inventory was not made by Dr. Chetwood, but by Peter Kean and the widow. They probably believed it to be correct, and had good reason for the statement that the estate owned only forty-three shares of the stock. Verification of the inventory and accounts in this respect was easy, and it may be assumed that in this matter the discrepancy was known and satisfactorily accounted for. I have thus considered the various reasons which are given by the complainant for requiring an account, and I do not find that any of them would justify such a requirement. There is no evidence of any fraud or concealment ; on the contrary, every- thing appears to have been open to inquiry. The accounts ren- dered to the children were subject to the scrutiny of persons who were most competent to make the examination. Not one only, but two lawyers were directly and personally interested in the settlements. The shares for which account was made to them wholly belonged to them, and each appears to have made the settlement for himself. Each settlement necessarily involved an account of the estate. The advice of Mr. Frelinghuysen appears to have been sought and obtained in reference to the account of the complainant's share, and it would seem that the disputed questions were submitted to his decision. The fact that there were such questions is evidence that the account was closely scru- tinized. On the 19th of January, 1838, another statement was made by Dr. Chetwood for Mr. Wood, and annexed to it was a 20 CASES IX CHANCERY. [33 Eq. Wood V. Chetwood. receipt which recited that by a statement of the accounts of tlie executrix, and of Dr. Chetwood, the guardian of Mrs. "Wood, there appeared to be due to Mrs. Wood $16,511.21, and it was thereby certified that that sum had been i)aid to Mr. and Mre. Wood by the assignment of certain securities and payment of cash, &c., and the giving of a bond and mortgage. And further, that the receipt of August 31st, 1837, had been given. It will be seen that the receipt is to the guardian as well as the execu- trix. The husband, Mr. Wood, was entitled to the share of his wife, if in the hands of either of them. He, being entitled to the property, was the proper person to demand and have an ac- count of it ; and being so, his wife, though a minor at the time of the accounting, is bound by the account to the same extent that he would be. It is not a question whether the husband could release the demand of the wife without receiving satisfac- tion for it, but whether an account was made to and settled by a person legally authorized. If it was, then the further question is whether this court will, after the lapse of over forty years, open the account. It is at least doubtful whether there is any error. And the presumption from the circumstances, the excel- lent capacity of him who made the settlement on behalf of the complainant, the care and circumspection which he evidently ex- ercised in making it, and the acquiescence in it by him for the rest of his life, twenty-eight years, and by the complainant for thirty-four years, is that the account was satisfactorily settled. The complainant's claim must be regarded as a stale and anti- quated one, such as this court does not favor, but, on the other hand, discourages. As before stated, she acquiesced for thirty- four years. Her sister Susan does not appear to have ever been dissatisfied with the account, and Robert lived twenty years after the account with him was settled, and he never, so far as is shown, questioned its correctness. The impolicy as well as the injustice of requiring an account after so long a period of acquies- cence, is illustrated in this case. In 1872 the alleged errors of which the complainant complained, and to which she asked Dr. Chetwood's attention, were only an overcharge of the value of stock of the State Bank at Xewax'k, belonging to the estate, the 6 Stew.] OCTOBER TERM, 1880. 21 Wood V. Clietwood. non-allowance to her of a share of the profits of the sale of the Hale house, and the non-allowance of any part of the income of the estate during the minority of the children. Tlie first was explained by the books of the bank, and the existence of error disproved. The profits on the sale of the Hale house were, in fact, allowed in the account. In the bill in this cause it is claimed that there should be an account of $3,024.88 for nineteen shares of the stock of the Bank of Kentucky, and the dividends thereon, and of $800 received from the sale of the Hatfield property mentioned in the will ; but both of those claims were abandoned on the hearing. The estate is credited in the account with the pro- ceeds of the sale of the Hatfield lot, and the complainant admits that she was also in error as to the Kentucky Bank stock. " It is an inherent doctrine of this court," says Story, " not to entertain stale or antiquated demands, and not to encourage laches and negli- gence. Hence, in matters of account, although not barred by the statute of limitations, courts of equity refuse to interfere after a con- siderable lapse of time, from considerations of public policy, from the difficulty of doing entire justice when the original transac- tions have become obscure by time, and the evidence may be lost, and from the consciousness that the repose of titles and the security of property are mainly promoted by a full enforcement of the maxim, " Vigilantibus non dormientibiLS, jura subveniunt." Story's Eg. Jur. § o29 ; and see Peacock v. Newbold, S Gr. Ch. 61; Barnes v. Taylor, IS C. E. Gr. 259. In the case in hand the justice of that doctrine and the propriety of its application are manifest. The executrix, when she was examined, M'as in extreme old age ; she was over eighty-five years old. She de- clined to be cross-examined, pleading want of memory ; and the complainant testified, in less than a year afterwards, in this suit, that her mother's mind was almost gone. Dr. Chetwood is, as before stated, seventy-eight years old. The complainant has had the benefit of all his papers, obtained from his wife during his absence in France, and she has had another unusual advantage in the possession of the accounts delivered to Susan and Robert. She has not been able to show any fraud, and has not made such 22 CASES IN CHANCERY. [33 Eq. Zabriskie v. Morris and Essex E. E. Co. proof of any error as to overcome the presumptions which equity raises under the circumstances. The bill will be dismissed, with costs. Lansing Zabriskie V. The Morris and Essex Railroad Co. A trust to sell or improve lands ; to invest and re- invest the proceeds ; to collect rents and income ; to pay taxes, assessments, commissions, and other annual expenses and charges ; to pay over the net income, and to divide the estate, vests a fee simple title in the designated trustees, not limited to the lifetime of the donor's children, which trust descends to the heir at common law, the eldest son of the survivor of the trustees, and his contract to sell lands of the estate may be specifically enforced. Bill for specific performance. Mr. L. Zabriskie, p'o seipso. Mr. J. D. Bedle, for defendant. The Chancellor. By an agreement in writing duly made between the parties in October, 1878, the defendant agreed to purchase of the com- plainant two plots of laud in Hudson county, on his making and delivering to it a good and sufficient deed of conveyance therefor, vesting in it 4i title in fee simple, free from all encumbrances, and he, on his part, agreed to sell and convey the property to the defendant for the price stipulated, so soon as he could make such title. The land was the property of John Tonnele at the time of his death, and the complainant claims title thereto under Mr. Tonnele's will, as the heir at common law of his father, the late 6 Stew.] OCTOBER TERM, 1880. 23 Zabriskie v. Morris and Essex K. R Co. Abraham O. Zabriskie, whose eldest son he is, and wlio was the last survivor of the executors and trustees under that instrument. The question presented for decision is whether he indeed has such title. Mr. Tounele died in 1852. By his will, after mak- ing certain specific devises and bequests, he gave, devised and bequeathed all the rest and residue of his property, real and per- sonal, to his eight children, to be equally divided among them in such manner that each child should receive only the net rents, income and profits of his or her share during his or her life; and he provided that at the death of each child, his or her share should go to and vest in his or her lawful issue ; and in default of such issue living at his or her death, then to the testator's other children and their issue in the same manner as the share of each was thereby limited and given : the children of any de- ceased child to take their parents' share. And in order more fully to carry out the objects of the will he appointed and de- clared his executors to be trustees of all property, estate or inter- est therein given or devised to any of his children, or that any of his children might he entitled to by virtue of any provision of the will during the life of such child ; with full power to retain all such property in their hands unsold and undivided until after the year 1867; and he thereby authorized them to sell and convey all or any part of his real estate, and all real estate that might be purchased by them, and to invest his personal estate and the proceeds of sale of his real estate at interest on bond and mortgage or in government or state stocks, or to lay them out in the improvement of his real estate, or the purchase of other real estate and the improvement thereof, as might seem most for the interest and advantage of his chiklren, and for the improvement of his estate, and to change such investments as they should deem best from time to time. And he thereby ordered and directed them to pay over to each of his children during his or her natu- ral life, the net income of that part or portion of his estate therein given or devised to such child, after deducting therefrom all taxes, assessments and commissions and other annual expenses and charges ; the income of each of his daughters to be paid to her on her own receipt, for her own use, free from the control of 24 CASES IN CHANCERY. [33 Eq. Zabriskie v. Morris and Essex K. K. Co. any husband ; and tliat of his son to be paid to him on his own receipt, and not to any assignee or mortgagee thereof. He ap- pointed his wife and Robert Gilchrist and Abraham O. Zabriskie executors. They all proved the will, and, as before stated, they are all dead, Mr. Zabriskie being the last survivor. By the will the testator gave to his executors as trustees such control over the property, real and personal, given to his children by the residuary clause, as to necessitate the implication that he designed to give them the fee of the land. He expressly consti- tuted and declared them to be trustees of the property. He em- powered them to retain the real estate unsold and undivided until after 1867. As before stated, he died in 1852. He au- thorized them to sell and convey all or any part of the real estate and all that they might buy, and invest the proceeds in certain stocks, or in the purchase of other real estate, or in the improve- ment of his real estate, as they might think most for the advan- tage of his children and the improvement of his estate, and to change the investments from time to time. And he directed them to pay over to each of his children, during his or her life, the net income of the part or proportion of the estate given or devised to him or her, after deducting therefrom all taxes, as- sessments, commissions and other annual expenses and charges. The authority to divide the land among the children implies the gift of a fee. How were the trustees to divide it unless they had the power to convey ? No express power to lease is given; but they are to pay over to each child, during his or her life, the net income of his or her share of the estate, real as well as per- sonal, and that, too, after deducting not only annual taxes, but municipal assessments and commissions and other annual ex- penses and charges, whatever they might be. The power to sell and convey all his land and buy other land with the proceeds and take the title in their own names, is undoubtedly given. They might sell some of his land and spend the proceeds in im- proving the rest or any part of it. In short, complete power is given to convert the land into money, and to make such dispo- sition of the proceeds in expenditures, in improvements or in in- vestments, as they might see fit. This exteasive authority is 6 Stew.] OCTOBER TERM, 1880. 25 Zabriskie v. Morris and Essex R. E. Co. utterly incompatible with the exercise of any control over the property by the children. They cannot sell or convey or encum- ber it. They are entitled to no control over it, indeed, so long as they live ; for the trust is to pay to them the net rents and income for life. To the execution of such a trust as that under consideration, it is necessary that the trustee be clothed with the title in fee. Though the express devise is to the children them- selves and there is no express devise to the trustees, that will not prevent the implication of the gift of the fee to the latter ; for a direct devise may, by the context, be shown not to give the legal estate to the devisee named, and the legal estate may, if the pur- poses of the will require it, be held to be in trustees. In Brew- ster V. Striker, 2 N. Y. 19, there was a devise to grandchildren and their heirs forever, with direction that the estate be " dis- posed of" by the executors and the survivor of them and the ex- ecutors or administrators of the survivor, not by sale or alien- ation, which were forbidden, but by lease ; the rents, issues and profits to be paid to the " heirs " (grandchildren) annually ; and it was also provided that if any of the heirs or their children should choose to occupy any part of the property, they were to be preferred as tenants. By a subsequent clause it was declared that if any of the grandchildren should die without issue, the share of such decedent should go to the survivors or survivor and the heirs of the survivor forever. It was held that the trustees took the legal estate by implication during the lifetimes of the grandchildren. See also Doe v. Willan, 2 B. & Aid. 84-, and Doe V. Cafe, 7 Exch. 675. It is not necessary, however, to cite au- thorities for so obvious a proposition, resting, as it does, on the familiar principle that in testamentary dispositions the intention of the testator is to be sought for, and, when found, is to control the construction. That the testator's intention was to create a trust, and that one was created accordingly admits of no doubt. The trust is to sell, to improve, to invest and re-invest, to collect rents and income, to pay taxes and commissions, assessments and otner annual expenses and charges, to pay net income over, and to divide the estate. The authority given is not a mere power of disposition which may be executed without any legal title, but 26 CASES IN CHANCERY. [33 Eq ZabrJskie v. Morris and Essex K. E. Co. a trust of such a character as renders it necessary that the legal estate, the title in fee to the property, should be in the trustees. " The mere fact," says Mr. Jarnian, " that the trustees are made agents in the application of the rents, is sufficient to give them the legal estate ; as in the case of a simple devise to A upon trust to pay the rents to B. And it is immaterial in such a case that there is no direct devise to the trustees, if the intention that they shall take the estate can be collected from the will. Hence a devise to the intent that A shall receive the rents and pay them over to B, would clearly invest the legal estate in A." 2 Jarm. on Wills SOI. See also Hawk, on Wills UO ; Hill on Trustees 281, 232, and Perry on Trusts § 213. Nor can the purposes of the will in this case be answered by confining the legal estate to the life- time of the children ; for the trustees have power to lease and to sell and convey ; and where a devise to trustees upon trusts which, standing alone, would not vest in them the whole legal estate, is followed or accompanied by a power to sell, lease or mortgage not limited to the period of the continuance of the active trusts, the trustees are held to take the whole legal fee, and not a mere limited estate, with a superadded power of sale, mort- gage or leasing. Hawk, on Wills 153 ; Barker v. Greenwood, If. M. & W. Ji^l. Not to speak of other considerations, it was necessary that the trustees have power and authority to sue in their own names for injuries to the real estate, and to establish title thereto as against adverse claimants, and that in making im- provements, whether by the erection of buildings or otherwise, they should have the legal ownership of the property improved. The case is obviously to be distinguished from those of which Gesi V. Flock, 1 Gi\ Ch. 108, and Iloores v. Moores, 12 Vr. 44-0,0X6 examples; for in them the gift was of a mere power W'hich could be exercised without any estate in the donee thereof. In the case under consideration, at the death of the last survivor of the trustees, the trust still existed and was to continue as to the payment of the income to the children during the lives of the latter. The power (it was more ; it was a trust) to convert that part of the real estate of which the testator died seized, wRich was still unsold, remained, and it was coupled with a duty to in- 6 Stew.] OCTOBER TERM, 1880. 27 Carpenter v. Hoboken. vest and husband the proceeds in case of conversion, and pay- over the net income or make improvements with them, if the trustee deemed best ; and the trust to make division of it with Ihe rest of the estate, if it remained unsold at the time of division, still continued. To the execution of this ample and extensive trust, co-extensive with complete ownership, an estate in fee in the trustee was not only convenient, but necessary. Nothing less would satisfy the trust. He, therefore, had such title. The last survivor did not devise the land. By law his estate therein descended to his heir at the common law, his eldest son, the complainant, who, therefore, can convey it in fee to the defend- ant. Schenck v. Schenck, 1 C. E. Gr. 174- ; Wills v. Cooper, 1 Dutch. 137 ; Boston FmnkUnite Co. v. Condit, 4, C.E. Gr. 394; Rev. p. 1224, tit. Trustees, § 1. There will be a decree for specific performance. Nettie Caepenter and others V. The Mayor ksd Council of the City of Hoboken and others. 1. A statutory lien on lands for annual water-rents cannot be extended by construction so as to include water furnished by the city commissioners under a contract with a tenant for years ; and hence a sale of the premises occupied by such tenant, for default in paying such water-rents, is ultra vires, and may be set aside on application of the owner. 2. Where the authority of the commissioners is terminated by their assess- ment and return to the common council, they are unnecessary parties to a suit to set aside a sale of lands ordered by the common council and predicated on their proceedings. Bill to remove cloud from title. On bill and answer of the mayor and council, and replication thereto, and proof taken under the issue so joined, and plea of the water commissioners of the city of Hoboken, and agreement of counsel. 28 CASES IN CHANCERY. [33 Eq. Carpenter v. Hoboken. 3fi'. J. C. Besson, for complainants. Mr. M. W. NiveUf for defendants. The Chakcelloe. The bill is filed to remove from the complainant's title to land in Hoboken the cloud cast thereon by two sales thereof by the city (at both of which it was itself the purchaser for two terms of one hundred years each), for the non-payment of the price assessed against the property for water furnished by the water commissioners of the city of Hoboken to Alexander Feyle, the complainant's tenant of the premises. The suit is brought against the water commissioners, as well as the city, and the relief prayed is the avoidance and cancellation of the charges made against the property by the commissioners, the annulment of the sales and the cancellation of the record thereof. The city has answered, insisting on the validity of the lien and sales, and the commissioners have pleaded. No warrant or authority of law is to be found for the charges in question and the consequent proceedings thereunder. By the act of March 27th, 1859, (P. L. of 1859 p. 4BS), a lien for annual water-rents, to be fixed from time to time by the commissioners, is created, and provision is made for the enforcement thereof by sale of the property whereon it is charged. But no other or further lien or charge on the land is authorized thereby. In the case in hand, the annual water-rents have, it is alleged by the bill and admitted by the answer, been duly paid, and no lien is claimed for or in respect to them, but the lien is claimed on ac- count of water furnished to the yearly tenant by the commis- sioners, under a contract between him and them. For the recovery of the money due for that water, the commissioners might, under the act, maintain an action agaifist the tenant, "^ut no lien or sale of the property of the complainants therefor is authorized. All the proceedings called in question by this suit are ultra vires, and therefore null and void, and should be so de- clared. The water commissioners have pleaded that they have no interest in the land or in the sale thereof, and have no claim 6 Stew.] OCTOBER TEUM, 1880. 29 Carpenter v. Hoboken. thereon, and that all of their interest ceased when they made return of the assessment to the mayor and common council, as set forth in the bill. The plea is set down for argument at the final hearing, on the agreement that if it be held bad a decree shall be entered against the commissioners, as well as the city, in case it be held that the proceedings complained of in the bill are null and void ab initio, the question involved being a mere ques- tion of law. The bill states that the commissioners, unlawfully and without any authority from the complainant, charged against the latter the amounts due the commissioners from the tenant, in the same manner as if they had been for water-rents lawfully assessed on the property. By the act the commissioners are di- rected, from time to time, to fix a sum to be assessed annually upon all vacant lots and lots with buildings thereon in the city in which Passaic water is not taken, and also upon lots or build- ings where the water is taken, if the same are situated on any road, street, avenue, lane, alley or court in the city through or in which pipes for distributing the water are laid, which prices and sums so fixed and assessed are to be denominated water- rents ; that the water-rents and penalties for delaying payment beyond the time fixed shall, until paid, be a lien on the property charged therewith ; and that the commissioners shall, on and after a day specified in the act, in each year deliver to the mayor and common council of the city a certified account of the water- rents and penalties unpaid, and that they shall be collected for the commissioners by the means employed by the city for the collection of taxes. The action of the commissioners with re- spect to the lien terminates on the delivery of the statement in the act called *' the account " of their assessment ; and this state- ment or account is the record, and so far as the requirements of the act are concerned, the only record, of the assessment. The commissioners are»not necessary parties to this suit. They have no interest in the event of it, nor are they necessary to the relief souglit. The assessment was, indeed, made by them, and not by the mayor and council ; but that does not, of itself, give the complainant a right to compel them to answer. Commissioners by whom an assessment is made under appointment by a munici- 30 CASES IN CHANCERY. [33 Eq. James v. Lane. pal body for the cost of municipal improvements, are not proper parties to a bill to remove a cloud on title created by their action in making the assessment ; and the commissioners in this case stand in a like relation. No decree can be made against them. They claim no lien by virtue of their assessment ; nor do they hold any record of lien — that is held by the mayor and common council. They have no interest whatever in the subject of this controversy. The complainant's property was sold to the city for terms of years, to pay the assessments, and, under the act, the amount for which it was sold was immediately payable to the commissioners out of the city treasury. It cannot be re- covered back from them. They are a mere department of the municipal government. As to the grounds or elements of the assessment, the commissioners are witnesses merely. The plea will be allowed, and a decree made against the mayor and common council of the city, according 'to the prayer of the bill. Under the agreement, the bill will, as to the commissioners, be dismissed with costs. Thomas W. James V. Susan Laxe and others. Upon the application of the widow of a decedent and of the guardian of his minor children, and upon their promise to repay him out of the rents of the property, the complainant, in order to save the reed property of the estate from a forced sale, advanced money sufficient to pay those creditors of the estate who had proved tlieir claims. Afterwards, and upon their like solicita- tion and promise, he advanced further sums of mone^ to pay interest on a mortgage on the property and to make necessary repairs. Only a small por- tion of such advances having been repaid, he demanded the balance of the guardian, who thereupon gave him a power of attorney to collect the rents and appropriate them in satisfaction of his claims, such power acknowledging that his debt was for money advanced for the benefit of the property, and to protect it from a public sale. He collected a small amount, and then the guardian, 6 Stew.] OCTOBER TERM, 1880. 31 James v. Lane. without assigning any reason, refused to allow him to collect any more rent. The guardian filed an account in the orphans' court, but omitted complain- ant's claim therefrom, and an exception on that account by the complainant was dismissed. After demanding payment of the widow and guardian, com- plainant filed a bill against them for payment of his claim, and, if the assets should be insufficient, that the amount due or the deficiency might be charged on the lands. On demurrer — Held (the power of attorney being still in ex- istence), that equity would aid complainant in obtaining payment of his debt by the collection of the rents under the power, until fully re-imbursed. Bill for relief. On general demurrer. Mr. H. P. Reilly, for demurrants. Mr. J. N. Braden, for complainant. The Chancellor. The complainant seeks to recover a sum of money, $569.74, lent and advanced by him to the defendant, Hugh P. Reilly, as guardian of the minor children of Joseph Lane, deceased, to pro- tect their real estate from sale for the payment of the debts of their father (from whom it descended to them), to pay interest on a mortgage thereon, and to repair the property, &,c. Lane, at his death, left a widow and the before-mentioned children. In Note. — While a guardian may be liable for depreciation in tlie value of his ward's buildings {WUlis v. Fox, 25 Wis. 646; Irvine y. McDowell, 4 Mem. 629); and may repair {Oreen v. Winter, 1 Johns. Ch. 26; Hood v. Bridport, 11 Eng. L. & Eq. 271 ; Cornell v. Vanardsdalen, 4 Pa- St. S64) ; ordinarily he has no authority to improve his ward's real estate {Haggerty v. McCanna, 10 C. E. Gr. 4S ; Snodgrass's Appeal, 37 Pa. St. 377 ; Keameis Account, 1 Pa. St. 326; Lane V. Taylor, 40 Ind. 495; Bellinger v. Shafer, 2 Sandf. Oh. 293; see Jackson v. Jackson, 1 Gratt. 14S ; Newton v. Poole, 12 Leigh 112 ; Powell v. North, 3 Ind. 392; Este Y. Strong, 2 Ohio 478 ; Bonsall's Case, 1 Rawle 266; AfcOracken v. McCracken, 6 Mon. 349) ; and while he may be personally liable for the cost thereof [Sperry y. Fanning, 80 111. 374; Findley v. Wilson, 3 Lilt. 390; see Westbrook v. Comstock, Walk. Ch. 314; Eobinson v. Hersey, 60 Me. 225) ; the party erecting the structures has no lien therefor on the ward's lands ( Guy v. Du Uprey, 16 Cal. 195; Copley v. CNiel, 57 Barb. 299, 39 How. Pr. 41; Mc- Carty v. Carter, 49 111. 53; Payne v. Stone, 7 Sm. & Marsh. 367 ; see Davis v. 32 CASES IX CHAXCERY. [33 Eq. James v. Lane. Februaiy, 1875, letters of administration of his estate and guard- ianship of the children were granted to Frederick T. Farrier. A rule of the orphans court was made at that time, requiring the creditors of the estate to bring in their debts within a limited period, and a decree barring all who had not come in was made in November following. On a representation of insolvency, au order to sell the real estate of the intestate to pay debts was sub- sequently made, but in April, 1876, the administrator was, for some cause, restrained by the court from making the sale. The creditors, or some of them, threatening to proceed to obtain a sale of the property to pay their debts, the widow and Hugh P. Reilly, who in June, 1876, was appointed guardian in the place of Farrier, applied to the complainant and requested him to ad- vance to the guardian the money necessary to pjiy the claims of the creditors who had proved their debts within the period limited by the before-mentioned rule, and so enable them to save the property from the inevitable sacrifice of a public sale in the then depressed condition of the real estate market. He consented and complied with their request, and accordingly advanced to the guardian the money requisite to pay the claims of the creditors which amounted to $213.29 ; the guardian and the widow, whose dower had not and has not yet been assigned, agreeing to repay him out of the rents of the property on request. He afterwards, on the like solicitation of the widow and guardian, and on the Bradford, 24 Me. 349) ; nor can the guardian be re-imbursed for advances by him for such purposes {Hassan v. Eowe, 11 Barb. 22) ; a guardian cannot mort- gage his ward's lands {Merritt v. Simpson, 41 III. 391 ; Tyson v. Latrobe, 4^ Md. 325 ; see Mohr v. Tulij,, 40 Wis. 66; Winborne v. White, 69 JS. C. 253) ; although if he purchase property mortgaged, lie holds it for the benefit of the wards, sub- ject, of course, to the encumbrance (Smith v. Maxwell, 7 Mon. 602) ; and has power to redeem it (Marvin v. Schilling, 12 Mich. 356) ; he may not obtain an order of sale for the mere purpose of paying off a mortgage on the premises {Greenbaum v. Greejibaum, SI III. 367 ; see Stnith v.Sackett, 10 III. 534; Shinn V. Budd, 1 McCart. 234). In Louisiana, a mortgage given by a guardian on the ward's lands for the purpose of making repairs, paying taxes, and providing for the maintenance and education of the ward, is valid and a preferred claim {Beauregard v. Leveau, 30 La. Ann. 302). "La Eastwood v. Kenyan, 11 A. css and enjoy the same as owners thereof, when so reclaimed and improved ; provided such improvement should be subject to the regulations, where applicable, of the riparian commissionei*s as to the line of solid filling and pier lines ; and that they should pay into the treasury of the state a designated sum of money for the privilege, and should file, in the secretary of state's office, on or before a designated day, a map and description of the lands under water in front of the upland before referred to. Neither in terms nor by implication did this act give the companies any title or claim to the land under the channel of the river, but the title thereto still remained in the state. The state is not here complaining of any purpresture, and the complainants show no special damage arising to them from the laying or continuance of the pipe in the channel. They have no claim to an injunc- tion on this ground. The defendants do not appear to have been guilty of even a trespass upon the property of the com- plainants. But the complainants insist that they are entitled to the in- junction on the ground of an unlawful interference with their franchise to transport goods for tolls on their railroads. This claim may be briefly disposed of. In the first place, their franchise obviously cannot be construed into a monopoly of transportation, so as to exclude all competition, by whatever means, in the transportation of goods for hire ; and, in the next place, it may be added (though that is not material in this case), the object of the oil company appears to be the conveyance, by means of the pipe, of its own goods alone. The oil company is, as before stated, a foreign corporation. It appears to have acted, in laying the pipe in the river, entirely without authority. Indeed, it does not pretend to have had any. The case presented, however, does not, as before shown, warrant the granting of a preliminary iujuuction. It will be denied, but, under the circumstances, without costs 6 Stew.] OCTOBER TERM, 1880. 127 Central K. K. Co. v. Standard Oil Co. The Centrax. Railroad Company of New Jeesey et al. V. The Stajjjdard Oil Company et al. After complainants had constructed their railroad tracks through a city, part of the lands which its tracks traversed was condemned by the city, in order to cross them with a street. This necessitated a bridge, which was sixteen feet above the tracks. The bridge, although built by the company, was paid for by the city. Subsequently, the defendants, by virtue of a resolution passed by the city authorities, laid a pipe for transporting oil along and underneath the sur- face of the street, and crossed complainants' tracks at and on a level with, and alongside of, the bridge. A preliminary injunction to prevent such crossing, applied for by the railroad company and its receiver appointed by this court, was refused, because, (1) The pipe had been laid before the application for the injunction was made. (2) To justify its allowance, there is shown no irreparable injury, either from leakage of the oil to be transported, which is highly inflammable, or in- terference with the elevation of the bridge, if complainants desire to raise it. (3) The complainants have no monopoly in carrying oil, and hence cannot object to lawful competition. (4) No contempt towards this court appears by defendants' action. Bill for relief. On bill and answer and affidavits. Order to show cause why injunction should not issue. 3Ir. B. Williamson and Mr. B. Gummere, for complainants. Mr. R. Gilchrist and Mr. A. P. Whitehead, of New York, for defendants. The Chancellor. The Central Railroad Company of New Jersey became the owner, by purchase, of a tract of land, which it bought for the purposes of its road and business, and over which its tracks were laid through the city of Bayonne. When it bought the land, it took title in fee. Streets had been, by due authority, laid out over it by mapping. It built its road over it, and at the place 128 CASES IN CHANCERY. [33 Eq. Central K. K. Co. v. Standard Oil Co. where Thirtieth street, as laid on the map, crossed it. The road was constructed in a cut. The city subsequently took, by condemnation, part of the land of the railroad company for that street. A bridge was necessaiy at the crossing over the railroad, which at that place was about sixteen feet below the grade of the street. The railroad company built the bridge, but was allowed for the cost of it in the assessment upon it, for the benefits of the street to its land not taken. By its charter it was bound, as is now claimed in its belialf, to build the bridge. After the bridge was built, the Standard Oil Company, a foreign corporation, obtained permission (granted by resolution) from the city to lay pipes in the street. The pipes were to be part of a line which it proposed to lay for a conduit for oil from the Erie railroad at Snake Hill, in Jersey City, to the oil company's works at Con- stable's Hook, in Bayonne. It neither obtained nor asked for any permission, either of the railroad company or of the receiver thereof appointed by this court on proceedings in insolvency, who was in possession of and operating the road, under the order of this court ; and it had no authority from the legislature in the premises; but claiming, or acting on the assumption, that the bridge was part of the street, and neither having nor professing to have any authority except that derived from the municipal authorities of Bayonne, it laid pipes (six inches in diameter) at and alongside of the bridge, but, as it insists, not supporting them thereon or thereby, and when the bill was filed, it main- tained, or was in the attitude of maintaining, the pipes there by forcible resistance against the receiver of the railroad company. The complainants, the railroad company and the receiver, invoke the protection of this court against this action of the oil company in laying and maintaining the pipes, and, to that end, ask for a preliminary injunction. They base their claim to this relief on liie ground of irreparable injury, insisting that the oil company had no lawful authority to lay the pipes, because, as they urge, in the first place, the city could give it no right to do so, and, in the next place, if the city had the power, it could not give the authority by resolution, but must do so by ordinance; and, further, that the oil company is unlawfully, and by mere usurpa- 6 Stew.] OCTOBER TERM, 1880. 129 Central E. R. Co. v. Standard Oil Co. tion, imposing upon the bridge, which the raih'oad company claims to own, or the place where the pipe is laid, a servitude at once unauthorized, inconvenient and dangerous, and an unwar- rantable invasion and usurpation of the rights and property of the railroad company, and that, too, for the purpose of enabling the oil company to compete with the railroad company in the exercise and enjoyment of its franchise in the transportation of oil for tolls over its road, or, at least, to deprive it of tolls which it would otherwise get (and to which it has a right) by such transportation. It is also urged that the action of the defend- ants in digging through the abutments of the bridge and laying the pipes without permission of this court (in whose hands, as before mentioned, the railroad company's property and aflPairs were and are), was a contempt of court, and ought to be charac- terized and dealt with accordingly. The oil company, on the other hand, insists that the municipal government had authority to empower it to lay the pipe in the street, and it contends that the bridge is part of the street ; and in this connection, it further claims that the city, under its charter, by the condemnation proceedings, acquired the fee of the land taken from the railroad company for the street, and not merely a right to use it for the purposes of a highway. The railroad company was, by its charter, when it built the bridge, bound to " construct and keep in repair good and suf- ficient bridges or passages over or under its railroads where any public or other road should cross them, so that the passage of carriages, horses and cattle should not be impeded thereby " (P. L. of 184-7 p. 133 § ff) ; and the complainants insist that the bridge was built by the railroad company under its statutory obligation to construct and maintain it. But it appears that, though built by it, it was, in fact, paid for by the city, and the defendants claim that therefore it is to be regarded as the prop- erty of the city, and, as such, subject to its use as part of the street, for reasonable, lawful municipal servitudes and uses. They also claim that the city, by the condemnation, obtained a right to use the air space above the railroad for such purposes. The city, by its proceedings for opening the street, condemned 9 130 CASES IN CHANCERY. [33 Eq. Central R. R. Co. v. Standard Oil Co. land crossing the railroad to the full width of the street. The street appears to be of the width of eighty feet, of which forty- eight are devoted to travel by vehicles and the rest to use as sidewalks. The bridge is of the width of fifty feet. If the city is to be held to have acquired by the condemnation only the right to a convenient crossing for travel, obviously it must be held to have acquired nothing more than the railroad company was, by its charter, bound to furnish. The defendants, as before stated, insist that, by the condemna- tion, the city acquired a fee in the land condemned. By the original charter, which was granted in 1869 (P. L. of 1869 p. 398), it was provided that on condemnation the laud should vest in the city, and by the supplement (approved March 28th, 1873) to the act revising the charter (P. L. of 1873 p. Ji.69), it was enacted that, on condemnation, the fee simple should be vested in it ; and the defendants claim that, notwithstanding the proceedings for condemnation were begun before the passage of the latter act, yet it, by relation back, gave the city a fee in the land condemned. But apart from the obvious question raised by the mere statement of this claim, it is to be remarked that the claim to a fee in the land in question is in direct contrariety to the adjudication of the supreme court in N. J. Souihern R. R. Co. v. Long Branch Comm^rs, 10 Vr. S8, in which it was held that a municipal corporation under a condemnation for a street across a railroad track, acquires only a right of way ; and, according to the doctrine of that case, the contrariety would still exist, though it be conceded that the provision of the sup- plement of 1873, before referred to, though posterior in date to the beginning of the proceedings therein, applies to the con- demnation under consideration. Whether the city has the right to use the space above the railroad for any other purpose than travel by means of the bridge, is a question in dispute between the parties. It is urged by the complainants, however, that the supreme court has decided that a municipality cannot impose on the land taken for its streets any uses or servitudes except those sanctioned by law or custom, and that therefore it is established that the 6 Stew.] OCTOBER TERM, 1880. 131 Central K. K. Co. v. Standard Oil Co. leave given to the oil company in this case, even though it had been by ordinance, instead of resolution, was unauthorized. But a still further question is raised : The revised charter of the city (P. L. of 1S72 p. 686) confers power (p. 704-) on the munici- pal authorities to regulate the manufacture and keeping of gunpowder, petroleum, fireworks and all other dangerous and combustible articles, and the defendants insist that, under this power, the city has a right, with a view to public protection, to authorize the transportation of petroleum through the city by means of underground pipes, and, to that end, to give the use of the streets, or parts of them, for the purpose. It is enough for the present purpose to say that a question of construction is thus presented. The complainants' asserted right, on which the claim to relief by injunction is founded, is in dispute. But if the city has neither any right, nor even any shadow of right, under its charter, to authorize the laying of the pipes, then the action of the defendants is unwarranted, and is a tres- pass, and equity will not interfere by preliminary injunction, in case of trespass, except where irreparable injury is threatened. It is established in this state that a preliminary injunction will never be ordered unless from the pressure of an urgent necessity, and to prevent what, in 'equity, is regarded as irreparable damage. Citizens Coach Co. v. Camden Horse R. R. Co., 2 Stew. Eq. 299. In that case the following language of Chancellor Williamson, the elder, is quoted with approval : "An injunction ought not to be allowed in all cases of trespass, nor to pro- tect persons in the enjoyment of every right. The court always, to restrain a trespasser, expects a strong case of destruction or irreparable mischief to be made out, or that the trespass should have so long continued as to become a nuisance. A perseverance in committing acts of trespass is not sufficient." In the case of Citizens Coach Co. v. Camden Horse R. R. Co., the preliminary injunction complained of, the order for which ; was reversed, was issued to restrain the coach company from I using the complainant's railroad tracks, in competition with it ! in the business of carrying passengers, in the exercise of its 132 CASES IN CHANCERY. [33 Eq. Central R. R. Co. v. Standard Oil Co. franchise. Such injury was held by the appellate tribunal not to be of a character to warrant interim interference. This case presents no condition of circumstances demanding, by reason of the threatened infliction of irreparable injury, the intervention of this court at this stage. The pipes had been laid when the bill was filed. The allegation of danger from fire, in view of the leakage of oil from the pipes, and the highly inflam- mable nature of the substance, is met by proof that there is no danger, and the offer to make all such appliances to protect the complainants against the possibility of injury from leakage of the pipes as this court may direct. It is suggested by the complainants that the existence of the pipes will be an obstruction and impediment to raising the bridge (which, it is said, is contemplated, and which they allege is necessary for the protection of the lives of brakemen on their freight cars), and perhaps prevent it entirely. But in that view, suffering the pipes to remain where they have been put, and per- mitting them to be used, cannot be regarded as an irreparable injury, for this court can provide for that contingency, if need be, when occasion requires. The oil company insists that the pipes are not supported by the bridge, and that if the bridge were removed they would still stand in place. Whether they in anywise depend on the bridge for support, is at most a subject of dispute. But it is urged that the object of the laying of the pipes is to deprive the complainants of part of their business, and so to di- minish the value of their franchise to transport goods for tolls, inasmuch as the oil comjiany intends, by means of the pipes, to transport oil for itself, and may intend also to transport it by this means for others. The complainants have no claim to a preliminary injunction on this ground. In the first place, the case just cited {Citizens Coach Co. V. Camden Horse R. R. Co.) would seem to be con- clusive authority on this point. And, in the next place, they have no monopoly of transporting goods or passengers for tolls by all means whatever, and, of course, they have no claim to protection against lawful competition. 6 Stew.] OCTOBER TERM, 1880. 133 Danser v. Warwick. It will not be out of place to remark, though my conclusion in no wise rests upon it, that the oil company denies that it in- tends to transport goods for others by means of the pipe, but alleges that it intends to transport only its own goods thereby, and that, most manifestly, cannot be construed into an invasion of any franchise of the complainants. As to the imputed contempt, the defendants- do not appear to have been actuated by any disposition to contemn or disregard the power or dignity of this court. On the ground, then, that there is no necessity or ground for interim interference, and without passing upon the disputed ques- tions, except as to the right of the complainants to monopoly of transportation by all ways or means, I am of opinion that the order to show cause should be discharged, but, under the circum- stances, it will be without costs. Eliza A. Danser V. William Warwick. 1. A valid trust of personal property may be created by mere spoken words, and proved by parol evidence. 2. A valid trust of a mortgage debt may be created by parol, for though a trust thus created will not pass any interest in the land held in pledge, yet it is good as to the debt, and will entitle the cestui que (rust to the payment of his debt out of the proceeds of the sale of the land. On final hearing on bill, answer and proofs taken before a master. Mr. George C. BeeJcman, for complainant. Mr. Joel Parker, for defendant. 134 CASES IN CHAXCERY. [33 Eq. Danser v. Warwick. The Yice-Chaxcellor. The coiuplainaut is the widow of David C. Danser. She seeks to have a parol trust established aud enforced against the defend- ant. She alleges that her husband, some mouths before his death, assigned the bond and mortgage in controversy to the de- fendant, upon a parol trust or understanding that he would forth- with, or by a short day, transfer them to her. The transfer to the defendant was intended to be merely a step in vesting her with title. The assignment to the defendant bears date February 1st, 1875, and Danser died on the 13th day of the following Septem- ber. The bond and mortgage were in Danser 's possession at the time of his death, and have since then been constantly in the possession of the complainant. The defendant has never asked for them, nor attempted to get possession of them. A month or six weeks prior to Danser's death, the defendant directed an as- signment to be drawn to the complainant, stating to the person to whom he gave the direction that he must draw it for Danser, who would pay him. He, at the same time, said it was right that the old lady — referring to the complainant — should have the bond and mortgage. Danser, at this time, was prostrated by the disease which shortly afterwards caused his death. The defend- ant did not remain to execute the assign ment, but said he would return soon and do so. He did not return that day. He was subsequently informed, on two or three different occasions, while Danser was living, that the assignment had been drawn and was ready for execution. On each occasion he said he had forgotten or neglected to execute it, but would call soon and do so. He never fulfilled his promise. Two or three weeks after Danser's death, he called for the assignment Danser had made to him, and which he had left when he gave direction for the draft of the one to the complainant, and stated that he meant to do what was right about the matter, but he would not execute the assign- ment to the complainant until things were fixed up ; Danser owed him. He took both papers aud has never executed the as- signment to the complainant. This narrative com[)rises only those facts which are not dis- puted by either party. 6 Stew.] OCTOBER TERM, 1880. 135 Danser v. Warwick. The defendant denies that the mortgage was transferred to him subject to a trust, but says, on the contrary, that the assignment was made to satisfy a promissory note be held against Daaser, upon whicb there was due $2,000 of principal and a year and six or seven months' interest. His explanation of the preparation, by his direction, of an assignment to the complainant is this : he says, some time after the execution of the assignment to him, he ascertained that the person who made the mortgage had no title on record for the mortgaged premises ; that he went at once to Danser and told him he had swindled him, and that if he did not take the mortgage back he would make him. He says that Danser replied that the mortgagor's title was all right, but if he was dissatisfied he would pay him his debt, or give him another security, and he could then re-assign the mortgage. He further says that it was ultimately arranged that Danser should have two mortgages, which were then liens on his lands, canceled, and execute a mortgage thereon to him, and he was then to assign the mortgage in controversy to the complainant. He says it was after this scheme had been agreed upon that he ordered the as- signment to the complainant to be drawn. These statements present the question of fact to be decided. The counsel of the defendant, however, insists that, as a matter of law, the bill in this case must be dismissed, regardless of what the evidence demonstrates the truth to be in respect to the trust alleged, his contention being that the trust set up by the com- plainant is one which cannot be established except by written evidence. The trust, it will be observed, affects personal prop- erty, and not lands. The subject of it is a debt. That part of the statute of frauds which enacts that all declarations and crea- tions of trust shall be manifested by writing and signed by the party creating the same, or else shall be void and of no effect, applies only to trusts of lauds, and has no application to trusts of personal property. A valid trust of personalty may be created verbally, and proved by parol evidence. A trust of personal prop- erty, almost precisely like the one under consideration, and which had been created by mere spoken words, and was supported by only parol evidence, was upheld by Chancellor Williamson in 136 CASES IN CHANCERY. [33 Eq. Danser v. Warwick. Hooper v. Holmes, 3 Stock. W2 ; also Kimball v. Morton, 1 Hal. Ch. £6; Sayre v. Fredericks, 1 C. E. Gr. 205; Eaton v. Cook, 10 a E. Gr. 55 ; S Story's Eq. Jur. § 972 ; 1 Perry on Trusts § 86. A valid trust of a mortgage debt may be created by parol ; for, though a trust thus created cannot embrace the land held in pledge, yet it is good as to the debt, and will entitle the cestui que trust to sufficient of the proceeds of sale, when the land is converted into money, to pay the debt. Sayre v. Fredencks, supra ; Benhow v. Townsend, 1 M. & K. 506 ; Childs v. Jordan^ 106 Mass. 321. It must be held, then, that the trust alleged in this case is valid, and if it has been sufficiently proved, the complainant is entitled to have it established and enforced. The question then is, has it been proved ? A high degree of evidence should be required. Before the court engrafts a trust upon a written instrument, abso- lute on its face, it should require the most cogent proof. Such proof, I think, has been furnished in this case. The undisputed facts make a strong case against the defendant. He attempts to ex- plain and moderate the force of the one having the greatest weight. I refer, of course, to the fact that he had an assignment drawn to the complainant, and that when he gave the order he said it was right that she should have the bond and mortgage. His at- tempted explanation has, however, resulted in a series of contra- dictions which utterly destroy his testimony. By his answer, which is under oath, he says that after he sent his assignment to Ocean county for record, he was informed that the mortgagor had no title on record for the mortgaged premises, and that he went at once to see Danser, and that an arrangement was then made by which Danser was either to pay his debt, or substitute another security, and he was then to re-assign the mortgage. His assignment was not lodged for record until Octo- ber 23d, 1875. Danser had then been dead more than a month, so that the arrangement, at the time stated, was unquestionably a fabrication. When the defendant came to testify, he swore that before he lodged his assignment for record, he had heard, from one George P. Conover, that the mortgagor had no title, and he went at once to see Danser. But it is perfectly clear, from 6 Stew.] OCTOBER TERM, 1880. 137 Danser v. Warwick. the evidence, that Conover could not have given this informa- tion until long after Danser's death ; for he did not have it him- self. Conover obtained his information from the mortgagor, and the mortgagor swears that he first obtained it from a search made in December, 1876. The defendant was subsequently recalled and re-examined, against the complainant's objection, and with- out an order for that purpose, and then swore that one Edward P. Jacobus first informed him that the mortgagor had no title, and that this information was given to him very soon after the assignment was made to him. But, upon the examination of Jacobus, it was shown that the search from which he obtained his information was not made until after Danser had been dead more than a month. So it is perfectly clear that the information which the defendant says led to his interview with Danser did not come to him until after Danser was dead, and the conclusion is therefore unavoidable that no such interview as he describes took place. The tergiversation of the defendant upon this point renders his testimony unworthy of credit. I find it impossible to believe him. It must also be remarked that the defendant's conduct in rela- tion to the custody of the bond and mortgage, as portrayed by himself, shows very clearly that he did not believe they were his property. He says the bond and mortgage were delivered to him, with the assignment, on the day of the date of the assign- ment, and that he took them to a hotel, in which he and Danser were jointly interested, and which was under the management of Danser, and threw them in a desk in the bar-room. He retained the assignment. He gave them no further care or attention, but carried the assignment to his house and. placed it in his safe. He does not know when or how Danser got possession of the bond and mortgage. So far as appears, he has never tried to find out. Danser did not live in the hotel, but occupied a dwell- ing in the village where the hotel was located. The defendant says, that while Danser was sick, on the occasion of his last visit to him, Danser told the complainant to get the bond and mortgage and give them to him, but that she refused to do so, and, to repeat his own words, " she was just as cross to me as she could 138 CASES IN CHANCERY. [33 Eq. Schmidt V. Opie and Keimer. be." He did not ask Dauser why he had taken them from the desk, nor did he insist upon their being at once surrendered. He never asked for them after Danser's death, nor did he make any attempt to obtain possession of them. Every phase of his con- duet evinces a consciousness that he had no right to them, and that any attempt to take them from the possession of the com- plainant would be met by a resistance which he knew was grounded in right and truth. The evidence, in my opinion, fully establishes the trust alleged. The defendant also insists that the trust upon which the com- plainant's action is founded should not be enforced, because it was concocted to cheat and defraud Danser's creditors. It is enough to say of this contention that no such defence is presented by the answer, and that the complainant's right to a decree cannot be defeated by a defence she has had no opportunity to meet and disprove. There must be a decree establishing the trust and requiring the defendant to execute it. The defendant must pay costs. Caroline Schmidt Abram S. Opie and William H. Reimer. 1. Any one liable on a contract, express or implied, though only contin- gently liable, is a debtor, within the meaning of the statute of frauds, from the date of liis contract. 2. All that a judgment creditor need do, who seeks the aid of a court of equity against his debtor's land, is to show a judgment at law creating a lien thereon ; but if he seeks aid in respect to his debtor's personal estate, he must show not only a judgment, but that an execution has been issued. 3. On an agreement for the sale of land being made, the purchaser becomes, in equity, the owner of the land, and the vendor becomes the owner of the purchase-money. 6 Stew.] OCTOBER TERM, 1880. 139 Schmidt v. Opie and Keimer. 4. If a mortgagor executes a mortgage for a fraudulent purpose, and the mortgagee accepts it, with knowledge of the mortgagor's purpose, intending to aid him in such purpose, the mortgage will be held void as to those who are defrauded by it, even if it is founded on a perfect consideration. On final hearing on bill, answers and proofs, taken before the vice-chancellor. Mr. Joseph P. Osborne, for complainant. Mr. John Schomp, for defendants. The Vice-Chancellor. This is a foreclosure suit. No defence is made by the owner of the equity of redemption, but two judgment creditors of the mortgagor attack the validity of the complainant's mortgage. They say, first, that the mortgage is without consideration, and should, for that reason, be set aside; and, second, that if it is founded on a valid consideration, it was executed for the pur- pose of defrauding them, and is therefore void as to them. The second ground is the only one I shall consider. The defendants must be considered creditors from the date of the contracts under which their claims arose, namely, from Feb- ruary 25th^ 1875. The rule upon this subject, as laid down in another case, is this : Any one liable upon a contract, express or implied, though only contingently, is a debtor, within the mean- ing of the statute of frauds, from the date of his contract. Post V. Stige)', 2 Slew. Eq. 554- The defendants were not bound to show, as preliminary to their right to seek the aid of this court, that executions had been issued upon their judgments and returned unsatisfied. All that a judgment creditor need do, who seeks the aid of a court of equity against the real estate of his debtor, is to show a judg- ment at law creating a lien on such estate. Under our statute a judgment is a lien on lands from its recovery. But if a creditor wants the aid of the court in respect to the personal estate of his debtor, he must show, not only a judgment, but that an execu- 140 CASES IN CHANCERY. [33 Eq. Schmidt v. Opie and Eeimer. tion has been issued. A judgment does not bind personal estate ; such property can only be reached by an execution. Robert v. Hodges, 1 C. E. Gr. £99. The question of fact presented by the case is this: Was the mortgage executed with intent to defraud the defendants, and, if so, was the mortgagee a party to the fraud ? The mortgage was made by one brother to another — by John Schmidt to Charles Schmidt — and bears date March 1st, 1875, but was not acknowledged until March 5th. Prior to the making of the mort- gage, John Schmidt had agreed to convey the mortgaged prem- ises to the defendant Opie, and Opie's judgment is founded on a breach of that contract. The contract bears date February 25th, 1875, and required John to make a deed to Opie on the 10th of the following month. By that contract, Opie became the owner, in equity, of the mortgaged premises. It is a fundamental rule of equity jurisprudence, that upon an agreement for the sale of land, the purchaser becomes the owner of the land, and the vendor becomes the owner of the purchase-money. The contract creates a trust. By force of it, the vendor becomes trustee of the legal estate for the vendee, and the vendee becomes trustee of the pur- chase-money for the vendor. If the vendor conveys the land to another, and his grantee takes title with notice of the prior con- tract, he will take the land subject to a trust in favor of the first purchaser, who may compel a conveyance of it. Haughivout v. 3Iurphy, 7 C. E. Or. 531. Charles Schmidt took his mortsjao-e with full notice of the Opie contract, and that John wanted to escape the performance of it. The complainant is the wife of John Schmidt, the mort- gagor. She says that it was arranged originally that Charles was to take a mortgage on the Opie farm — by the contract, Opie was to convey a farm to John in exchange for the mortgaged prem- ises — but when he found that Opie intended to cheat John, he demanded a mortgage on the mortgaged premises. It also ap- pears from the complainant's evidence that John had made up his mind, on the very day he signed the contract, not to perform it. She says he told her, on his return from Somerville the day the contract was signed, that he had heard that there was another 6 Stew.] OCTOBER TERM, 1880. 141 Schmidt v. Opie and Eeimer. mortgage ou the farm besides the oue Opie had told him about, and that he had made up his mind not to take the farm. John says that he had told Charles, before Charles asked him to give a mortgage, that he had made a contract to convey the mortgaged premises to Opie, and tiiat the object of his visit to Charles, when he gave him this information, was to see what he could do to satisfy Charles for what he owed him. These facts render it perfectly clear, I think, that Charles knew, when it was arranged that the mortgage should be given, that John had agreed to convey the mortgaged premises to Opie, and that he did not mean to keep his contract. Charles also knew that the execution of the mortgage to him would put it out of John's power to perform his contract. That, undoubtedly, was the object that both intended to accomplish by the mortgage. It is practically confessed. This rendered the mortgage an instrument of fraud, and made it utterly void against those who were defrauded by it. The fact that it was founded on a full, valuable consideration, will not save it. Such an instrument may be even more effectual as a means of fraud than a mortgage without consideration. A mortgagee, to be able to successfully resist the impeachment of his security, must appear to be not only a mortgagee for value, but a mortgagee in good faith. If it appears that his mortgagor executed the mortgage for a fraudulent purpose, and that he knew of such purpose, and took the mortgage to aid him in its execution, his mortgage is void against those who are defrauded by it, even if it is founded on a perfect consideration. Green v. Tantum, J,, C. E. Gh'. 105; S. C. on appeal, 6 C. K Ch\ S64,. The conduct of the parties furnishes very important evidence, and leaves no doubt with what intent they planned the execution of this mortgage. The debt which it is alleged the mortgage was given to secure, had been standing a long time — part of it since 1865, and all of it since 1869. It had been incurred in sums of from $25 to $1,350. No evidence of indebtedness of any kind is shown to have been given or made. No payment of either principal or interest was ever made; and although the debtor borrowed $1,500 on mortgage on these very premises, 142 CASES IN CHANCERY. [33 Eq. Schmidt V. Opie and Reimer. and deposited the money in a savings bank, and kept it there a long time, with the knowledge of the creditor, yet the creditor never asked for payment, nor did the debtor offer to pay. As soon as the mortgage was delivered, the mortgagee made a gift of it to the mortgagor's wife. The mortgage, though dated March 1st, 1875, was not acknowleged until March 5th. The assignment to the complainant is dated March 5th, 1875, so tiiat it would seem the only object the mortgagee could have had in getting security for his debt was to present the security to his debtor's wife. His gift shows that he did not want security for his own protection. Why did he not give her the debt, and let her get it secured or not, as she thought proper? That, it seems, would have been the course which would have been pursued if it had not been intended that the mortgage should help the mortgagor escape the performance of his contract. Besides, I find it very difficult to believe that this mortgage ever had any real consideration. Charles may have given John money at various times ; the several sums thus given may have aggregated a large sum ; but was it understood, as the moneys were advanced, that the relation of creditor and debtor existed ; and were the moneys advanced with an expectation of payment, on one side, and an intention to pay, on the other? Chai'les was prosperous and wealthy, and without children ; John had but little property and a large family. Charles took nothing to show for the money advanced, and so far as appears, he made no charge of it. His advances or gifts extended over a period of four or five years, but no payments were made, though Charles knew John had on deposit in bank the sura of $1,500. At any time between 1869 and 1875, John could have given Charles the same security that he gave him in March, 1875 ; but neither party seems to have regarded the advances as a debt until John got into trouble, and then they were treated as a debt, and a mortgage was given for them, Nvhich was immediately transferred to John's wife as a gift. These facts furnish very cogent evidence to my mind that if John had not got into trouble, no mortgage would have been given and no debt claimed. The proofs con- vince me that Charles's object in taking the mortgage was to help 6 Stew.] OCTOBER TERM, 1880. 143 Budd V. Van Orden. John escape the performance of his contract with Opie. Their fraud was aimed directly at him, and he has a clear right to redress against it. The mortgage must be declared void aa to the defendants, Opie and Reimer, but good as to the other parties. This result simply affects the order in which the liens against the mortgaged premises must be paid. The mortgaged premises will be ordered to be sold, and the proceeds of sale must be first applied in sat- isfaction of the judgments of Opie and Reimer, and their costs in this court, and then to the payment of the complainant's mortgage. Nelson L. Budd V. John A. Van Oeden. 1. In determining the question whether a deed, absolute on its face, is what it purports to be, or a mortgage, the fact that the parties, after the execution of the deed, still understood that the relation of creditor and debtor continued, in respect to the debt on which the deed is founded, must generally be regarded as decisive in showing that the instrument was intended to be a mortgage. 2. The only infallible test of the value of a merchantable article is what it is actually sold for at a fair sale. 3. A mortgagee in possession, holding under a deed absolute on its face, who Bells the mortgaged premises, is bound to account to his mortgagor at the price at which he sold, though he may be able to show, by the opinion of competent judges, that such price is in excess of their market value. On final hearing on bill, answer and proofs. Mr. Joseph CouU, for complainant. Mr. J. S. Salmon, for defendant. 144 CASES IN CHANCERY. [33 Eq. Budd V. Van Orden. The Vice-chancellor. The principal object of this suit is to have a deed, absolute on its face, declared to be a mortgage. The parties are brothers-in- law. The deed, which it is sought to chauge to a mortgage, was made in August, 1870, and conveyed the whole of the complain- ant's interest in his father's estate. At the date of the deed, his father, Barney Budd, had been dead about three years. When the deed was made the complainant resided in the west, but some weeks prior to its execution had come to New Jersey to raise money on his share in his father's estate. He returned to the west very soon after the deed was executed. The first transaction between the parties, it is admitted, was a loan. The defendant agreed to loan the complainant $500, to be secured by a mortgage on his interest in his father's estate, and a policy on his life for $1,000. The mortgage was executed and the policy procured, and both delivered to the defendant in June, 1870. The defendant still held the mortgage at the time of the trial, but he surrendered the policy after $128 in premiums had been paid upon it, and received, as its surrender value, the sum of $18. The deed purports, upon its face, to have been made for a con- sideration of $900. It is not disputed that this sum was handed by the defendant to the complainant, nor that $400 of it was immediately handed back to the defendant's wife, for which she gave the complainant her note. The defendant insists that the deed was made in execution of an actual purchase, and that the $900 passed to the complainant was passed in payment of the sum agreed upon as the purchase- money, and that the $400 handed to his wife was a deposit he required the complainant to make, as a condition of his purchase, to answer a claim made by the executors of Barney Budd against the complainant, the amount of which was then undetermined. But the defendant admits that on the delivery of the deed it was understood that he should continue to hold the policy as security. He says the arrange- ment was this : that he should keep the policy alive, and if he did not succeed in selling the interest which he had purchased of the complainant for what he had paid for it, and the complain- ant should die, he was to have the right to retain, out of the sum 6 Stew.] OCTOBER TERM, 1880. 145 Budd V. Van Orden. received on the policy, tiie premiums he had paid, and also any loss he might have sustained on the sale of the complainant's interest, and that the balance, if any, should be paid to the com- plainant's family. The complainant, on the contrary, alleges that after the mortgage and policy were delivered, the defendant became apprehensive that difficulty might arise out of the claim made by the executors against the complainant, and his security in consequence might prove insufficient. He says that the de- fendant then suggested that a deed would give him a better secu- rity for his loan, and put him in a position where he could deal much more advantageously in arranging the claim of the execu- tors ; that he could then represent that he had purchased and paid for the complainant's interest, and thus constrain the ex- ecutors to make a fair settlement. He says he yielded to this suggestion, and consented to execute a deed for the purpose of giving the defendant a more perfect security for his loan. I think it is conclusively shown that the deed was not given or intended as an absolute conveyance, but as a security. The proof on this point furnished by the defendant's letters, is so de- cisive that the defendant's counsel but faintly questioned that such must be the determination of the court. The defendant, on the 2d of August, 1871, sent to the complainant a release, to be executed by him to the executors of his father's will. By Barney Budd's will, his executors were directed to convert nearly the whole of his estate into money, and divide it equally among his eleven children. In the letter accompanying this release, the defendant said : " I hare made the amount in the release to correspond with the deed, but I will make this right in our final settlement." In a letter written to the complainant August Uth, 1871, the defendant says : "I will not have time, before the mail closes, to give you a detailed accoimt of the whole thing, but will try and make a plain, short statement of things as they are. And first I would say I regret that I have not kept you more fully posted, but one reason is, that when the question was asked me whether I had bought you out, I said ' Yes ; ' and of course had to maintain and look after that interest." 10 146 CASES IN CHANCERY. [33 Eq. Budd V. Van Orden. In a letter dated September 8th, 1871, he says: " If you will fill out and send on that release, I will send the balance to make your share equal with the rest, and I will do more if I do well with the place. * * * I do not remember whether the interest runs from the time the mortgage was made, June 13th, or from the time the deed was made, August 20th; perhaps you ^vill recollect, and can see what it amounts to." And in a letter dated January 9th, 1872, he says : "I answered your letter in regard to your interest in the old place. * * * I sometimes regret that I had anything to do with it, especially that part of it, as it places me in rather an unenviable light. The question was asked me whether I had bought the interest in good faith ; I said * Yes.' They asked me to get a release, which I agreed to do." When asked to explain portions of these letters, so as to make their statements correspond with, or not to antagonize his present contention, the defendant stood dumb before the question, simply saying, " I do not know what it means ; I cannot explain it." It is quite impossible, I think, to read these letters without being convinced that the defendant clearly understood that the com- plainant still had an interest in the " old place," and that both parties understood that the relation of debtor and creditor still subsisted in respect to the loan. This latter fact is, of itself, de- cisive as to the character of the deed. Judge v. Reese, 9 C. E. Gr. 387. The deed must be declared to be a mortgage. The defendant, subsequent to the conveyance made to him by the complainant, obtained conveyances from all the other children of Barney Budd, so that he acquired title to the whole farm. He sold it, in June, 1875, for $20,000. The complainant now insists that he shall account to him at that valuation, while the defendant says that he is only bound to account for its actual value. Tiie defendant further says that he sold the farm for a sum greatly in excess of its actual value, in consequence of the liberal terms of payment he gave; that he has not as yet col- lected the whole of the purchase-money, and that the part re- maining unpaid cannot be made out of the property. The only absolute test we can have of the value of a merchantable article is what it has been sold for at a fair sale. All other means of 6 Stew.] OCTOBER TERM, 1880. 147 Budd V. Van Orden. ascertaining the value of a merchantable commodity are specu- lative, and must, to a greater or less extent, be uncertain. A sale is a demonstration of the fact, while estimates, even by the best judges, are simply matters of opinion, which, at best, are only approaches to the fact. The sale in this case, I think, con- clusively settled the value of the farm as between these parties. The defendant does not pretend that he obtained an exorbitant price by illegal means. If he did, it would do him no good. He would not be heard to set up his own fraud to escape liability. He made the sale, and agreed upon such terms of payment as he was willing to accept, and took such security for the purchase-money as he thought proper. His conveyance of the complainant's in- terest is valid against the complainant. There is nothing in the case which will justify even a suspicion that the defendant's pur- chaser took title with notice of the complainant's rights. Having made a conveyance which is effectual against the complainant, in passing his rights for a certain price, I think it is clear, upon the plainest principles of justice, that he is bound to account to the complainant at the price at which he sold his interest. He occu- pies the position of a trustee, and cannot trade on his trust. He cannot sell at one price and account to his cestui que trust for a less price. Besides, there is nothing before the court which tends to show that the defendant will not be able to enforce payment of every penny of the purchase-money remaining unpaid. He took a mortgage for part. He doubtless also took the mortgagor's bond. To take such evidence of the debt secured by the mort- gage is the universal practice. In the absence of direct proof to the contrary, it must be assumed that the parties to this trans- action transacted their business as such business is usually done, and that the defendant acted with ordinary prudence and caution. No attempt has been made to show that the obligor of the bond is insolvent, or that the money for which it was given cannot be collected by due course of law. In this posture of affairs, I think the court is bound to assume that the bond is a valid and avail- able instrument. That being so, the defendant is bound, as a matter of simple honesty, to pay the complainant for his interest in the farm at the rate at which he sold it. A decree in con- formity to this opinion has been advised. 148 CASES IN CHANCERY. [33 Eq. Skean v. Skean, Kate Skean Benjamin F. Skean. 1. If a husband drives his wife away, or treats her so brutally as to compel her to flee for' safety, or is so cruel and malignant towards her as to show that he means to force her from his home, though she leaves the matrimonial habitation, he, in law, deserts her. 2. But a mere failure by a husband to furnish his wife with sufficient sup- port is not a ground of divorce, nor will he be considered a deserter if she leaves him for that cause. 3. So long as a husband shares with his wife whatever means of support he may have, the law makes it her duty to abide with him ; and if she leaves him because he does not give her as much or as good as she desires, or as may be necessary, the law considers her a deserter. On petition for divorce for desertion. Heard on proofs taken ex parte, and report of Special Master Levi T. Hannum, reporting in favor of decree for petitioner. Mr. F. Kingman, for petitioner. The Vice-Chancelloe. This is a suit by a wife for divorce. The ground is desertion. The husband makes no defence. The desertion is alleged to have commenced May 10th, 1877. The petition was sworn to on May 15th, 1880, and filed two days afterwards. The period inter- vening between the time when it is alleged the desertion began and the date on which the petition was filed is three years and seven days. The proofs, in my judgment, utterly fail to make a case against the defendant. On the contrary, I think they make a much stronger case against the petitioner than they do against her hus- band. 6 Stew.] OCTOBER TERM, 1880. 149 Skean v. Skean. The parties were married in Trenton, on the 10th of October, 1875, and soon afterwards took up their residence in the city of Philadelphia, where they continued to reside together until May 10th, 1877. The defendant is a poor man; he is represented to be also idle and thriftless. The petitioner gave birth to a child in Februaiy, 1877. She says the provision made by her husband for her support and comfort, during her confinement and after- wards, was very inadequate. Whether it was the best her hus- band's means could provide, she does not state. After her con- finement, she says, she became sick and feeble, and continued so for some time, and at last wrote to her father, informing him of her condition, who, with her mother, came to see her on the lOtli of May, 1877. As this is the date when she charges that her husband began the desertion which entitles her to a divorce, it is quite proper that she should be allowed to describe what occurred, in her own way. She says : " My parents proposed that I should return with them to Trenton ; my hus- band made no objection, and they took me with them to Trenton, where I have remained ever since ; * * * I took my child with me; my father paid the railroad fare ; at the same time I removed my furniture and household articles that my father and mother had given to me ; my father removed them and paid the transportation ; my husband was present when I left and when the goods were removed, but made no objection." There is certainly nothing in the occurrence here described which furnishes any evidence whatever of either a jiurpose, or even a desire, on the part of the husband, to desert his wife. She was feeble and sick, and her parents expressed a desire to take her to their home, where she could have a mother's care, and her husband made no objection to her going. Why should he have opposed such a thing? To have given even a reluctant consent might very well, under the circumstances, have been regarded as conjugal unkiudness. His failure to object certainly does not afford the least evidence of desertion. But what did the wife's conduct indicate ? What was her purpose in removing all her household effects ? She desires it understood she simply went on a visit, with no thought of desertion in her mind ; but she went exactly in the 150 CASES IN CHANCERY. [33 Eq. Skean v. Skean. manner a wife would go who had determined to leave her hus- band forever. She removed everything she had contributed to make their dwelling-place a home. Whatever may have been her purpose, there can be no doubt that her conduct wore a strong appearance of desertion. She assigns no cause for her extraordinary course, nor does she attempt to justify or explain it. What seems to me still more decisive is the fact that she never returned to her husband. But he went to see her. The petitioner says the next week after she went to her father's house, her husband came there to see her, and remained about two hours ; that she saw him in the back parlor, in the presence of her father and her mother, but that he did not ask her to leave them and go with him. This visit was made in the evening. It does not appear that either wife or parents invited the defendant to spend the night with the petitioner. The defendant made a second visit a few days after- wards. The petitioner says she saw him on this occasion in the same room ; that he did not ask her to go with him, but she told him that whenever he was ready to provide her with a home, even if it was only two rooms, she was ready to go with him. She says he made no reply. The parties did not meet again, so far as the evidence shows, until September, 1877. The defend- ant then went to his father-in-law's house, in company with a police officer. The petitioner gives the following description of that visit : " My mother met them at the door, then called me ; when I went to the door, mv husband did not speak, but the ofl5cer asked if I was this man's wife ; I said I was ; the officer then said, ' He wishes to see you ; ' I said, ' Very well, I am here ; ' my husband did not look up or speak to me ; I then told the officer why I was at my father's — that my husband had not provided for me when I lived with him, and my father had brought me home because I was sick and had nothing to eat ; the officer then said, ' Well, that is a different story ; ' they then went away ; my husband did not contradict anything I said ; I do not know why my husband brought an officer with him ; they did not disclose any reason for this singular visit." The petitioner does not seem, at the time, to have been at all curious or inquisitive about the matter; she asked neither the 6 Stew.] OCTOBER TERM, 1880. 151 Skean v. Skean, oflQ.cer nor her husband why the officer was there, nor what was the object of their visit. This is the petitioner's whole case. As already remarked, the evidence utterly fails to make a case of desertion. I believe, moreover, the court has not the whole truth. I believe it is im- possible for any one at all acquainted with human conduct to read the petitioner's evidence without seeing quite plainly that the descriptions given of what occurred when she left her hus- band, and also of what occurred on the occasions of his visits, are very incomplete and imperfect. She may have intended to tell everything, but if such was her purpose, it is apparent she remembered but little besides what she understood to be her wrongs. But if we take her testimony as presenting the whole truth, her case is merely this : She left her husband and went to her father's house, because her husband did not furnish her with sufficient food and proper care. It does not appear that he did not do for her the best he could, or that he refused to share with her such means of support as he had. He failed to support her, and she left him. He did not refuse to allow her to share with him in whatever he had. Her separation from him, for this cause, was not a desertion by him. It is true, it is not always the one who leaves the matrimonial habitation that is the deserter. The husband may drive his wife away, or he may treat her so brutally as to compel her to flee for safety, or his conduct may be so cruel and malignant as to show that he means to force her away. If a wife, for either of these causes, separates herself from her husband, and he allows her to remain away for the statutory period, without professing sorrow for his violations of conjugal duty, and promising to amend his conduct, and asking her to return, he, in the eye of the law, is the deserter, and she has a right to ask for a dissolution of the marriage tie. But a mere failure by a husband to furnish his wife a sufficient sup- port' is not a ground of divorce ; nor will he be considered a deserter if she leaves him for that cause. So long as he shares with her whatever means of support he may have, the law makes it her duty to abide with him ; if she leaves him because he cannot give her as much or as good as she desires or as may be 152 CASES IN CHANCERY. [33 Eq. Jolinson V. Somerville. necessary, she is the deserter, and not he. The law upon this subject is settled. Chancellor Zabriskie in Palmer v. Palmer, 7 a E. Gr. 88, said : " There is no rule that makes want of sufficient support by a husband, or total want of support, a desertion of his wife. It is no cause for divorce, and the court cannot, by construction, convert it into a ground of divorce by call- ing it desertion. * * * By marriage, a wife agrees to share the fortunes of her husband, in poverty and sickness, as well as in affluence and health. She may be obliged to aid him in her own support, and still be bound to ad- here to him. And she is not, because he is poor and her lot uncomfortable, justified in leaving him and betaking herself to the luxuries of the home of her father. Much less can she convert an unwarranted abandonment of her husband into a desertion by him.'' The same doctrine was enunciated in Laing v. Laing, 6 C E. Gr. 2Jt8. The petition must be dismissed. This case was decided some time ago, by a simple statement that the proofs did not establish a case of desertion. Counsel thereupon requested to be informed of the reasons for this con- clusion, in order that he might determine what course it was proper for him to pursue. This opinion presents the reasons upon which the judgment of the court rests. Theodore Johnson et al. x\ The Board of Commissioners of Somerville. 1. Great delay in seeking relief is a good bar to a suit for specific perform- ance. 2. Sixty years' delay constitutes a bar. . 3. A suitor asking a court of equity to give him the benefit of the exercise of its discretionary power, must show a good conscience, good faith, and rea- sonable diligence. On demurrer. 6 Stew.] OCTOBER TERM, 1880. 153 Johnson v. Somerville. Mr. James J. Bergen, for demurrant. Mr. S. B. Ransom, for complainants. The Yice-Chancellok. This case may be decided by the application of a familiar rule. The bill asks for specific performance of a contract to convey lands, made June 14th, 1809, and which, by its terms, was to be performed on or before the 1st of April, 1810. This suit was commenced December 23d, 1873, over sixty-four years after the contract was made, and over sixty -three years after breach, if any ever occurred. The complainants claim as devisees of the vendee. He died March 12th, 1828, and the vendor died September 6th, 1830, so that the complainants slept upon their rights over forty- five years after they had a right to sue. Their ancestor had pre- viously slept for a period of nearly eighteen years. The remedy by sjiecific performance is discretionary. The question in such cases is not what must the court do, but what, in view of all the circumstances of the case in judgment, should it do to further justice. Plummet- v. Keppler, 11 C. E. Gh\ JfS'2. Great delay in seeking relief is a good bar to any suit in equity. It is very difficult, in most cases, to get full and trustworthy evi- dence respecting a disputed transaction which occurred twenty years before it is brought under judicial investigation, and in a case where sixty years have elapsed it would be a marvel if it were not entirely impossible. With regard to delay in seeking this particular remedy. Lord Alvanley has said : "A party cannot call upon a court of equity for specific performance unless he has shown himself ready, de- sirous, prompt and eager." Milward v. Earl of Thanet, 5 Ves. 720, note b. Lord Cranworth has given expression to the same opinion : " Specific performance is relief which this court will not give unless in cases where the parties seeking it come as promptly as the nature of the case will permit." Each v. Williams, 4- E>e G. M. & G. 691. In Van Daren v. Robinson, 1 C. E. Gr. 263, Chan- cellor Green said : " Great delay, unaccounted for, is a bar to a claim for specific performance." Lord Camden, at an early day, 154 CASES IN CHANCERY. [33 Eq. Johnson v. Somerville. stated the general doctrine as follows : "A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands where the party has slept upon his rights or acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence. Where these are wanting, the court is passive and does nothing; laches and neglect are always discountenanced ; and therefore, from the beginning of this jurisdiction, there was also a limitation of suit in this court." Smith V. Clay, 3 Bro. C. C. 639, note. The doctrine as thus stated was enforced in a case strongly analogous to the one in hand, by the supreme court of the United States. Piatt v. Vat- tier, 9 Pet. 4.13. But little need be said in demonstration of the application of these principles to the case under consideration. More than seventy years have elapsed since the right of action accrued. Both of the contracting parties have been dead over fifty years. It is almost certain that every adult person who knew anything about the contract at the time it was to be performed is also dead. Even those who were just old enough, at that time, to have capacity to comprehend a business transaction, are now, most probably, either dead or so enfeebled in mind and body as to be unfit to give evidence. "Whether this be so or not, it is certain that much valuable and material evidence has been swept away by the great lapse of time, and thus the court has been deprived, by the laches of the complainants, of the means of ascertaining the truth, and, consequently, of doing justice. It is no injustice to a suitor to deny him a hearing when it appears that, by his own laches, he has rendered it impossible for the court to do full justice to both parties. The claim made in this case is exceptioually stale. I can find no instance in which one so remarkable for its antiquity has ever before been presented for judicial approval, and I think it should, for that reason alone, be held to be barred. The demurrer must be sustained, with costs. 6 Stew.] OCTOBER TERM, 1880. 155 National Trust Co. v. Miller. The National Trust Company of the City of New York Eli AS N. Miller, receiver of the Silver Spring Paper Company. 1. Independent of the statute, and simply as a matter of courtesy, this court may extend its aid to the receiver of a foreign corporation, for the purpose of enabling him to get possession of property, which should, in equity, be ap- plied in payment of the debts of the corporation. 2. This court may appoint a receiver of a foreign corporation having prop- erty in this state, as auxiliary to the proceeding instituted against it in the state which created it, and confer upon him the same powers that it is authorized to grant to the receiver of a domestic corporation, so far as they may be neces- sary to the recovery and collection of the assets of the corporation. 3. And the court is bound to give such receiver the same remedies and aid, in the collection of the assets of the corporation he represents, that it would give to the receiver of a domestic corporation. 4. It is a cardinal rule of the law of corporations, that a corporation created by statute can exercise no power, and has no rights, except such as are ex- pressly given, or necessarily implied. 5. Nor can the powei-s of a corporation be in the slightest degree enlarged or extended by the assent of the stockholders, or by any action they may take. 6. A contract not within the scope of the powers conferred on a corporation, cannot be made valid by the assent of every one of the shareholders, nor can it by any partial performance become the foundation of a right of action. 7. Equity regards the property of a corporation as a fund held in trust for the payment of its debts, and if others than bona fide creditors of the corpora- tion or purchasers possess themselves of it, they take it charged with this trust, which a court of equity will enforce against them. On final hearing; on bill, answers and proofs taken before the vice-chancellor. Mr. Thomas N. McCarter and Mr. Joseph D. Bedle, for com- plainants. Mr. A. Q. Keasbey, for defendant. The Vice-Chancellor. This is a foreclosure suit, in which the validity of the mort- gage, upon which it is founded, is disputed. The mortgage, it 156 CASES IN CHANCERY. [33 Eq. National Trust Co. v. Miller. is contended, is void, first, because it is in fact, though not in form, the deed of a corporation that had no authority to make it, for the purpose for which it was made ; and second, because it is the instrument, by which the officers of the corporation, in whose behalf it was made, have attempted to effect a misappropriation of its assets in fraud of the rights of the creditors. The leading facts are almost entirely free from doubt or dispute. The mort- gage bears date February 26th, 1874, and was made by "Willie A. Tenney to the complainants. Just prior to its date the com- plainants were the owners of first mortgage bonds of the Chicago, Danville and Vincennes Railroad Company, to the amount of $298,000, upon which default in the payment of interest, due October 1st, 1873, had been made. The officers of the railroad company, for the purpose of maintaining themselves in the con- trol of the road, put on foot a scheme by which they hoped to get the bondholders to consent to accept new obligations for the interest in arrear. The complainants opposed the scheme with such effect that the officers of the railroad company deemed it advisable to purchase their bonds. They agreed to pay $253,300 for them, in four instalments, with an interval of six months between each payment. The mortgage in suit was given as col- lateral security for the payment of these instalments. The rail- road company paid no money on account of the purchase, and no other security was given, except that the complainants were to retain the bonds until they were paid for. At the time the bonds were purchased, the mortgaged premises belonged to the Silver Spring Paper Company, and constituted nearly the whole of its assets. The stock of the paper company at this time was owned wholly by Amos Tenney and William D. Judson, and their wives and children, and these two gentlemen were prominent officers in both corporations, Mr. Tenney being the president and treasurer, and Mr. Judson a director of the paper company, and Mr. Judson being the j)resident, and Mr. Tenney a director of the railroad company. By the terms of the contract of sale, the railroad company agreed to procure the paper company to exe- cute a mortgage to the complainants for $50,000, as collateral security for the payment of the price of the bonds, and the pajier 6 Ste^v.] OCTOBER TERM, 1880. 157 National Trust Co. v. Miller. company, afterwards, adopted a resolution authorizing the execu- tion of such mortgage to the complainants. This resolution was subsequently rescinded, and another passed authorizing a con- veyance of the mortgaged premises to William D. Judson, osten- sibly in fulfilment of a contract of sale, for a consideration of $150,000, which, the resolution stated, was to be paid or satis- factorily secured. This resolution was adopted January 27th, 1874. On this last date, a substitute was adopted directing a conveyance to be made to Willie A. Tenney, apparently in exe- cution of a contract of sale. About the date of the adoption of this last resolution, the stockholders of the paper company exe- cuted a paper to the complainants, assenting to the conveyance to be made to Tenney, acknowledging the receipt, by the paper company, of the full consideration to be paid by Tenney, and releasing the complainants from all obligation to see to the pay- ment securing an application of the purchase-money. Under this last resolution, the mortgaged premises were conveyed by the paper company to Willie A. Tenney, who, immediately on receiv- ing title, executed the mortgage in suit to the complainants, and two days afterwards reconveyed the mortgaged premises to the paper company, subject to the mortgage. The mortgage con- forms in its terms to the requirements of the contract of sale of the bonds, made by the complainants with the railroad company. The arrangement between Tenney and the complainants provides, in express terms, that he should incur no personal liability by the execution of the mortgage. No contract of sale ever existed be- tween the paper company and Tenney. The whole arrangement, so far as they were concerned, was a mere artifice, devised to throw around the execution of the mortgage a very thin appear- ance of legality. The assets of the paper company, at this time, were worth, according to the estimate of the complainants, about $90,000 — other estimates put them at a much lower figure — and its liabilities amounted to about $35,000, some of which are still outstanding and unpaid. If the complainants' estimate is accepted as correct, and the mortgage is regarded as a valid instrument, it is quite clear that the execution of the mortgage plunged the paper company into a state of hopeless insolvency. It was im- 158 CASES IN CHANCERY. [33 Eq. National Trust Co. v. Miller. possible to abstract $50,000 from its available means, leaving it but $40,000 to pay its debts and to foster its business, at a time when almost all kinds of property were rapidly declining in value, without producing that result. The railroad company having failed to pay the first instalment falling due under their contract in the purchase of the bonds, this suit was brought to compel the payment of the mortgage. Both the complainants and the paper company are corporations created under the laws of the state of New York. Since the commencement of this suit, this court appointed the defendant Miller receiver of the paper company, upon a petition by certain of its creditors, representing that all its property was located in this state, that it had suspended its business and become insolv- ent, and that a receiver had been duly appointed in New York for the purpose of winding it up and making an equal distribu- tion of its property. He was subsequently admitted, on order, as a defendant, and allowed to answer. The questions in dispute arise mainly on his answer. The complainants deny the receiver's right or capacity to assail the validity of their mortgage, their contention being that he sim- ply represents the corporation, and must therefore take its prop- erty subject to all such charges as the corporation itself would not be permitted to gainsay. This contention, it will be observed, assumes that the mortgage is valid against the corporation. Without expressing any opinion upon that question now, I must say that I do not think it is true, either as a matter of fact or law, that the receiver represents only the corporation. He is not created by the corporation, nor does he derive his power or his title from it, but he is brought into existence by the same authority that gave life to the corporation. He is invested with title by the act of the law. He is a creation of the law for the protection of the rights of creditors, and must necessarily be clothed with their attributes and equities to accomplish the pur- pose of his creation. He represents both the corporation and its creditors, and is invested with the rights and powers of both, so far as may be necessary to perform his functions. Independent of statutory provision, and simply as a matter of 6 Stew.] OCTOBER TERM, 1880. 159 National Trust Co. v. Miller. comity, tliis court will extend its aid to the receiver of a foreign corporation, for the purpose of enabh'ng him to get the possession of property which should, in equity, be applied in payment of its debts. Bidlack v. Mason, 11 C. E. Gr. 230. In that case, a receiver, appointed under the laws of New York, filed a bill, in this court, asking to have a judgment recovered in the supreme court of this state against the corporation which he represented, and a sheriffs sale made under it, set aside, on the ground that the judgment was fraudulent, aud had been used to put the prop- erty of the corporation beyond the reach of its honest creditors. A receiver was appointed to take possession of the property and hold it during the litigation. By express provision, foreign cor- porations, doing business in this state, are made subject to all the provisions of our statute concerning corporations, so far as the same can be applied to foreign corporations. Hev. 196 § 103. The design of this enactment seems to me to be very plain. The legislative design was, unquestionably, to confer upon this court the same powers, in respect to insolvent corporations, created by foreign jurisdictions, having projierty in this state, that it exer- cised over insolvent domestic corporations, so far, at least, as the exercise of such powers was necessary to the recovery of any assets, whether legal or equitable, which should go in discharge of debts. Under this statute, I think this court may appoint a receiver auxiliary to the proceeding instituted against a foreign corporation, in the state which created it, and may properly in- vest him with the same powers, so far as they are necessary to the collection and recovery of its assets, that it is authorized to grant to the receiver of a domestic corporation. And I think it is bound, not only in virtue of this statute, but by the priuciples of a just comity, to extend to him the same remedies and rules of judgment, in the recovery of the assets of the corporation, that it would give to the receiver of a domestic corporation. The order of appointment in this case invests the defendant with the full measure of power authorized by the statute. He is given full power and authority to demand, sue for, collect, receive and take into his possession all rights, credits and property of every description, belonging to the corporation at the time of its 160 CASES IN CHANCERY. [33 Eq. National Trust Co. v. Miller. insolvency. Under a much less comprehensive grant it has been decided by the court of errors and appeals that a receiver ap- pointed under the statute providing a method for the discovery of property belonging to a judgment-debtor, has capacity to maintain a suit in equity to annul a sale of personal property made in fraud of creditors, or to remove fraudulent liens placed thereon. Miller v. Mackenzie, 2 Stew. Eq. 291. There can be no doubt, under the rule established by this adjudication, that it would be competent for the receiver in this case, in his official character, to bring a suit in equity to nullify the mortgage in question. He holds the title to the mortgaged premises; he alone has a right to their possession, and he alone can sell and convey them. Adopting an argument very forcibly put in the case just cited, we may say it cannot be pretended, if the mortga- gees were in possession, that this receiver could not maintain an action of ejectment against them, and if he established the fact that the mortgage was a fraud upon creditors, that he would not be entitled to recover. Why, if this be so, is he to be confined to such action, and to be excluded from taking his case before a tribunal that is competent not only to adjudge with regard to his right to the property, but also to remove from it a fraudulent and pretended claim, which, so long as it exists, renders it unsalable in his hands? His right of action and his right of defence are, in this instance, in my apprehension, reciprocal, and if he has produced sufficient evidence of the invalidity of the mortgage to entitle him, if he were complainant, to a decree so adjudging, he is, upon the same evidence, entitled to a decree of dismissal. Where it appears that a corporation is attempting, by suit, to en- force a contract which it had no power to make, and the con- tract, for that reason, is void, the defendant may avail himself of this defence by answer. Trenton Mutual Life & Fire Ins. Go. V. McKelway, 1 Beas. 133. In my judgment, the receiver stands before the court invested with the rights and equities of the creditors of the paper com- pany, and has therefore a right to ask judgment against this mortgage, if he has shown that it was executed in fraud of their rights. 6 Stew.] OCTOBER TERM, 1880. 161 National Trust Co. v. Miller. This brings us to the question, is this mortgage a valid instru- ment against the creditors of the paper company? And the creditors here meant are those whose claims accrued subsequent to the execution of the mortgage as well as those whose claims existed at its date. The paper company was formed to manu- facture paper, and to vend and sell the same. No other purpose or object is expressed in its certificate of incorporation. Prior to the execution of the mortgage, it had no business relation, con- nection or transaction with the railroad company or the com- plainants. A foreign corporation, owning lands in this state, may, under our statute, convey or mortgage them. Bev. 195 § 99. The conveyance by the paper company to Tenney was, in everything but its form, a mortgage. The title was put in him merely to enable him to do what the paper company wanted to do itself, but what it could not do itself without having the papers display upon their face the rank illegality of the transac- tion. The conveyance to him was an artifice invented to hide the real nature of the transaction. The complainants, if not par- ticipants in the invention of this crooked scheme, accepted their mortgage with full knowledge of it. The evidence on this point is conclusive. It is found, first, in the original contract, which provided that the paper company should execute a mortgage directly to the complainants ; second, in the terms of the mort- gage itself — for if the complainants had for one moment supposed that Tenney was an actual purchaser, and had, in good faith, agreed to pay $150,000 for the mortgaged premises, it cannot be believed that they would, without consideration, have relieved him from all personal liability for the mortgage debt. Why should they ? In that case he would have been bound, in law and honor, to pay the whole of the purchase-money, and they could have had no possible motive or reason for relieving him, gratuitously, from any part of his obligation. But if they under- stood that he was used simply as an instrument in a scheme to accomplish, by indirection, what the paper company could not do directly, then it is easy to understand their conduct. And, third, in the fact that the complainants accepted an assent, exe- cuted to themselves by the stockholders of the paper company, 11 162 CASES IN CHANCERY. [33 Eq. National Trust Ck). v. Miller. assenting to the conveyance to Tenney, and releasing the com- plainants from all obligation to see to the payment or applica- tion of the purchase-money. It is impossible to misunderstand the meaning of these facts, or to misinterpret their force. The validity of this mortgage is indefensible except on the theory that it was within the scope of the powers of the paper company to donate the half or the whole of its property to the railroad company, regardless of the rights of its creditors or the public. It is clear it possessed no such power, and if it had at- tempted to do so, by open and direct means, its act would have been so conspicuously ultra vires as to strip it of the least appear- ance of validity. It is a cardinal rule of the law of corporations that a corporation created by statute can exercise no power, and has no rights, except such as are expressly given or neces- sarily implied. Huntington v. Savings Bank, 96 U. S. 388 ; Grant on Corp. 13; Ang. & Ames on Corp. § iii/ Green's JBriee S9. This rule, for a long time, has formed part of our statutory system. R. S. 136 % 3 ; Rev. 177 % 3; Trenton Mutual Life & Fire Ins. Co. v. McKelioay, 1 Beas. 133. Nor can the powers of a corporation be in the slightest degree en- larged or extended by the assent of its stockholders, or by any action they may take. In Black v. Delaware and Raritan Canal Co., 9 C. E. Gr. IfJ55, the court of errors and appeals affirmed that no majority of stockholders, however large, has a right to divert one cent of the joint capital to any purpose not consistent with and growing out of the original fundamental purpose of the corporation. And the supreme court of tlie United States has recently declared, following a judgment of the house of lords, in which the present lord chancellor (Selborne) and the late lord chancellor (Cairns), and Lords Chelmsford, Hath erly and O'Hagan concurred, that the broad doctrine is now established that a con- tract, not within the scope of the powers conferred on a corpora- tion, cannot be made valid by the consent of every one of the shareholders, nor can it, by any partial performance, become the foundation of a right of action. Thomas v. West Jersey R. R. Co., 101 U. S. 71. While it must be admitted that this doctrine has not received the sanction of every eminent 6 Stew.] OCTOBER TERM, 1880. 163 National Trust Co. v. Miller. judge who has been called upon to enforce it, yet I think it is now vouched for by such august authority, and is so mani- festly supported by sound reason and the highest considerations of policy, that it must hereafter be accepted, universally, as ex- pressing the true rule of judgment in such cases. I am of opinion that it was not within the scope of the powers of the paper company to donate the half of its property, or to do Avhat was practically the same thing, to make a gratuitous pledge of its property for the debt of another corporation. Nor do I think it could do by indirection what it was incompetent to do directly. There is another important principle which I think it is my duty to enforce in deciding this case. Equity regards the property of a corporation as a fund held in trust for the payment of its debts, and if others than bona fide creditors of the corporation, or pur- chasers, possess themselves of it, they take it charged with this trust, which a court of equity will enforce against them. This is now a well-recognized rule of equity jurisprudence, and the courts of no state have enforced it with more firmness than those of the state which gave corporate entity to both of these corpora- tions. Bartleit v. Dreio, 57 N. Y. 587 ; Lawrence v. Nelson, 21 N. Y. 158 ; McLaren v. Pennington, 1 Paige 102 ; Nathan v. WhiUocJc, 3 Edw. Ch. 215; S. C. on appeal, 9 Paige 152; Cur- ran V. State of Arkansas, 15 How. $04-; Wood v. Dwmmer, 3 Mason 308 ; Sawyer v. Hoag, 17 Wall. 610 ; Field on Corp. § m. The same principle, in a more amplified form, was promul- gated by Chancellor Williamson, in Redmond v. Dickerson, 1 Stock. 507. In that case one of the directors of a corporation had purchased certain machinery for it at one price, and after- wards charged it to the corporation at an advance of $10,000. This charge was made with the consent of the other directors, who, with the director who made the purchase, held all the stock of the corporation. The chancellor was convinced that the $10,000 had been divided among all the directors. The validity of this remarkable transaction was attempted to be defended on the ground that nobody was harmed by it ; that inasmuch as the 164 CASES IN CHANCERY. [33 Eq. National Trust Co. v. Miller. directors owned all the stock, and they consented, no one else had sufficient interest to entitle them to be heard. But the chan- cellor very pertinently asked : "Were not the public interested ? Why did the charter require a certain amount of money to be paid in as capital, upon which the company were to do business ? Was it not for the protection of the public, with whom the com- pany were to obtain credit and to deal? * * * Did it make no diflerence, though these directors were the sole stockholders, whether the capital was im- providently diminished or safely guarded and preserved as a fund for the future operations of the company ? Was it not a breach of trust for the directors so to speculate on the capital, for their individual benefit, as to lessen the security which the legislature intended to provide for the protection of their dealers and the business community? Tiie directors of a corporation cannot speculate with its funds or its credit, and take to themselves the profits of their ventures. Even if they are the only persons interested as stockholders, still they have no right to do so, for such transactions are opposed to the policy of the law, and cannot, in any manner, be countenanced in a court of equity." No argument is necessary to apply these views to the case in liand, nor to show the pertinency of the principle above adverted to. The complainants are in no sense bona fide creditors or ptir- chasers of the paper company. They reached tlieir present position by a very devious path. They took their mortgage with full knowledge that, as against creditors, its execution was an in- sidious attempt to divert the property of the paper company from its legitimate uses. Indeed, I think it would be difficult to imagine a transaction more subversive of everything like safety and security in the management and use of corporate property than the one brought iu judgment here. Whether the assent of the stockholders to the conveyance to Tenney will conclude them in case more money should be real- ized from the sale of the mortgaged premises than shall be suffi- cient to pay the debts of the paper company, does not fall within the province of this court to consider or decide. So far as now appears, no citizen of this state is interested as a creditor. This court is therefore only required to exert an auxiliary jurisdiction. It is only required to put its power in motion, so far as may be necessary to put the property of the corporation, located in this state, in such form that it can be readily and conveniently administered, and, after that is done, to transmit it to the proper 6 Stew.] OCTOBER TERM, 1880. 165 Eedman v. Philadelphia, Marlton and Medford K. E. Co. officer, appointed by the courts of the state of New York, to be there administered and distributed according to law. I am of opinion that the mortgage sued on is without force or validity against the receiver. The bill must, therefore, be dis- missed, with costs. Samuel B. Redman V. The Philadelphia, Maeltox and Medford Railroad Company. That section of the general railroad law which authorizes a railroad corpo- ration to enter on lands and begin constructing their road, after paying into the circuit court of the county where the lands lie, the amount awarded, pend- ing their appeal from such award, is unconstitutional in that compensation, or a tender thereof to the land-owner, does not precede the use and occupation of his lands ; and for want of such tender he may enjoin the company from entering upon his lands and constructing their road thereon. On motion for injunction. Heard on bill and order to show cause, no answer being made. 3Ir. 8. H. Grey, for complainant. Mr. Peter L. Voorhees, for defendants. The Vice-Chaxcellor, The defendants are a railroad corporation, organized under the general railroad law, for the purpose of constructing a railroad from Haddonfield, in the county of Camden, to Medford, in the county of Burlington. The complainant owns a farm in the county of Camden, situated on the line of the projected road. Being unable to agree with him for the purchase of a right of way through the farm, the defendants procured commissioners to be appointed to appraise the value of his land and assess his damages. The commissioners' report awards him $2,544. The defendants have appealed. They have not paid the complainant 166 CASES IN CHANCERY. [33 Eq. Kedman v. Philadelpbia, Marlton and Medford K. E. Ck). the sum awarded, uor tendered or offered to pay it, but have paid it into the circuit court of the county of Camden, under an order directing: that it shall remain there to abide the result of the appeal or the further order of the court. In this posture of affairs, the defendants took possession of the complainant's lands, in spite of his resistance, and are now proceeding with the work of constructing their road thereon. He now appeals to this court to protect him in the enjoyment of his property, until compensation shall be made to liim for it. He has always been willing to accept the sum awarded by the commissioners, and allow the defendants to take the lands condemned. If the defendants' appropriation of the complainant's lands constitutes a taking of private property by a private corporation, without compensation first made to the owner, there can be no doubt that it is the duty of the court to give to the complainant the protection he seeks. Browning v. Camden and Woodbury R. R. Co., 3 Gr. Ch. 1/7 ; Jersey City and Bergen R. R. Co. V. Je7'sey City and Hohohen H. R. R. Co., 5 C. E. Gr. 61 ; Mettler v. Easton and Amboy R. R. Co., 10 C. E. Gr. 214.; Morris and Essex R. R. Co. v. Hudson Tunnel R. R. Co., Id. 3S4. The defendants claim that their act in appropriating the com- plainant's lands, under the circumstances stated, was authorized by law. Their warrant is found in the last clause of the thir- teenth section of the general railroad law, which provides that in case any company incorporated under this act shall appeal from the finding of the commissioners appointed to appraise and assess, then the said company shall, on payment of the amount so assessed or found into the circuit court of the county where the lands taken lie, be empowered to enter upon and take pos- session of said lands, and proceed with the work of constructing its road. Rev. 929 § 101. This clause did not form part of the original act (P. L. of 1873 p. S8), but was added by amend- ment. P. L. of 1877 p. 192. The twelfth section of the act provides that after the report of the commissioners shall have been filed in the office of the clerk of the county where the lands taken lie, and on payment or tender of the amount awarded, as thereinafter provided, the corporation shall be em- 6 Ste^v.] OCTOBER TERM, 1880. 167 Kedman v. Philadelphia, Marlton and Medford E. R. Co. powered to enter upon and take possession of the lauds con- demned. Rev. 9'28 § 100. The directions of the two sectious just referred to upon this subject, stood, in the original act, in exact harmony. The twelfth directed that on payment or tender of the sum awarded, the corporation should have the right of appropriation; while the thirteenth provided that in case a tender was made, and the land-owner refused to accept, the money should be paid into court, and thereupon the corporation should be empowered to take possession. There can be no doubt that if the law stood now in its original form, the act of the defendants would be without legat warrant. Under the original act, except they paid the sum awarded, or made a tender of it, they acquired no right. The introduction of the new clause, by amendment, shows conclusively, I think, that the legislature intended thereby to prescribe a new and different rule from that prescribed by the original act. Any attempt, therefore, to read the pew provision so as to make it harmonize with the old and express the same idea must, I think, prove futile. The new enactment, as I understand it, says plainly that if the corporation appeal from the finding of the commissioners, they shall be authorized, on paying the money into court, and without making payment or tender to the land- owner, though he is known and of full capacity, and his title is unquestioned, to appropriate his lands. Is this enactment a law — in other words, is it within the scope of the powers conferred by the constitution upon the legisla- ture ? Under every form of government, private property may be taken for public use. The constitution of this state imposes two important restrictions upon the exercise of this power. The first is found in the bill of rights, and ordains that "private property shall not be taken for public use without just compen- sation ; " and the second is found in that part of the constitu- tion which limits the power of the legislature. It ordains that " individuals or private corporations shall not be authorized to take private property for public use, without just compensation first made to the owners." The first was intended to regulate the right of the state, whether the power is exercised by the state 168 CASES IN CHANCERY. [33 Eq. Redman v. Philadelphia, Marl ton and Medford E. R. Co. for its own jmrposes, or by a municipal corporation for its pur- poses, under the authority of the state ; and the second was in- tended to limit the power of the legislature in granting the right to such bodias as the defendants. It is the last regulation which must govern my action in this case. Its meaning, to my mind, is perfectly obvious; indeed, it is its own expositor. When this is the case, reasoning and illustration have no office. What is already perfectly clear and plain cannot be made more so by any process of demonstration. As a general rule, any attempt in that direction is more likely to obscure than elucidate. The provisioil under consideration plainly ordains that compensation shall precede appropriation ; and if the legislature, in this enact- ment, have not observed this direction, they have transcended their power. Such, I think, has been the uniform construction given to this clause by both the legislative and judicial departments of the gov- ernment. I think it will be very difficult to find a single instance, before the present, where the legislature, since the adoption of the present constitution, have granted to a jirivate cori)oration the power to exercise the right of eminent domain, except on condition that payment or tender of compensation should pre- cede appropriation, if the person entitled to it was known and of full capacity, and his title was free and unquestioned. There may be such instances ; but if they exist, it is certain the power thus granted has never been exercised in defiance of the will of the land-owner. Under charters containing the condition above mentioned, the courts of this state have repeatedly held that the corporation acquired no right to appropriate the lands until com- pensation was first made, either by payment or tender. StaJT v. Camden and Atlantic R. R. Co., 4- Zab. 59B, 598 ; Metier v. Boston and Amhoy R. R. Co., 8 Vr. 222 ; Morris and Essex R. R. Co. v. Hudson Tunnel R. R. Co., 10 C. E. Gr. 384.; Mettler v. Easton and Amhoy R. R. Co., Id. 214-. Tender, if the money is refused, is regarded as equivalent to payment. Doughty v. Somerville and Easton R. R. Co., 1 Zab. 44^ ; Mercer and Somerset R. R. Co. v. Delaware and Bound Brook R. R. Co., 11 C. E. Gi\ 4^4- Compensation is not made in fact in such 6 Stew.] OCTOBER TERM, 1880. 169 Eedman v. Philadelphia, Marlton and Medford K. E. Co. case, because the person entitled to it will not accept it. But it is in law. It is his fault that it is not made in fact, and lie can- not therefore be heard to urge his own wrong for the purpose of defeating the right of the corporation. Chancellor Halsted, in Doughty v. Somo^lle and Easton R. R. Co., 3 Hal. Ch. 51, held distinctly that if the charter under consideration in that case authorized the railroad company to take possession of the complainant's lands, without first making compensation, either by payment of the sum awarded by the commissioners or making tender of it, it was, in that respect, unconstitutional and void. Mr. Justice Depue, in Lorveree v. Newark, 9 Vr. 151, in defining the difference as to the time when compensation must be made, under the two clauses of the constitution above quoted, said where private property is taken by the state, or by a municipal corporation by authority of the state, compensation need not precede actual appropriation ; but where it is taken by individuals or a private corporation, by the exercise of the right of eminent domain, there compensation must precede occupancy. These utterances merely reiterate what the constitution declares with the utmost plainness and sim- plicity. I do not think the validity of this enactment can be vindi- cated, on the ground that the power of the legislature to define what shall be considered making compensation under this clause, is without restriction, and that it is therefore competent for it to declare that the payment of the money into court, or to any other agency of government, or to an indifferent, responsible third person, shall be considered a compliance with this provision of the constitution. Such an interpretation seems to me much more like an evasion than even a subtle construction. Tlie command of the constitution is that compensation shall he made to the owner ; that is, that the money shall become his, and that he shall have the same dominion over it that he had over the land before it became the property of the corporation, and not that the money shall be made secure to him, or that it shall be placed in the custody of the law or impounded for his benefit. The manifest purpose of the framers of the constitution was not 170 CASES IN CHANCERY. [33 Eq. Foley V. Kirk. to give the parties reciprocal or concurrent rights, but to give precedence and superiority to that of the land-owner. They meant that until he had his compensation in his hand, provided he was willing to accept it, the corporation should acquire no right to the possession of his land. This enactment, if enforced, will subvert that purpose, and it is therefore, in my judgment, without constitutional warrant and void. I am fully aware of the gravity of the question submitted for judgment, and that the conclusion I have reached is one that should not be formed without very careful deliberation. But I am so thoroughly persuaded, by full reflection and careful ex- amination, that this enactment transcends the power committed to the legislature by the constitution, that I cannot hesitate to say so. An injunction must go, prohibiting the defendants from appropriating the lands condemned, until they shall have first paid the compensation awarded by the commissioners, or such other as may be found by a jury. Makgaeet Foley et al. V. Edwin R. Kirk. 1. To compel the surrender and cancellation of written instruments, which have spent their force and are mere nullities, but which, left in an uncanceled state, may becloud a title, or be used for dishonest purposes, is an ancient and well-established head of equity jurisprudence. A court of equity will assume jurisdiction and compel the surrender of the instrument, or limit its use to such purposes as may seem to it to be equitable, when a suit at law is already pending, if it shall appear that it is doubtful whether the instrument may not be used, in such suit, for a dishonest or inequitable purpose. 2. The question whether a deed was intended, by the parties thereto, to operate as a mortgage or as an absolute conveyance, is one that a common law court can neither hear nor determine. It is a question belonging exclusively to equity tribunals, and over which common law tribunals have no jurisdic- tion whatever. 6 Stew.] OCTOBER TERM, 1880. 171 Foley V. Kirk. 3, It is a universal principle that a purchase, at a tax sale by one whose duty it was to pay the taxes, shall operate only as an extinguishment of the tax. One man can acquire no rights against another by a neglect of a duty which he owes to the other. 4. Where a party, lawfully in the possession of land, under a title which turns out to be defective, makes permanent improvements, in good faith, before he has notice that his title is defective, which materially increases the value of the inheritance, and the actual owner afterwards seeks relief against him in equity, relief will not be given except upon equitable terms. On final hearing on bill, answer and proofs taken before a master. 3Ir. Charles H. Winjield and Mr. Peter Bentley, for complain- ants. Mr. Joseph D. Bedle, for defendant. The Vice-Chancelloe. The principal object of the bill in this case is to compel the defendant to surrender, for cancellation, five declarations of sale, ■which the complainants allege were, long ago, fully paid, and are, consequently without legal force, but which they say the de- fendant intends, wrongfully, to put in evidence against them on the trial of an action of ejectment, which they have brought against him, and that their production in evidence will very seriously imperil their just rights. The facts material to the controversy, which are either ad- mitted or so fully proved as to be beyond dispute, may be stated as follows : Ann Stanton died intestate, in 1843, seized in fee of two lots of land situate in the city of Hoboken. She died without leav- ing issue, but leaving a husband, and two brothers and a sister. A child was born to her and her husband, which died in infancy, so that, on her death, her lands descended to her two brothers and her sister, subject to an estate by the curtesy in her husband. Her husband, John Stanton, conveyed the lands of which she died seized to his brother, William Stanton, by deed dated July 15th, 1846. William Stanton, after he acquired John's life 172 CASES IX CHANCERY. [33 Eq. Foley V. Kirk. estate, neglected to pay a tax of S14.93, assessed against one of lots for the year 1858, and on the 16th of May, 1859, the tlie proper municipal authority sold this lot to one Ebeuezer Montague, for the amount of the tax and costs, for the term of nine hundred years, and issued a declaration of sale. The same lot was again sold, to the same purchaser, for a term of ninety- nine years, on the 30th day of April, 1860, for the tax of the year 1859, and also for a sewer assessment of $64.23. Declara- tions of sale, in execution of these sales, were also issued. On the same day the other lot was sold, to the same purchaser, for a term of ninety-nine years, for the tax of 1859, and likewise for a sewer assessment of $66.43. Declarations of sale were also issued upon these sales. The total amount of the taxes and assessments for which these sales were made, was $180.42. Some time in the year 1861, William Stanton applied to one Henry Thomas, who resided at Utica, in the state of New York, to make him a loan for the purpose of enabling him to pay off or purchase Montague's claims under the tax sales. Thomas con- sented to do so, and afterwards paid Montague $300 in satisfaction of his claim. The amount so paid to Montague was negotiated M'holly by Thomas and Montague. Stanton took no part in it, nor was he consulted about it. Prior to this time, Thomas had paid Stanton's debts, advancing a considerable sum for that pur- pose. Immediately after the sum to be paid to Montague was agreed on, Stanton requested Thomas to accept a mortgage for the whole of his indebtedness to him, including not only his pay- ment to Montague, but also his payments to others. This Thomas declined to do, but insisted on having an absolute con- veyance, " so," to quote Thomas's own words, " that I could see that the taxes, the interest, and so on, were paid in the future, but I told him I would give him any kind of a paper tliat could be drawn, to secure him the jn'operty back." Stanton assented to this arrangement, and in execution of it, on the 21st day of January, 1862, conveyed the lots in question to Thomas, by deed absolute on its face ; and Thomas, on the same day, executed an agreement, under seal, agreeing to reconvey the lots to Stanton or to his wife, or to any other person he might name, on being 6 Stew.] OCTOBER TERM, 1880. 173 Foley V. Kirk. paid his debt. The agreement provided that Stanton should re- tain possession of the lots and take their rents and issues, and pay all taxes, assessments and water rents, and that the interest on his debt to Thomas should be paid semi-annually, and that $200 of the principal should be paid at the end of three years, $200 more at the end of four years, and the balance at the end of five years. Two days afterwards (January 23d, 1862), Mon- tague assigned the four declarations of sale, issued to him April 30th, 1860, to Thomas, and also executed a deed to Thomas for one of the lots. This deed states on its face that it was executed for the purpose of releasing and conveying to Thomas any right Montague may have acquired by his purchase of the lot at two tax sales theretofore made by the city authorities, one February 8th, 1858, and the other May 16th, 1859. On the 24th of November, 1862, William Stanton, by a writing under his hand and seal, assigned to the defendant all his rights under his contract with Thomas for a reconveyance of the lots, and, by the same writing, directed Thomas to convey the lots to the defendant. The defendant swears that this assign- ment was made in execution of a contract he had made with Stanton for the purchase of the lots, with other lands, at the price of $7,200, $5,000 of which was the price he had agreed to give for these two lots. He further testifies that he fully understood, when he made the purchase, that the deed made by Stanton to Thomas was not intended to have effect as a deed, but was meant to have effect as a mortgage, and that he paid Thomas, in satis- faction of the debt secured by the deed, out of the purchase- money he had agreed to pay to Stanton, the sum of $2,580. Thomas, in fulfillment of his contract with Stanton, and pursu- ant to the directions contained in the assignment, conveyed the two lots to the defendant by deed dated January 10th, 1863. The defendant also testified that the five declarations of sale issued to Montague, and also the deed made by Montague to Thomas, were delivered to him with the deed from Thomas to him, and as parts of his muniments of title. Henry Thomas is the only person now living who took part in the transaction of January, 1862, when Montague's tax titles 174 CASES IN CHANCERY. [33 Eq. Foley V. Kirk. •were paid or purchased, and Stanton executed the deed to Thomas. Montague, Stanton, and the lawyer under whose dii'ection the business was done, are all dead. Mr. Tliomas has been examined as a witness. He swears that he paid the taxes to Montague for the benefit of Stanton's family ; that the amount he paid was in- cluded in the security he took from Stanton, and that he under- stood the tax sales were to be canceled at once. John Stanton, the life tenant, died October 13th, 1877. The complainants are either heirs at law of Ann Stanton or stand in the title of her heirs. Shortly after John Stanton's death, the complainants brought an action of ejectment against the defend- ant, to recover possession of the two lots of which Ann Stanton died seized. The defendant has appeared and interposed a plea, and in this case he has made no attempt to deny or conceal the fact that on the trial of the action of ejectment, he intends to use the declarations of sale as evidence, and to insist that they, iu connection with his other title papers, give him a perfect legal title to the possession of the two lots in controversy, for a long term of years. To compel the surrender and cancellation of written instru- ments which have spent their force, and are mere nullities, but which, left in an uncanceled state, may becloud a title, or be used for dishonest purposes, is an ancient and well-established head of equity jurisprudence. If the instrument was originally valid, but has, by subsequent events, such as satisfaction, or payment, or other extinguishment, become fundus officio, and the party holding it refuses to surrender or cancel it, the court will compel its surrender, though no present or future use of it, to the preju- dice of the complainant, is threatened ; for, in such case, its mere existence may seriously cloud the complainant's title, by render- ing it possible that ultimately it may be used to overthrow his title, when the facts are no longer capable of complete proof, or have become involved in the obscurities of time. 1 Story's Eq. Jur. § 705. Equity may intervene, even if the instrument is void by matter apparent on its face, and would be so held at law. But it will not arbitrarily or causelessly change the forum of litigation when an action at law is already pending, and ade- 6 Stew.] OCTOBER TERM, 1880. 175 Foley V. Kirk. quate protection can be given in that forum, but if adequate relief cannot be given at law, or the character of the instrument is such that the court can see that, if used in a trial at law, it will be liable to cause embarrassment, or create great uncertainty, or put the party against whom it may be used in great hazard of losing his just rights, it will assume jurisdiction and compel the surrender of the instrument, or limit its use to such purposes as may seem to it to be equitable. All that is required to justify a resort to equity, when a suit at law is already pending, is, that it shall appear that it is doubtful whether the instrument may not be used in such suit for a dishonest or inequitable purpose. Hamilton v. Oummings, 1 Johns. Ch. 517 ; Coimish v. Bryan, 2 Stock. US; Metier' s Admrs. v. Metier, 3 C. E. Gr. 270 ; Metier v. Metier' s Admrs. J,, C. E. Gr. 1^57 ; Smith v. Smith, 3 Stew. Eq. 564.. There can be no doubt about what will be the line of defence which the defendant will pursue in defending the action of eject- ment. He will insist that the deed from Stanton to Thomas, being absolute on its face, must, according to settled rules of law, be given effect according to its terms, and that its terras, in a common law court, cannot be changed or varied by proof of a parol understanding that it should not have effect as an absolute conveyance, or even by proof of a cotemporaneous written agree- ment to reconvey_ He will also insist that as Thomas was never under any duty to pay the taxes and assessments for which the tax sales were made, he had an indisputable legal right, even after he had acquired title to the life estate, to purchase an out- standing tax title, and that such purchase did not enure to the benefit of the remainder-men, nor operate as an extinguishment of the tax title ; for such purchase could, in no sense, be charac- terized as an attempt to build up a title hostile to the remainder- men, on his own default. I think it may well be doubted whether the purchase of a tax title, under the circumstances stated, could be regarded in a court of law as a violation of the principle that a tenant for life shall not, by a violation of his duty to pay taxes, be permitted to acquire the estate in remainder. The defendant has an undoubted right in a court of law to stand 176 CASES IN CHANCERY. [33 Eq. Foley V. Kirk. in the strength aud vigor of Thomas's title, as shown by the title papers. The deed from Thomas to the defendant passed all the rights which Thomas had, whether derived from Stanton or Montague, and in the court that must try the action of ejectment the defendant is entitled to have his right to the possession of the land in dispute adjudged by what is written in his title papers, and not by what the parties to them intended. The question whether the deed from Stanton to Thomas was intended by the parties to be a mortgage, or an absolute conveyance, is one that a common law court can neither hear nor determine. That is a question belonging exclusively to equity tribunals, and over which common law tribunals have no jurisdiction whatever. And so, too, the very important question in this case, whether the money paid by Thomas to Montague for the tax-titles, was the money of Stanton or of Thomas, or was subsequently treated by the parties as the money of Stanton by incorporating it in the debt which the deed was given to secure, is one that the court which must try the action of ejectment cannot hear and adjudge. And yet it is manifest, at a glance, that any judgment respecting the rights of these parties, which is not largely controlled by the solution which these questions shall receive, must fail in the accomplishment of justice. This consideration is decisive, in my judgment, as to the power and duty of this court. The decisive question, then, on the merits, is, have the taxes on which the declarations of sale were founded been paid, so that the declarations have lost all force as evidences of title ? The oral evidence on this branch of the case is free from contradic- tion. It comes entirely from one source. Mr. Henry Thomas is the only person now living, so far as is known, who can give any information respecting it. He swears, as has already been stated, that he paid the taxes on which these declarations of sale were founded, for the benefit of Stanton's family, and that the amount he so paid was afterwards included in the security he took from Stanton. If this evidence is believed, the declarations of sale possess, in equity, no more force as evidences of title than so many pieces of blank pa^er. It is true they were not can- celed when the taxes were paid, as Mr. Thomas says it was 6 Stew.] OCTOBER TERM, 1880. 177 Foley V. Kirk. understood they should be ; on the contrary, they were trans- ferred to Mr. Thomas. But it is quite clear, I think, that the transfers were not made for the purpose of building up or keep- ing alive a title hostile to that of William Stanton. Stanton had appealed to Thomas to protect him against a danger which threatened his possession, and Thomas had promised to help him. This put Thomas in a position of trust, where, if he acquired the tax titles, he was bound to hold them for the benefit of Stanton. That, I have no doubt, was his, purpose in taking them. The deed and assignments from Montague were simply intended by Thomas to augment and strengthen his security for his debt. This is made conspicuously clear by his agreement to reconvey. That provided, upon being paid his debt, he should reconvey. His deed would, of course, pass his whole estate, whether derived from Stanton or Montague, and all parties were bound to know that the moment Stanton paid the taxes, upon which the declarations of sale were founded, the tax titles were extin- guished forever. The evidence, considered as a whole, permits but one conclusion, namely, that Thomas paid the taxes with Stanton's money and took an assignment of the tax titles, not to preserve a hostile title, but solely to increase and fortify his security for his debt. In this condition of affairs, it is obvious the moment Stanton paid his debt to Thomas, the tax titles became mere nullities. That debt was paid by Stanton in January, 1863. This fact is proved by the defendant's own oath. He says he purchased the two lots in dispute of William Stanton, in November, 1862, for $5,000, and of this sum, he paid to Thomas, in January, 1863, in satisfaction of Stanton's debt, the sum of $2,580. He knew, at the time he made this payment, and also when he made the contract of purchase, that Thomas held the land not as owner, but merely by way of mortgage, and simply as security for his debt. This payment operated as a complete extinguishment of the tax titles. Even if Stanton had intended to preserve the tax titles, and that his payment to Thomas should have effect as a purchase, and not as a payment in extinguishment of the taxes, the law would not permit him to accomplish his purpose, for the 12 178 CASES IN CHANCERY. [33 Eq. Foley V. Kirk. principle is universal that a purchase by one whose duty it was to pay the taxes, shall operate only as an extinguishment. One man can acquire no rights against another by a neglect of a duty which he owes to the other. Cooley on Tax. 31{B. The declarations of sale must be declared to be nullities, and inasmuch as their production in evidence on the trial of the action of ejectment may unjustly imperil the rights of the complainants, their surrender and cancellation must be decreed. The defendant, however, insists that such decree should not be made except upon terms. He says when he purchased of Wil- liam Stanton he believed Stanton held the lots in dispute in fee, and continued to believe so until 1875 or 1876, and that, in the meantime, he had, in good faith, made large expenditures in permanent improvements, which add greatly to the present value of the land, and which the complainants will take if he is ejected. He insists that the complainants should not be allowed to recover possession until they have made reasonable compensation for such improvements. There can be no dispute that it is a well- established doctrine of equity that where a party lawfully in the possession of land, under a title which turns out to be defective, makes permanent improvements, in good faith, before he has notice that his title is defective, which materially increase the value of the inheritance, and the actual owner afterwards seeks relief against him in equity, relief will not be given except upon equitable terms. ^ Slory^s Eq. Jur. § 1^37. But there are two reasons, I think, why this rule cannot be applied to this case. First, it is not yet determined which of these parties is entitled to the possession of the lands in dispute, and this court has no jurisdiction over that question. It is clear the defendant is, in no event, entitled to compensation from the complainants until their right to possession is established. This court cannot antici- pate the judgment which may finally be pronounced in the action of ejectment, or make a provisional decree, which shall give or deny relief to the defendant, according as the suit at law may be decided against him or for him. Second, the proofs, as I view them, fail to show satisfactorily, that the defendant's mistake (conceding now that he acted under 6 Stew.] OCTOBER TERM, 1880. 179 Foley V. Kirk. a mistake) was uot the result of his own inexcusable negligence. The title to the lands in controversy, long prior to the defend- ant's purchase, had been the subject of both legislative and judicial investigation. On the death of Ann Stanton's first liusband, Barney Colgan, these lands escheated, and the right of the state was afterwards ceded to her by the name of Ann Colgan, by special act of the legislature, approved March 8th, 1836. P. L. of 1836 p. 820. The title thus conferred upon her was after- wards disputed, by suit, by two of her husband's alien brothers. Their suit was tried in the Hudson circuit court, in December, 1853, and resulted in a verdict in tlieir favor, but was subse- quently decided against them by the supreme court. Colgan v. McKeon, 4- Zab. 566. The defendant, in procuring title, called to his aid a lawyer of experience and learning, who, I have no doubt, was perfectly familiar with the legal history of this title, and who, it is difficult to believe, did not impart to the defend- ant all that he knew concerning it. The defendant, however, says he did not. But he also says that he did nothing whatever t<3 ascertain the extent or quantity of Stanton's estate. He believed, he says, because Stanton was in possession, and he had never heard anything to the contrary, that Stanton owned the lands in fee, but he freely admits that he made no inquiry, nor search, nor investigation or exploration of any kind. To a ques- tion requiring him to give the reasons why he believed Stanton nad a fee, he made this extraordinary answer : " I was not pay- ing all the money down in a lump ; I was paying him gradually, and if I discovered, at any time before he got the full amount, that anything was wrong, I could stop." His mistake, if any, in fact, existed — and I am free to say I think there is grave rea- son to doubt — was manifestly the result of the most reckless carelessness. The observance of any degree of care, or the prac- tice of the least caution, would have made it impossible for him to fall into any error. Mistakes committed under such circum- stances cannot be made the basis of relief in equity. Haggerty V. McCanna, 10 C. E. Gr. 4B. The defendant also insists that he should not be required to surrender the two declarations of sale founded on assessments for 180 CASES IN CHANCERY. [33 Eq. Foley V. Kirk. the construction of a sewer, except on condition that the com- plainants first pay him such parts thereof as are properly charge- able against the estate in remainder. A tenant for life must pay ordinary taxes. That rule is not open to discussion. But an assessment for the cost of a local improvement, which increases the value of the inheritance, stands on a different footing. With respect to such impositions, the tenant for life has a right to ask for an apportionment. According to the rule adopted in Massa- chusetts and New York, the tenant for life is required to con- tribute to the extent of interest during his life on the amount paid, and at his death the remainder-man must bear the charge of the principal, and thus they are made to share the burden in the same proportions in which they would share the benefits of an assessment for damages in their favor. Plympton v. Boston Dispensary, 106 Mass. S4-4-f StUwell v. Dqicghty, 2 Brad. 311. But what right has the defendant to ask for an apportion- ment, or to be repaid any part of the sewer assessments ? He did not pay them, nor has he shown any title or authority en- titling him to stand in the rights of the person who did pay them. According to the defendant's own evidence they were paid with Stanton's money, with money which he had agreed to pay Stanton for the land. Stanton may have a right to ask for an apportionment, and to be re-imbursed, but the defendant cer- tainly has no such right. The complainants are entitled to a decree without conditions or terms, and that the defendants pay their costs. 6 Stew.] OCTOBER TERM, 1880. 181 McGregor v. Home Insurance Co. of Newark. JoHX McGregor et al. V. The Home Insurance Company of Newark, New Jersey. 1. Where preferred stock is issued under a contract or law containing no provision or direction as to what shall be the rights of the holders of it in the distribution of capital when the affairs of the company are wound up, such stock merely has a right to be preferred in the division of profits, and not in the distribution of capital. 2. The general corporation act of this state directs that in the distribution of capital the holders of preferred stock shall be first paid, before any distri- bution is made to the holders of the common stock ; therefore preferred stock issued in this state, either under authority of law or under a contract of which the law forms a part, is entitled to preference in the distribution of capital. 3. Dividends on preferred stock can only be paid out of the profits ; and this is so even when the stock is issued under a guaranty that a dividend of a certain sum shall be paid annually. 4. The rule of distribution presented by the corporation act must be ob- served, whether the affairs of a corporation are wound up by the court or the officers of the corporation. 5. A thing which is within the intention of the makers of a statute, is as much within the statute as if it were within its letter. On application for injunction. Heard on bill, answer and order to show cause. 3Ir. Joseph CouU, for motion. Mr. J. F. Fort, contra. The Vice-Chancellor. This is an application for an injunction. The complainants are stockholders of the Home Insurance Company of Newark, a corporation which has ceased to do business, and is in process of being wound up by its officers. The particular grievance of which the complainants complain is the division or distribution which the officers propose to make of the assets which remain for division amon ^' C. on appeal, 2 Phil. 59^; Tudor on Charitable Trusts IJf,, 15 ; The Thellusson Case {Thellusson v. Wood/ord), 4 Ves. 237; British Museum v. White, 2 Sim. & Stu. 695 ; see 2 Story's Eq. Jur. § 1164" -The question, however, is not whether a gift to such a charity will be upheld, but whether the fact that the testator makes such a bequest is evidence of a disordered intel- lect and of testamentary incapacity. It obviously is not. It is urged, however, that the fact of the making of such a gift is in this case, connected with the disinheriting of all, or the greater part, of those who had a right to expect to be the recipients of the testator's bounty, and is therefore indicative of incompetency. But it does not appear that the testator had any legitimate kindred. As before stated, he never married. Though a very large amount of testimony was taken in the cause, and the estate 6 Stew.] OCTOBER TERM, 1880. 231 Lewis's Case. subjected to very great expense in resisting the claim of one who alleged that she was his widow, the claim was at length shown and admitted to be entirely fraudulent, and the result of a crimi- nal conspiracy. Although the opportunity has been afforded to prove that the testator had legitimate relations, no such proof was offered ; and the omission is the more significant because, in the outset of the cause, the illegitimacy of the testator was alleged, and evidence taken to establish the fact. Though the testator called the contestant, John S. Cathcart, his nephew, and addressed him as such in epistolary correspondence (and perhaps otherwise), he subsequently denied the relationship, saying that John S. Cathcart and his brother Martin were not his nephews, "except by courtesy." That the testator was attached to the government of this country, and sympathized deeply with it in the crisis of the rebellion, there is ample evidence. He was minded to offer it his personal service as a soldier ; and when he yielded, as he readily did, to the suggestion that his age unfitted him for such service, he expressed his determination to aid the government with his pecuniary means, and he accordingly sub- scribed to its loans at a period when, to some people, such action appeared more patriotic than prudent. It is not surprising that, in his circumstances and with his devotion to the country, he should have been desirous of offering to it the fortune which, under its beneficent institutions, he had been enabled, by his industry, thrift and sagacity, to accumulate. Such gifts are the offspring of lofty sentiments, not of disordered imaginations. James Smithson limited his estate over to the United States of America, to found at Washington, under the name of the Smith- sonian Institution, an establishment for the increase and diffusion of knowledge among men, and the gift was carried into effect. A late distinguished citizen of this state gave, by his will, to the state a marine battery which he had in course of construction, and directed that it be completed at an expense not to exceed $1,000,000, out of his estate, before it should be offered to the state for its acceptance. His testamentary capacity was never questioned. In the case in hand, it is not at all improba- ble that the enthusiasm of the testator for the cause of the Union 232 PREROGATIVE COURT. [33 Eq. Lewis's Case. was kindled by the fact that the interests of the colored race here were involved in the struggle which arose out of the rebel- lion, and that his gratitude was excited by the liberation which was one of the results of the contest. But apart from these con- siderations, obviously no conclusion unfavorable to his capacity is to be drawn from the fact that a testator gives his estate in charity, ignoring his collateral relations. It appears, however, by the will, that the testator was not, in fact, unmindful of his blood relations. He made such provision as he deemed proper for such of them as he desired to provide for. He gave to Mag- dalene J. Johnson $10,000, with a request that she would pay to her aged aunt, Frances Grace, for life, $300 a year in equal quarter-yearly payments. The testator, for years before the making of the will, was not friendly to the Cathcarts. If he had no legitimate relations (and he does not appear to have had any), those of the contestants who claim to be his relations could derive no advantage from refusing probate of the will. If the will of 1861 made provision for his relations, that will was can- celed by the testator in 1872. Benson would be benefited if pro- bate of the codicil were denied, provided probate of the will were granted, but not otherwise. While the evidence produced in opposition to the will and codicil, fails to show that the testa- tor was not possessed of testamentary capacity, the testimony of numerous witnesses (before adverted to), business men who knew him well up to the time of his death, and whose opportunities of knowledge were excellent, abundantly establishes his com- petency. Among those witnesses is John S. Harberger, president of the Manhattan Company, a bank of the city of New York, who was acquainted with him from about 1845 up to the time of his death, and knew him well. He says of him : "As a business man, I have never met with a sounder head, and if you like, (judging) from the care and caution that he invariably exercised in the choice of securities, [having regard to] the price and the revenue to be derived from them; he was a man of strong attachments, and, I might say, of equally strong antipathies (I believe, in the course of my intercourse with him, I never challenged his antipathies) ; apparently an exacting man, yet I think he never aaked me to do anything that was not reasonably just and proper." 6 Stew.] OCTOBER TERM, 1880. 233 Lewis's Case. He further says that the testator was a man of very strong character — one of the most marked men in character that he ever met in his life ; of iron will and inflexible, and almost equally inflexible in his prejudices; naturally suspicious ; and, he adds, he was prudent to a fault, except where his antipathies sometimes might, for the moment, disturb his better judgment. He also says that there was not a moment during all his long acquaintance with him in which he showed a lack of under- standing or any unsoundness of mind. Mr. Harberger was assistant cashier of the bank from 1857 to 1860, and cashier from the latter date to September, 1879, when he became presi- dent. As before stated, his acquaintance with the testator com- menced in 1845, and continued up to the time of the death of the latter. He says he saw a good deal of him ; that as early as 1845, the testator was the holder of New York city stocks; that his transfer office was that bank, in which the witness paid him interest, as a dealer and stockholder of the bank, for the twenty-five years before his death, and that the testator was one of the depositors of the bank up to the time of his death, and he was occasionally a borrower from the bank ; that the witness was accustomed to deal with him personally up to his death, and to talk with him about his business affairs, such as the nature of his investments, the rate of interest for money, and other topics of interest to both of them at the time ; that the testator's in- vestments were generally of the best in the market, ordinarily those that paid the highest rate of interest and were most highly esteemed by the majority of investors, and that the investments were selected by the testator himself. Mr. Harberger was on terms of intimate acquaintanceship with him, and saw and con- versed with him, on an average, at least twice a week during the last two years of the testator's life, and received a good many letters from him, and altogether had an excellent opportunity of knowing his mental capacity. It appears from the testimony that in his business transactions up to his death, the testator ex- hibited no evidence of unsoundness. The burden of proof of incapacity is on the opponents of the will. They have by no means established it. On the contrary, it appears, from a care- 234 PREROGATIVE COURT. [33 Eq. Doremus's Case. ful review and consideration of all the evidence, that the testa- tor, at the time of making both will and codicil, was possessed of full testamentary capacity. Those instruments will be admitted to probate. Matter of the estate of Peter G. Doremus, deceased. An order of distribution of an estate was made in December, 1867. One dis- tributee was absent, and, on the presumption of his death, his next of kin ap- plied for his share, but the administrator refused to pay it over, and no com- pulsory proceedings were taken against him. The administrator retained the share ready for payment until April, 1877, when he deposited it in a savings bank, where it drew six per cent, interest. Shortly afterwards, he withdrew it and applied it all to his own use. The distributee appeared in 1878, and in proceedings against the administrator's sureties — Held, that they must pay in- terest on the share at six per cent., after and during its deposit, and at seven per cent, (the legal rate) from the time of its withdrawal until July 4th, 1878, and at six per cent, (the legal rate from that time) subsequently. Mr. W. Prall, for the distributee. Mr. T. D. Hoxsey, for the sureties of the administrator. The Ordinary. Upon an assessment of the damages upon an administrator's bond, the question is raised as to the amount of interest which shall be collected on an unpaid distributive share of the estate, which is the only outstanding obligation secured by the bond. The order of distribution was made in December term, 1867. The administrator appears, by the testimony, to have kept the money for the share in question either in his own custody at home or on deposit in bank, ready to be paid over, up to the time, April 20th, 1877, when he deposited it in a savings bank in Patei-son, where it drew interest, at the rate of six per cent, per annum. He drew part of the money out of that bank No- 6 Stew.] OCTOBER TERM, 1880. 235 Tucker v. Tucker. vember SOtli, 1877, part of it April 1st, 1878, and the rest on the 5th of that month, and applied all of it to his own use. He is chargeable with interest from the time when he made the deposit in the savings bank, at six per cent, per annum, up to the time of drawing it out; at seven from that time up to the 4th of July, 1878, and at six per cent, from that date. It appears that the distributee to whom the share belonged, and to whom the ad- ministrator was, by the order of the orphans court, directed to pay it, did not appear until within the last two years, and it was alleged by his next of kin that he was dead. They applied to the administrator for the payment of the money to them as next of kin, and threatened him with legal proceedings for the re- covery of it. He refused to pay it over to them, however, but held it ready to be paid to the person or persons entitled to it. No proceedings were ever taken against him to recover the money by those who claimed it as next of kin. EzEKiEL I. Tucker, executor of Warner Tucker, deceased, appellant, V. UzAL A. Tucker et al., respondents. 1. An executor has no right, without authority from a competent court, to invest the funds of the estate in municipal bonds or bank stock. 2. Where commissions are paid on part of the estate at an intermediate ac- counting, commissions can only be allowed on the amount which comes into the executor's hands afterwards, and such commissions are calculated as if the subsequent receipts were part of the prior receipts. Appeal from decree of orphans court of Union county, on the account of the appellant. Mr. E. Q. Keasbey, for appellant. Mr. Luther Shafe)\ for respondents. 236 PREROGATIVE COURT. [33 Eq. Tucker v. Tucker. The Ordinary. The following questions were presented on the argument of this appeal : Whether certain investments made by the executor, the accountant, of the money of the estate in bonds of the city of Elizabeth and in bank stock, should be allowed ; whether, if the investment in bank stock be disallowed, he should have an allowance of the tax paid by him thereon ; whether he should be allowed interest paid by him on taxes assessed on the property of the estate, and whether he is entitled to full commissions on the whole estate, seeing that he was allowed such commissions on part of the estate in his intermediate account. The orphans court disallowed the investments, and, while it charged him with the dividends which, by the account, he ac- knowledged he had received from the stock, disallowed the tax he had paid on the stock. It also disallowed the interest paid by him on taxes assessed on the property of the estate. At the close of his account the executor states that the securities, invest- ments and assets of the estate consist of fifty shares of bank stock, eight bonds, of $1,000 each, of the city of Elizabeth, and certain real estate, which was obtained on an exchange. That real estate was properly specifically accounted for, as part of the estate, in accordance with the decision of this court in Tocher v. Tucker, 2 Stew. Eq. ^86. The executor had no authority to invest any part of the estate in either municipal bonds or bank stock. Accord- ing to his own testimony, he did not consult any of the legatees or devisees on the subject, nor mention the matter to them until after the investments were made. He bought the bonds from the city comptroller at less than par — ninety-eight cents on the dollar, and accrued interest. In about four weeks after he bought them, all of the legatees and devisees, he says, made com- plaint to him about the investment. He told them he con- sidered the bonds good, and one of them said that legal counsel in the city (whom he named) advised that he get rid of them, but he refused to follow the advice or heed the complaint. He had no authority from the orphans court to invest. The invest- ments in city bonds and bank stock cannot be allowed. Neither 6 Stew.] OCTOBER TERM, 1880. 237 Tucker v. Tucker. of them is an investment recognized as proper for trust moneys in the absence of direction by competent authority. The muui- cipal bonds in this case were, it will be noticed, bought of a city official and below par. Objectionable as these bonds have proved to be as an investment (they pay no interest, and now bring but forty or fifty cents on the dollar in the market), there are other municipal bonds, issued by competent authority, in this state, which would, perhaps, have been more so still. It is easy to see that to sanction the unauthorized investment of trust money by a trustee in municipal bonds would be a most unwise proceeding. Such investments have not been authorized by the court of chan- cery in this state. The rule on the subject of investments of ti'ust money has been referred to in several cases. In Gray v. Fox, Sazt. 259, and Vreeland v. Vreeland, 1 C. E. Gh\ 612, the court recognizes only government stocks and landed security, and condemns investments in stocks of private companies. In Hoi- sted V. Meeker, 3 C. E. Gr. 136, and Lathrop v. Smalley, 8 C. E. Gr. 192, direction was given to trustees, and what were allow- able investments was stated. They were declared to be securi- ties of the United States or of this state and mortgages of real estate. By our statute law {Rev. 777 § 116), executors, guardians and trustees may obtain the direction of the orphans court as to their investments, and if they follow it the loss which may be sustained will not fall on them. The act does not limit the court as to securities. It expressly authorizes executors, guard- ians and trustees to invest in the bonds of this state. The executor in this case left the taxes on property of the estate unpaid, as he says, for two, three and perhaps four years, and paid interest on them at the rate of twelve or fifteen per cent. It does not appear that he was not in funds of the estate wherewith to pay them, but the contrary. The interest was properly disal- lowed. He complains that the court, while charging him with the dividends received from the bank stock before mentioned, re- fused to allow him the amount paid by him for tax assessed on him for it. He charges himself with §225 received for divi- 238 PREROGATIVE COURT. [33 Eq. Tucker v. Tucker. dends on the stock up to July 1st, 1878. He bought it April 1st, 1878. The court, in restating the account, appear to have charged him with lawful interest on the amount of the par value of the stock, $5,000, up to the time of filing the account, Novem- ber 18th, 1878, aud also with the amount by which the divi- dends above mentioned (up to July 1st, 1878), exceeded that in- terest. But the executor does not charge himself with any dividends on the stock after July 1st, 1878. It appears, by the restatement of the account, that the stock paid a dividend of eight per cent, per annum, though there is no evidence on that head, and it is impossible, from the record, to say what dividends he, in fact, received or was entitled to on the stock up to the filing of the account. It is certain, however, that he is not charged with dividends after July 1st, 1878. It does not appear, there- fore, that in view of the fact that the dividends on the stock probably exceeded the legal rate of interest on its par value, the disallowance of the tax paid by him was unjust to him. If he had been charged with all the dividends received, aud they had exceeded or had been equal to the legal rate of interest on the par value of the stock, for the year for which the tax was paid, after deducting the tax, he should have been credited with the tax. But, as the case stauds, the decree must be affirmed in this respect also. He claims allowance, upon his final account, of full commis- sions on the entire estate in his hands, although he was allowed Such commissions on by far the greater part of it on the settle- ment of his intermediate account. He is entitled to commissions only on the money which has come into his hands since the set- tlement of the intermediate account, and the commissions on that sum are to be allowed at the rate at which they would have been allowed if it had constituted part of the amount on which com- missions were allowed on the settlement of the intermediate account. An executor, administrator, guardian or trustee is not entitled, under the statute, to commissions more than once on the money which comes into his hands, and if commissions have been al- lowed, on an intermediate account, on part of the estate, he 6 Stew.] OCTOBER TERM, 1880. 239 Kise V. Heath. will, on the final account, be entitled to commissions only on the balance which has come to his hands since. And in computing his commissions on the final account, commissions are to be reck- oned upon the whole amount, and the balance, after deducting from those commissions the commissions allowed on the inter- mediate account, will be the amount to which he will be entitled. The amount on which the appellant was allowed commissions in the intermediate account was $23,475. He is entitled to com- missions now on the amount which has come to his hands since, $4,922.98, at the rate of two per cent. The orphans court so decreed. The decree appealed from will be affirmed, with costs. Catharine Kise, appellant, V. Edward M. Heath et al., respondents. The evidence in this case — Held, to show testamentary capacity on the part of a testatrix eighty-one yeajra old, and that no undue influence had been ex- erted over her by her daughter, with whom she and her husband had lived for more than twenty-two years, although such daughter received, by the will, a larger share of the estate than her sisters, and notwithstanding such daughter and her husband had received compensation for taking care of testatrix's hus- band, who died before testatrix, from his estate. Appeal from decree of Hunterdon orphans court. Mr. R. S. Kuhl, for appellant. Mr. 0. P. Chamberlin and Mr. H. G. Cliamberlin, for re- spondents. The Ordinary. This appeal brings up for review the decree of the orphans court of Hunterdon county, admitting to probate a paper pur- 240 PREROGATIVE COURT. [33 Eq. Kise V. Heath. porting to be the will of Rebecca Heath, deceased, late of that county. The grounds of objection to the will are twofold — in- capacity and undue influence. It was executed March 5th, 1878. The testatrix was then about eighty-one years old, and was living with her daughter Miranda, wife of Francis Rittenhouse, with whom she and her husband, Daniel Heath (who died there in February, 1878), had lived for twenty-two years. She had but two other children — the caveatrix, Catharine, wife of James Kise, and Mary, wife of Reading Housel. Mrs. Rittenhouse and Mrs. Housel each had one child, and Mrs. Kise was child- less. The testatrix's husband died intestate, and his property was divided, according to law, between his widow and his three children, the before-mentioned daughters of the testatrix. Shortly after his death, Mr. and Mrs. Rittenhouse removed to North Carolina. After their vendue of their property, the tes- tatrix went, for a few days, to the house of Henry F. Bodine. From there she went to the house of her son-in-law, Reading Housel, and remained there until the fall of 1878, when she went to board at the house of her grandson, Samuel Housel, where she lived until her death, which occurred in September, 1879. On or about April 1st, 1878, the testatrix executed a letter of attorney to Henry F. Bodine, authorizing and empowering him to act for her in matters of business, and on or about the 4th of the same month, she executed a deed of trust of her property, in favor of herself, to Edward M. Heath. She had an estate of about $4,000. By the will, after directing that her debts and funeral expenses be paid, she proceeds as follows : " In consideration of inadequate compensation for board, lodging, washing and making extra trouble incident to the infirmities of age, for the last five years, for myself and late husband, Daniel Heath, it is my will, and I do order, give and bequeath to my beloved daughter, Miranda Rittenhouse, wife of Francis Rittenhouse, $1,000, first and before any division takes place, and then she, said Miranda Rittenhouse, to share equal with my beloved daughter, Mary Housel, wife of Reading Housel, and my beloved daughter, Catharine Kise, wife of James Kise, except said Catharine Kise to have only the use or interest of her share during her natural life, and at her death her share to be divided equal between my two daughters, Mary Housel and Miranda Ritten- house, if they be living, or to their legal representatives, if they, or either of them, be dead." 6 Stew.] OCTOBER TERM, 1880. 241 Kise V. Heath. At the time of making the will, a claim made by Mrs. Ritten- house and her husband against the estate of Daniel Heath, for extra compensation for the care of him and his wife, the testa- trix, was under negotiation for settlement between them and the representatives of the estate, and it was compromised by the pay- ment by the administrators of $1,200, as such compensation. There was an agreement between Daniel Heath and the Ritten- houses for the payment of $200 a year for the board of himself and his wife, and the $1,200 were allowed as extra compensation for the twenty- two years during which Heath and his wife had lived with the Rittenhouses. The $1,200 appear to have been paid April 4th, 1878, about a month after the making of the will in question. When the settlement and payment were made, the Housels and Kises were ignorant of the provision made in the will for Mrs. Rittenhouse, as compensation for the same services. The will was executed with due legal formalities. The testimony on the subject establishes the fact that at the time when the will was made, the testatrix fully understood the business in which she was engaged, and was possessed of testamentary capacity. She herself gave the instructions for the will, and after it had been prepared, it was twice read over to her, and she approved of it. She herself named the executors. Of the wit- nesses to the will, one, David Bodine, was intimately acquainted with her, and in answer to the question whether she was of sound mind when she executed it, he says, in substance, that he saw nothing to induce him to think that she was not. The other, John H. Philkill, was asked whether she was childish or not, and declined to give an opinion on that subject. He was not asked whether, in his opinion, she had sufficient capacity to enable her to make a will. Two physicians were sworn on the subject of capacity— one. Dr. Cramer, on behalf of the caveatrix, and the other. Dr. Reiley, on behalf of the proponents. The former testifies that he attended the testatrix professionally for several years before her death. He says that he was at Ritten- house's frequently during the last two years that the testatrix lived there, and that he thinks that what she said during those years was intelligent. He also says that from what he saw and 16 242 PREROGATIVE COURT. [33 Eq. Kise V. Heath. knew of her during the years that he attended her, her physical and mental condition was not such as necessarily to require some one to take care of her. Dr. Reiley became acquainted with her seven or eight months before her death. He says he talked with her on several topics, and she talked very sensibly ; and he says that during the time he knew her he is clearly of opinion that she was competent to make a will. This latter testimony is important, because it is claimed by the caveatrix that the alleged incapacity was the result of the failure of the testatrix's physical and mental powers by reason of old age. The testimony of Dr. Cramer, before referred to, bears directly on the allegation made by the caveatrix, that the testa- trix was incompetent, by reason of her physical and mental im- becility, to take any care of herself. The proof is, that though she had the physical infirmities usually concomitant upon ad- vanced age, she retained her mental capacity. Her memory was good. This was strikingly manifested in the preparations for her husband's funeral. She supplied the names of persons to be invited whom her daughter, Mrs. Rittenhouse, had overlooked. She was able to count money and to make change. She frequently read the Bible, and was a faithful attendant at the church of which she was a member, and she appears, from the evidence, to have been ai: attentive, appreciative and critical listener to the preaching. She was of a taciturn disposition, but when she spoke, she spoke with intelligence. I attach no importance to the tes- timony on the part of the caveatrix in regard to the testatrix's conduct at the funeral of her husband, which, it is urged, is evidence of imbecility. In the first place, it is met and over- thrown by counter-testimony on the part of the proponents, and in the next place, the fact that she gave no manifestation of grief on the occasion, would not, if such had been the fact, be evidence of incapacity. I see no reason to doubt that she was pos- sessed of full testamentary capacity. In this connection, it may be remarked that the letter of attorney and deed of trust were executed by her, with the knowledge of her family, within a month of the time when the will was made, and her capacity to 6 Stew.] OCTOBER TERxM, 1880. 243 Kise V. Heath. execute those instruments seems never to have l)een doubted or questioned. It is urgedj however, that there is evidence that Mrs. Ritten- house, the principal legatee, exercised undue influence over her. The grounds on which this claim is based, are that the situation of the parties afforded opportunity for such influence, and that Mrs. Rittenhouse, on the occasion when the instructions for the will were given, made use of an expression which indicated the exercise of it. Mr. Charaberliu was the draughtsman of the will. He appears to have been sent to do the work by his father, who was a scrivener, and who had been requested to draw the will, but from infirmity was disinclined to do it. He says his father com- municated to him the fact that the testatrix wanted to see him, or wanted to make a will. He states that he went to see her accordingly; that he said to her that he understood that she wanted to make her will, and she answered that she did ; that he then asked her how she wanted it, and she replied that she hardly knew how; that he then said that she must know — that he could not ; that she made no immediate answer to that remark ; that he then said that she had three daughters, and asked if she wanted to leave them equal shares of her property, and she replied, "Why, yes — I guess so;" that just then Mrs. Ritten- house came in and said to her : " There is no use in your making a will;" and after makiug that remark, went out of the room, and then the testatrix proceeded, and told him what disposition she desired to make of her property, which he says was just what the will, as executed, provided for. He adds that he asked her whom she wanted for executor, and she said she had not thought about that. She subsequently, when the draft of the will was approved by her, named the executors, as before stated. The caveatrix insists that the above-mentioned remark of Mrs. Ritten- house is evidence of undue influence. It does not appear, how- ever, that the latter had any par^ in the makiug of the will. She was not present when the instructions for it were given, though they were given at her house. She was not present when the draft of the will was read over by the draughtsman to the testatrix. He says no one was present except himself and the testatrix. 244 PREROGATIVE COURT. [33 Eq. Kise V. Heath. She was not present when the will was executed. Mr. Chamber- lin gives the following account of the testatrix's instructions for the will : She said that she and her husband had, on account of their sickness, been a great deal of trouble to Miranda; that Miranda had to have extra help about the house, and to have strangers there to watch with her, the testatrix's, husband in his sickness, and she wanted her paid for it; that she wanted her to have the first $1,000 before any division took place, and then to share equally with the others, and that Katy (Mrs. Kise, the caveatrix) was to have only the use of her share. He says that he said to her that he supposed she meant the interest, and she said " yes." He says he thinks she said she did not want Mrs. Rise's husband to have it when Mrs. Kise was done with it, but wanted Mary (Mrs. Housel) and Miranda (Mrs. Rittenhouse) to have it. The will having been executed with due formalities, and the testatrix having been, at the time of executing it, of com- petent understanding, the burden of proof of undue influence is on the caveatrix. And undue influence must be proved. As was said in Humphrey's Will, 11 C. E. Gi\ 513, it is not a presump- tion, but a conclusion. See also Boyse v. Rossborough, 6 H. of L. Cas. 2. There does not appear to have been any undue influence when the draft of the will was read and approved, or when the will was executed. Giving to the remark made by Mrs. Rittenhouse its fullest effect, it was a suggestion pertinent to the reply of the testatrix to the question of the scrivener whether she wanted to leave her property to her three daughters in equal shares, or how she would leave it, she answered " Yes ; I guess so." But, as before stated, it appears that she had previously, in the same conversation, told the scrivener that she hardly knew how she wanted to leave her property, and her reply was merely indicative of her concurrence in his suggestion, so far as her general intention was concerned, that her daughters were to have her property ; but it did not indicate her full inten- tion on the subject. She subsequently gave him her reason for the gift of $1,000 to Mrs. Rittenhouse. It was a recognition of, and compensation for, faithful services and kind attention ren- dered to her and her husband for over twenty years in their old 6 Stew.] OCTOBER TERM, 1880. 245 Kise V. Heath. age. It is quite probable that she intended to give to the daughter who had thus discharged her filial duty towards her parents, a substantial reward out of her own estate, irrespective of what her daughter's husband might obtain for the same services out of the estate of her father, the testatrix's husband. Nor is it at all sur- prising that the testatrix, in the distribution of her property, made a marked discrimination in favor of the daughter with whom she and her husband had passed more than a score of years of their old age, and under whose roof they had found a comfortable home, and to whose filial piety they had been so much indebted. The scrivener says that he saw nothing to indicate incapacity during the interview in which the remark of Mrs. Rittenhouse was made, and that he is of opinion that the remark did not in- fluence the testatrix in the disposition of her property. The testatrix lived for about eighteen months after the $1,200 were paid, and it appears that she had testamentary capacity up to the time of her death ; yet she never intimated any dissatis- faction with the will she had made, nor indicated any desire to alter it. It is proved that she was liberal in the use of her money, and that she insisted on her right to do what she pleased with it. Reading Housel, called for the caveatrix, says that one night while she was at his house, (she appears to have been there from April to October, 1878), his wife (her daughter Mary), referring to the gift by the testatrix of the sum of twenty-five cents to the witness's daughter, said to the testatrix that she ought not to be giving her money away, and he says the testatrix seemed to be affronted, and said that her money was her own, and she had a right to do what she pleased with it. There is no evidence, whatever, that the testatrix was not, in making the will, a perfectly free agent; none that her judgment, discretion or wish was overborne by Mrs. Rittenhouse, or thnt she was acting under any restraint. In other words, there is no evidence that the will was not her own. On the other hand, it appears that she acted of her own volition, and without restraint. The decree of the orphans' court will be affirmed; the costs of appeal to be paid by the appellants. 246 PREROGATIVE COURT. [33 Eq. Lothrop's Case. In the matter of the application for grant of letters of limited administration upon the estate of Jeremiah Lothrop and others. A mortgagee is entitled to a grant of letters of limited administration on the estate of a deceased subsequent mortgagee of the same premises, who was a non- resident, no administration having been taken out here on his estate, but such administration will be limited to the proceedings already taken, or that may hereafter be taken in the pending foreclosure, or in any other supplementary proceedings for relief on the mortgage. Mr. J. R. Emery, for the application. The Ordinary. The petitioner, who is the complainant in a suit in chancery of this state, for the foreclosure and sale of certain mortgaged premises, applies for the grant of letters of limited administration on the estate of Jeremiah Lothrop, the mortgagee named in a mortgage of the property subsequent to that of the petitioner, and John Balch and Mary B. Doyle, two of Lothrop's cestuis que trust, he beiug a mere trustee. They are all three dead. At their death they were all non-residents, and no grant of admin- istration of their estates has been made in this state. Lothrop died in 1875, and the other two in 1871. On the estate of Lothrop, administration was granted in New York, and Balch left a will which was proved in New York, but no administra- tion has been granted in this state on the estate of either. Mary Doyle died intestate, and no administration of her estate has been taken anywhere. The administrator of Lothrop and the executor of Balch were made parties to the suit in chancery and were proceeded against as absent defendants, but neither of them appeared. The necessity for the existence of the power of creating such a representation as is now applied for in such cases as this, is obvious. Unless such power exist, a failure of justice will ensue. The petitioner cannot safely proceed with her suit to foreclose her mortgage in the absence of the representatives of the deceased 6 Stew.] OCTOBER TERM, 1880. 247 Lothrop's Case. trustee and cestuis que trust, and she is unwilling and ought not to be required to furnish general administrators for the estates. Of the power of this court to grant the letters, I have no doubt. In England such letters are granted by the ecclesiastical court. 1 Williams on Exrs. 6^2, 522. The powers of this court in grant- ing letters of administration are not special or limited, but full and general. Coursen's Will, 3 Gr. Ch. JfiS. In England such letters as are now applied for are granted to a nominee of the applicant, and they are limited to the purposes of the suit. Goote on Probate 122. By statute {15 & 16 Vict. c. 86 § U), the court of chancery in England is authorized to appoint an administrator ad litem, where necessary from want of a representative, or to proceed in the suit without representation. We have no such law. The letters will be granted. They will be limited to the purpose only of attending, supplying, substantiating and confirm- ing the proceedings already had or which shall or may hereafter be had in the suit in the court of chancery, or in any other suit or suits which may hereafter be commenced in that or any other court for the relief sought by the bill in the suit in chancery, and until a final decree shall be made therein, and such decree be carried into execution, and the execution thereof fully com- pleted, but no further or otherwise, in any manner whatever. The administrator ad prosequendum thus appointed will have no authority to receive any money realized on the mortgage which he represents, or the decree or execution. Note. — If the administration granted be more limited than the purposes of the suit require, and it is in the plaintiflf's power to obtain a more general administration, the court may require him to do so {Faulkner v. Daniel, 3 Hare 199; Johnscm v. Hodgens, Ir. L. E. {10 Eq.) 525; Davis v. Chanter, 2 Phil. 545). In a suit to recover titles of a number of tenants and occupiers, one of the defendants had died, and there was no legal representative of him. — Hdd, til at his widow might be appointed for that purpose, so far as the suit went (Ely V. Gayford, 16 Beav. 561). On a general creditor's bill by the representative of a mortgagee, on behalf of himself and other creditors who may come in, an administrator ad litem is insufficient [Oroves v. Lane, 16 Jur. 854, 1061; see Despard v. Head, 2 Moll, SS9). Pending the administration of an estate in England, a legatee domiciled in 248 PREROGATIVE COURT. [33 Eq. Lothrop's Case. Nova Scotia, died there, and his will was proved there, but the executors declined to prove in England. — Held, that the court could appoint an admin- istrator to represent him in England, for the purpose of reviving the suit (Bliss V. Putnam, 29 Beav. 20). F., a testator, died, having appointed three executors ; two renounced, and the third, after taking probate, died intestate. All the residuary legatees renounced, and administration de bonis non was granted to K., a creditor. K. died, leaving personalty of F. unadministered. At the time of F.'s death, pro- ceedings against him for the misappropriation of part of tlie funds were pend- ing, and administration to represent K. in those proceedings was granted (Bay v. Thompson, 3 Sw. & Tr. 169; also Grant's Case, L. R. (2 P. Div.) 435). A party not heard from for more than seven years, was, if deceased, entitled to a share of a residuary estate, which had been paid into the court of chancery. He had no other property in England. — Held, that general administration would not be granted, but one limited to the proceedings in chancery to obtain such share [Turnei^s Case, 3 Sw. & Tr. 4-'^6). A wife died in France, leaving personal estate there, but none in England ; and it was alleged that, by the law of France, her husband, from whom she had eloped, could not establish his claim to her property there, without a grant from the English court. — Held, that the court had no jurisdiction to make such grant [Tucker's Case, 3 Sw. & Tr. 585). In a suit instituted in chancery to administer on an estate, an amount was found due to the executors of a surviving trustee, and those executors appointed three persons attorneys to collect and receive such amount. — Held, that while they were not creditors so as to entitle them to general administration, they had such an interest as authorized the court to appoint their nominee as limited administrator (Frampton's Case, 9 Jur. [N. S.) 755). Pending a bill for relief against several directors of a corporation, for an allied breach of trust, one of them died, leaving, as appeared, a will, appoint- ing his widow executrix ; but she had not seen the will, and did not know its contents, nor had his solicitors of record been instructed since hia death. — Hdd, that the court would, on the plaintiff's application, appoint a person, consenting to act, to represent such defendant in the suit, unless the solicitors or widow should appear, after notice, and elect to represent the decedent's interest {Joint Stock Co. v. Brown, L. R. {8 Eq.) 376). After a decree for an account had been rendered against two trustees, one of them died intestate, and, as was alleged, insolvent. — Hdd, that no limited administration need be taken out on such estate {Moore v. Morris, L. R. {3 Eq.) 139). A tenant for life died after obtaining a decree for arrears of income due to him. He left a will, but liis executor died without having proved it. — Held, that the court could, on the application of one of the defendants, revive the suit as against the other defendants, without any representative of the tenant for life, but without prejudice to any subsequent intervention by such repre- sentative {Haffward v. Pile, L. R. {7 Ch.) 634). There can be no general account or administration of an estate, on the 6 Stew.] OCTOBER TERM, 1880. 249 Lothrop's Case. application of a limited administration ( Oroft v. Waterton, IS Sim. 652) ; nor can such administrator represent any other interest of the estate in the litiga- tion (Moores v. Choat, 8 Sim. 508 ; Hodgem v. Hodg&ns, Ir. L. R. {10 Eq.) 4; Case V. Cork, 2 Y. & C. ISO ; EUvx v. Goodson, 2 Coll. 4; Clough v. Dixon, 10 Sim. 564). On the hearing of a petition relating to the disposition of a trust fund, it appeared that A., had an interest in it which might be asserted. A. died in the United States, having appointed as his executor B., who proved the will there, but not in England. Counsel appeared for B. at the hearing. — Held, that the court had power to appoint such counsel to represent B.'s interest {Hewiston v. Todhunter, 15 E. L. & Eq. S56). The death of a married woman had been caused by negligence, and her husband, a mariner, was abroad and not expected to return within the time limited for bringing an action to recover damages, whereupon letters limited to bringing such action were granted to decedent's mother ( William^ s Case, SI L. J. P. 40; see IVLinois Cent. B. B. v. Oragin, 71 lU. 177; Jeff. B. B. v. Swayne, 26 Ind. 477). The grant can only be made where the litigation is pending {Oordon'e Case, Ir. L. B. (1 Eq. 179) ; and not for an amount exceeding the applicant's claim [Fleming's Case, S Ir. Jur. (N. S.) 89). In Tennessee, the county courts may grant administration limited to a sin- gle act, such as the revival and prosecution of a judgment recovered by the decedent {McNairy v. Bdl, 6 Terg. 302). A native of Texas, having no other property in Tennessee, instituted a suit there against his brother and others, and pending such suit died. — Held, that the court had authority to appoint a third person to carry on the suit against the wishes of such brother, and that such appointment did not, in a proper case, prevent the granting of general administration (Jordan v. Polfc, 1 Sneed 4S0; also Vaughan's Case, Ir. L. B. {10 Eg.) 1 ; Bobinson v. Bell, 1 De G. & Sm. 6S0, See, also, Alexander v. Barfield, 6 Tex. 400 ; Tarborough v. Sarris, S Deo. 40; Smiley v. Bell, Mart. & Terg. S78 ; Code of Ala. § 2625 ; BuseeU v. Umphlett, 27 Ark. SS9 ; Ewing v. Moses, 50 Ga. 264; Ellis v. Deane, Beat. 15; Samdera v. Dunman, L. B. {11 P. Div.) 825),—'B,^x. 250 PREROGATIVE COURT. [33 Eq. Poulson V. The National Bank of Frenchtown. WrLLiAM J. Poulson et al., appellants, The National. Bank of Frenchtown et al., respondents. 1. After the Removal of administrators and the appointment of another in their stead, a creditor of the estate may file exceptions to their account aa well as the new administrator. 2. The orphans court has power to determine whether exceptants are cred- itors, and, as such, interested in the settlement of the estate. Appeal from order of Hunterdon orphans court. Mr. J. G. Shipman, for appellants. 3Ir. J. R. Bulloch, Mr. J. T. Bird, Mr. J. N. Voorhees and Mr. W. M. Davis, for respondents. The Ordinary. The appellants are administrators of Samuel B. Hudnit, de- ceased. They were, by the order of the orphans court of Hun- terdon county, removed from office, and Edward P. Conkling appointed in their stead. They filed their account, and the respondents, as creditors of the intestate, filed exceptions to it. Mr. Conkling filed none. The counsel of the appellants moved the court to strike out the exceptions, on the ground that they were filed by persons who did not appear to have any right to except. He insisted that the new administrator alone had that right, and, besides, if creditors had a riglit to except, that it did not appear that the exceptants were, in fact, creditors. The question presented is, whether the creditors of, or other persons interested in an estate may file exceptions to the account of a removed or discharged executor or administrator ; or whether the privilege of exception is confined to the newly-appointed ad- ministrator. The one hundred and twenty-ninth section of the orphans court act provides that the new administrator shall have 6 Stew.] OCTOBER TERM, 1880. 251 Poulson V. The National Bank of Frenchtown. power and authority to demand, receive and recover the prop- erty and assets of the estate, and to maintain all proper actions, at law or in equity, for the recovery thereof, and shall be author- ized to do all acts necessary for the administration and settlement of the estate. The next section provides that the discharged or removed executor or administrator shall forthwith deliver over to the new one, his successor, all the property and assets which he may hold, and shall, at the next terra of the court, state and settle his account, and pay the balance shown to be due to his successor, according to the order of the court ; and that, on his failure to do so, the court may enforce the performance of the order by fine, for the benefit of the estate, to be collected by exe- cution against the goods, chattels and lands of the delinquent, or the payment of the fine may be enforced by attachment for con- tempt. The next section provides that the new administrator may have actions of trover, detinue or in case for such goods and chattels as shall have come to the possession of the discharged or removed executor or administrator, and for any breach of trust, waste, embezzlement or misappropriation thereof, and may pro- ceed, by action at law or suit in equity, for the recovery of the assets, either against the discharged or removed executor or ad- ministrator, or any other person into whose possession the assets may have come or shall be. The right of any person interested in the estate to except to the account of an executor or administrator is recognized by the one hundred and fifth section of the act. The question is, whether such right is taken away by the other provisions above stated, for the obtaining or recovery of the estate from a dis- charged or removed executor or administrator. The right of a cestui que trust to except or object to the account of his trustee is a very obvious one, and one of which he cannot be deprived. The right to an account necessarily and manifestly implies the right of objection to the account. The undoubted right of those who are interested in an estate to object to the account of the persons by whom it is administered cannot be taken away from them, and the legislature has not attempted to do so. Instead of attempting to deprive them of existing rights, it has 252 PREROGATIVE COURT. [33 Eq. Poulson V. The National Bank of Frenchtown. sought to give them new and additional protection ; and though it is the duty of the new administrator to object to the account of the discharged or removed executor or administrator, and he is the representative of those interested in the estate, for that pur- pose as well as others, the fact that it is his duty does not deprive them of their right to except also. He may have but little or no knowledge of the estate, and therefore may not be able to make the objections that should be made. He may not be able to make any where many ought to be made. And if he were to make objections under information from those whom he repre- sents, he might not be able to litigate them, while they could. The fact that a new trustee has been appointed in the place of one removed, could not take away the right of the cestui que trust to object to the account of the latter. The argument ah inconve- nie7iti, urged in the present case, has no foundation. It would apply equally to the right to except to any account of a trust in favor of a number of cestuis que trust or to the right to except to the account of any executor or administrator, guardian or trustee, where the persons interested and who have a right to object are many. Practically, however numerous the exceptions, the litigation is within the control of the court, and it will so conduct it as to prevent it from being oppressive or vexatious. In the case of the account of a discharged or removed executor or administrator, guardian or trustee, all the persons interested in the estate, including the new appointee, have the right i6 except. The case of McDonald v. (y Connelly 10 Vr. S18, is not in contrariety to this conclusion. It was there held that on the removal, by the orphans court, of an executor or administrator who has wasted the estate, the right of redress for the devastavit passes to his successor in office, and cannot be ex- ercised by creditors. The object of exception to the account merely is to ascertain what is due from the accounting executor or administrator, and what he should be required to pay or de- liver over ; and when that has been ascertained it is the duty of the new administrator to receive or recover it. The right to except to the account does not necessarily involve the right to re- ceive or recover the amount which may be adjudged to be due. 6 Stew.] OCTOBER TERM, 1880. 253 Mallett V. Bamber. The objection that the respondents did not appear to be cred- itors, and therefore did not appear to be interested in the estate, cannot be maintained. It was without the power of the court to determine whether the exceptants were to be regarded as being interested in the estate as creditors, or not. An administrator or executor may be removed before any claim against the estate has been proved, and it is competent for the court to determine, in such case, whether one who excepts to his account, as a creditor of the estate, is interested in the estate, as such, or not, as it may whether one who excepts in any other right has such right or not. The order of the orphans court will be affirmed, with costs. Eliza Mallett et aJ., appellants, V. Isaac Bamber, respondent. Although the allowance of the coBts, expenses and counsel fees of the cavea- tors against the probate of a will is, by statute, discretionary with the court, yet, when there exist no reasonable grounds for contesting such probate, or the litigation is needlessly protracted and expensive, such allowance should be denied. Appeal from decree of Passaic orphans court. Mr. C. L. Oorbin, for appellants. Mr. S. TutUe, for respondent. The Oedinary. The orphans court of Passaic county, by its decree, after liti- gation before it, admitted to probate a paper purporting to be the will of Mary Hampson, deceased ; and, adjudging that the caveators had reasonable cause for opposing the will, directed 254 PREROGATIVE COURT. [33 Eq. Mallett V. Bamber. that the costs aud expenses of the litigation, and a counsel-fee of $200 to the counsel of each side, be paid out of the estate. From so much of the decree as awards costs, expenses and coun- sel-fees to the caveators, the proponents appealed to this court. The printed book of the evidence contains over three hundred pages. The testimony was taken by question and answer. The questions are more than twenty-six hundred in number. A great part of the testimony is utterly irrelevant. The caveators were Isaac Bamber, a brother, and William L. Bamber, a nephew of the testatrix. She was a widow, and had no chil- dren. By her will, she gave to her brother Peter, in England, $2 a week for life ; to two of her nieces, daughters of her sister, Eliza Mallett, $150 each ; to Edward A. Absom, an adopted son of Mrs. Mallet, $100, to be paid to him when of age; to her niece, Elizabeth Bridge, $300 ; to her niece, Leah Bridge, sister of Elizabeth, $200, and directed that a note of $160, given to her by James and Catharine Bridge (the latter was her sister), be given up to them at her decease. To the Ladies' Protestant Hospital of Paterson she gave $100, if such hospital should exist at the time of her death, and to the Ladies' Protestant Orphan Asylum of Paterson, $100, and gave all the rest of her estate to Mrs. Mallett. The will was contested on the ground of incapacity and undue influence, the influence being imputed to Mrs. Mallett. The court very justly adjudged that neither ground of objection was maintained. The award of costs to caveators in such cases is left to the discretion of the court, but it is a discretion which should be carefully exercised ; and while, on the one hand, due examination and scrutiny into the circum- stances of the making of a will are not to be discouraged, con- tests not undertaken in good faith, or, if entered upon bona fide, conducted in such a manner as to occasion needless expense, are in no wise to be encouraged. The estate, in this instance, is not large ; but whether the estate be large or small, the principles and the rule are the same. A very careful examination and consideration of the testimony leads me to the conclusion that there was no reasonable ground for the belief on the part of the caveators that the testatrix was incompetent to make a will, or 6 Stew.] OCTOBER TERM, 1880. 255 Mallett V. Bamber. that it was the result of undue influence on the part of Mrs. Mallett. They knew that the testatrix was not well disposed towards them, on account of her resentment of their treatment of her, and they had no reason, under the circumstances, to ex- pect that she would give them any part of her estate, by any testamentary disposition she might make. It is proved that Joaac Bamber, in the winter previous to the spring in which the will was made, urged Mrs. Mallett to get the testatrix to make a will, giving him the same amount which she would give to Mrs. Mallett, and threatened to make trouble by contesting the will, on the ground of undue influence, if she did not do so. He had grievously affronted the testatrix. She had gone to his house to pay a short visit, and she did not find the family at home. She stayed over Sunday, however, and while there entered into familiar conversation with their servant, garru- lously giving to her an account of her own life, which had been humble and laborious, and making also some unpleasant but true statements of like character in regard to Isaac and his family. He was very much offended with this, and scolded her severely for it. William L. Bamber also had offended her. He had, as she said, called her " an old hag." He denies it, saying that what he said was that, on a certain occasion, she acted like a crazy old hag. He says he did not say so to her, but to Isaac, who told her of it. Between her and Mrs. Mallett there were very close sisterly relations. She confided in the latter fully, and there is no evidence that, in any instance, her confidence was abused, but, on the other hand, Mrs. Mallett appears to have been careful for her welfare, both as to her personal comfort and her pecuniary affairs. That the confidence which the testatrix reposed in Mrs. Mallett was carried to an unbusiness-like extent, even to leaving in the possession of the latter, for safe keeping with her other papers, the evidence of indebtedness of Mrs. Mallett to her, was not evidence of want of testamentary capacity or of undue influence, but simply of trust in her integrity and fidelity. It appears from his own testimony, that Isaac Bamber did not contemplate opposing the will, and was disinclined to do so (he says because he did not think it worth the trouble), but was finally persuaded, and, yielding to the urgency of others, joined 256 PREROGATIVE COURT. [33 Eq. McGill V. O'Connell. in the caveat. The litigation was not warranted, and if it had been, the extent to which it was carried, in the amount of utterly irrelevant testimony with which the record abounds, would, of itself, be sufficient ground for denying the caveators payment of their costs and counsel-fees out of the estate. Wintermute's Will, 12 a E. Ch\ W" ; S. C. on appeal, 1 Stew. Eq. ^37; Pernne v. Applegaie, 1 McCart. 531; Collins v. Townley, 6 C. E. Gr. S6S. The part of the decree appealed from will be reversed, but without costs. MiCJHAEL McGiLL et al., administrators, appellants, V. Mary J. O'Connell, respondent. A guardian was held liable for the amount of a promissory note given bj him to his ward's mother, and after her death taken into his own custody ostensibly for safe keeping, such note being found after his death among his efifects, with his signature torn off, and also for the proceeds of sale of certain furniture, which also belonged to the ward's mother, and was sold at auction bj him ; and it was held to be no defence that no administration of the mother's estate was ever taken out ; both the note and the furniture having been taken by the guardian, as such, into his possession. On appeal from decree of Passaic orphans court allowing ex- ceptions to, and surcharging the final account of, Felix McKenna, deceased, as guardian of Mary J. O'Connell. Mr. Wame Smyth, for appellants. Mr. J. W, Griggs, for respondent. The Ordinary. Felix McKenna, now deceased, was, in 1874, appointed guardian of Mary J. O'Connell, then and still a minor. He died intestate, and his administrators filed their account of his guardianship. The infant, by her next friend, her sister, filed exceptions thereto, claiming that it should be surcharged with half of the amount of the proceeds of the sale of the household 6 Stew.] OCTOBER TERM, 1880. 257 McGill V. O'Connell. furniture which their mother, Bridget O'Connell, who lived and died in Paterson, owned and had in possession at her death, and which was taken bjMr. McKenna into his possession and sold, and half of the amount, with interest, of a promissory note for $600 made by McKenna, dated June 1st, 1870, and payable one year after date, to the order of Bridget O'Connell, without defalcation or discount, with interest at seven per cent. The note was given by him to their mother, and held by her up to within a short time before her death, when she handed it to her daughter Annie, bidding her take care of it. The guardian requested Annie, a few days after her mother's death, to give it to him, saying that he thought he could take better care of it than she could, and that he would put it in his safe. It was then unmu- tilated and entire. It was found, after his death, in his safe, with his signature torn off. The orphans court allowed both exceptions (though as to the amount, not to the extent claimed), and surcharged the account accordingly. The cause is submitted on the briefs of counsel. No objection was made, either below or here, to the compe- tency of the testimony adduced. The principal witness was Annie. She was a competent witness for the exceptant. It ap- pears, from her testimony, that her mother, who was a widow, died in 1874, intestate, and that no administration of her estate was ever granted. The guardian took into his possession, as guardian, as she says, the household furniture of her mother, and, as not only appears by her testimony, but by that of the auctioneer whom he employed to sell it, sold it, and realized from the sale $142.50, as net proceeds, which were paid to him by the auctioneer. The note was given by Annie to the guardian under the circumstances before stated. The presumjition, from the fact that it was found in his possession at his death, with his signature torn off, is that the signature was torn off by him, and, under the circumstances, such tearing off of the signature is an admission of the genuineness of the note and his liability to pay it. The case, on this point, is within the principles of the maxim, omnia prcesumuntur contra spoUatorem. McKenna, therefore, was chargeable with the amount of the note and interest. 17 258 PREROGATIVE COURT. [33 Eq. Ellison V. Lindsley. But it is urged (and this is the principal point discussed in the briefs of counsel), that the title to the note and furniture was never in the wards, but, on the death of their mother, was in abeyance, awaiting the appointment of a lawful representative or successor — an administrator. In the first place, the guardian took the furniture into his possession as guardian (such is the evidence), and sold it as the property of his wards ; and he took the note out of the possession of one of his wards,. to whom her mother delivered it with an injunction to take care of it. By law, the lawful successor of a decedent holds the title to his cliattles, in trust, first, for the payment of his debts, and then for his legatees, if disposed of by will, or, if not, for those en- titled thereto under the statute of distributions. Smith's Law of Real and Pers. Prop. 323. In the case in hand, the children were the equitable owners of the chattels in question, subject to the claims of creditors, if any ; and it does not appear that there were any creditors. Their guardian having taken into his pos- session, as their property, the chattels to which they had such equitable title, could not shield himself from accounting to them, therefore, on the mere ground that they had no legal title, but, under the circumstances, would have been estopped, for the most obvious reasons of justice, from denying their title. The decree of the orphans court in reference to the proceeds of the sale of the furniture is correct, but as to the note, is far too little ; but it has not been appealed from by the exceptant, and it will be affirmed, with costs. John B. Ellison et al., appellants, iREN-ffiUS H. Lindsley, assignee &c., respondent. 1. The time limited for creditors to file their claims with an asisgnee, under an assignment for the benefit of creditors, expired on the 8th day of January. On that day, the appellant, a creditor residing in PMladelphia, discovered that fact, although, by misreading his own entry, he had previously supposed 6 Stew.] OCTOBER TERM, 1880. 259 Ellison V. Lindsloy. the 18th of January was the last day. He thereupon forwarded his claim to the assignee, at Newark, by mail, which ought to have been delivered at five o'clock in the afternoon, but was not, in fact, delivered until the next day. Hdd, that such claim was neither " presented" nor " exhibited" to the assignee, within the terms of the statute, within the time limited. 2. The orphans court has no power to relieve such creditor on the ground that his omission to file his claim in due time arose from his mistake, and not from mere negligence. Appeal from decree of Essex orphans court. On state of the case and briefs of counsel. 3£r. F. S. Fish, for appellants. 31)'. J. E. Howell, for respondent. The Oedinary. The time within which the claims of creditors of Herbert G. Hoole, a debtor who had assigned his property under our assign- NoTE. — A notice of amercement must be served personally on a sheriff, and not sent by mail {Anon., 1 Hal. 159). Proof of putting into the post-office a letter containing a notice, is not sufficient proof of service {Anon., 6 Hal. 94; Hudson V. Henry, 1 Caines 66 ; Hickey's Case, I. R. {10 Eq.) 117 ; see Futcher V. Hinder, 1 F.& F. S57). Where a plea was sent by mail in time, a judgment of default for want of its having been received, was opened {Ludlow v. Hey- eraft, 2 Caines 386; Cole ads. Stafford, Cole & Caines Cas. 110; Stafford v. Cole, 1 Johns. Cas. 413) ; so, where the plea was received by the plaintiff's attorney, who, on inspection, refused to take it from the post-office {Clark v. McFarland, 10 Wend. 635). Notice of trial may be served by post, unless its receipt be denied {McCourry v. Suydam, 5 Hal. S45) ; and notice to substitute another solicitor {Draper v. Holland, 3 Edw. Ch. 272) ; and notice to give security for costs {Abbot V. Ledden, Bert. {N. B.) 33). Willful refusal to take from the post-office a letter containing process is not service thereof {Bedpaih v. Williams, 3 Bing. 443. Contra, Aldred v. Hicks, 3 Taunt. 186). Delivery of process sealed up in a letter, in the absence of the person to whom it is addressed, is only service from the time when such letter is opened {Arrowsmith v. Engle, 3 Taunt. 234). Service of notice to quit, sent by mail by a landlord to his tenant, is invalid {Papillon v. Brunton, 5 H. & N. 518; see May v. Rice, 108 Mass. 150). Query — Whether depositions taken under a foreign commission may be re- turned by mail {Simms v. Henderson, 11 Q. B. 1014). The officer is not bound to take from the post-office a letter containing pro- cess, on which the postage is unpaid. {Hart v. Weatherley, 4 Howl. P. C. 171; Anon., 1 Hill 217 ; Brass v. Nicholson, 1 How. Pr. 158). That a capias in another suit and a notice of amercement were mailed to- 260 PREROGATIVE COURT. [33 Eq. Ellison V. Lindsley. nient act, were, bv law, to be put in to entitle the holders to a dividend, expired on the 8th of Jannary. The appellants were creditors, and intended to file their claim within the limited period, but being under a mistake, up to the 8th, as to the time when it ended (they supposed it expired on the 18th instead of the 8th), they delayed filing it until the 8th, on which day they discovered their mistake. On that day they mailed their claim, at Philadelphia, to the assignee, at Newark, in time to reach the latter place so as to be delivered by the letter-carrier to the as- signee at about five P. M. of that day. It was not, in fact, de- livered to him until the next day. It does not appear that it reached Newark before the 9th. On excej^tion to it by the as- signee, the orphans court rejected it as not filed in time, and hence this appeal. The only question presented for decision is, whether such posting of the claim was a " presenting " (the term used in the third section of the act) or " exhibiting " (the term employed in the twentieth section) of the claim within the limited gether, in one envelope, to a sheriff, more than ten days before the beginning of the term, and the capias duly served and returned, is not stiflBcient proof that the sheriff received the notice more than ten days before the beginning of the term {Melvin v. Purdy, 2 Harr. 162) ; although sufficient as to their receipt, [Smith V. Campbell, 6 Bowl. P. C. 728). Notice of an allotment of shares sent by mail to a stockholder, and never received, is good. (Harris's Case, L. R. (7 Ch.) 587; TownsencPs Case, L. R. (IS Eq.) 148; Walts's Case, L. R. (15 Eq.) 18; but see Reidpath's Ca^e, L. R. (11 Eq.) 86; British Co. v. Colson, L. R. (6 Exch.) 108). Whether the person to whom a letter is directed, after satisfactory proof of mailing it, ever received it, is a question for the jury (Stair v. Torrey, 2 Zah. 1^0; President v. Hart, S Bay 491; Greenfield Bank v. Q-afts, 4 Allen 447; Tanner v. Huf,hes, 53 Pa. St. 289 ; Warren v. Warren, 1 C. M. & R. 250). As to the presumption from the senders, usual course of business, see Heth- lington v. Kemp, 4 Camp. 193; Skilbeek v. Garhett, 7 Q. B. 846; Ward v. Loud- eshorough, 12 C. B. 252 ; Spencer v. Thompson, 6 Ir. C. L. 537. Whether the postmaster could be held responsible, see Whitfield v. Be-fpen- cer, Cowp. 754 ; Hordem v. Ballon, 1 C. & P. 181 ; Ford v. Parker, 4 Ohio St. 576; Sawyer v. Corse, 17 Gratt. 230; Fitzgerald v. BurrUl, 106 Mass. 446; Keenan v. Southworth, 110 Mass. 474, and cases cited; Foster v. Melts, 55 3/i«. 77; Contoell v. Voorliee-s 13 Ohio 523; Hutchins v. Brackett, 22 K H. 252; 2 Thomp. on Neg. 819, 898. Notice sent by mail to South Carolina, during the rebellion, was held invalid (Harden v. Boyce, 59 Barb. 425 ; Todd v. Neal, 49 Ala. 2G6 ; Bonegan v. Wood, Id. 6 Stew.] OCTOBER TERM, 1880. 261 Ellison V. Lindsley. period, within the meaning of tlie act. It certainly cannot be held to be so. If mailing the claim in time to reach the assignee by due course of mail, if no delay should occur, were to be held to be equivalent to presenting or exhibiting the claim, though it should not reach the assignee, it would, of course, be so on any other day than the last day of the limited period as well as on that day. The statute imposes on the assignee the duty of filing a true list of all the creditors of the assignor, as shall claim to be such, and requires that he do so at the expiration of three months from the date of the assignment. Bev. 37 § 5. And to that end the creditors are to present their claims under oath or affirma- tion. Hev. 37 § 3. If they fail so to exhibit their claims within the time limited by the act, their claims will be barred of a divi- dend unless the estate shall prove sufficient, after the debts ex- hibited and allowed are fully satisfied, or they shall find some other estate not accounted for by the assignee, before distribution, in which case they shall be entitled to a ratable proportion there- 2Ji2; McQuulchj V. Ware, 20 Wall. U; BopJcirk v. Page, 2 Brock. 20; Citizen^ Bank v. Pugh, 19 La. Ann. J^S ; Shaw v. Xeal, Id. 156 ; Lapeyre v. Robertson, 20 La. Ann. 399). Where a substituted service of process, &c., by mail, is authorized by statute, a strict compliance therewith must be shown [Rogers v. Rogeis, 3 C. E. Gr. 445; Tate v. Tate, 11 C. E. Gr. 56 ; Gaffney v. Bigelaw, 2 Abb. iV. C. 311, and note; 1 Dan. Gh. Pr. 435; Jacobs v. Hooker, 1 Barb. 71; Anon., 25 Wend. 677; Chataque Bank v. Risley, 6 Hill 375 ; People v. Alameda Co., SO Gal. 182 ; Gray v. Palmer, 9 Cai. 616 ; Sharp v. Dangney, 33 Gal. 505 ; Wallace v. Wal- lace, 13 Wis. 224; Ritten v. Griffith, 16 Hun 454; Foley v. Connelly, 9 Iowa 240; Clark v. Adams, 33 Mich. 159; Wilson v. Basket, 47 Miss. 637). As to mistakes or omissions in the name or address, see Walter v. Haynes, By. & Moo. 149 ; Gordon v. Strange, 1 Exch. 477 ; Oothotit v. Rhinelander, 10 How. Pr.460 ; Smith v. Smith, 4 Greene (Iowa) 266; Leonard v. New York Bay Co., 1 Slew. Eq. 192; Likens v. McCormick, 39 Wis. 313 ; Scorpion Co. v. 3Iar- sano, 10 Xev. 370. Such service is effected, generally, only from the time when tlie notice is received (J/oy v. Rice, lOS Mass. 150 ; Reg. v. Leonimstn; 2 B. & S. 391; Reg. ' V. Slawstone, IS Q.B. 3SS ; Colvillv. Lewis, 2 C. B. 60; Reg. v. Richmond, E. B. <& E. 253; Slevens v. Wheeler, 43 Wis. 91; Schenck v. 2IcKie, 4 How. Pr. 245; Peebles v. Rogers, 5 How. Pr. 208 ; Crittenden v. Crittenden, Id. 310 ; Morris v. Morange, 17 Abb. Pr. 86 ; see, however, Radcliffv. Van Beiithuysm, SHow.Pr. 67; Van Home Y. Montgomery, 5 How. Pr.23S; Elliott v. Kennedy, 26 How. Pr. 422; Schuhardt v. Roth, 10 Abb. Pr. m3).— Eep. 262 PREROGATIVE COURT. [33 Eq. Mount V. Van Xess. from. Section SO. A claim sent by mail may, of coarse, never reach the assignee. The creditor who has recourse to that method of transmitting his claim takes the risk of its reaching its desti- nation in due time. The assignee is to know who are the cred- itors who make claim as such by their act in presenting or exhibit- ing their claims within the prescribed period. It is urged, in this case, that the failure to present the claim at an earlier day was due to a mere mistake on the part of the appel- lants, and that that fact entitles them to a consideration which they could not claim if they were guilty of negligence. The alleged mistake was wholly their own. It arose from misreading the entry, in their own book, of the time when the limitation would expire. The orphans court has no power to relieve the appellants from the consequences of their mistake. The language of the statute is clear, and the court was not at liberty to extend it by construc- tion. Proprietors of Morris Aqueduct Co. ads. Jones, 7 Vr. 206; Stelle V. Conover, 3 Stew. Eq. 6Ifi. In this connection it may be added, though it has no bearing on the conclusion reached, that the appellants had time enough, after they discovered their mistake, to present their claim to the assignee ; their error was in trusting to the mail rather than to send a messeno-er. The decree of the orphans court will be affirmed, with costs. Joseph S. Mount, administrator, appellant, George Van Ness, respondent. An ancestor bought certain lands, and, by his deed, assumed to pay a mort- gage thereon, and its amount was allowed to him as so much of the purchase- money. Hdd, that this was not such personal assumption of the mortgage as entitled the heir, to whom the premises descended, to exoneration out of the personal estate for the amount of the mortgage. Appeal from decree of Mercer orphans court. On state of the case. 6 Stew.] OCTOBER TERM, 1880. 263 Mount V. Van Ness. Messrs. A. G. Rickey and G. D. W. Vroom, for appellants. Mr. James Wilson, for respondent. The Ordinary. The question presented for adjudication is whether the heir at law is entitled to exoneration out of the personal estate for the amount of the mortgage on the laud descended, subject to which the ancestor bought it, and which he assumed in the deed to him to pay, and the amount whereof was allowed to him as so much of the purchase-money. The orphans' court held that it was not, and hence the appeal. I consider myself bound, in deciding this question, by the decision in McLenahan v. McLenahan, 3 C. E. Gr. 101, which was followed in Campbell v. Campbell, 3 Stew. Eq. 4-15. In the former case it was held that if land descends, or is devised, subject to a mortgage debt not created by the decedent, the heir or devisee takes the property cum onere, and is not enti- tled to have the debt paid out of the personal estate, unless the decedent has directly assumed the debt, intending to make it a charge on his personal estate, or shall have so expressly directed by the will ; and that it is not enough that he has assumed to pay the debt, or has rendered himself liable to be called on directly by the creditor to pay it. It is urged, however, that the decision in that case, so far as it seems to govern this, is a mere obite)' dictum; or, if not, is based on a different state of facts; that it does not appear there, as it does here, that the decedent assumed the payment of the mortgage debt. It did appear that the amount of the mortgage was retained by him out of the pur- chase-money, and therefore that his personal estate had had the benefit of it ; that is, that his personal estate was so much more than it would have been had the whole of the purchase-money been paid. It also appears, by the report, that application was made on the hearing for leave to amend the bill by adding an allegation that the decedent, at the time of the conveyance to him, verbally promised his grantor to pay the debt. Such an assumption would have been valid, and might have been enforced. £zlles V. Beach, 2 Zab. 680; Wilson v. King, 8 C. E. Gr. 150. 264 PREROGATIVE COURT. [33 Eq. Mount V. Van Ness. But the chancellor said that the proposed amendment would not affect the result. His mind was drawn to the very question before me, and he was dealing with an application (not denied, but for the sake of the argument and decision admitted) to infuse into the case the very ingredient which is said to distinguish it from that under consideration. It was, therefore, necessary to the adjudication upon the rights of the parties before him, to consider the case as if it possessed that element. The weight of authority is in accordance with that decision. In order to an exoneration of the land by throwing the burden on the personal estate, it must appear that the decedent has not only made him- self answerable for the payment of the mortgage, but has directly and absolutely made the debt his own, or has in some other way manifested an intention to throw the burden on the personalty in ease of the laud. And this doctrine is based on principle. In Owmherland v. Codrington, 3 Johns. Ch. 229, Chancellor Kent, after reviewing the English cases on the subject, says : " The series of cases which I have thus examined, shows very conclusively that by the English equity system, as it has been declared and received for the last thirty or forty years, the purchase of the equity of redemption, with a covenant of indemnity to the mort- gagor against the mortgage debt, did not make the debt the grantee's own, so as to render his personal assets the primary fund to pay it. The cases all agree that no covenant with the mortgagor is sufficient for that purpose. There must be a direct communication and contract with the mortgagee, and even that is not enough unless the dealing with the mortgagee be of such a nature as to afford decided evidence of an intention to shift the primary obligation from the real to the personal fund." Again, he says : " When a man gives a bond and mortgage for a debt of his own contracting, the mortgage is understood to be merely a collateral security for the personal obligation. But when a man purchases, or has devised to him land with an encumbrance on it, he becomes a debtor only in respect to the land ; and if he promises to pay it, it is a promise rather on account of the land, which continues, notwithstanding, in many cases, to be the pri- mary fund. The same equity which in other cases makes the 6 Stew.] OCTOBER TERM, 1880. 265 Mount V. Van Ness. personal estate contribute to ease the laud as between the real and personal representatives, will here make the land relieve the personal estate. There is good sense and justice in the principle, aud I feel the force of the doctrine that it requires very strong and decided proof of intention to shift the natural course and order of obligation between the two estates." The question is not whether the decedent assumed to pay the mortgage, and so made himself liable therefor, as between him and his grantor, but whether he, by direct action, made himself liable, in his per- sonal estate, to the mortgagee ; that is, as between him and the mortgagee, expressly made the debt his own debt. The mere assumption to pay the mortgage on the land, if made by the grantee to the grantor, is at most an indemnity merely; and though, if the grantor be personally liable for the payment of the mortgage, the mortgagee may, in equity, pursue the grantee on his assumption, that, however, is because, and only because, the mortgagee is, in equity, entitled to the benefit of all collateral securities which his debtor has taken for the mortgage debt. Klapicorth v. Dressier, 2 Beas. 62 ; Norwood v. De Har-t, S Stew. Eg. 413 ; Crowell v. Hosp. of St. Barnabas, 12 C. E. Gr. 650. And if the grantor is not personally liable for the mortgage debt, the mortgagee cannot look to the grantee, personally, at all ; because the assumption is but an indemnity, and the grantor not being liable, the indemnity, is practically a mere nullity. Crow- ell V. Hosp. of St. BarnabaSy ubi sup. ; Nonoood v. De Hart, ubi sup. ; King v. Whitely, 10 Paige 4-65 ; Trotter v. Hughes, 12 N. Y. 74'. Nor does the fact that the grantee obtained the benefit of the mortgage by having the amount allowed to him as part of the purchase-money, make any difference. The purchase- money was payable to his grantor, and the assumption is to him, and in his favor. The fact of the allowance to the grantee of the amount of the mortgage as part of the purchase- money, merely raises in equity, an obligation on his con- science to indemnify his grantor. Tichenor v. Dodd, S Gr. Ch. 454. In that case, the suit was by the grantor, who was the obligor in the bond secured by the mortgage, and who had been compelled to pay deficiency against his grantee. The property 266 PREROGATIVE COURT. [33 Eq. Mount V. Van Ness. ■was conveyed to the latter, subject to the mortgage, the amount being allowed to him as part of the consideration of the convey- ance. Obviously, the fact that the mortgagee may, in equity, avail himself of the assumption for the payment of his debt, does not make the assumption any more than a mere indemnity. It is on the ground that it is an indemnity that the mortgagee claims the benefit of it. " It is immaterial," says Mr. Jarman, " whether the covenant with the vendor be to pay the debt, or indemnify him against it. But if the mortgagee be a party to the transaction, the vendee covenanting with him to pay the debt, and the estate be subjected to a fresh proviso for redemp- tion, it will be considered, with respect to the purchaser's repre- sentatives, as a purchase of the whole estate, and not of the equity of redemption, merely ; and the same principle, of course, applies where, upon the purchase, the mortgage is transferred to a new mortgagee, who advances a further sum of money." 2 Jarm. on WUk 559, 560 ; see, also, Ram on Assets 44-^} 4-^-^- " Where a person," says Judge Story, " becomes entitled to an estate, subject to a charge, aud then covenants to pay it, the charge still remains primarily on the real estate, and the covenant is only a collateral security, because the debt is not the original debt of the cov- enantor." 2 Story's Eq. Jur. § 124.8 ; see, also, §§ 124B a, 1248 b, 124.8 c. In McLearn v. McLellan, 10 Pet. 625, a testator had suiFered a judgment against him, which, in the state where it was entered, bound both his personal and real estate for part of the purchase-money of a rice plantation. He gave, by his will, the plantation and his personal property to his son. The latter, to obtain possession, gave his bond and a mortgage on the property, real and personal, for an unpaid balance due on the judgment. It was held that the bond and mortgage did not create, and were not intended to create, any new lien on the personal property, aud therefore threw no additional burden on the personal estate. But it is unnecessary to discuss the subject further. The doctrine has not only the sanction of principle and frequent and authori- tative precedent, but has, in England and New York, at least, had the approval of legislative enactment. The decree of the orphans' court will therefore be affirmed, with costs. CASES ADJUDGED IN THE COURT OF ERRORS AND APPEALS or THE STATE OF NEW JERSEY, ON APPEAL FROM THE COURT OF CHANCERY. NOVEMBER TERM, 1880. The Citizens Coach Company, appellants, V. The Camden Horse Railroad Company, respondents. 1. The right acquired by a horse railroad company, under a legislative grant authorizing it to lay rails in a public highway, and to run cars thereon, charging fare, is such as entitles it to exclude from the habitual and continu- ous use of its tracks all companies and persons engaged in carrying passen- gers for hire, in competition with it. 2. That the right of a horse railroad company is thus exclusive, is not incon- sistent with the view that such a railroad, laid on a public highway, is only a modification of the public use to which the highway was originally devoted, and not an additional burden on the land for which compensation may be required. 3. The right of the horse railroad company arises from the legislative con- trol of the public easements of highway. The legislature may, when it deems it judicious to do so, grant to a private corporation some interest in the public highway, imposing on it a duty and obligation to provide for public travel thereon in a mode promotive of the public good. In such case the public easement remains unchanged in character or degree. The private corporation (267) 268 COURT OF ERRORS AND APPEALS. [33 Eq. Citizens Coach Co. v. Camden Horse Railroad Co. acquires so much of the public use as is necessary for the purposes of iLs grant, and other public uses are limited and restrained for the attainment of sucli purposes. 4. Arising from the legislative requirement that the rails shall be laid on the level of the highway, and of a width corresponding to the wagon-track established by law, there is an implied permission, on the part of the horse railroad company, to the use of the track by other vehicles to some extent. Such permission does not emanate from the company so as to be revocable by it. It results from the nature of the grant, and is in the form of a condition resulting from the grant and its acceptance. The use, however, thus impliedly permitted is only such as is consistent with the grant to the company, and not destructive of its purpose. Any use inconsistent with the grant, and destruo- tive of its purpose, is excluded. Ou appeal from the decree of the chancellor, reported in Cam- den Horse Railroad Co. y. Citizens Coach Co., 4- Stew. Eq. 5^5, Mr. A. C. Scovel, for appellant, cited — Brooklyn Central v. Brooklyn C. M. R. Co., 25 Barb. S64.; Hinchman v. Paterson Horse R. R. Co., 2 C. E, Gr, 75 ; Jersey City & Bergen R. R. Co. v. Jersey City & Hobo- ken Horse R. R. Co., 5 C. E. Cr. 62 ; 1 Red/, on Railways {5th ed.) 329; 2 C. E. Gr. 80 ; Hegan v. Eighth Ave. R. R. Co., 15 N. Y. 382; Shea v. Potrero & Bayview R. R. Co., U Cal. 4£8; Id. JflG ; Brooklyn City R. R. Co. v. Coney Island R. R. Co., 35 Barb. 371 ; Wilbrand v. Eighth Ave. R. R. Co., 3 Bosw. 320; Brooklyn Central R. R. Co. v. Brooklyn City R. R. Co., 32 Barb. 370; Sixth Ave. R. R. Co. v. Kerr, 45 Barb, llfi ; Fei- terick v. Dickenson, 22 How. Pr. 248 ; Brooklyn Central R. R. Co. V. Brooklyn City R. R. Co., 33 Barb. 420 ; Jersey City & Brooklyn R. R. Co. v. Jersey City & Hoboken R. R. Co., 5 C. E. Gr. 61 ; Barker v. Hudson R. R. Co., 4 Daly 274 > Metro- politan R. R. Co. V. Quincy R. R. Co., 12 Allen 269 ; Adolph v. Central Park, N. & E. River R. R. Co., 65 N. Y. 554; S. C, 76 N. Y. 533, 535, 536 ; Albany Law Jour. {May 26th, 1877), 403; Shfa V. Sixth Ave. R. R. Co., 62 N. Y. 180; Com. v. Temple, 14 Gray 74; Middlesex R. R. Co. v. Wakefield, 103 Mass. 263; Baxter v. Second Ave. R. R. Co., 3 Rob. 516 ; Adolph v. Central R. R. Co., 33 N. Y. Superior a. 187, 188; P. L. of 1871 p. 6 Stew.] NOVEMBER TERM, 1880. 269 Citizens Coach Co. v. Camden Horse Kailroad Co. 33o ^ 30 ^ 7; P. L. of 1871 p. ^1^7 (§ 76 of charter) ; 103 Mass. S06; P. L. of 1866 p. 61^3 r^ C. E. Gr. 80; 2 Stew. Eq. 299; HilUard on Injunctions § 23; Stew. Dig. p. 61 §§ 32, 33; 2 Stew. Eq. 299. Mr. D. J. Pancoast, for respondent, cited — 3 Kent's Comm. {12th ed.) 4^8 ; Ang. & Ames on Corp. {9th ed.) § ^; Angell on Highways {2d ed.) 28 ; Wait's Actions and Defences vol. 5 p. 338 ; Jersey City & Bergen R. R. Co. v. Jersey City & Hohohen Horse R. R. Co., 5 C. E. Gr. 69; BrooUyn R. R. Co. V. Brooklyn City R. R. Co., 32 Barb. 372 ; Troy & Lansingburg R. R. Co. V. Collins; Newburg Turnpike Road v. Miller, 5 Johns. Ch. 101. Mr. P. L. Voorhees, for respondent, cited — Mayor of Jersey City v. Jersey City R. R. Co., 5 G. E. Gr. 366 ; Hinchman v. Pater son Horse R. R. Co., 2 C. E. Gr. 75 ; Pater son & Passaic R. R. Co. v. Mayor of Paterson, 9 C. E. Gr. 158 ; Brooklyn City R. R. Co. v. Coney Island R. R. Co., 35 Barb. 26 Jf,; 1 Redf. on Railways p. 5JiO % 6 ; Brooklyn Central R. R. Co. V. Brooklyn City R. R. Co., 32 Barb. 358, 370, 372 ; Davis V. 3Iayor of New York, U N. Y. 506, 515, 516; Brook- lyn City R. R. Co. V. Coney Island R. R. Co., 35 Barb. 364, 371, 372 ; Brooklyn Central 6c Jamaica R. R. Co. v. Brook- lyn City R. R. Co., 33 Barb. 4^0, 4^1; 1 Redf. on Rail- ways p. 317 §§ 7, 8, p. 318 §§ 9, 10, p. 320 § 16; Metropolitan R. R. Co. V. Quincy R. R. Co., 12 Allen 262, 269, 270; Com- monwealth V. Temple, 14 Gi'ay 69, 74, 77 ; Metropolitan R. R. Co. V. Highland R. R. Co., 118 Mass. 290 ; Hegan v. Eighth Ave. R. R. Co., 15 N. Y. 380, 382; Whitalcer v. Eighth Ave. R. R. Co., 51 N. Y. 295, 299; New York & Harlem R. R. Co. V. FoHy-second St. R. R. Co., 5 Barb. 285, 287, 309 ; Jersey City & Bergen R. R. Co., v. Jersey City & Hoboken R. R. Co., 5 C. E. Gr. 61, 71, 72; S. C 6 C. E. Gr. 550, 560; Sixth Ave. R. R Co. v. Kerr, 72 N. Y. 330 ; Adolph v. Central Park, N. d- E. River R. R. Co., 76 N. Y. 530, 537; Jersey City Gas Co. V. Dwight, 2 Stew. Eq. 24^, 249, 250 ; Raritan d' Delaware 270 COURT OF ERRORS AND APPEALS. [33 Eq. Citizens Coach Co. v. Camden Horse Railroad Co. Bay R. R. Co. v. Delaware & Raritan Canal Co. ,3 C. E. Or. 54-6, 570, 572 ; Rennsyhania R. R. Go. v. National R. R. Co., 8 C. E. Gr. JjJf,! ; 1 Redf. on Railways 317, notes ; Troy & Lansing- burg R. R. Go. V. Collings, MS. case, Supreme Gt. N. Y. [Rens- selaer Co:), Dec, 1878; Kent v. Morgan, 2 Keen Ch. 213; Cooky on Const. Lim. 5U; Glover v. Powell, 2 Stock. 211, 212 ; Delaware & Raritan Canal Co. v. Raritan & Delaware Bay R. R. Co., 1 C. E. Gr. 321, 378; HiUiard on Injunctions 392 &c.; Boston Water Power Co. v. Boston & Worcester R. R. Co., 16 Pick. 512, 525; Osbom v. Bank of U. S., 9 Wheat. 738, 838; Newburg Turnpike Co. v. Miller, 5 Johns. Gh. 101 ; Croton Turn- pike Co. V. Ryder, 1 Johns. Ch. 611; Ogden v. Gibbons, 4- Johns. Ch. 150, 160 ; Agar v. Regenfs . Canal Co., Coop. Eq. 77 ; Sha7'd v. Henderson, 2 Dow 519 ; Packer v. Sionbury & Erie R. R. Co., 19 Pa. St. (7 Harris) 211, 218; Kerr on Injunc- tions p. 199 §§ 3, 4., p. 201 § 5; High on Injunctions 212, 213; Eden on Injunctions 231 ; HiUiard on Injunctions 393, 573 ; Kerlin v. West, 3 Gh\ Ch. 44^ ; Kerr on Injunctions p. 199 § 4> p. 542 %4) Livingston v. Van Ingen, 9 John^. 507, 562, 585 ; Thompson v. Ne:w York & Harlem R. R. Co., 3 Sandf. Ch. 626. The opinion of the court was delivered by Magie, J. An act of the legislature, approved March 23d, 1866 (P. L. of 1866 p. 64-0), created the Camden Horse Railroad Company, with a capital stock of $50,000, and the privilege of increasing the same to $100,000. The company was, by that act, em- powered to construct, use and maintain a railroad over certain streets in Camden, the track to be of the width of the wagon track then established by law, and to be laid level with the sur- face of the streets and in conformity with the grades then or thereafter established. Upon the requirement of the city council of Camden, the company were to pay a tax to the city, not ex- ceeding an amount specified in the act. The company was also empowered to construct or purchase suitable vehicles for the transportation of passengers and property over the railroad, and 6 Stew.] NOVEMBER TERM, 1880. 271 Citizens Coach Co. v. Camden Horse Eailroad Co. was authorized to demaud and receive for such transportation such sums as it should think reasonable and proper, not ex- ceeding, however, a certain sum fixed by the act for each trip of a passenger. The act also gave to the company an action against any person who should " willfully or maliciously impair, injure, destroy or obstruct the use of said railroad," and permitted the recovery of three times the damage sustained by the company. The company was also empowered to borrow the money necessary to build or equip said road, and to secure the pay&ient thereof by a mortgage on the " road, lands, privileges, franchises and appurtenances of or belonging to said corporation." The company thus incorporated shortly afterwards built a rail- road through some of the streets of Camden, in substantial accord- ance with the requirements of the act above referred to. It has since built other roads or branches through other streets in Camden, under the powers given by the above-mentioned act or supple- ments thereto. It has continued to operate the railroads so built ever since. In October, 1876, the Camden Horse Railroad Company filed a bill in the court of chancery against the Citizens Coach Com- pany, setting out the facts of the incorporation and organization of the horse railroad company above stated, and the construction of its railroads. The bill charged that the defendant therein had been incorporated on July 29th, 1876, under the general law of this state entitled " An act concerning corporations," ap- proved April 7th, 1875, for the purpose of carrying passengers and property in and about Camden, for compensation, and that it had continually, since its organization, made use of the rail- roads of the complainant, in the pursuit of its business, by driving its coaches upon and along the railroad track, to the obstruction and hindrance of the use of the railroad by its owner, the complainant. The bill also distinctly alleged that the com- plainant was entitled to the exclusive use and enjoyment of said railroad, as against the said coach company or any other person seeking to use the same in the business of transporting persons or property. The prayer of the bill was that tiie coach company should be enjoined from using with its coaches, in the pursuit of 272 COURT OF ERRORS AND APPEALS. [33 Eq. Citizens Coach Co. v. Camden Horse Railroad Co. its business of carrying passengers in and about the city of Camden, the railroad of the complainant. The Citizens Coach Company, the defendant, filed its answer to this bill, denying that it had made such continuous or ob- structive use of the complainant's railroad as was charged, and further, denying the right of complainant to the exclusive use and enjoyment of the railroad in the transportation of passen- gers. Upon the issue thus formed proofs were taken, and upon the pleadings and proofs the chancellor concluded that the complainant was entitled to relief, and an injunction was decreed, restraining the defendant from using with its coaches, in the pursuit of its business of carrying passengers in and about the city of Camden, the railroad of the complainant, in competition with the com- plainant in its business of carrying passengers and property thereon, and from obstructing or hindering complainant in the use of its railroad tracks. The decree further provided, how- ever, that it was not to be construed as restraining defendant from " using the tracks incidentally to the use of the street." From tbat decree the Citizens Coach Company has appealed to this court, and now contends not only that the evidence in the cause did not justify the court below in holding tiiat it was using the railroad tracks obstructively, but that no right exists in the railroad company to exclude its coaches from the use of the rail- road track, although engaged in carrying passengers for hire in competition with the railroad company. The first contention it is unnecessary to stop to consider. The evidence seems to be ample of such a continuous and obstructive use of the railroad track by the coaches of the coach company as greatly to interfere with and impede the horse railroad com- pany in its use of its track. Whether this alone would justify an injunction before action at law might be questionable. But the main question in this case is presented by the other contention of the appellant. It is a question of very great im- portance, not only to the parties to this cause and those inter- ested in them as stockholders or otherwise, but also to the stock and bondholders of the numerous horse railroad companies 6 Stew.] NOVEMBER TERM, 1880. 273 Citizens Coach Co. v. Camden Hoi-se Kailroad Co. organized and operated in this state under grants substantially similar to that in question in this ease. It requires the consider- ation and determination of the nature and extent of the rights acquired by a horse railroad company under such legislation as appears in this case, with respect to the public highways on which the rails of its track are laid. The question of the rights of such a company with respect to the owners of the land under the highway on which the track is laid has been the subject of much judicial consideration. The question has arisen upon the demand of the land-owner to be awarded compensation for the occupation of his laud by the railroad. He has contended that such an occupation of the pub- lic highway imposed upon his land a burden greater than that Avhich it sustained before, and which amounted to a taking of his land, or some interest therein, for which he was entitled to compensation. On the other hand, the railroad companies have contended that the occupation of the highway by the track and its use by the cars was no other or different use than that public use to which the highway was originally devoted. A similar question had arisen in the early periods of the his- tory of railroads designed to be operated by steam-power. With a limited and imperfect knowledge of the extent of development to which such roads were destined to attain, or with an exagger- ated or distorted view of their character as public highways, it was long contended that such railroads might occupy the soil of ordinary public highways without making compensation to the land-owner. Much difference of judicial opinion and decision may be found on this subject. In this state, in the case of Morris and Essex R. R. Co. v. Newark, 2 Stock. 352, Chancellor Williamson expressed the opinion that the legislature might authorize a railroad operated by steam to be laid on the public highway, and that if the occupation did not entirely destroy the use of the highway in the ordinary mode, it was not such a taking of private property as required compensation to be made. On the other hand, the supreme court, about the same time, in I the case of Starr v. Camden and Atlantic R. R. Co., 4- Zab. 592, j held that the owner of land under a public highway taken by a i 18 274 COURT OF ERRORS AND APPEALS. [33 Eq. Citizens Coach Co. v. Camden Horse Railroad Co. railroad operated by steam, was entitled to compensation. The cases of Hetjkld v. Central R. R. Co., 5 Dutch. 671, and M. d; E. R. R. Co. V. Prudden, I^ C. E. Gr. 386; S. C, 5 C. E. Gr. 630, indicate that the view taken by the supreme court is correct. And the reason is pointed out by Chancellor Green, in the case of Mnchman v. Paterson H. R. R.\ Co., 2 C. E. Gh\ 76, with his usual perspicuity and breadth of view. And considering the developments of the railroads of the country, it is now per- fectly obvious that the use of a public highway longitudinally by a railroad operated by steam, is a use entirely inconsistent witli and destructive of the public use to which the highway was originally devoted. The rate of speed at which such roads are operated is dangerous to the public who would otherwise use the highway. It makes use of rails not adapted to, but obstructive of, the ordinary public use of the highway by the usual vehicles of travel thereon. The noise, the danger, the obstruction of its road-bed, all combine to make the use of the highway by such a railroad incompatible with its general use as a public highway. In such a case, then, the railroad becomes a manifest burden on the soil additional to that originally imposed by the public high- way, which is a taking of property for which compensation must be made. The question may be considered as set at rest, now, in favor of the above views, by a decided weight of authorities, to be found collected in 1 Red/, on Railways {6th ed.) 314- ^i seq., and notes. It is obvious, however, that an ordinary horse railroad, in occupying a highway with its track, and making use of it with its cars, produces a different result from that produced by such an occupation and use by a railroad operated by steam. By legislative direction, the track of the horse railroad is required to be (as in this case) so constructed not only as not to interfere with or prevent the passage of other vehicles, but to be adapted to such passage both across and along the rails. The cars are drawn by animals such as usually draw the vehicles used on public highways. They carry along the highway such passengers as otherwise would be obliged to pass over it on foot or in other vehicles, and do so with no more injury in the way of noise, jar 6 Stew.J NOVEMBER TERM, 1880 275 Citizens Coacii Co. v. Camden Horse Eailroad Co. or disturbance than would be occasioned by the passage of other vehicles. The ase, if it be novel and peculiar in its form, is but a modification of the original use to which the highway was de- voted when it became a highway. The burden imposed thereby upon the land-owner, so far as the use of his property is con- cerned, is identical in kind and no greater in degree than was originally imposed on the land when the highway was opened. Such was the view taken by Chancellor Green in the case of Hinchman v. Paterson H. R. R. Co., above cited, and he con- sequently held that the occupation of a street by a horse railroad was not such a taking of property as would entitle the owner to compensation. This view was mentioned with approval by Chief Justice Bea^ley, in State v. Laverack, 5 Vr. 201, and by Chan- cellor Zabriskie, in Jersey City and Bergen R. R. Co. v. Jersey City and Hohohen R. R. Co., 5 C. E. Gr. 61, 66, and was followed by the present chancellor, in Paterson and Passaic Horse R. R. Co. V. Paterson, 9 C. E. Gr. 158. I do not hesitate to adopt this view, sanctioned by such authori- ties and so reasonable in itself, and to conclude that, so far as the owner of land under a highway is concerned, the use of the high- way, by legislative sanction, by a horse railroad is not inconsistent with the public use to which the highway was originally devoted, and is not an additional burden imposed on the land, but only a variation or modification of the public right and easement origi- nally acquired. Consequently, such owner has no right to claim compensation for such occupation of the highway. While this view has been adopted by many courts, it has also been controverted by judges of repute, and the decisions are con- sequently very conflicting. No good purpose will be served by a critical examination of the cases in this opinion. It is sufficient to say that, when analyzed, the difference between the cases seems to arise from the different views entertained by the judges in respect to the practical question as to how far the use of the highway by the railroad is incompatible with the use to which the highway was originally devoted. And it may be remarked that when a conclu.sion, different from that to which I have ar- rived, has been reached, dissenting opinions have been expressed 276 COURT OF ERRORS AXD APPEALS. [33 Eq. Citizens Coach Co. v. Camden Horse Kailroad Co. l)y judges wliose opinions are entitled to respect. See 39 X. Y. JfOJf.. The cases may be found collected in 1 Redf. on Railways {6th ed.) 317 and notes. In the late case of Att'y- Gen. v. Metro- politan R. R. Co., 125 Mass. 515, the supreme court of Massa- chusetts reach a conclusion in accord with that to which we have arrived. The discussion, so far, may seem, perhaps, to be somewhat>^ beside the real question in this case. But its applicability will be recognized when it is understood that it is insisted that the conclusion to which we have arrived compels us to adopt a view of the case adverse to the claim of the appellee. It is insisted that if the property-owner be not entitled to compensation, on the ground that the burden on his land is not increased by the use of the highway by a horse railroad, but that such use is a mere modification of the public easement before taken, then it follows that the public right must continue and remain, as before, open to every person. It is claimed that a use of the highway ■which would exclude, in whole or in part, a portion of the public, is incompatible with such use as the highway w^as originally de- voted to, and therefore that it cannot be consistently held that any exclusive rights are vested in horse railroad companies. I am unable to see any force in this objection. When a high- way has been once taken for public use, the owner of the land retains his title to the same, subject to the public easement. That public easement vests in the public. How far it extends it is not necessary now to inquire. Whether it gives power for the laying of underground or the building of elevated railroads, need not be considered. It is sufficient to consider the easement as one of a right of passage over the same by the public. This right, however, the legislature may, it is well settled, control. It may control the road for the public use ; it may regulate the public use. Thus, it will be conceded, changes of the grade of highways may be made by the public authorities, and the lanil- owner is entitled to no compensation or redress, however injuri- ous or destructive such changes may be, unless under the pro- visions of such a statute as exists in this state. Rev. 1009. The public may, without further compensation, lay sewers in the 6 Stew.] XOVEMBER TERM, 1880. 277 Citizens Coach Co. v. Camden Horse Rarlroad Co. highway. Stoudlnger v. Newark, 1 Steio. Eq. Jf.If,6. Water-i)ipe3, it seems, may be laid within the highway as part of the original bnrden, at the legislative will. Jersey City v. Hudson, 2 Beas. ^£0. And in the well-considered case of Wright v. Carter, 3 Dutch. 76, the supreme court. Chief Justice Green delivering their opinion, held that the legislature might authorize a turnpike company to take a public highway and construct its turnpike thereon, without making compensation to the land-owner whose lands were thus appropriated. The act, which was the subject of consideration in that case, provided for the vacation of the public highway by surveyors of the highways, and it ajjpeared, in the case, that it was so vacated for the purposes of the turn- pike. It also appeared that the turnpike company were author- ized to charge tolls for all persons traveling thereon. But the court held that the public easement originally acquired over the land was not thereby discharged, and although transferred to a private corporation authorized to exact tolls from travelers and empowered to exclude all who did not pay toll to them, remained yet the same public easement, and was not an additional burden on the land for which compensation could be required. This decision it is unnecessary to vindicate or support in this court, because, although the case of Wright v. Carter was afterwards reversed (no opinion appearing in the reports), it is understood that the reversal was upon other grounds, and that the opinion of the court below, on the point in question, was approved. S Dutch. 685, note ; State v. Laverack, 5 Vr. 207 ; Freeholders v. Eed Bank Turnpike Co., 3 C. E. Gr. 93. But I think the deci- sion may well be vindicated upon plainest principles. The public easement requires for its beneficial use the making and mainte- nance of a roadway. The legislature, representing the public, may well determine whether this shall be done by the public, and at its expense, or by a priv^ate corpoi'ation. In the latter case it may give to such corporation a right to exact reasonable tolls, to remunerate it for its outlay and labor. The object is not the benefit of the private corporation. That is merely incidental. The real design is the public good in the use of the public high- way. If that can be best served, in the judgment of those rep- 278 COURT OF ERRORS AND APPEALS. [33 Eq. Citizens Coach Co. v. Camden Horse Railroad Co. resenting the public, by making a turnpike thereon, it may prop- erly be done. Manifestly, then, no additional burden is thereby imposed on the land-owner. See, also, Benedict v. Goit, 3 Barb. 459. I do not perceive, therefore, that the use of the highway by a horse railroad company, if held to be exclusive of its use to some extent by others, is thereby an additional burden on the land. Nor can I see any inconsistency in holding that the land-owner is not entitled to compensation, although the use is more or less exclusive. Such use is, in fact, but a modification of the original public use, established by the representatives of the public, to serve the public purpose in the transportation of passengers upon the highway. It is for the legislature to decide if this is a judicious and proper mode of use for the public good. If it is so considered, then the legislature may authorize it, and may limit and control other public uses of the highway for that pur- pose. So long as the use made is of the same kind as that to which the laud was originally devoted, the owner cannot com- plain of any modifications or limitations of it. Let us next inquire what rights a horse railroad company acquires by the legislation wdth respect to other persons making use of the highway in passing and repassing thereon. Are its rights merely those of passage back and forth upon the rails which it has been permitted to lay upon the public highway? Or has it the power of excluding others from the use of its rails, and if so, how far does that power extend? The grant in this case must be conceded to be of a franchise. It includes the right to lay down tracks, to run carriages thereon, to carry passengers, and to exact tolls. Such a grant must be construed as giving all the powers reasonably necessary to accom- plish the manifest object. M. & E. R. R. Co. v. Sussex R. R. Co., 5 C. E. Gr. 54^. That it contains no words of exclusion, is not of consequence, for the grant of a franchise, by its intrinsic force, is exclusive against all persons but the state. R. & D. Bay R. R. Co. V. D. & R. Can. Co., 3 C. E. Gr. 54.6, 572. As was well said by Chief Justice Shaw, in Commomcealth v. Temple, 14 Gray 76, " The accommodation of travelers, of all who have occasion to 6 Stew.] NOVEMBER TERM, 1880. 279 Citizens Coach Co. v. Camden Horse Railroad Co. use them, at certain rates of fare, is tlie Jeadiug object and public benefit for which these special modes of using the highway are granted, and not the profit of the proprietors." " The profit to the proprietors is a mere mode of compensating them for their outlay of capital in providing and keeping up this public easement." ^' Every such grant must, therefore, be held to carry with it all incidental rights which are necessary to its full use and beneficial enjoyment. When the grant has for its object the procurement of an easement for the public, the incidental powers must be so con- strued as most effectually to secure to the public the full enjoy- ment of such easement." Upon such grounds horse railroad companies have been held to have certain exclusive rights, because the exercise of such rights is plainly necessary to the existence and beneficial use of the railroad. Thus a horse car is held to be entitled to the exclusive use of its track, so that another vehicle in meeting it, is, contrary to the usual rule of the road, required to give way and entirely remove from its track. A similar rule is adopted when the horse car overtakes a vehicle proceeding in the same direction, or encounters a vehicle lawfully stopping in the street to deliver goods, &c. Commonwealth v. Temple, ubi sup. ; State v. Foley, 31 Iowa 527 ; Hegan v. Eighth Ave. R. R. Co., 15 N. Y. 380, and other cases cited in the chancellor's opinion. It has also been held that a horse railroad company may exclude from its tracks the cars of another horse railroad com- pany, though given authority to use such tracks by the legisla- ture, unless compensation is required to be made. J. C. & Bergen R. R. Co. v. J. C. & Hob. R. R. Co., 5 C. E. Gr. 66; 8. C, 6 G. Gr. 550; Brooklyn Cent. R. R. Co. v. Brooklyn City R. R. Co., 33 Barb. 358 ; Metrop. R. R. Co. v. Quincy R. R. Co., 12 Allen 262. Now the use of one railroad by the cars of another company may be objectionable, because it is probable, and almost certain, that such use would be incompatible with its full use and enjoyment by the company that laid it. But it is not difficult to conceive of cases where it would be quite possible to run cars on other railroads, at least for short distances, without interfering with the regular use of the road by the owners. And so in the cases 280 COURT OF ERRORS AND APPEALS. [33 Eq. Citizens Ck)ach Co. v. Camden Horse Railroad Co. last cited, the ground of the decision has been, not that there was an interference with the full use of the railroad, but that there was such an occupation of the property and franchise of the rail- road company as was manifestly a taking or appropriation of property for which compensation might be required, and must be provided. Such was the view taken by Chancellor Zabriskie in the case in 6 C. E. Gr. 66 ^ above cited. The iron rails of the railroad laid in the street, he held to be the property of the railroad company, not abandoned to the public or to every use by those passing over the street. Such use as was incidental and occasional was held to be justified by an implied permission arising from the mode in which the track was required to be laid. But such use was held not to include the use of the track for a competing traffic by the regular running, over the rails, of cars or carriages adapted to the track and operated by a rival company. When that case came into this court by appeal, no dissent was expressed from the views of the chancellor. The decision here virtually conceded their correctness, so far as the right of compensation was dependent on a franchise and property in the railroad. But this court held that compensation for the appropriation of the property had been substantially provided for in the legislative scheme. See 6 C. E. Gr. 557. Now if a railroad company have a property in their track laid on the highway, and in their franchise of operating it for tolls, which entitles them to compensation for the use of it by a rival car company, on what substantial ground can it be denied the same right when a like use is made of its track by coaches or omnibuses of competing companies? It is true that there may be a vast difference in the degree to which a railroad company would be interfered with, whether the interference proceeds from use by cars or by coaches capable of being turned off the track ; but, so far as the property and franchise are concerned, the inter- ference is identical in kind. The use in each case is equally an appropriation of property, which its owner may resist unless compensation be provided for him. It is urged, with great force, that there is an implied permis- sion to use the rails thus laid on a public highway, to every one 6 Stew.] NOVEMBER TERM, 1880. 281 Citizens Coach Co. v. Camden Horse Eailroad Co. lawfully passing over the public road in the prosecution of a lawful business, and who do not directly interfere with the pas- sage of the cars. It may be conceded that, by the legislative requirement that the rails should be laid and maintained on the level of the road and of the width of the ordinary wagon track, and by the company's acceptance of such terms in the grant, some permission to use the rails is implied. It is a permission not emanating from the company, nor is it revocable by it. It arises from the nature of the grant, and the conditions under which the track is allowed to be laid. So far as its use, by persons driving for pleasure, on journeys, or in ordinary traffic is concerned, such an implication may well arise. Such use is in no way inconsist- ent with the grant to the company, and is not destructive to its business. It does not affect the company's rights or franchise. It may wear its rails, but that is part of the compensation the company gives the public for its rights. But the implied per- mission now discussed must not be extended further than is con- sistent with the purpose and design of the grant to the company. That purpose was to serve the public by a use of the public highway for public travel, whereby a cheap, convenient and regu- larly-recurring mode of carriage should be provided for all pas- sengers. For that purpose all the powers of the company were given. Undoubtedly a correlative duty devolved on the com- pany to lay its track and to run its cars for the benefit of the public. Under such circumstances, the laying of the rails must be considered a permission to use them only so far as such use is consistent with the grant and its purpose. Clearly the railroad has not become part of the street. The sills, ties and rails are laid on the street, but they are not part of it. They constitute a part of the machinery for the transportation of passengers, and, although placed on the street, no more become part of it than the cars or carriages placed on the rails. Brooklyn Cent R. M. Co. v. Brooklyn City B. R. Co., ubi sup. Retaining thus its property, no permission to use it will be implied, if the use is inconsistent with the grant and its purpose. And there can be no question but that its use for a business competitive with that for which the company was created, is inconsistent with the grant, and tends to thwart its 282 COURT OF ERRORS AND APPEALS. [33 Eq. Citizens Coach Co. v. Camden Horse Railroad Co. purpose and to destroy the usefulness of the company to the public. Permission for a use inconsistent with the grant will not be implied. On the contrary, the implication is of an exclusion of such use. The conclusion then is, that the horse railroad company, the complainant below, acquired, by the grant contained in the char- ter, a franchise and property in its tracks when laid, which is exclusive of the use thereof by other persons or companies, in competition with it in the business of carrying passengers for hire. The cases cited in the opinion of the chancellor indicate an almost universal acquiescence in this conclusion, wherever this question has been raised. In addition to those cases, there may be cited the case of Buffalo B. R. Co. v. Leighion, in which, upon a state of facts identical with this case. Chief- Justice Shel- don, of the Supreme Court of Buffalo, at June term, 1880, restrained the defendant from using the tracks of the plaintiff's railroad in the business of carrying passengers in vehicles of any description. The whole subject is admirably summed up in a report to the legislature of Massachusetts, made in 1865, and to be found in 1 Red/, on Railways 328. Upon such a conclusion being arrived at, it is quite manifest that the decree below must be sustained. Such an interference with a franchise granted by the state, and exclusive in its char- acter, as is proved to have occurred in tliis case, may be restrained by injunction. R. & D. B. R. R. Co. v. D. & R. Can. Co., 3 a E. Gr. 54.6. It may be further remarked that any possible right which the coach company may have to the incidental use of the rails in the use of the street, has been preserved by the decree and injunc- tion. No appeal was taken on the part of the complainant below, and I have thought it unnecessary to consider the ques- tion presented by this limitation. Beasley, C. J. The object of the bill exhibited in this case is to prevent the use and obstruction of the complainant's horse railroad, in the 6 STE\y.] NOVEMBER TERM, 1880. 283 Citizens Coach Co. v. Camden Horse Railroad Co. city of Camden, by the Citizens Coach Company, the appellant in this court. I have had no difficulty in settling in my own mind what the rights, under ordinary circumstances, of the horse railroad com- pany are. The company was duly chartered by the legislature to build their road, and to run cars and other vehicles upon it, and to charge for the transportation of persons and property thereon, provided that such charge should not exceed a certain maximum sum. I regard this grant of power as giving to the corporation on which it was conferred the exclusive right to the use of this road as a railroad. No one, without its consent, can put cars or other vehicles upon such track, for the purpose of using it as a railroad. And further, as a necessary incident, this company acquired the right of w^ay when overtaking or meeting ordinary vehicles. On the other hand, I have no idea that, by thus having laid this track, such company acquired the exclusive right to use the space so occupied, or any part of such space. That space still remained part of the public street, open, in its entire area, to the use, in the ordinary way, of every citizen. Such citizens, under such conditions, could use, as a part of the street, either trans- versely or longitudinally, the rails so laid. I would refer only so far to the authorities as to say that, with almost entire unanimity, they maintain this right in the public as against such a chartered right as the one now in question. And it is also obvious that it is upon this foundation alone that the legislative claim, which has been several times sanctioned by the courts of this state, to appropriate the public streets to the use of these railroads, with- out making compensation to the land-owners whose title extends over tlie property so applied, can be justified. Nor does it seem to me that any class of persons is excluded from the enjoyment of this public right. A company or a corporation engaged in a business competition with that of this railroad company neither loses nor gains anything by such a relation. The entire street can be used in such a competition to the same extent, and in the same manner, as it is lawful to use it in the pursuit of any other business. 284 COURT OF ERRORS AND APPEALS. [33 Eq. Citizens Coach Co. v. Camden Horse Railroail Cn. Such being the relative rights of the public and of the rail- road company, the question arises in this case whether, in the matters here complained of, the rights of the latter have been infringed by the appellant. The respondent complains that the appellant has been using its railroad in the transportation of passengers. The latter avers that it has only been using the railroad in such business as a part of the public highway, as it had a right to do. It seems to me that the question is solved as soon as it is determined what is a use of the railroad and what a use of the highway. The peculiarity of the use of the rail- road consists in its continuity ; the vehicles remain upon the rails from one terminus to the other, thereby gaining the advantage of avoiding the impediments incident to the uneven surfaces of ordinary road-beds. But when the railroad is used as a part of the highway, there is no such continuity of use. It is true that on such occasions ordinary vehicles will be run, for various dis- tances, upon the rails ; but such use of them is accidental and intermittent. I think it results from these definitions that when, in the pursuit of any business, the wagons connected with it are run, by way of preference and to the largest extent practicable, on one of these railroads, such practice is a use of the railroad. Such use differs very slightly from that which the company makes of its own road. It is true that, in a wide sense, such use is a use of the public street ; but, in the same sense, so is that of the railroad company with its cars. Therefore it seems to me that where it is a part of the scheme of a business to use in its prosecution the railroad track in preference to the other parts of the highway, the carrying out of such plan is a use of the rail- road, and is a violation of the exclusive franchise which I have said is, in that respect, vested in the railroad company. And this, I think, is what has been done in the present case. The evidence has satisfied me that the use that has been made of the road of this respondent by the vehicles of the appellant has been the result, not of accident, but of design. It has been quite clearly proved that there has been an understanding, either express or tacit, between the managers of this coach company and their employees, that the road of the respondent was to be 6 Steay.] NOVEMBER TERM, 1880. 285 citizens Coach C!o. v. Camden Horse Railroad Co. converted into one of the efficient instruments of its busi- ness; and as was to be expected, such understanding has been put into effect, utterly regardless of the embarrassments which, by such action, were thrown upon the respondent. The road of the respondent has not only been used by this rival company to the greatest extent practicable, but has been used in such a man- ner as seriously to obstruct the convenient employment of it by its owner. Against the continuance of such conduct the respond- ent had a right to appeal to the law for protection. And it is on this same ground that it appears to me that the relief by injunction was admissible. These interferences with the rights of the respondent being the outcome of an organized plan, could not be sufficiently remedied except by the preventive power of a court of equity. Occasional interruptions and inva- sions of this franchise, not being parts of a general scheme, would not have justified such interposition, as such wrongs, being both public and private nuisances, could have been suf- ficiently repressed by actions at law or by indictments. Under such conditions, these latter methods of redress would have been the appropriate and sole remedies. But such repressions would not be adequate where the wrong-doing proceeds from a concerted plan of operations, because, as the remedy would be aimed at the effects, and not at the cause, the result would be the inefficiency, with respect to results, that in general attends a great multiplicity of suits. I have regarded these questions as of considerable importance, and have, on that account, preferred to express my own views on the subject ; and it is in consequence of such views that I shall vote to affirm the decree rendered in the court below. Decree unanimously affirmed. 286 COUET OF ERRORS AND APPEALS. [33 Eq. Emson v. Lawrence. Ephraim p. Emson, appellant, V. James N. Lawrence et al., respondents. On appeal from a decree of the chancellor, reported in Law- rence V. Emson, 4- Stew. Eq. 67. Mr. Barker Gummere, for appellant. Mr, Fred'k Kingman, for respondents. The opinion of the court was delivered by Beasley, C. J. These proceedings are highly irregular, but both parties have participated in such informalities. An arbitration and award have been decreed to be void, though no issue has been raised concerniug them in the pleadings ; and though one of the parties interested in such award is not before the court, and the award has been partly executed, this absent person, of course, cannot be affected by the decree ; and as the parties here present have chosen to try this question as between themselves, I have passed by all matters relating to pleadings and procedure. With respect to the merits I have had some doubts ; but as doubt is not a proper ground for a reversal to rest on, I shall vote to affirm the decree. Decree unanimously ajirmed. 6 Stew.] NOVEMBER TERM, 1880. 287 Pillsbury v. Kingon. Nehemiah O. PrLLSBURY, assignee, appellant, V. James Kingon and others, respondents. 1. An assignee, under an assignment for the benefit of the creditors of the assignor, pursuant to the act entitled "An act to secure to creditors an equal and just division of the estates of debtors who convey to assignees for the benefit of creditors" {Rev. 36), may file a bill to set aside a prior conveyance of lands made by the assignor for the purpose of defrauding his creditors, if the property so conveyed is required for the payment of the claims of creditors, and creditors who were intended to be hindered, delayed and defrauded by such conveyance have presented their claims to the assignee for allowance. 2. Assignees, under the assignment act, and executors and administrators of insolvent estates, are the representatives of creditors, and, as such, may, for the benefit of creditors, set aside conveyances by the assignor or the decedent, in fraud of creditors, to the extent that such property is needed for the payment of debts. 3. Garretson v. Brown, 2 Dutch. 4^5, approved ; Van Keuren v. McLaughlin, 6 a E. Or. 163, overruled. On appeal from a decree of the vice-chancellor, reported in Pillsbury v. Kingon, 4- Stew. Eq. 619. Mr. Frederick Adams, for appellant, cited — Englehart v. Blanjot, 2 Whart. 2JiO, 244- ', Buehler v. Gloninger, S Watts SS6 ; Thompson v. Dougherty, 12 Serg. & Rawle 44B ; Moore v. Bonnell, 2 Vr. 9^, 95 ; Vandoren v. Todd, 2 Gr. Ch. 397; Knight v. Packer, 1 Beas. 217 ; Scull v. Beeves, 2 Gr. Ch. 131; State, Clark, pros., v. Grcyoer, 8 Vr. 17 4, 176; Al- paugh V. Roherson, 12 C. E. Gr. 96 ; Stewart v. Kearney, 6 Watts 4S5 ; Pringle v. Pringle, 69 Pa. St. 281 ; In re Estate of Koch, 4 Rawle 268 ; Miller v. Mackenzie, 2 Stew. Eq. 295 ; State, New Jersey R. R. and Trans. Co., pros., v. Hancock, 6 Vr. 537 ; Hackettstown ads. Swackhamer, 8 Vr. 192 ; Garretson V. Brown, 2 Dutch, 1^25 ; Newkirk v. Morris, 1 Beas. 62, 65 ; 288 COURT OF ERRORS AND APPEALS. [33 Eq. Pillsbury v. Kingon. Wikon V. BrovM, 1 Beas. ^4-^ ; Matlack v. James, 3 Beas. 126 ; Van Keuren v. McLaughlin, 6 C. E. Gr. 163, 168 ; Bayard v. Hoffman, ^ Johns. Ch. J/^O ; Swift v. Thomj)Son, 9 Conn. 69 ; Sixth Ward Building Association v. Wilson, Jpl 3fd. 506; Nichols V. Kribs, 10 Wis. 76; Hays v. Doane, 3 Stock. 8 J,., 88; Melville v. Mount, 1 Harr. 363; Hunt v. Field, 1 Stock. 36; Curry v. Glass, 10 C. E. Gr. 108 ; Hasten v. Castner, 2 Stew. Eq. 636 ; Shurts v. Hoioell, 3 Stew. Eq. 4£0 ; Atwell v. Reese River Mining Co., L. R., (7 Eq.) 34,6; Philhower v. Todd, 3 Stock. 312, 315; Tucker v. Mordand, 10 Pet. 64; Eaton v. Eaton, 8 Vr. 108 ; Annin v. Annin, 9 C, E. Gr. 184; Craw- ford V. Bertholf, Sax. 4^0 ; Phillipshurg Bank v. Fulmei^, 2 Vr. 52 ; Campbell v. Nichols, 4 V^- ^^ > JDewees v. Manhattan Ins. Co., 6 Vr. 366. Mr. J. H. Ackerman, for respondent The opinion of the court was delivered by Depue, J. The complainant is the assignee of John C. Doremus and William L. Doremus. The bill charges that on the 14th of January, 1878, the' said John C. Doremus and William L. Dore- mus, who were partners, executed and delivered to the complain- NoTE. — The following additional cases hold that an assignee for the benefit of creditors may set aside fraudulent conveyances made by his assignor before the assignment — in some states, however, the power is statutory : Kilboume v. Fay, 29 Ohio St. 264; Hallowdl v. Baylies, 10 Ohio St. 537; Gibbs v. Thayer, 6 Gash. SO; Blake v. Sawin, 10 Allen 340 ; Freeland v. Freeland, 102 Mass. 415; Lynde v. McGregor, 13 Allen 172; Waters v. Dashidl, 1 Md. 455 ; Simp- son V. Warren, 55 Me. IS; Shipman v. ^ina Ins. Co., 29 Conn. 245 ; Shibley v. Long. 6 Band. 735 ; Cloiigh v. Thompson, 7 Gratt. 26; Staton v. Pittman, 11 Gratt. 99; Doyle v. Peckham, 9 E. J. 21; Southard v. Benner, 72 N. T. 4^4; McMahon v. Allen, 35 N. Y. 403; Monmre v. Hanson, 15 Pa. St. 3S5 ; Tarns V. Bullitt, 35 Pa. St. 308; 22 Alb. L. J. 60, 81. The following cases deny such right: Sere y.Pitol, 6 Q-aneh 332 ; Estabrook V. Messersmilh, 18 Wis. 572 ; Brmming v. Sart, 6 Barb. 91 ; Leach v. Kelsey, 7 Barb. 466; Maiders v. Culvers, l,Dnv. 164; Carr v. Gale, 3 Woodh. &. if. 68 ; Flower v. Comish, 25 Minn. 47S. 6 Stew.] NOVEMBER TERM, 1880. 289 Pillsbury v. Kingon. ant an assignment of all their partnership and individual prop- erty, for the purpose of securing to the creditors of the firm and the individual creditors of the assignors an equal distribution of the partnership and separate property of the assignors, in ac- cordance with the provisions of the act entitled "An act to secure to creditors an equal and just division of the estates of debtors who convey to assignees for the benefit of creditors," Eev. 36. It further charges that the firm property embraced in the inven- tory does not exceed in value the sum of $895.44, of which more than $700 are book accounts, a portion of which is probably un- collectible; that the individual estate of William L. Doremus is estimated at the sum of $654.10, and the individual estate of John C. Doremus at the sum of $1,200 ; that firm debts amount- ing to $4,345.51, and individual debts of William L. Doremus amounting to $204.33, had been presented to the complainant, and that the estate in the complainant's hands and mentioned in the inventory is insufficient to pay in full the debts of the firm presented to the complainant. The bill further charges that the said John C. Doremus, on the 16th of December, 1877, was seized of two tracts of land situate in the township of Montclair, valued at $7,000 above en- cumbrances, and that on that day he conveyed the said lands to his daughter, Jane A. Kingon, for a pretended consideration ; that at the time of the said conveyance the said firm was hope- Such assignee may set aside a mortgage or other conveyance void as to cred- itors, for want of registration or other defects. Rood v. Wdch, 28 Conn. 157 ; Hanes v. Tiffany, 25 Ohio St. 649 ; LelancHs Case, 10 Blatch. 503; Barker v. Smith, 12 Bank. Beg. 4^4 ; but see Williams v. Winaor, 12 R. I. 9 ; Lockwood v. S levin, 26 Ind. 124 ; Dorsey v. Smithson, 6 Harr. & Johns. 61 ; Van Heusen v. Radcliff, 17 N. Y. 580. In some states, the assignee may afl^m such fraudulent conveyance, and thereby estop creditors from impeaching it. Butler v. Sildreth, 5 Mete. 4^ ; Freeland v. Freeland, 102 Mass. 477; but see Leiman's (hse, 32 Md. 225 ; Dugan v. Vattier, 3 Black/. 245. If the creditors bring suit to impeach the assignor's deed, the assignee is a necessary party. Jamison v. Chesnut, 8 Md. 34; Swan v. Dent, 2 Md. Ch. 111. A receiver cannot recover dividends fraudulently declared and paid by an insolvent corporation. Buttenvorth v. O'Brien, 39 Barb. 192 ; see Lexington Ins. Co. V. Page, 17 B. Mon. 412. 19 290 COURT OF ERRORS AND APPEALS. [33 Eq. Pillsbury v. Kingon. lessly insolvent, being indebted in the sum of $12,000,, whereof the debts presented to the complainant were parcel ; that the said conveyance was contrived and intended in fraud of creditors, and that the grantee took the said conveyance with knowledge of the insolvency of the grantor, and of the fraudulent purpose with which the conveyance was made. The prayer in the bill is that the said fraudulent conveyance may be set aside, and that it may be decreed that the premises so fraudulently conveyed away were the property of the said John C. Doremus at the time of the execution of the said deed of as- signment, and became equitably vested in the complainant under the deed of assignment. To this bill a demurrer was filed. Concisely stated, the case is this : A conveyance of property by an insolvent debtor, in fraud of his creditors ; a subsequent assign- ment by the debtor for the benefit of creditors, pursuant to the as- signment act, under which creditors who were hindered, delayed and defrauded by the conveyance, have presented their claims for allowance, and the property in the hands of the assignee insuffi- cient to pay the claims of creditors in full, without resorting to the property previously conveyed away by the debtor. The question on the demurrer is whether, under such circumstances, the assignee has a standing in court to set aside the fraudulent conveyance, and reach the property conveyed away by the debtor The proceedings for the collection of claims against the estates of decedents are similar to those against the estates of voluntary assignors {Oifford v. Black, 22 Ind. 444), and hence it has been said that an assignment by a de- cedent void as to his creditors, leaves or vests the property assigned, as assets, in the hands of his executor or administrator {3 Wins, on Exrs. 1679; and cases are there cited from Mass., S. C, Tenn., N. H., N. Y., Mich., La., Mo., Vt., Pa., Tex., Me. and Conn.) ; but sucli right, in some of the states mentioned, is statutory, and in other states is denied. Dorsey v. Smithson, 6 Harr. & Johns. 61 ; Snodgrass v. Andrews, SO Miss. 4^2 ; McLaughlin v. McLaughlin, 26 Mo. 24^; Brown v. Finlcy, 18 Mo. 375; Merry v. Freemon, 44 Mo. 518; Col- traine v. Causey, 3 Ired. Eq. 246 ; Ordronaux v. Helie, 3 Sandf. Ch. 512 ; Ben- jamin V. Le Baron, 15 Ohio 517 ; Com. v. Bichardson, 8 B. Mon. 93 ; Crosby v. De Graffenreid, 19 Qa. 290; Beak v. Hall, 22 Ga. 431; Choteau v, Jrnes, 11 III. 300; Beebe v. Saulter, 87 III. 518; King v. Clarke, 2 HUl's Ch. 611; Winn V. Barnett, 31 3Iiss. 653 ; Sharp v. Caldwell, 7 Humph. 415 ; Lassiter v. Cole, 8 Humph. 621 ; Martin v. Martin, 1 Vt. 91 ; Peaslee v. Barney, 1 D. Chip. 331 ; Bank of U. S. v. Burke, 4 Black/. I4I; HUls v. Sherwood, 48 Col. 386; George 6 Steav.] NOVEjMBER TERM, 1880. 291 Pillsbury v. Kingon. in fraud of creditors, for the purpose of applyiug it iu satisfac- tion of the claims of creditors. No rule of law is better settled than that a conveyance in fraud of creditors is good as between the parties to it. The statute of 13 Eliz. G. 5, which makes void grants and conveyances con- trived in fraud, with intent to hinder, delay or defraud creditors, is in express terms limited to those persons whose actions, debts, damages or demands are or may be hindered or defeated by such covinous or fraudulent devices and practices. Rev. 44-'^ § 12. It is equally clear that such conveyances are also unassail- able by those who hold a derivative title from the fraudulent grantor, and, in virtue of their title, become simply representa- tives of his interests. An heir or devisee of the fraudulent grantor is exclusively the representative of the latter, and suc- ceeds only to his rights. In no sense can the heir or devisee be considered as representing those whose interests are intended to be defrauded ; and on the plain construction of the statute he is disabled from taking advantage of its provisions. The executor or administrator of a solvent estate stands in the same position. As such, he is also the representative of the fraudulent grantor, and has no power to recall a fraudulent grant of chattels for the benefit of the grantor's estate. The same disability will rest upon an assignee, who, in virtue of the instrument of transfer, becomes merely the representative of liis grantor, and succeeds only to the rights of the latter. The material question for present consideration is, whether those who hold by a title derived from the grantor, but who, in virtue of that title, become the representatives of the creditors of V. Williamson, 26 Mo. 190; Cobb v. Norwood, 11 Tex. 556; Hunt v. Btitter- worth, £1 Tex. 1S3 ; Hammett v. Harrison, 1 Phila. 349) ; even where the repre- sentative alleges that he is also a defrauded creditor {Moody v. Fry, 3 Humph. 567 ; CoUraine v. Causey, 3 Led. Eq. 246) ; see further Bate v. Graham, 11 N. Y. 237 ; Smith v. Pollard, 4 B. Mon. 66; Cooky v. Brovm, 30 Iowa 470; Badger V. Story, 16 N. H. 16S. But if the fraudulent grantee has been appointed executor or administrator^ equity may grant relief against him. Hampson v. Sumner, IS Ohio 444; Clayton v. Tucker, 20 Qa. 452 ; Doolitile v. Bridgeman, 1 Oreene (loioa) S65 ; Shears v. Rogers, S Bam. & Ad. 362. — Kep 292 COURT OF ERRORS AND APPEALS. [33 Eq. Pillsbury v. Kingon. the grautor, as a class — as, for iustauce, the executors or admin- istrators of an iusolveut estate, or an assignee for the benefit of the grantor's creditors — may not be allowed, in tlie interest of creditors, to have a standing in court, to avoid the fraudulent grants and conveyances of the debtor for the benefit of his creditors. The leading case on this subject is Hawes v. Leader, Cro. Jac. S70. In that case the defendant was the administrator of one Thomas Cookson. The plaintiff averred, in his declaration, that the said Cookson, for £20 paid by the plaintiff, granted all his goods mentioned in a schedule, and covenanted that he, his ad- ministrators &c., should safely keep and quietly deliver them to the plaintiff on demand, and bound himself in £40 for the per- formance of that covenant. Cookson died, and tlie plaintiff de- manded the goods of the defendant, who had become adminis- trator, and being refused, brought iiis action. The defendant j)leaded the statute of 13 Eliz. c. 5, and further said that the in- testate, at the time of the grant, was indebted to divers persons in several sums (naming both the persons and the sums), and that the deed of gift was made of fraud and covin betwixt Cook- son and the plaintiff to deceive his creditors named ; that Cook- son used and occupied all the goods during his life, and that ad- ministration, after his death, was committed to the defendant. The plaintiff demurred, and assigned as grounds of demurrer, (1) that it was not averred that the debts due were unpaid to the creditors named ; (2) that the plea did not show that the said debts were due by specialty, for an administrator was not liable to debts if they be not upon specialty ; (3) that the goods were liable to the creditors in the plaintiff's hands, as an executor de son tort, if the deed of gift be fraudulent; (4) that creditors might never sue for their debts, and then the defendant might thereby justify the detainer of the goods forever, and (5) that the defendant was not such a person as is enabled by the statute to plead that plea, for the statute makes the deed void as against creditors, but not against the party himself, his executor or ad- ministrator. On the argument of the demurrer it was adjudged for the plaintiff. 6 Stew.] NOVEMBER TERM, 1880. 293 Pillsbury v. Kingon. It will be perceived that, in the case cited, the action was at law, and the pleading being entirely wanting in the averments necessary to put the interests of creditors in the issue, the decision in principle went no further than holding that an administrator, as such, cannot take advantage of the statute where the rights of creditors do not appear to be involved. Certain it is that, by a long line of decisions, it has become settled law that a convey- ance of chattels made by a debtor in fraud of his creditors, is void, and the property conveyed is assets for the payment of debts. 3 Wms. on Exrs. 1679. At common law, creditors might con- sider the fraudulent donee as an executor de son tort, if he took the goods into his possession after the death of the donor. But it was not considered that the rights of creditors depended altogether on that mode of proceeding ; for it was adjudged in Bethel v. Stanhope, Cro. JEliz. 810, that if the gift of goods be in itself fraudulent, and the covin is expressly found by the jury, then it is utterly void against the creditors by the 13 Eliz. c. 5, and the intestate died possessed of them ; and when the donee took them it was a trespass against the administrator for which he hath his remedy, and they were always assets in his hands. Where A, being indebted to B, made C his executor, and died, and C, the executor, promised B, on good consideration, that if he could discover any goods, parcel of the testator's estate at the time of his death, he should have his debts satisfied thereout, and the question was whether a lease for years, conveyed to a stranger by the testator in his lifetime, fraudulently, should, in law, be parcel of his estate at the time of his death or not, it was, by the whole court, resolved to be parcel of the testator's estate at the time of his death, for the lease was void against creditors. Anon., 2 Roll. 173. Mr. Roberts, in his treatise on Fraudulent Conveyances, says : " Wherever a man makes a fraudulent gift of his goods and chattels, and dies indebted, the rule, upon the statute of EUz. c. 5, has always been to con- strue the gift as utterly void against all his creditors, and the debtor to have died in full possession with respect to their claims, so that the ejects are just as much assets in the hands of the personal representatives, as to creditors, as if no such attempt to alien them had been made." Boberta on Fratui. Con. 59S. 294 COURT OF ERRORS AND APPEALS. [33 Eq. Pillsburv f. Kinsron. In Shears v. Rogers, 3 B. & Ad. 362, the defendaut was the person to whom the lease had been assigned by the testator in his lifetime, in "fraud of his creditors, and who afterwards be- came his executor; but none of the judges mentioned the fact that the defendant might have been held liable as executor de son tort, except Pattison, J. ; and Lord Tenterden, C. J., puts his decision on the ground that " the authorities show that whenever a man makes a gift of goods which is fraudulent and void as against creditors, and dies, he is considered to have died in full possession, with respect to the claims of creditors, and the goods are assets in the hands of his executor." In Shears v. Rogers and Bethel v. Stanhope, the question arose under pleas of plene admlnistravit. The issue on these pleas admitted that the goods and chattels fraudulently con- veyed by the deceased were needed to pay debts. In this respect those cases are distinguishable from Hawes v. Leader. In Shears v. Rogers, the lease had been assigned by the testator to the defendant, in trust for the benefit of the testator during his life, and after his death for the benefit of one of the testator's daughters-in-law. The defendant, after probate of the will, and before he had notice of the plaintiff's debt, delivered the deed of assignment to the husband of the daughter-in-law. He did not deliver the key of the leasehold premises, but the premises were let by the husband to a tenant. In Bethel v. Stanhope, the testator made a gift of his goods to his daughter by covin, to defraud his creditors, and died. The defendaut intermeddled with the goods, and afterwards the daughter, by this gift, took possession of the goods, and after that the administration was committed to the defendant as executor. These cases affirm the power of the executor, acting in behalf of creditors, under some circumstances, to avoid conveyances by a testator in fraud of his creditors. In both cases the goods so conveyed away were held to be assets in the hands of the executor — a result which is not supposable if the executor had no power to retain or recover them, in avoidance of tlie conveyance of the testator, by setting up the fact that they were granted away by the testator in fraud of his creditors. 6 Stew.] NOVEMBER TERM, 1880. 295 Pillsbury v. Kingon. At common law, there could be no executor de son tort where there was a rightful executor or administrator, and it was only to give substantial effect to the statute of Elizabeth that a vol- untary donee of chattels was considered chargeable as an executor de son tort, if he took possession of them after the death of the donor. Roberts on Fraud. Con. 593. Such a representative of a deceased where there is a rightful executor or administrator, is utterly out of place in our system of administration upon an insolvent estate and the distribution of its assets among cred- itors. In such a condition of the estate of a decedent, the right- ful executor or administrator is generally the representative in fact of creditors, and of creditors only, and alone has the capacity to take the steps necessary under the statute to effectuate an equal distribution, among the creditors of an insolvent estate, of the assets which may be made available for the payment of debts. If creditors should sue the fraudulent donee, as executor de son tort, or should, by virtue of an execution on a judgment against the rightful executor or administrator, levy on the chattels so granted away, priorities would be obtained contrary to the policy of the statute for the distribution of the assets among the cred- itors. In Holland v. Cruft, 20 Pick. 321, 328, the right of the administrator of an insolvent estate to set aside a conveyance made by the intestate in fraud of creditors, was deduced from the fact that, in such a condition of the estate, the administra- tor is the trustee and representative of creditors, and, as such, may stand upon their rights, and assert claims which the intes- tate himself could not have asserted ; and that deduction was founded upon the proceedings for the settlement of insolvent estates, in which the executor or administrator is regarded, in the first instance, as the trustee and representative of the creditors, and only secondarily the trustee for heirs or personal represen- tatives. Though one who parts with his property for the purpose of defrauding creditors cannot recover it back, his per- sonal representatives may sue for it for the benefit of his creditors, if his estate be insufficient to pay his debts. Stewart v. Kearney, 6 Watts 4^3; Buehler v. Gloningo; 2 Id. 226; Bomlough v. Bouslough, 68 Pa. St. ^95, 4-99 ; Everett v. Bead, 296 COUET OF ERRORS AND APPEALS. [33 Eq. Pillsbury v. Kingon. 3 N. H. 55; Abbott v. Tenney, 18 Id. 109; Cross v. Brown, 51 Id. 4B6; Fletcher v. Holmes, 40 Me. 36^; McLean v. Weeks, 61 Id. ^77, 65 Id, 4,11; see, also, Andruss v. DooliUle, 11 Conn. £83; Babcock v. Booth, 2 Hill 181, 186; Flagler v. Blunt, 5 tStew. Eq. 618 ; and cases cited in Mr. Perkins's note to 3 Wms. on Exrs. 1782 ^1679']. In a court of law, in ordinary cases, by proof at the trial or by the production of a decree of the orphans court, and always in a court of equity, the condition of the estate may be ascer- tained, and, if need be, a classification arrived at of the creditors who are and who are not entitled to the benefit of the statute ; and on the settlement of the estate, the assets may be so mar- shaled and administered, by withholding from heirs, legatees and next of kin all advantages arising from the avoidance of the acts of the decedent, as to give effect to the policy of the statute, which denies to such representatives the power to avail them- selves of its provisions for setting aside the fraudulent gi'ants and conveyances of the deceased. The cases on this head in the courts of our sister states are not in harmony ; but I think, on principle and good policy, the executor or administrator may be considered as the representative of creditors for the purpose of bringing suits to recover property fraudulently conveyed away by the deceased, when such property appears to be required for the payment of his debts, and that such property, when recov- ered, will be treated as assets, in the hands of the executor or administrator, only for the purpose of paying debts. Where the property so illegally disposed of consists of lands on which debts become liens by statute, and which may be subjected to the payment of debts by a creditor filing a bill in behalf of himself and other creditors {Haston v. Castner, 4 Stew. Eq. 697), the executor or administrator, before he can put himself in position to give him a standing for the purpose of reaching such prop- erty, must obtain an order of the proper court for the sale of lauds for the payment of debts. Kingsbury v. Wild, 3 N. H. SO ; Drinkwater v. Brinkwaier, 4 Mass. 354- Cases more directly in point with the case in hand are those decided under the insolvent acts of 1 Geo. IV, c. 119, and 7 6 Stew.] NOVEMBER TERM, 1880. 297 Pillsbury v. Kingon. Geo. IV, c. 57. In Butcher v. Harrison, 4, B. & Ad. 129, the assignees of an insolvent under the insolvent act were held to be parties grieved, within the meaning of the statute 13 Ellz. c. 5, so as to enable them to recover of the insolvent and others, parties to a fraudulent conveyance, the penalty given by the statute; and in Doe, Grimsby v. Ball, 11 M. & W. 531, the assignee of an insolvent was adjudged capable of recovering lands which the insolvent had previously conveyed away in fraud of creditors. In both these cases, the assignee was regarded, for the purposes of the suits, as the representative of the creditors of the insolvents. In the case last cited, Parke, B., said : "I think that the assignee of an insolvent debtor represents the creditors for all purposes, and if any fraud exists in a transaction to which the insolvent was a party, that the assignee may take advantage of it. A deed which is void as against creditors is void also as against those who represent creditors." Aldersou, B., also declared that " if a deed be void as against creditors, the assignee who represents creditors may avoid it." In Norcutt v. Dodd, 1 Cr. & Ph. 100, a bill by an assignee in insolvency was sustained, the object of which was to set aside a voluntary alienation of property of the debtor, who, at the time of such alienation, was insolvent. In the later case of Holmes v. Penney, 3 K.& J. 90, the bill was filed by the plaintiff as a creditor and also as an assignee in insolvency, to impeach a settlement by a debtor in fraud of creditors; and in considering the question of parties. Vice- Chancellor Wood said : " I have no doubt of the right of the assignee in insolvency to sue in this case. In Doe, Grimsby v. Ball, Baron Parke and the present lord chancellor decided that an assignee in insolvency might properly represent all the cred- itors in proceedings to set aside an instrument which any of the creditors might have instituted." In the two cases first cited, the assignment was made under the act of 1 Geo. IV, c. 119 ; in the other two, under the act of 7 Geo. IV, 0. 67. In none of the cases was the decision placed on any language in the statute specially empowering the assignee to avoid the fraudulent conveyances of the assignor. In fact. 298 COURT OF ERRORS AND APPEALS. [33 Eq. Pillsbury v. Kingon. neither of those statutes contained any express provision for setting aside conveyances of the assignor in fraud of creditors, and that fact was unsuccessfully pressed upon the attention of the court by the counsel, who argued against the authority of the assignee to exercise that power. The capacity of the assignee to appear in court for that purpose was in express words, or infer- entially adjudged on the ground that the assignee of an insolvent was the representative of creditors, and, as such, was entitled to take, for their benefit, the same advantage of the statute of Elizabeth as the creditors might have taken. This view is con- spicuously apparent in the remarks of Baron Parke during the argument, and in his judgment in Doe, Grimsby v. Bell. A trustee or assignee in insolvency has been considered as the representative of the creditors of the debtor, and, as such, en- titled to avoid, in the interests of creditors, his grants and con- veyances made in fraud of creditors. Swift v. Thompson, 9 Conn. 63 ; Palmer v. Thayer, 28 Conn. 237 ; Shipman v. ^tna Ins. Co., 29 Id. 2Ji6; Moncure v. Harrison, 15 Pa. St. 385. In Bayard v. Hoffman, 4- Johns. Ch. JfBO, Chancellor Kent decided that an assignment of all the debtor's estate, real and personal, in trust for all his creditors, included stock which the debtor had before that voluntarily assigned, to the injury of his creditors, and that the assignee might file a bill to set aside the fraudulent transfer for the benefit of the creditors. That case has been considered as overruled by the courts of New York, in Storm V. Davenport, 1 Sandf. Ch. 135, and Brownell v. Curtis, 10 Paige 210 ; but its weight as the opinion of an eminent equity judge is not impaired by the overruling cases. Storm v. Daven- port was rested on 3Iackie v. Cairns, 5 Cow. 51i.7 — a case which bore upon the question very remotely, if at all ; and in Brownell v. Curtis, Chancellor Walworth founds his opinion chiefly on Osborne v. Moss, 7 Johns. 161, which was an action at law against an administrator, and in its circumstances identical with Haices v. Leader, already commented on. An assignment under the act of the legislature of this state differs in most important particulars from an assignment made by a debtor at common law for the benefit of his creditors. Its 6 Stew.] NOVEMBER TERM, 1880. 299 Pillsbury v, Kingon. title indicates the legislative purpose to establish a system for securing an equal and just division of the estates of debtors among their creditors, and that purpose is clearly evinced by the provisions of the act. At common law, a debtor might assign tiie whole or a portion of his property for the benefit of all or a part of his creditors. By our statute, an assignment under the act transfers all the property of the assignor, whether it be described in the inventory or not. In form, the deed of assign- ment is in the most general terms in its description of the prop- erty assigned, and the property of the assignor passes by the assignment, though it be not included in the inventory annexed to it, if it be comprehended within the general terms of the assignment ; and to be valid under the act, the assignment must be for the equal benefit of all the creditors of the assignor, and all preferences of one creditor over another are forbidden. At common law, an assignment by a debtor to his trustee to pay his debts might be rescinded by the mutual consent of the debtor and the trustee, where the creditors had not directed the assign- ment or assented to it or clianged their situation in consequence of it. Bill V. Oureton, 2 3Iyl. & K. 503 ; Garrard v. Lauder- dale, 3 Sim. 1 ; Colyear v. Mulgrave, 2 Keen 94-, note 1. A deed of assignment under the statute, executed, delivered and ac- cepted by the assignee, creates, ipso facto, a trust for the benefit of creditors, not to be surrendered or destroyed except by their consent, and a court of equity will execute it by appointing new trustees, if necessary. Scull v. Reeves, 2 Or. Ch. 84-, 131 ; Alpaugh v. Roherson, 12 C. E. Gr. 96. Under such an assign- ment, the trustee, at common law, was compelled to use the as- signor's name in suits to recover the property, or upon the choses in action assigned. By the statute, the assignee may bring suit in his own name. At common law the indebtedness of the assignor was discharged only to the extent of actual payment out of the proceeds of the property assigned, unless otherwise ex- pressly stipulated. By the statute, the assignor obtains a full release and discharge as to all creditors who come in under the assignment. The entire proceedings, under a statutory assign- ment, are regulated by the statute. The act requires the deed 300 COURT OF ERRORS AND APPEALS. [33 Eq. Pillsbury v. Kingon. of assignment to be recorded, and prescribes minutely the duties of the assignee. He is to exliibit to the surrogate of the proper county a true inventory and valuation of the estate assigned ; give security for the faithful performance of the trust ; give pub- lic notice of the assignment ; make report of the claims of credit- ors ; make sale and conveyance of property ; present his account to be audited and approved by the court ; and the court may, by citation and attachment, compel the assignee to proceed with the execution of his duties until a final settlement and distribu- tion shall be made. Creditors who come in under the assi^rn- ment and exhibit their demands for a dividend, are barred of their debts unless they can prove fi*aud on the fact of the debtor with respect to the assignment or in concealing his estate. A comparison of the statute with the English insolvent acts will disclose the similarity of these several acts in all respects material to this investigation. Under each system the assignee derives his title under an assignment which is the voluntary act of the debtor. In the one instance, he is induced to make the assignment by the expectation of relief from imprisonment ; in the other, by the hope of obtaining a full discharge from his debts. The legal effect of the language of the assignment is the same in both instances, except that the position of the debtor, in the one case, raises a presumption that he is at that time un- able to pay his debts in full, and that part must be made the subject of proof aliunde in the other, there is nothing in the situation of the assignor, or in the form of the assignment, that would make the assignee the representative of creditors in one instance and not in the other. In Iloore v. BonneU, 2 Vr. 90, 95, the chief-justice said : "It is difficult to perceive how an assignment, voluntarily made by a debtor for the benefit of his creditor, difl'ers in substance from one executed nnder the compulsion of an insolvent or bankrupt law. * * * There is to my mind scarcely a shade of difference between the coercion of circumstames impelling a failing debtor to wind up his affairs, and that liquidation brought about by a creditor taking the initiative and proceeding against him." Regarding the substantial nature of tlie transaction, the doctrine 6 Stew.] XOVEMBER TERM, 1880. 301 Pillsburv v. Kingou. of the English courts, with respect to the representative character of the assignee of an insolvent, may very properly be applied in favor of an assignee under the assignment act, and the latter be regarded as representing creditors so far as to enable him to take proceedings in their behalf, to set aside conveyances in fraud of creditors, where such property is needed for the payment of debts. Much of the argument against the power of the assignee to prosecute suits in that behalf for that purpose, was based on the thirteenth and twenty-first sections of the act. I am not disposed to give as much effect to these sections as was given to them in the court below. The thirteenth section gives the assignee the same power to dispose of the estate, real and personal, assigned, as the debtor had at the time of the assignment, with power to settle and compound with any person concerning the same, to redeem mortgages and conditional contracts, and generally to do whatsoever the debtor might lawfully do in the premises. It further authorizes the assignee to sue for and recover in his own name everything belonging or appertaining to the said estate, real and personal, of the said debtor — language which, in view of the purposes of the act, may legitimately be construed to em- brace all property which may be made available for the payment of debts. Considering that the assignment creates a trust for the benefit of all the creditors of the assignor, and that the legislative purpose was to secure an equal and just division of the estate of the debtor among his creditors, a construction less comprehensive will defeat the legislative purpose. In virtue of the trust so created the assignee becomes the representative of and actor for creditors, and bis powers should be so construed as to enable him to carry into full effect the purpose which the statute designed. In the English insolvent acts, under whicii assignees are allowed to avoid the fraudulent grants and conveyances of the debtor, the power of the assignee to sue in his own name is granted " for the recovery, obtaining and enforcing any estate, effects or rights of such prisoner " — language, in legal effect, identical with that con- tained in the thirteenth section of our assignment act. In Gar- retson v. Brown, 2 Dutch. Ifio, Justice Potts construed this section as enabling the assignee to sue for property fraudulently 302 COURT OF ERRORS AND APPEALS. [33 Eq. Pillsbury v. Kingon. conveyed away by the debtor, and to recover it for the use of the creditors who should present their claims. The twenty-first section creates a bar of subsequent suits as against creditors who have come in under the assignment, liable to be removed only by proof of fraud in the debtor "with respect to the said assignment, or in (concealing his estate, real or personal, whether in possession, held in trust, or otherwise." This language manifestly has reference to the conduct of the debtor in connection with his assignment, and has no relevancy to prior conveyances in fraud of creditors, unless such property might be made available to creditors under the assignment ; for it is not to be supposed that the legislature would visit on the debtor the penalty of a forfeiture of his discharge for not dis- closing to his assignee property which the assignee had no capacity to take under the assignment. The paragraph in this section which saves the rights of creditors who do not choose to exhibit their claims, as to the property, real or personal, not assigned, carries with it an implication that there might be prop- erty which would not pass under the assignment ; but I do not think that this expression should be allowed to overcome the unmistakable evidence on the face of the statute, that the assign- ment should embrace all the property of the debtor, and that creditors should be placed on the footing of perfect equality in the division of the debtor's property, or that it was intended to give creditors who stayed out an advantage over those who came in under the assignment. Nor will any embarrassment be experienced in the fact that the property which has fraudulently been conveyed away may be in excess of what is required for the payment of debts. As is indicated in the opinion of this court in Miller v. 3Iachenzie, 2 Stew. Eq. S91, such fraudulent conveyances will be set aside no further than is necessary for the satisfaction of the demands of creditors, and the surplus, if there be any, will not be restored to the fraudulent debtor, but will be returned to the grantee to whom the fraudulent conveyance was made. Tn Garrdson v. Brown, Justice Potts, in delivering the opinion of the court, held that the assignee might sue for and 6 Stew.] NOVEMBER TERM, 1880. 303 Conover v. Ruckman. recover for the use of creditors, property which the debtor had fraudulently conveyed away. These views were not expressed upon the precise point in issue in the case. But the case turned entirely on the eifect of the prior fraudulent conveyances of the debtor upon the validity of the assignment, and it is highly probable that the powers of assignees over such fraudulent con- veyances entered into the discussions of the able counsel who appeared in the case, and received a careful consideration by the court. The decision of the supreme court was affirmed in this court ; but the opinion here, if any was delivered, is not reported. 3 Dutch. 644-. In Van Keuren v. McLaughlin, 6 C. E. Gr. 163, Chancellor Zabriskie adopted a different view, and without referring to Garretson v. Browii, held that the assignee could not maintain a suit to avoid a fraudulent conveyance of the assignor ; that a deed, though void as against creditors, was valid as against the assignee. We think, that the views of Mr. Jus- tice Potts with respect to the rights of an assignee under the act were correct, and that Van Keuren v. McLaughlin should be overruled. Decree unanimously reversed. "William W. Conover V. Maegaeet Ruckman. 1. If the equity judge has allowed an interlocutory injunction, which after- wards clearly appears to him to have been improperly allowed, he may, of his own motion, set it aside at any time without any notice having been given of an application to dissolve. The statute, requiring eight days' previous notice of a motion to dissolve an injunction, has reference to applications to dissolve made by a party. But, on appeal from an order of dissolution, made under such circumstances, the appellate court will consider only the reasons assigned in the court below, for its judicial action. 2. Moneys in the hands of a sheriff, raised by him in pursuance of a decree of the court of chancery, are liable to seizure, by virtue of a writ of attachment. 304 COURT OF ERRORS AND APPEALS. [33 Eq. Conover v. Kuckman. 3. Crane v. Freese, 1 Harr. 305, and Davis v. Mahany, 9 Vr. IO4, approved ; Shinn V. Zimmerman, S Zah. 150, and HiU v. Beach, 1 Beas. SI, explained. On appeal from a decree of the vice-chancellor, reported in Conover v. Ruckman, 6 Stew. Eq. 685. Mr. Chilion Mobbins, for appellant. The appeal in this case raises two questions : 1. Whether money due on a decree of the court of chancery, or about to be paid to, or paid to a sheriff on an execution in his hands to raise money, issued out of the court of chancery, is the subject matter of attachment, and can be attached as a right and credit of the defendant in attachment. 2. Whether an injunction can be dissolved without notice, and upon motion to dismiss the Ijill for want of equity. Upon the first question : It is abundantly established that an attaching creditor has such a lien as will enable him to set aside fraudulent conveyances or judgments affecting the property attached. Hunt v. Field, 1 Stock. Jf.6 ; Williams v. 3Iichenor, Id. 520 ; Oakly v. Pound, 1 McCart. 180; Robert v. Hodges, 1 C. E. Gr. S99 ; Curry v. Glass, 10 C. E. Gr. 108; Rev. ^ %% 1 3 ; p. U §§ 16 y 17 ; Shinn v. Zimmerman, 3 Zab. 150; Crane v. Freese, 1 Harr. 4-05 ; Davis v. Mahany, 9 Vr. lOIf.; HiE v. Beach, 1 Beas. J1.7 ; Turner v. Fendall, 1 Cranch 116 ; Armistead v. Phil- pot, 1 Doug. 231; Maxwell v. McGee, 1 Cush. 137. Upon the second question : The rule is plain, that " notices of motions to dissolve injunc- tions shall be served eight days." Rule IJfi. And so is the statute, "that neither a motion to dissolve an injunction, nor any other special motion, shall be heard unless eight days' notice exclusive of Sunday, and the day of service shall have been given, &c." Rev. 120 § 86. No notice was given of a motion to dissolve the injunction in this case. Without such notice and motion, the action of the vice-chancellor was not warranted. Manhattan Manfg. and Fer- 6 Stew.] NOVEMBER TERM, 1880. 305 Conover v. Euckman. iilizing Co. v. Van Keurin, 8 C. E. Gh\ S51 ; 3 Dan. Ch. Pr. 1786. "No motion to dissolve an injunction before answer shall be entertained, except on the ground of want of equity in the bill." Rule 1S2. Mr. Jacob Weart, for respondent. The money due on this decree and execution in favor of the respondent, cannot be attached as the property of Elisha Ruck- man, who was not a party to the suit either as complainant or defendant in the court of chancery, which court ordered the money to be raised for the respondent. Conner v. Weber, 12 Hun 580; Thurber v. Blanch, 50 N. Y. 80. Money due on a decree of the court, is not a subject matter of attachment, and an attachment served upon money due on a decree and raised by execution is void. Black v. Black, 5 Stew. Eq. 75 ; Shinn v. Zimmerman, 3 Zab. 150 ; Maxwell v. Mc Gee, 12 Cush. 137 ; Hill v. Beach, 1 Beas. J^7 ; Crane v. Freese, 1 Harr. 305 ; Davis v. Mahany, 9 Vr. 104- ; Turner v. Fen- dall, 1 Cranch 116 ; Ross v. Clark, 1 Dall. 354- ; Thompson v. Brown, 17 Pick 462; Drake on Attachments §§ 251, 505, 506; Sir John Parrott's Case, Cro. Eliz. 63 ; Kerr v. Bower, Cro. Eliz. 186 ; Voorhees v. Sessions, 34 Mich. 99 ; Lightner v. Sieina- gle, 33 III. 515 ; Reddick v. Smith, 3 Scam. 4^1 ; Wilder v. Bailey, 3 Mass. 289; Dawsm v. Holcomb, 1 Ohio 275; Morin v. Haw- ley, 9 Mo. 382. The general rule is, that a creditor at large has no standing in a court of equity by a creditor's bill until he has a lien at law by judgment, and has issued an execution and had it returned unsatisfied. This principle is so general that no citation of authority is required to support it. In this state there is a class of cases holding that a creditor by attachment may acquire such a lien by attachment as to sup- port a creditor's bill. Hunt v. Field, 1 Stock. 36; Williams v. Michenor, 3 Stock. 520 ; Robert v. Hodges, 1 C. E. Gr. 299; Miller V. Jamison, 9 C. E. Gr. 4^, H C. E. Gr. 404; Carry 20 306 COURT OF ERRORS AND APPEALS. [33 Eq. Conover v. Euckman. V. Glass, 10 C. E. G-r. 108; Thurber v. Blanch et al, 50 N. Y. 80 ; Mechanics and Traders Bank of Jersey City v. Dakin, 61 N. Y. 519. The injunction should also have been dissolved for want of equity in the bill. Austin v. Brovm, 1 Harr. £68. The opinion of the court was delivered by Depue, J. Margaret Ruckman obtained a decree in a foreclosure suit, wherein she was complainant, and John Dorn and his wife were defendants. Her bill was filed to foreclose a mortgage, made to her by Dorn and wife. Upon the decree, execution was issued, directed to the sheriff of the county of Monmouth. The sheriff had advertised, and was about to sell the mortgaged premises, to raise the money due on the decree. Conover sued out of the court of common pleas of the county of Monmouth a writ of attach- ment against Elisha Ruckman, as a non-resident debtor. The writ was directed to the coroners of the county, and was served on the sheriff with a view of attaching the money due upon the decree as the property of Elisha Ruckman. In this condition of affairs, Conover filed a creditor's bill against Elisha Ruckman, Margaret Ruckman, and the sheriff, charging that the money for which the said mortgage was given, was the money of Elisha Ruckman, and that the mortgage was taken in the name of Margaret Ruckman for the purpose of cov- ering up and concealing the property of Elisha Ruckman, with the intent to defraud his creditors. On filing this bill, duly verified, an injuction was granted, enjoining the sheriff from pay- ing any money raised, or which might be raised, on the said execution, to the said Margaret Ruckman, or any other person, except to pay it into the court of chancery. A motion was made to dismiss the bill, on notice, and without any answer being filed^ for want of equity in the bill. The motion to dismiss was denied, but the vice-chancellor, of his own motion, dissolved the injuuo- tioD. 6 Stew.] NOVEMBER TERM, 1880. 307 Conover v. Kuckman. The appellant assigned, as one reason for reversal, that the order dissolving the injunction was irregular, in that it was made without the eight days' notice of a motion to dissolve, prescribed by the eighty-sixth section of the chancery act. Bev. 120. This reason cannot prevail. If tiie equity judge has allowed an inter- locutory injunction which afterwards clearly appears to him to have been improperly allowed, he may, of his own motion, recall it at any time. Inasmuch as it was in his discretion, in the first instance, to refuse the injunction, he may, in his discretion, set aside the allowance of it if he is satisfied that it should not have been allowed. The section referred to has reference to appli- cations to dissolve made by a party. But on appeal from an order of dissolution, made under such circumstances, the appel- late court will consider only the reasons assigned .in the court below for its judicial action. The vice-chancellor vacated the injunction in this instance, on the ground that moneys in the hands of a sheriff, raised by him in pursuance of a decree of the court of chancery, are not liable to seizure by process of attachment, and that the plaintiff in the attachment suit, by the service of the writ on the officer, acquired no rights in or Hen upon the moneys, and consequently had no case which would give him a standing entitling him to the assistance of the court. In Crane v. Freese, 1 Harr. 305, the effect of the service of a writ of attachment on moneys in the hands of an officer, which he had raised by process of execution, was adjudicated upon by the supreme court. Freese was the sheriff of the county of Warren, to whom an execution had been issued out of the court of common pleas in favor of Aymar, against one Swayze. Crane sued out of the supreme court a writ of attachment against Aymar as a non-resident debtor. The writ of attachment was delivered to Freese as sheriff, and was returned by hira with a certificate that he had, by virtue of that process, attached all the goods* and chattels, rights and credits, of the defendant in attach- ment, viz., money in his own hands, collected by him as sheriff on an execution in favor of the defendant in attachment, against Swayze. The case was submitted to the supreme court, on a 308 COURT OF ERRORS AND APPEALS. [33 Eq. Conover v, Kuckman. state of the case agreed on, for its opinion thereon. The court held that the money in the sheriff's hands could not be attached as the money of the plaintiff in the execution, for the reason that it could not become his money until it was paid over to him, or in some other way designated as his, or appropriated exclusively to his use. But the court also adjudged that the writ of attach- ment was well served on the moneys due the plaintiff in the execution and in the sheriff's hands, as rights and credits of the defendant in attachment in tlie hands of the sheriff; and the duty of the officer, in that event, was pointed out. He was to obey the command of the writ of execution under which he raised the money — bring the money into the court out of which the execution issued, and gire notice to the plaintiff in the attachment, or to the creditors, that he had done so; and the court would then control the application of the funds, and pro- tect its officer in the discharge of his duty. It will be perceived that in the case referred to, the processes were out of different courts — the writ of execution being issued out of the court of common pleas, and the writ of attachment out of the supreme court. The court was of opinion that moneys in the sheriff's hands, collected by him by execution, were rights and credits of the plaintiff in the execution within the meaning of the attachment act, and were subject to seizure as suph by virtue of a writ of attachment against the plaintiff in the execution. Money received by an officer under process of execution may be collected of him by action at the suit of the plaintiff in execution [Sewell on Shffs. 4^6 ; Dale v. Birch, 3 Camp. 34-7), and come within the legal definition of rights and credits as much as debts due from private individuals. The court expressly held that such moneys were liable to seizure by virtue of a writ of attachment against the plaintiff in the execu- tion, as rights and credits belonging to him, and that the court would give effect to the service of the writ of attachment on the officer with respect to such moneys in such a manner as not to involve a disobedience by him of the command of the writ under which the money was raised. The writ of scire facias issued against the sheriff as garnishee was dismissed, for the G Stew.] IsOVEMBER TERM, 1880. 309 Conover v. Ruckman. reason that it would lead to embarrassment and confusion to permit one process of the court to intercept moneys raised on another while in the hands of the officer; but it was ordered that the sheriiF should bring the moneys into court, to be paid over to the creditors in attachment, if no claim to them para- mount to the title of the plaintiff in the execution should be interposed. Orane v. Freese has never been overruled, or doubted, or called in question, in any adjudication in the courts of this state. It has been cited without any expression of dissent from its con- clusions, and was directly approved and followed in the recent case of Davis v. Mahany, 9 Vr. lOI),. The mode of procedure adopted in Crane v. Freese has gener- ally been regarded as the settled practice in this state, and haa been quite uniformly followed in similar cases. The vice-chan- cellor, conceiving that the decisions of the supreme court on this question were conflicting, felt bound, in making the order appealed from, by what he considered to be the course of decision in the court of chancery. An examination of the decisions of the courts of this state on this subject will not disclose any disagreement with Orane v. Freese in this particular. In Shinn v. Zimmerman, 3 Zah. 160, the attachment was is- sued against the plaintiff in a judgment recovered in the courts of Pennsylvania, and was served on the defendant in that judg- ment. The question for decision was stated by Chief-Justice Green to be "whether a judgment recovered in another state can be attached under the law of this state for the relief of creditors against absent or absconding debtors," The jurisdiction within which the judgment was recovered, and the person on whom the writ of attachment was served, distinguish this case from Orane V. Freese. The situation of the parties was such that the course of procedure adopted in that case could not be followed. The defendant in the attachment had recovered his judgment in an- other jurisdiction, and, as the chief-justice said, there is "no rule of law, no consideration of policy or courtesy, which would or ought to induce any court of Pennsylvania to suspend its process 310 COURT OF ERRORS AXD APPEALS. [33 Eq. Conover v. Riickman. and to withhold from one of its own citizens the recovery of a debt adjudged to be due, because after the recovery of the judg- ment, the debt has been attached under the process of this state." He further remarked that " it was obvious, moreover, that, if executions may thus be arrested, it would, with respect to judgments in this state, as well as elsewhere, present a ready mode of embarrassing the administration of justice and delaying the process of the courts." The views expressed by Chief- Justice Green in Shinn v. Zim- vierman are not inconsistent with those expressed by Chief- Justice Hornblower in Oram v. Freese. They are, in effect, the same as induced the court in the latter case to deny the power of the attaching creditor to have the attachment levied on moneys in the officer's hands, to be recovered of him by proceedings on scire facias — the embarrassment and confusion which would arise from permitting one process of the court to intercept moneys raised on another while in the hands of an officer — a difficulty which was obviated by the mode of procedure at that time adopted. In Black V. Black, 5 Stew. Eq. 74-, the writ of attachment was served on the defendant in a chancery suit, against whom there was a money decree in favor of the defendant in the attachment suit. Service of the writ in that manner directly interfered with the power of the court of chancery to carry into effect one of its own decrees, and the service was declared inefficacious. In Hill v. Beach, 1 Beas. 31, lands held in trust for a firm were sold under a mortgage, and the attachment was served upon the surplus money remaining in the hands of the sheriff after he had paid over to the complainant in the decree the amount due him, and which the sheriff was ordered by his writ to bring into court. The chancellor held that this money might be attached, and pro- tected the Hen which was thus acquired. In his opinion, the chancellor observes that the case in hand was unlike a case in which money was paid into court under a decree or judgment, and by that decree decided to belong to a particular individual ; but that observation was made with a view to distinguish thatcase from Shinn v. Zimmerman. The question whether money adjudged to be due to the defendant in the attachment, by a judgment or 6 Stew.] NOVEMBER TERM, 1880. 311 Conover v, Euckman, decree, was liable to seizure under an attachment against him, was not before the court. The practice established in Crane v. Freese has been followed too long to be disturbed. It is a practice which is in furtherance of the policy of the attachment act, which the legislature has de- clared "shall be construed in all courts of judicature in the most liberal manner for the detection of fraud, the advancement of justice, and the benefit of creditors " (-Reu. 55 § 75), and effectually guards against embarrassments arising from conflict- ing or opposing jurisdictions. The opinion of Mr. Justice Scud- der on this topic in Davis v. Mahany is so full and exhaustive that it is only necessary to refer to it, and to express our concur- rence in his reasoning, and in the conclusion he arrived at. We think this practice should be applied to the service of writs of attachment on moneys raised under decrees in chancery, and in the hands of officers by virtue of executions issued thereon. Between a decree in chancery and a judgment of a court of law there is no material difference in the nature of the adjudication. In each a court has adjudged that the money found to be due is due and payable to the successful party. Nor do the executions thereon differ in any important particular. By the execution on a decree, the sheriff is commanded to make the money by the sale of the mortgaged premises, or in some manner otherwise desig- nated, and pay it over to the complainant or his solicitor ; the execution on a judgment at law commands the sheriff to make the money recovered by the sale of the property of the defend- ant, and to have it in court on the return day to render to the plaintiff. Service of a writ of attachment on the sheriff having the money in hand will have no greater tendency to create em- barrassments, or interfere with the proceedings of the court in one case than in the other. Under the course of practice pursued in Crane v. Freese, the money will be paid into the court by virtue of whose process it was raised, to be withdrawn only by the order or decree of that court. The injunction order in this case, in effect, merely required the money to be paid into the court of chancery, to be disposed of as that court might direct. The only difference in the situation of affairs in Crane v. Freese 312 COURT OF ERRORS AND APPEALS. [33 Eq. Conover v. Ruckman. and in the present case is, that in the former case the attachment was issued against the plaintiff in the execution, and in this case it issued against a third person. The fact that the title to the property attached is nominally in a third person is no obstacle in the way of proceeding against it by a writ of attachment against it as the property of the real owner. Considering the nature of the bill filed by the complainant, the object of his suit, and that the entire proceedings are in a court of equity, we think that no difficulties or embarrassments can, under such circum- stances, arise out of conflicting jurisdictions. The bill charges that the moneys represented by the decree were the moneys of the defendant in attachment, covertly put by him in the name of the complainant in fraud of his creditors, in contravention of the statute concerning fraudulent conveyances — a statute which Lord Mansfield said " cannot receive too liberal a construction, or be too much extended in suppression of fraud." Cadogan v. Kennet, Cowp. 4^S, Jf39. The bill further charges that the mortgagee instituted the foreclosure suit, and conducted it to a final decree to carry that purpose into effect. It prays that that fraudulent scheme may be arrested, and the money so ille- gally attempted to be diverted from the payment of honest debts be appropriated to the satisfaction of the claims of the creditors. The case made by the bill, if sustained by evidence, is one that specially commends itself to the consideration of a court of equity for the relief asked, if it can be granted consistently with the rules and practice of the court. As a creditor at large, the complainant could have no standing in court to enable him to present his case ; but we think he might acquire that position by a writ of attachment against the fraudulent debtor, properly served, and the service of such a writ may be made on a sheriff to whom the execution on a chancery decree was directed and delivered. In considering this case, we have not overlooked the fact that the moneys directed to be raised by the execution were not ac- tually in the hands of the sheriff when the writ of attachment was served, or when the complainant's bill was filed. The bill charges that the execution was issued and delivered to the sheriff, and that the sheriff was about to set up and sell the 6 Stew.] NOVEMBER TERM, 1880. 313 Tillotson V. Gesner. mortgaged premises by virtue thereof. The question whether the service of the attachment was not premature is one not with- out difficulty. It was suggested, on the argument before this court, by one of the members of the court, but was not raised or discussed by counsel. The fact was mentioned by the vice-chan- cellor in his opinion, but the case was not decided by him on that ground, and counsel were not heard on that subject in the court below. For the reason already given, we have not exam- ined or considered that question. As the case stands, we think the order appealed from should be reversed, but without costs. Decree unanimously reversed. Daniel Tillotson, appellant, V. Mary Ann Gesner, respondent. 1. Where there is a conveyance of land, voluntary on its face, made by a de- fiMidant in a suit just before a judgment for a large sum is rendered against him, which would be a Hen on the land if such conveyance had not been made, and the evidence fails to show, by strong proof, that it was made in good faith and for a valuable consideration, the specific performance of an agreement with the vendee for the purchase of the land will not be enforced, 2. If the title to land be doubtful, equity will not compel the defendant, in a bill for specific performance, to expose himself to the hazard of litigation. 3. The bill may be dismissed at the hearing, without reference, if, on the pleadings and proofs, the court can then decide the question. On appeal from the following opinion of the chancellor : This is a bill for specific performance. By agreement in writing, made August 31st, 1876, the complainant and the de- fendant, Daniel Tillotson, sen., agreed to exchange land. By it the former agreed to convey to the latter land in Rockland county. New York, described in the agreement as follows : "All the pieces or parcels of land and premises, at Tappan, described in 314 COURT OF ERRORS AND APPEALS. [33 Eq. Tillotson V. Gesner. the deed of Isaac H. Bartow and wife, of April 5tli, 1871, and now the property of said Gesner," for the sum of $6,000, subject to a mortgage of $4,000, and the defendant, Daniel Tillotson, sen., agreed to convey to the complainant land in Englewood, in Bergen county, in this state, described in the agreement as follows: "Those certain lots and premises described in two deeds; the one of Cornelius H. Bauta and wife to the said Tillotson, dated May 1st, 1869, and the other dated March 23d, 1867, given to Henry Frank and Daniel Frank, and now owned by the said Tillotson." In the agreement, the valuation of $10,000 was put on the complainant's land, and the valuation of $8,250 on Tillot- son's pro])erty. It was agreed that on the exchanging of the deeds of conveyance, which was to take place on or before the 1st of October then next, Tillotson should pay (lend) to the com- plainant $500 in cash, and that the complainant should give to him a mortgage on the land to be conveyed by him to her for $2,750, being the amount of the difference ($2,250) in the valua- tions of the properties, and $500 to be lent. They further agreed that in case of the failure of either of them in any one or all of the specifications contained in the agreement, the party failing should forfeit and pay to the other $500 and brokerage commis- sions as agreed upon between them. In pursuance of the agree- ment, the parties respectively took possession of the property to be conveyed to him or her. Tillotson took possession of the Tappan property, moving in with his furniture on or about Sep- tember 20th, 1876, and the complainant, by Tillotson's permis- sion, took possession of the Englewood property two days after- ward. She built a small barn upon it, and otherwise improved it by digging a well, constructing drains &c. &c. Tillotson's sou Daniel continued in actual possession of one of the houses on the latter property, but only as tenant of the complainant, under an agreement by which he was to remain until the following spring, at a stipulated rent. On the 2d of October, 1876 (the 1st was Sunday), the complainant, by her agent and her counsel, ten- dered herself ready to deliver to Tillotson a deed for the prop- erty to be conveyed to him, and a mortgage for the $2,750, with a receipt from the mortgagee in the $4,000 mortgage for all in- 6 Stew.] NOVEMBER TERM, 1880. 315 Tillotson V. Gesner. terest thereon to that time. Tillotson's attorney saying that he was not then prepared to close the matter, asked for an extension of time till the 12th of that month, which was granted, and a memorandum to that effect endorsed on the agreement and signed by him and the complainant's agent. On the 12th, the repi'e- sentatives of the parties met at the place agreed upon, and the before-mentioned deed and mortgage and receipt were de- livered to Tillotson's attorney, who, according to the testimony of the complainant's agent, examined them and then returned them to the complainant's agent (who was present), with the re- mark that the papers were all right, but that he was not prepared to close the matter up, and that he thought that Tillotson in- tended to pay the forfeit. The complainant's counsel says that on that occasion they formally handed to Tillotson's attorney the deed and bond and mortgage and receipt for interest, at the same time announcing the complainant's readiness to perform the con- tract, and demanded of Tillotson's attorney a performance on the part of Tillotson ; that the attorney took the papers, examined them, and pronounced them correct, and said he had Tillotson's deed to the complainant with him, but had not the $500 cash. He says that they waited a considerable time for Tillotson, but he did not come, and the attorney said he could not perform the contract without him. It appears from the testimony that in the early part of No- vember following, Tillotson's attorney said to the complainant's agent that he had a deed for Tillotson's property properly executed in his pocket, and that he would give it to the agent if the latter would give him the bond and mortgage stipulated for in the agreement for $2,250, waiving the loan of $500, and added that if the agent would agree to that, he would call at the hitter's house the next day and exchange the papers. To this the agent re[)lied that he had promised to pay the $500 to the mortgagee of the $4,000 mortgage, and did not intend to break his promise; and the attorney then said to him that he " had better think the matter over and let him know — that he did not see what differ- ence the $500 made to him, as he got none of the money;" to which the agent rejoined that it made a good deal of difference 316 COURT OF ERRORS AND APPEALS. [33 Eq. Tillotson V. Gesner. to him as a point of honor. The agent testifies that in that or another conversation the attorney stated that Tillotson was willing to assume the payment of the principal and the accrued interest (instead of making the loan of $500) on the $4,000 mortgage, which offer he refused. According to the testimony of Tillotson's attorney, the only objection which was made to completing the transaction was the existence of a judgment. That judgment, however, did not appear to be, and was not, a lien on the com- plainant's property. He says he met the complainant's agent frequently afterwards, and made several propositions to him, by authority of Tillotson, all of which were rejected on the spot. They are important as showing that there was no objection made to the complainant's title. One of them was as follows : Til- lotson to convey his property to the complainant and take a mortgage for $2,750, and when the judgment should have been removed, to lend the $500 and take the conveyance for the com- plainant's property, and another was to carry out the agreement according to its provisions (without asking for the removal of the judgment), except that, instead of lending the $500, which would at once go to the mortgagee of the $4,000 mortgage, to leave that amount of interest unpaid on that mortgage — Tillotson to pay it when convenient to him. Tillotson's attorney says : " We repeatedly offered to pay the $500 forfeit, and to pay the broker's commissions [which Tillotson did, in fact, pay], as expressed in the agreement, to end the contract and get back possession of Tillotson's property without a suit." There were what he calls some " ancient defects " (an old mortgage &c.), in the com- plainant's title, but he says he never made any complaint or objection with regard to them, and they appear to have been remedied. He says that at the meeting of the 12th of October, his chief objection was the judgment, although he adverts to another objection, to which he says he perhaps alluded at the time. This appears to be an objection based on the fact that the description of the complainant's laud seems to differ from the actual location ; but the location has existed for over thirty years, and the property has been occupied by the complainant and tho^e under whom she claims title, according to it, for that period. 6 Stew.] NOVEMBER TERM, 1880. 317 Tillotson V. Gesner. This objection, if made, seems to have been merely suggested, and not to have been urged or insisted upon. Nor does the evidence show that there was any deceit on the part of the com- plainant. As before stated, Tillotson repeatedly offered to pay the amount of the forfeit mentioned in the agreement and the brokerage. It does not appear that he ever made any complaint that he had been overreached in the bargain. He says that his property had been for sale in the hands of the agent, Jackson, by whom the exchange was negotiated, for two years before the bargain was made with the complainant, and that that was the way it happened that Jackson broached the subject of the ex- change to him ; that Jackson spoke to him about the exchange two or three weeks before it took place, and spoke to him or sent him word several times before he went to see the property ; that when he went to see the property, he went alone ; that he spoke to no one there except the complainant (he is mistaken as to the person — it was Ida E. Gesner), and she invited him in to lunch, which invitation he accepted, but he can remember nothing that was said by her on the occasion in regard to the property, except tliat she gave a reason for its neglected appearance. He on that occasion examined the property, and says he was dissat- isfied with its general condition and situation — that he found it in a bad condition. Immediately . after that visit, there were negotiations between him and Jackson and the complainant's agent in regard to the exchange. The complainant's agent offered $2,000 to boot, and Tillotson refused to exchange on those terms. Jackson brought the parties together again, and told Tillotson that the complainant would give $2,250 to boot. Tillotson still declined. He afterwards went to see the com- plainant's property again, and subsequently informed Jackson that he would make the exchange, and lend the $500 as part of the consideration. All he did was done with deliberation, and there is no evidence whatever of any misrepresentation. It is urged on his behalf, indeed, that the complainant's property was put into the exchange at $10,000, while it appears to be worth no more than $4,000 ; but his own property was put in at $8,250, and there is no evidence whatever as to its value. He 318 COURT OF ERRORS AND APPEALS. [33 Eq. Tillotson V. Gesner. swears that the complainant's agent told him that the complain- ant's property was worth $10,000 or $12,000; but the agent denies it, and says that what he said was that it was worth $10,000 as much as any property in Tappan. But that was relative, and there are no means of judging whether it was even extravagant. It is quite clear, however, that the expression of value, whatever it might have been, was not of a kind to be ranked as a misrepresentation. It was manifestly mere "dealing talk." Mrs. Van "Wart, daughter of the complainant, testifies that Tillotson, on the occasion when he first went to see the com- plainant's property, said he had been around the place, and liked it very much, and thought it a very fine one. The complainant's agent says that when, after Tillotson took possession of the Englewood property, he returned to get some articles which had been left there, he saw Tillotson, and the latter told him to tell his (Tiilotson's) son, when he returned to Tappan, that he was " terribly homesick ; " and he added that he thought he would not make the exchange — that he was too old to take charge of such a property. Tiilotson's son Daniel says that the reason his father left the complainant's property after he had taken posses- sion, was that he was disgusted with the trade ; that he had some- thing which he could not shoxilder ; that he could not get a clear title. He adds that his father told him he would not trade — that he would pay his $500 (the forfeit), according to the con- tract. Neither in this nor in any other testimony in the cause is there any complaint or allegation that deceit has been practiced on Tillotson, whether in misre])resentation of value or otherwise. The fact seems to be that he, soon after the exchange, became dissatisfied with the bargain, and was anxious to escape compli- ance with it. The objection which he makes to the contract — that it is uncertain in its description of the property to be conveyed by him — is entirely untenable. It is based on the fact that in the contract he says that part of his property was conveyed to Henry Frank and Daniel Frank, by deed dated March 23d, 1867, whereas it was conveyed to Henry Frank alone by deed of that date. It is to be observed that he seeks to take advan- tage of the alleged uncertainty in his own description of his 6 Stew.] NOVEMBER TERM, 1880. 319 Tillotson V. Gesner. land. But there is, in fact, no room for the objection. It is enough if the property be so described as that it may be ascer- tained with certainty. Camden and Amhoy R. R. Co. v. >S^eM;- aH, 3 a E. Gr. 4.89; Lewis v. Reichey, 12 G. E. Gr. 2Jfi. The reference to Daniel Frank is evidently a mere mistake, which a reference to the deed itself would correct ; and, besides, Tillotson admits, in his testimony, that the property claimed by the com- plainant — the six lots and two houses thereon — is the property which he agreed to convey in exchange. Nor can the defence that the complainant has an adequate remedy at law, avail the defendants. The provision for forfeiture contained in the agreement was intended as a penalty. Whitfield V. Levy, 6 Vr. llid. It applies the forfeiture to any one or all of the specifications ; that is, on the part of the com- plainant, to the sale of her land and the giving of the $2,750 mortgage ; on the part of Tillotson, to the sale of his land and the loan of $500. Moreover, Tillotson, as he admits in his tes- timony, and as is otherwise fully proved, gave possession to the complainant under the agreement, and the complainant yielded up to him under the agreement the possession of her property, and he took it. The complainant has expended money in improv- ing the Tillotson property. Tillotson is not in a position suc- cessfully to resist the complainant's demand for specific perform- ance with the claim that the complainant has a remedy at law. The contract was partly performed when possession was given and taken. Tillotson will be decreed to perform his contract specifically. Since the commencement of this suit the com- plainant's property has been sold and bought in by the mortgagee under foreclosure of the $4,000 mortgage. The complainant, however, tenders herself ready to give to Tillotson a good title to the property, subject to encumbrance equal to the amount of $4,000, with interest at seven per cent, per annum, from October 12th, 1876. Opportunity will be afforded to her to obtain this title, and also to obtain proper title by deed for so much of her land as is not covered by the deed to her therefor. Fry on Spec. Perf. § 872. The delay in bringing suit is accounted for as having been occasioned by the negotiations of the parties for a 320 COURT OF ERRORS AND APPEALS. [33 Eq. Tillotson V. Gesner. settlement, and it appears very clearly that, in order to prevent proceedings for specific performance, Tillotson pretended to con- vey by a merely colorable deed, dated June 5th, 1877, to his son Daniel, j)art of the Englewood property (the part of the prop- erty on which Daniel lived when the contract for exchange was made), as is admitted, without consideration ; the sou merely claiming that it was given to him by his father over four years before the date of the deed. And, with the same object, Tillot- son, previously, by mortgage dated August 31st, 1876, but not acknowledged until October 9th of that year, pretended to mortgage the whole property to his son Moses, to secure $2,750. That mortgage was without consideration, and both it and the deed to Daniel were taken with full notice of the contract. The complainant insists that it was agreed that the mortgage of $2,750 was to be payable in three years. Tillotson says that there was nothing definite said about the time (the contract is silent on the subject), but adds that he remarked to Mr. Jackson that it was " most customary to make them [mortgages] for one year." By his answer he admits that the mortgage was to be payable in one year. There is no satisfactory proof that the mortgage was to be payable at any more distant period. In the absence of the admission of Tillotson, the contract would be construed as providing for a mortgage payable immediately. Ch^een v. Richards, 8 C. E. Gr. 32, 536. The mortgage to be given for $2,750 will be payable in one year from the time of de- livery, with interest on $2,250 at seven per cent, per annum, from October 12th, 1876, up to July 4th, 1878, and at six per cent, from that time, and on the whole of the $2,750 at six per cent, from the time of the delivery of the mortgage, and it will con- tain the usual insurance clause. Both parties admit that the mortgage was to be payable at a future time, with interest, but they differ as to the time. G. R. Dutton and G. CoUina, for appellant. I. The contract is grossly unfair. IS Ves. 225 ; Torrey v. Buck, 1 Gr. Ch.366, 37Jr-5 ; Stoutenburgh v. Tompkins, 1 Stock. 6 Stew.] NOVEMBER TERM, 1880. 321 Tillotson V. Gesner. S32, 335-6 ; Craven v. Sichel, 1 Yes. 60 ; Calverly v. Williams, 1 Ves. 210 ; Cooper v. Dunne, 1 Ves. 566 ; Benedict v. Lynch, 1 Johns. Ch. 375 ; Roach v. Rutherford, 4- Desauss. 131 ; Waters v. Travis, 9 Johns. If50 ; Pratt v. Carroll, 8 Cranch 4-71 ; Ililler v. Chetwood, 1 Gr. Ch. 199, 208; Ely v. Perrine, Id. 296; Stout- enbergh v. Tompkins, 1 Stock. 332 ; Plummer v. Keppler, 11 C. E. Gr. 4-81 ; Hopper v. Hopper, 1 C. E. Gr. 14-7 ; Underwood V. Hitchcox, 1 Ves., sen., 279 ; King v. Hamilton, 4 P^- 311 ; Seymour v. Delancy, 6 Johns. Ch. 222 ; Rodman v. Zilley, Saxt. 320, 324, 325 ; Savage v. Taylor, cited in Seymour v. Delancey, 6 Johns. Ch. 222; Pinner v. Sharp, 8 C. E. Gr. 274, ^SO ; Townsend v. Stangroorn, 6 Ves. 328 ; Mortloch v. Butler, 10 Ves. 292; Suffern v. Butler, 4 C. E. Gr. 205. II. The contract does not designate with certainty the prem- ises to be conveyed by Tillotson. Robeson v. Hornhaher, 2 Gr. Ch. 60; Underwood v. Hitchcox, 1 Ves. sen. 279; Carr v. Passaic L. & B. Co., 4 C. E. Gr. 4^6; S. C, 7 G. E. Gr. 86; King V. Ruckman, 5 C. E. Gr. 317 ; see cases cited by defendant in King v. Ruckman, 5 C. E. Gr. 330, 331, 332. III. Complainant's title to Tappan property. Court will not compel a purchaser to take a doubtful title. St. Mary's Church V. Stockton, 4 Hal. Ch. 520, 531 ; Chambei^s v. Tulane, 1 Stock. 146; Vreeland v. Blauvelt, 8 C. E. Gr. 483; Dobbs v. Nor- cross, 9 C. E. Gr. 327 ; 2 Pars, on Con. 564; Johnson v. Hub- bell, 2 Stock. 332, 342; Story's Eq. Jur. 749, 750; Read v. Livingston, 3 Johns. Ch. 4^1, 500 ; Lockyer v. Dehart, 1 Hal. 450; Laurence v. Lippencott, 1 Hal. 4'^^ i Case v. Phelps, 39 N. Y. 167; Robinson v. StewaH, 10 N. Y. 195; Story's Eq. Jur. 353; Mulford V. Tunis, 6 Vr. 256; Garr v. Hill, 1 Stock. 215; Tantum V. Green, 6 C. E. Gr. 369; De Witt v. Sickle, 2 Stew. Eq. 209, 215; Randall v. Vromn, 3 Stew. Eq. 353; Stoifs Eq. Jur. 369. A voluntary settlement by a person who is indebted, is void as to existing creditors. Read v. Livingston, 3 Johns. Ch. 481, 500 ; Bayard v. Hoffman, 4 Johns. Ch. 450 ; Seward v. Jackson, 8 Cow. 4O6 ; Jackson v. Peck, 4 Wend. 300 ; Van Wyke v. Sew- ard, 6 Paige 62; Robinson v. Stewart, 10 N. Y. 190, 195; 1 Story's Eq. Jur. § 395; Beehnan v. Mcmtgomery, 1 McCart. Ill; 21 322 COURT OF ERRORS AND APPEALS. [33 Eq. Tillotson V. Gesner. Smith V. Vreeland, 1 C. E. Ch\ 201; Tantum v. Green, ^ C. E. Gr. 105 ; S. C, 6 C. E. Gi\ 364, 369; Be Witt v. Van SicJde, £ Stew. Eq. no, 215. lY. The contract is without mutuality. Story's Eq. Jur. 723; Fry on Spec. Ferf. 2S6 ; Hopper v. Hopper, 1 C. E. Gr. 14.7-8; Stoutenhergh v. Tompkins, 1 Stock. 34^-4; Johnson v. Hubbell, 2 Stock. 34^; Welch v. Bayard, 6 C. E. Gr. 187 ; St. Mary's Church V. Stockton, 4 Hal. Ch. 520, 532; Cheddick v. Marsh, 1 Zab. 466. B. P, Wortendyke, for respondent, cited — Whitfield V. Levy, 6 Vr. 14j9 ; Cotheal v. Talmage, 9 N. Y. 551; Colwell v. Lawrence, 38 N. Y. 71; Cusler v. Butler, 3 a & F. 240 ; Beynolds v. Bridger, 37 Eng. L. & Eq. 130; Noyes v. Fhillips, 60 N. Y. 4O8 ; Hoag v. McGinnis, 22 Wend. 165 ; Spear v. S7nith, 1 Fen. 4^4 > Bagley v. Feddie, 16 N. Y. 464 > Lampman v. Cochran, 16 N. Y. 275 ; Staples v. Farker, 41 Barb. 468; Clement v. Cash, 21 N. Y. 253; Bage v. 3IiUard, 12 N. Y. Leg. Obs. 57 ; McNill v. Clark, 7 Johns. 465; Clumn V. Moseby, 1 Bail. 136 ; Wetland Canal v. Hathway, 8 Wend. 480; Dezell v. Odell, 3 Hill 215; 1 Addison on Con. 745 § 496; Hopson v. Trevor, 1 Str. 533 ; French v. Macale, 2 Dr. & War. 269; Long v. Bowning, 33 Beav. 585; Jack- son V. Barker, 2 Edw. 4'^^ > Beale v. Hayes, 5 Sandf, 64O ; Cheddick v. Marsh, 1 Zab. 4^3. This is a suit for a specific performance of a contract for the exchange of lands. The agreement is in writing, dated August 31st, 1876, and by it the complainant, Mary Ann Gesner, bar- gained to exchange and convey to the defendant, Daniel Tillot- son, several parcels of land and premises at Tappan, Rockland county, in the state of New York, and the defendant bargained to exchange and convey to the complainant certain lots and premises at Englewood, Bergen county in the state of New Jersey, on or before the 1st day of October then next. Tillotson agreed to lend to the complainant $500, and she contracted to 6 Stew.] NOVEMBER TERM, 1880. 323 Tillotson V. Gesner. give him a mortgage on the lands at Englewood, to be conveyed to her, for $2,750, which included the sum of $500 above named, and $2,250, the amount to be paid as difference in the exchange of the properties. Other particulars are given in the opinions. The opinion of the court was delivered by SCUDDER, J. In examining this case, the first question which presents itself is in reference to the validity of the title of the complainant to tlie lands at Tappan which she, by this bill, seeks to force on the defendant against his will. This is the consideration which gives value to the contract; if it fails there is no mutuality in the agreement, and it should not be enforced. This title is based on a conveyance from Isaac H. Bartow and wife to Abraham Van Wart, dated April 5th, 1871. The property described in the deed is that designated in the agreement to be conveyed to the defendant. Isaac H. Bartow obtained this property from John R. Verbryck, by deed dated May 1st, 1849. It is said that the description contained in this deed does not cover the northern part of the lot of land and premises to be conveyed, and there is a small gore of land on the southerly side which is omitted. There is an ap- parent error in the boundaries of the latter deed, but Bartow and Van Wart have had undisturbed and undisputed possession of the entire lands, as owners, since 1849, and no adverse claim of title is shown. This objection cannot, therefore, prevail. It also appears, by the agreement, that the property at Tappan was to be conveyed to the defendant, Tillotson, subject to a mort- gage of $4,000. During the controversy between these parties, this mortgage has been foreclosed and the premises sold, and bought in by the mortgagee, but the complainant, in the bill of complaint, offers specifically to perform the agreement in all things on her part, which includes the obtaining of this title and the conveyance of the lands with no greater encumbrance thereon tlian was stipulated for, and subject to the decree of the court. The defendant will therefore be amply protected from a convey- ance of his lands until a proper assurance of the title of the com- 324 COURT OF ERRORS AXD APPEALS. [33 Eq. Tillotson V. Gesner. plainant's lauds named in the agreement is made. This has been provided fur in the decree made by the chancellor. Another objection made is, that the complainant, Mary Ann Gesner, held the title by a voluntary conveyance from her son- in-law, Abraham Van Wart, wiiich was made to defraud his creditors, and is voidable by them. The search for title made by the defendant's attorney, after the agreement for exchange had been executed, and after the parties had taken possession of the respective properties under their contract, showed these facts — that a judgment of the supreme court of the state of Xew York was rendered March 8tli, 1875, at the suit of Margaret Maun, administratrix &c., against Abraham Van^Wart and Matilda, his wife, for the foreclosure and sale of mortgaged premises, not named in this agreement, and against Abraham Van Wart for any deficiency that might arise; that, April 29th, 1875, a judg- ment was obtained in the supreme court of the state of New York, and docketed in Rockland county, in favor of Margaret Mann, administratrix &c., against Abraham Van Wart, for $1,308.45, the deficiency above named. On April 22d, 1875, seven days before this judgment for deficiency was obtained, Van Wart conveyed this property at Tappan to the complainant, Mary Ann Gesner, his mother-in-law, for the consideration, therein expressed, of $1 ; and on April 29th, 1875, the day on which the judgment was rendered against him, the complainant conveyed the premises to Matilda Van Wart, wife of Abraham Van Wart, for the consideration, therein expressed, of §1. These deeds were evidently voluntary conveyances, by which the title to these lands was clianged from Van Wart to his wife, at the very time of the recovery of the judgment for deficiency against him. The judgment was not a legal lien on the land, because, on the day it was recovered, the conveyance had been made to Mrs. Van Wart, the defendant's wife, but if the deeds were made to defraud creditors they were voidable by them, and if the de- fendant, Tillotson, took title after his searches had disclosed these facts, he would be charged with notice of the fraud, if it existed, and his title could also be assailed by the creditors of Van Wart. On August 31st, 1876, while the title thus stood in G Ste\v.] NOVEMBER TERM, 18S0. 325 Tillotson 17. Gesner. the name of Matilda Van Wart, this agreement was made for the exchange of these lands, in the name of Mary Ann Gesner, and was sio-ned hv Abraham Van AVart as her a^ent. These acts of alleged fraud on creditors are set out in the defendant's answer, and appear in the proofs. It is apparent, from the testimony of the defendant and from the evidence of David Van Wart, an attorney, of Xew York, who acted for his brother, Abraham Van Wart, in the attempts that have been made to effect a settlement between these parties, and to pass the titles, and also from the statements made by Abraham Van Wart, that the defendant's attorney did, at their first meeting after the contract was signed, and at the time ap- pointed for exchange of titles, object to the existence of this judg- ment. Different projects have been suggested for settlement, but there has been no w^aiver or release of this objection to the title. Although the deeds from Abraham Van Wart to Mrs. Gesner, and from her to Mrs. Van Wart, contain only a nominal consid- eration of -§1, there has been offered in evidence a mortgage given by Abraham Van Wart to George M. Gesner, husband of Mary Ann Gesner, on the Tappan property, dated August 24th, 1871, which, it is said, was part of the consideration of the deed from Van Wart to Mrs. Gesner ; and that the deed from Mrs. Gesner to Mrs. Van Wart was given to take effect at the mother's death, instead of a will. The amount is not given in the memorandum' of exhibits in possession of the court, but it is not important. George M. Gesner was living, and it does not appear how his wife became the owner of this mortgage, which has never been recorded, nor has any assignment thereof to her been shown. The alleofation that this mortgage entered into the consideration of the deed to Mrs. Gresner is thus stated by David Van Wart in his testimony, and this is the only evidence by any witness on this subject : "I think the main question, primarilv, was the good faith and validitj of the conveyance from A braham Van Wart to Mrs. Gesner ; it was then stated that the cancellation and surrender of that mortgage was, in truth and fact, part of the consideration of that conveyance." Nothing more particular is given about this mortgage, or 326 COURT OF ERRORS AND APPEALS. [33 Eq. Tillotson V. Gesner. how it entered into the consideration of the deed, or why it was never recorded. After the articles of agreement were signed between tlie parties to this suit, the defendant's attor- ney testifies that he was told by David Van AVart of an unrecorded and uncanceled mortgage on the Tappan property, that had been held by David Gesner, and that he replied that it should be canceled, now that he had notice of it, for it was the same to them after notice as a recorded mortgage. This mort- gage, with an endorsement of satisfaction thereon, was afterwards produced and shown to the defendant's attorney, to satisfy hira that it was no longer an existing encumbrance on the property. It is manifest, from this evidence, that Abraham Van Wart con- trolled this property, and the different title papers relating thereto, in his own interest, and according to his own wiU. And now the question may be asked. What careful attorney, in searching this title, would advise a client to take it and pay a full consid- eration? Or who will say that it would be safe, if the judgment creditor of Abraham Van Wart shall bring a suit to set the con- veyances to Mrs. Gesner and Mrs. Van Wart aside as fraudu- lent? It is the duty of the court to see that the objections to the title are not frivolous, or intended only to delay and embarrass the complainant; and such objections should not be treated so "seriously as to be received as excuses for the non-performance of a contract. But, on the other hand, a court of equity will not compel a party to take and pay for an estate of which only an imperfect title can be given. The distinction is also to be made between the case where the apparent defect in the vendor's title is such an one as may be expected to be removed on a reference consistently with equity practice, and that where the court will not allow the complainant, seeking a specific performance, to make up a case in this way, but will only dismiss his bill without j)rejudice to a new bill. Blatchford v. Kirkpafrick, 6 Beav. 232 ; Clay V. Ruford, 19 Eng. L. & E. 350 ; Girrer v. Bastaid, 2 Phil. 619; 1 De G. M. & G. 69. The true rule is stated in 3 Pars, on Con. {6th ed.) *380, that if the character of the title be doubtful, although the court were able to come to the con- clusion that, on the whole, a title conid be made that would not 6 Stetv.] NOVEMBER TERM, 1880. 327 Tillotson V. Gesner. probably be overthrown, this would not be good title enough ; for the court have no right to say that their conclusion, or their opinion, would bind the whole world, and prevent an assault on the title. The purchaser should have a title which shall enable him not only to hold his land, but to hold it in peace ; and if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value. The court cannot satis- factorily or conclusively settle a title in the absence of parties who are not before them in the suit to assert their estate or interest in the lands. These statements accord with the conclusions from cases in the notes to Seton v. Slade, 3 Lead. Cas. in Eq. 67, 79, 87, 88; Fry on Spec. Perf. ch. xvii. 34.7; 1 Story's Eq. Jur. 7Jt9, and with cases in our own courts : St. Mary's Church v. Stockton, 4- Hal. Ch. 520 ; Chambers v. Tulane, 1 Stock. HB ; Johnson v. Hubhell, 2 Stock. 332, 34^ ; Vreeland v. Blauvdt, 8 C. E. Gr. 483; Dohhs v. Norcross, 9 C. E. Or. 327. In the last case, the chancellor says that the court will never compel a purchaser to take a title where the point on which it depends is too doubtful to be settled without litigation, or where the purchase would expose him to the hazard of such proceedings. Where there is a conveyance of land, voluntary on its face, made by a defendant in a suit, just before a judgment for a large sum is rendered against him, which judgment would be a lien on the land if such conveyance had not been made, and the evidence fails to show, by strong proof, that it was made bona fide and for a valuable consideration, a case is made for the application of the rule above stated, and the specific performance of an agree- ment for the purchase of the land will not be enforced. Although the question of the sufficiency of the title often arises after the reference of title to a master has been made, yet the bill may be dismissed at the hearing, if the defect in title has been prominently put forward in the pleadings and proofs, and the court can then decide the question. Fry on Spec. Perf. ch. xvii. *253. This case, on the proof before us, looks like an attempt to impose a hard bargain and a suspicious title on an old man seventy-six years of age, and is not entitled to the favorable con- sideration of a court of equity on bill for specific performance. 328 COURT OF ERROKS AND APPEALS. [33 Eq. Mutual Life Ins. Co. v. Sturges. For these rejisons, without considering other questions which have been raised, the bill should be dismissed and the decree reversed, with costs on appeal and in the court of chancery. Decree unanimously reversed. The Mutual Life Insurance Company of New York, appellant, V, Thomas T. Sturges et al., respondents. 1. A sale under a decree in chancery may be set aside, even after deed de- livered, by an order made in the original cause, either for impropriety in the sale, or for the purpose of letting in a defence to the action. 2. The making of such an order is a proper matter of appeal, either by the parties to the suit or by the purchaser. 3. A prior mortgage to " S. & Co., a firm composed of T. S. and J. S.," will be postponed to a subsequent one given to secure a loan made upon the strength of an agreement of J. S., surviving partner, and one of the executors of T. S., deceased, to the efiect that the lender's lien should be preferred. 4. Acts done by one of several executors, which relate to the delivery, gift, sale or release of the testator's personalty, are deemed the acta of all, and bind the estate accordingly. 5. In equity pleadings, such degree of certainty should be adopted as will give the opposite party full information of the case he is called upon to meet. 6. At or after final hearing, it is too late to object to mere want of precision in the bill. 7. A bill alleging that a contract about a mortgage given to S. & Co., was made by that firm or their survivors and legal representatives, and setting out who are the surviving partner aud the legal representatives of the deceased, and making them defendants, is not so vague as to justify the vacation of a decree based upon the contract, especially after the decree has been executed. On appeal from a decree of the vice-chancellor, reported in MtUual Life Ins. Co. v. Sturges, 5 Stew. Eq. 678. 6 Stew.] NOVEMBER TERM, 1880. 329 Mutual Life Ins. Co. v. Sturges. Mr. B. Gummere, for appellant. The proceedings on the part of the complainant are in con- formity to the statute and rules and practice of the court. Carew V. Johmton, 2 Sch. & Lef. S80 ; Smith v. Kay, 7 H. L. Cas. 750. Under these circumstances, the decree being not only enrolled, but executed, the rule of practice is that the decree cannot be altered except by a bill of review. '2 Dan. Ch. Pr. (^th ed.) 1030, note 8 ; Carpenter v. Mutchmore, 2 McCart. 123. The nominal ground of the application is surprise ; but there is no pretence, even in the allegations of the petition, that there was a surprise practiced upon the defendants, within the legal meaning of the term. But it is said that Henry C. Knubel, who, by force of the bankrupt act, is the assignee of the interest of James S. Sturges and of the petitioner, Thomas S. Sturges, in the second mort- gage, was not made a party to the suit, and had no notice or knowledge of it. Lathrop v. Drake, 30 Leg. Int. IJfl ; Cogdell V. Exum, 10 B. R.327; Norton v. De Villeneuve, 18 B. E.304.; Bump's Bank. 795. Two distinct matters of alleged fraud appear on the face of the petition — 1 . The first is charged with some distinctness, and it is, in effect, that Mr. Burnham had presented to the master, and had sworn before him to the receipt of a letter from one of Sturges & Co., which they had never seen, and that he had presented their mortgage to the master without any request from either of them, and without any authority, express or implied, and without their knowledge or consent. 2. The second is set up as an inference of constructive fraud, in that the contract of subordination of the Sturges & Co. mortgage was made after the death of Thomas T. Sturges, the elder, and after a moiety of said mortgage had vested in his executors and legatees. Kerr on Fraud {Bump's ed.) 374 / Bigelow on Estop- pel 4£5; Stewart v. Lehigh Valley B. R. Co., 9 Vr. 505, 524,. Where one of two innocent parties must suffer, the one who, by his act or neglect, has enabled the fraud-doer to commit the fraud, is liable. Kerr on Fraud {Bump's ed.) 138, 139. 330 COURT OF ERRORS AND APPEALS. [33 Eq. Mutual Life Ins. Co. v. Sturges. The mortgage of Sturges & Co. was a chose in action, and the legal title thereto vested in James S. Sturges, the survivor of that firm. Goio on Part. 131, 31^8 ; Story on Part. § 3^6 ; People V. Keyser, S8 N. Y. 226, 235; Holhrooh v. Lachey, 13 Mete. 132 ; Shreve v. Joyce, 7 Vr. 44-, 4-S ; Murray v. Blatcli- ford, 1 Wmd. 683; Bogert v. Eertell, 4 Hill 4:92, 503; Stuy- vesant v. Hall, 2 Barb. Ch. 151, 160; 2 Wms. Exrs. {6th Am. ed.) 1013, 1014; Jones on 3Iortgages § 796. Mr. Theo. Little for respondents. The opinion of the court was delivered by Dixon, J. This appeal is taken from an order made upon the opinion of the vice-chancellor, that an interlocutory decree in foreclosure and all proceedings subsequent thereto, including the sheriff's sale, be set aside, so as to admit Henry C. Knubel, assignee iu bank- ruptcy of James S. Sturges, as a defendant, and to permit him and the executors of Thomas T. Sturges, deceased, to plead, answer or demur to the bill. Before the filing of the petition, in accordance with which this order was made, conveyances of the property sold had been delivered by the sheriff to the purchasers, who were the com- plainants as to part, and a stranger to the suit as to the residue. Neither the petition nor the order takes any notice of the sale to the stranger, nor is he a party to the appeal. His claims, therefore, need not be considered here. The fact that the sheriff's sale had been perfected by delivery of a deed, is not an insuperable bar to the vacation of the pro- ceedings. In support of this proposition, it is unnecessary to say more than is said by Chancellor Zabriskie, speaking for this court, in National Bank of the- Metropolis v. Sprague, 6 C. E. Gr. 458, where, by citation of numerous cases iu England, New York and New Jersey, he shows it to be the settled practice in courts 6 Stew.] NOVEMBER TERM, 1880. 331 Mutual Life Ids. Co. v. Sturges. of equity, that, for sufficient cause, sales under their decrees may be set aside by an order in the original suit, as well after as before confirmation and conveyance, and that the allowance or denial of such an order is a proper subject for appeal, either by the parties to the suit or by the purchaser. Usually the ground upon which the court has proceeded to vacate a sale, has been some impropriety attending the sale ; but this is not the only ground. In Camjjhell v. Gardner, 3 Stock. 4^S, Chancellor Williamson set aside a sale after deed deliv- ered, because, under peculiar circumstances, the mortgagees had not been apprised of the pendency of the suit. In the case first mentioned. Chancellor Zabriskie intimates that perhaps the opening of a sale and decree for the purpose of letting in a defence, is in the discretion of the chancellor so far that no appeal would lie. But this intimation has not been adopted by this court. The right of appeal depends upon whether the appellant is, in a legal sense, aggrieved [Green v. Blackwdl, 6 Stew. Eq. 768) ; and that must be determined by con- sidering, not upon what grounds the chancellor has proceeded, but what effect his action has upon the claims of the appellant. All the authorities concede that an order setting aside a sale for illegality attending it is appealable. The result to the purchaser is the same, if it be set aside, to let in a defence. His definite rights, under either his contract to buy or his conveyance, are finally destroyed in both cases. Such claims do not depend upon mere discretion, but must be protected or overthrown according to legal and equitable principles. Their owner is aggrieved by every order in chancery which substantially impairs them, and may seek redress for such grievance by appeal to this court. In Smith v. Alton, 7 C. E. Gr. 572, an appeal was taken from an order of the chancellor, opening the decree to sell in a fore- closure suit, setting aside the sheriff's sale and admitting the mortgagees to make defence. The appeal was entertained and the order affirmed. In- Cawley v. Leonard, 1 Stew. Eq. 4-67, the appellants had peti- tioned for similar relief three years after sheriff's conveyances 332 COURT OF ERRORS AND APPEALS. [33 Eq. Mutual Life Ins. Co. v. Sturges. were executed, and the chancellor had refused the prayer. On appeal to this court, the relief asked for was given, on the ground of surprise and merits. These precedents are controlling, both upon the power of the court of chancery to raake the order complained of, and upon the right of the appellant to seek its reversal here. This brings us to a consideration of the propriety of the order made below. The reasons upon which it is based are, that the petitioners have merits which, without laches on their part, have not been presented, and that the allegations of the bill, upon which the chancellor assumed to pass upon those merits, are too vague to support the decree. First, as to merits. In 1857, the mortgaged premises were encumbered by a small mortgage held by Mrs. Lamson, and by a second mortgage for $2,000, without interest, made to " Sturges & Co., a firm doing business in the city of New York, and composed of Thomas T. Sturges and James S. Sturges." The premises had been pur- chased by Thomas T. and James S. Sturges as a home for their half-brotlier, Joseph H. Sturges, and their mortgage was made and kept alive for the avowed object of preserving the property as his family residence. This is shown both by the letter of James to Mr. Buruham, the complainants' counsel, in January, 1869, and by the testimony, in these proceedings, of Thomas T. Sturges, jun., the son and executor of Thomas, deceased. In 1869, the necessities of Joseph H. Sturges wore such that he required $1,000 to take up the Lamson mortgage, and meet other demands. On application by Mr. Burnham to Sturges & Co., it was arranged that the complainants should loan this $1,000, and should have a first mortgage therefor; and accordingly the loan was made, the Lamson mortgage was paid off and canceled, the $2,000 mortgage was canceled, a mortgage for $1,000, dated Janu- ary 1st, 1869, and recorded January 6th, 1869, was executed by Joseph to the complainants, and a mortgage for $2,000, without interest, to Sturges & Co., dated February 24th, 1869, was executed by Joseph and recorded. This last mortgage was drawn by Mr. 6 Stew.] NOVEMBER TERM, 1880. 333 Mutual Life Ins. Co. v. Sturges. Biirnham at a request by letter, signed " Sturges & Co.," and, in tlie description of the parties of the second part, was copied from the earlier $2,000 mortgage. In fact, the firm of Sturges & Co. had been changed in 1864, by taking into it Thomas T. Sturges, jun. and Peter D. Sturges, the sons, respectively, of the older members, but the capital stock remained the propeily of the fathers only, and it is not claimed that the sons, as members of the firm, ever had any interest in the mortgage. This change was not known to Mr. Burnham. In 1875, a further loan of $2,500 was needed by Joseph, and the complainants were willing to grant it, provided a first mort- gage for $3,500 could be substituted for their $1,000 mortgage. In order to make this arrangement, Mr. Burnham again called upon Sturges & Co., at their old place of business, and an inter- view was had, which Thomas T. Sturges, jun., describes as follows: "He told me about some troubles that Joseph H. Sturges had, out here at Morris Plains, and that he would have to raise some more money on his place, as they were going to sell or do something with his place under judgment, or something like that ; and if we would allow our mortgage to stand second, he could get the money from the Mutual Life Insurance Company; I told him I had no objections and was willing to do so, and he then said if I would write him a note or a letter to that effect, it would be sufficient ; I wrote such a letter to Mr. Burnham." The following is a copy of the letter : " 31 SoTTTH St., New Yobk, May 20th, 1875, " F. G. Burnham, Esq., Morristown, N. J. : " Dear Sir — Your note of yesterday, in regard to mortgages on Mr. Joseph H. Sturges's farm at Morris Plains, N. J., came duly to hand and contents noted. " In reply, I would beg to say that your proposition meets with approval, and all that can be said is, for you to go ahead and carry it out. "As I understood it, the Mutual Life will then hold a first mortgage of 13,500, and the old firm of Sturges & Co. will hold a second mortgage for the amount of their present one, with accrued interest to date of whenever the agree- ment is carried out. "Hoping soon to hear from you that everything has been satisfactorily settled, " I remain yours resp'ly, " T. T. Sturges, Jun." 334 COURT OF ERRORS AXD APPEALS. [33 Eq. Mutual Life Ins. Co. v. Sturges. The approval referred to in this letter, Thomas explains as being the approval of himself and of James S. Sturges, with whom he consulted about the proposition. In the meantime, the firm of Sturges & Co. had again changed by the withdrawal of Thomas T. Sturges in 1869 or 1870. Shortly afterwards, in 1870, he had died, leaving his widow and his son Thomas his executors, and his widow during her life, and his six children after her death, his legatees. His estate was large, and its management devolved almost wholly upon Thomas, the widow, as co-executrix, taking but little part therein. These facts were not known to Mr. Burnham, save that he had received an indefinite impression of some change in the firm. In accordance with the arrangement, the advance of §2,500 was made by the complainants, a new mortgage for $3,500, dated May 31st, 1875, was executed by Joseph to the complainants, the old $1,000 mortgage was canceled, and a mortgage for $2,000, dated May 21st 1875, in lieu of the other $2,000 mortgage, was signed by Joseph, but, because of Mr. Burnham's impression of some change in the firm, the name of the mortgagee was left blank until he should learn what was to be inserted. For this reason, the $2,000 mortgage of 1869, which had always been in Mr. Burnham's possession, was not tlien canceled, and the matter, being temporarily laid aside, was then forgotten, and remained in statu quo until the complainants' bill for foreclosure was filed, about January, 1877. The petitioners' merits depend upon whether, under these facts, their mortgage is entitled to priority over the complain- ants' lien for $3,500. By the bill it is averred, and by the decree it is adjudged, to be subsequent to it. Beyond all controversy, the complainants advanced the whole $3,500 upon the understanding, arrived at in good faith and with . reasonable diligence, that their Jien therefor should be first. Tiiis gives them a strong claim in equity to insist upon such priority against any who do not stand upon a more equitable footing. As to $1,000 of their debt, no one has any equity against them, because, for so much, their priority, both at law and equity, was undisputed, and if, by the cancellation of their $1,000 mortgage, 6 Stew.] NOYEMBER TERM, 1880. 335 Mutual Life Ins. Co. •;;. Sturges. that priority at law was lost, through their honest mistake as to the completeness of the arrangment pursuant to which they can- celed it, equity would relieve them from the consequences of that mistake against the petitioners, who have not changed their posi- tion because of it. It is clear, also, that the complainants' mort- gage is entitled to priority for the whole sum, so far as the agree- ment of James S. Sturges, surviving creditor, and that of Thomas T. Sturges, jun., managing executor of the deceased creditor, can give it, for their consent to such precedence is admitted. With- out inquiring into the effect which this agreement of the surviv- ing creditor ought to have upon the interest of his deceased partner, it undoubtedly must defeat his own claim to priority, and hence that of his assignee, who derived his title from James some months after the complainants had loaned their money on the strength of James's agreement. The assignee, therefore, clearly has no merits. With equal conclusiveness, the contract of Thomas T. Sturges, jun., the managing executor of his father's estate, disposes of the claims of that estate, unless fraud is fastened upon the com- plainants. For it is well settled that acts done by one of several executors, which relate to the delivery, gift, sale or release of the testator's personalty, are deemed the acts of all, and bind the estate accordingly. Coote on Moi'tgages 511 ; 2 Wms. Exrs. *94.7; Ex parte Bigby, 19 Ves.4.63; Wheeler's Exrs. v. Wheeler, 9 Cow. 84-; Shreve v. Joyce, 7 Vr. 44- Here, the testator's widow left the active administration of the estate to her co-executor, as she had a clear legal right to do {Schenck v. Schenck, 1 C. E. Gh\ 174), and when he consented to postpone the lien of the testator's mortgage, and the complainants thereupon advanced their money, that consent was as obligatory as if both executors had signed it. Stuyvesant v. Hall, 2 Barb. Ch. 151. Indeed, the avowed purpose for which the mortgage was held, the strait in which the mortgagor stood, and the fact that the surviving obligee and the managing executor so readily agreed to give the complainants priority, make it highly probable that if the executrix did not consent, it was merely because she was 336 COURT OF ERRORS AND APPEALS. [33 Eq. Mutual Life Ins. Co. v. Sturges. not asked. Thomas, her son, who was living with her at the time, says he believes he did not consult her. Is there, then, any ground for charging fraud upon the com- plainants? The only fraudulent design which it is possible to suggest is a purpose to deprive the beneficiaries under the will of Thomas T. Sturges, deceased, of their equitable rights in the priority of the $2,000 mortgage. Mr. Burnham was the sole representative of the complainants in the transaction. If, therefore, such a purpose is to be attributed to the complainants, it must be be- cause he entertained it. The first step towards making it out, and a sine qua non, is to show that he had knowledge of the ex- istence of such beneficiaries. But of this fact there is not a par- ticle of proof. To the contrary, he, on his oath, declares that he had not the slightest notice or information that the mortgage was held by any other parties than Sturges & Co., and that he never heard of the death of Thomas T. Sturges until long after the money had been advanced, and just before the filing of the bill. The oath of this gentleman is entitled to stand against much op- posing evidence ; uncontradicted, as it is here, it leaves no shadow of doubt. The members of this court are unanimously of opinion that his integrity is not to be questioned. The executor Thomas, also, speaking of his own conduct, says, I believe truly, " what I did, I did in all good faith, supposing it was perfectly right." I see no reason to doubt the honesty of any of the parties in that transaction. We are therefore quite agreed that by the case made on this petition, these petitioners have no merits. This renders it un- necessary to discuss the topic of surprise without laches ; but our conclusion upon that point is also against the petitioners. Finally, it was adjudged below that the averments in the bill, relied on as setting out the complainants' right to preference, are so vague and uncertain that when confessed by the defendant's default and proved before the master, they did not warrant the decree of priority. The same precision of statement that is required in pleadings at law has never been attained in bills in equity, but such degree 6 Steay.] NOVEMBER TERM, 1880. 337 Mutual Life Ins. Co. v. Sturges. of certainty should be adopted as may give the defendant full information of the case he is called upon to answer. 1 Dan. Ch. Pr. 373 ; Houghton v. Reynolds, 2 Hare 264-, ^^^^ note. The bill alleges that the contract to subordinate the mortgage of Sturges & Co. to the complainant, was made by that firm, or by their survivors and legal representatives, and then avers that the survivor of the firm was James S. Sturges, and that the legal representatives of the deceased partner were his executors, Susan and Thomas T. Sturges, jun., and these persons only are made defendants on behalf of said firm. These statements fairly amount to an assertion that the contract was made by the firm, or by James and the executors of Thomas. The only uncer- tainty about it is, that it does not specify which of the two con- tracted. Such alternative averments are not admissible by the strict rules of common law pleading, but reference to any book of equity forms will show that there they are not infrequent. In actions at law against the survivors of a firm, or against ex- ecutors, the declaration would state the several possible promises in separate counts, but, upon the whole pleading, the defendant would be apprised of the ground of suit with no more accuracy than this bill affords. I think, even on demurrer, a court would hesitate to adjudge this complaint bad for uncertainty. But where, as here, after regular proceedings against the de- fendants, the party has been put to his proofs, and a final decree in his favor has been made and executed, it is unprecedented to permit such an objection to prevail. Objections to pleadings which involve no substantial interests are not allowed even upon final hearing. Freeman v. Scofield, 1 C. E. Gh: S8. And it is then too late to complain of mere want of precision in the bill, Smith v. Kay, 7 H L. Cas. 750. The order appealed from should be reversed, with costs. Decree unanimously reversed. 22 838 COURT OF ERRORS AND APPEALS. [33 Eq. Putnam v. Clark. Adah A. Putnam et al., appellants, V. Lydia a. Clark et al., respondents. 1. A party who files a bill alleging that a paper made by him has been altered since its execution, and asking to have it canceled, must prove the fact of its subsequent alteration. 2. Such a party does not occupy the same position as if he were resisting a claim founded upon such altered instrument, and he cannot successfully ground his right to a cancellation of it upon a technical presumption of a false alteration arising from a suspicious circumstance merely. On appeal from a decree of the chancellor, reported in Put- nam V. Clark, £ Stew. Eq. 4,12. Mr. Peter Pentley and Mr. Cortlandt Parker, for appellant. I. (a) Suspicious circumstances being shown to be connected with the alteration, it is necessary for the parly relying on the instrument to explain satisfactorily the alteration. (6) The circumstances of this case make the alteration appear not only suspicious, but also probably fraudulent. (c) There has been no explanation of the alteration by the party relying on the instrument. The decree, therefore, should be re- versed. Hunt V. Gray, 6 Vr. 227; 1 Whart. Ev. § 629; Bailey V. Taylor, 11 Conn. 531; Beaman v. Russell, 20 Vt. 205, 213; 1 Ch-eenl. Ev. § 564-; Matthews v. Coulter, 9 Mo. 896 ; Ramsey V. McCue, 21 Gratt. 3^9; Wilde v. Armsby, 6 Gush. SU; Ran- kin V. Blackwell, 2 Johns. Cos. 198 ; Tillou v. Clinton and Esssex Ins. Co., 7 Barb. 564; Harker v. Gustiv, 7 Hal. 4^. II. From the proofs before the court, it will be presumed that the original assignment is in the defendants' possession, and that it 6 Stew.] NOVEMBER TERM, 1880. 339 Putnam v. Clark. is concealed by them. The most unfavorable inference is to be drawn against them. 1 Greenl. Ev. § 659 ; S Dan. Ch. Fr. 1817 ; 1 Whart. Ev. § U? ; Greenl. Ev., § 658; McGuire v. Mobile, 4£ Ala. 689; Holbrooh v. Trustees, 28 III. 187 ; Chicago & N. W. R. R. Co. V. Ingersoll, 65 III. 399; Preslar v. Skill- worth, 37 Ala. 402 ; Mason v. Tallman, 34, Me. 472; 2 Whart. Ev. § 1267. III. When the mortgage to which this mortgage had been assigned as collateral by Barrett was paid, Barrett became entitled to this mortgage, and he has never lost that right ; he was at best but a trustee for the complainant, and she is entitled to all he was entitled to. Paulin v. Kaighn, 5 Dutch. 4^0. IV. The defendant Clark's executors are not entitled to relief under their cross-bill, i. e., to have the complainant pay the municipal charges which were upon the property at the time the premises were purchased by Hosea F. Clark. Shinn v. Budd, 1 McCart. 234; Garwood v. Eldridge, 1 Gr. Ch. 160. Mr. Hamilton Wallis, for respondent I. Redfield was a purchaser of the bond and mortgage for value and without notice, or was, at all events, subrogated to the rights of the insurance company. II. Appellant cannot prevail without proving the assignment to Barrett to be a forgery, and there is no such proof. Kerns V. Swope, 2 Watts 75 ; Harher v. Gustin, 7 Hal. 45. III. If not a forgery, the only ground remaining to appel- lant is that the respondents Redfield and Clark are bound by the equity existing between the appellant and Barrett. 340 COURT OF ERRORS AND APPEALS. [33 Eq. Putnam v. Clark. Messrs. Collins & Corbin, for defendants. I. Hosea F. Clark was a bona fide purchaser for value with- out notice, of the bond and mortgage, and equity will protect him and his representatives. Portarl'mgton v. Soulby, 6 Sim. 356, 7 Id. 28 ; Dawson v. Prince, 2 De G. & J. 4-1 ; Pierce v. Faunce, Jf7 Me. 607 ; 2 Lead. Cas. in Eq. 57, and cases cited; Living- ston V. Dean, 2 Johns. Ch. ^79; Wilson v. Hill, 2 Beas. I4B ; Morton v. Rose, 2 Wash. C. C. 233; Woodruff v. Depue, 1 Mc- Cart. 168 ; Losey v. Simpson, 3 Stock. 24-6 ; Danbury v. Robin- son, 1 McCart. 213 ; Bloomer v. Henderson, 8 Mich. 395 ; Polls v. Blachcell, 4- Jones Eq. 58 ; Starr v. Haskin, 11 C. E. G. 414 / Mott V. Clark, 9 Barr S99 ; Van Hook v. Somerville, 1 Hal. Ch. 633; Vredenburgh v. Burnet, 4 Stew. Eq. 229 ; Kerns v. Swope, 2 Watts 75 ; Harker v. Gusten, 7 Hoist. 4^ ; Jones v. Smith, 1 Hare 43. II. The Clark defendants have good presumptive title to the bond and mortgage, and the complainant has not overcome it. Stew. Dig. 770 § 150; Cumberland Bank v. Hall, 1 Hal. 216; N. R. Meadow Co. v. Shrewsbury Church, 2 Zab. 4^7. III. The complainant's suit cannot prevail, because of her gross negligence. Westervelt v. Scott, 3 Stock. 80 ; Van Hook V. Somerville, 1 Hal. Ch. 633; Peabody v. Fenton, S Barb, Ch. 451 ; Trenton Banking Co. v. Woodruff, 1 Gr. Ch. 117 ; Hoff. Ch. Pr. 306. IV. Where there are equal equities possession must prevail. Archer v. Bank of England, Doug, 637, 639 ; Wells v. Archer, 10 S. & R. 412 ; Ellis V. Kreutzinger, 27 Mo. 311. V. The defendants must not suffer because the original assign- ment, which is said to have been altered, is missing. Hoffman's Ch. Prao. 306. VI. As to the cross-bill. Shinn v. Budd, 1 McCart. 234; Garwood v. Eldridge, 1 Gr. Ch. 145; Young v. Hill, 4 Steio. Eq. 4£9. 6 Stew.] NOVEMBER TERM, 1880. 341 Putnam v. Clark. The opinion of the court was delivered by Reed, J. The bill in this suit is filed by Adah A. Putnam and her hus- band, to secure the cancellation of a certain assignment of a bond and mortgage, which assignment purports to have been made by the complainants to one William C. Barrett. It appears that in April, 1871, Lydia A. Putnam was the owner of a bond and mortgage for $12,000, made to her by one Jane M. Mackey. She was anxious to raise money by means of a sale of this security. Her attorney for many years had been William C. Barrett, of New York city. She communicated her wish to him, and he undertook to negotiate the sale of this mort- gage. She says, in her bill, that he represented to her that he had a client, whose name was William C. Ramsey, who was making investments, and who would take this mortgage. It appears that she and her husband executed an assignment of this mortgage, acknowledged by herself and husband, and that the assignment was left in the hands of Mr. Barrett. The bill states that, subsequently, Barrett informed the complainants that Ram- sey had not the money, and that he, Barrett, had not been able to procure it. The assignment remained in Barrett's possession, he paying the interest upon the said mortgage to Mrs. Putnam. In March, 1875, Barrett assigned this mortgage, as collateral security, to the Relief Fire Insurance Company of New York. They re-assigned it to one Redfield, and he to the respondent, Lydia A. Clark. The complainants became aware of the assignment by Barrett to the Relief Fire Insurance Company, after Barrett had ab- sconded, and the complainants had sought in vain for their mort- gage among his papers. Their contention in this suit is, that Barrett liad no title in the mortgage which he assigned to the fire insurance company; that the assignment which they executed at the time Ban-ett was to raise money by the sale of the mortgage was made to William C. Ram- sey, the person from whom the money was expected; that the name William C. Ramsey was subsequently fraudulently changed to 342 COURT OF ERRORS AND APPEALS. [33 Eq. Putnam v. Clark. William C. Barrett, and that respondent's title to this mortgage rests upon this forged assignment. The prayer of the bill is, that the mortgage now in the posses- sion of the respondents be delivered to complainants, and the assignment by Barrett be canceled. It thus appears that the question which now presses for solu- tion is whether the complainants have shown an alteration in the assignment which avoids it. The original assignment has not been produced, and the efforts of the complainants to discover it have been unsuccessful. Nor does it appear that the assignment ever came to the hands of Mrs. Clark. The record of the assignment has been offered. The record shows an assignment acknowledged before Mr. Net- tleton, a commissioner of New York, and witnessed by him. Underneath his name, and affixed to the attestation clause, are the words, " The words * C. Barrett, New York,' written over an erasure." Mr. Nettleton was sworn, and says that he has no recollection of this particular assignment. He says that when he has occa- sion to note an alteration, his habit is to make the notation over and not under his signature. He further says that when he de- sires to make such a notation, after he has signed his name, he makes it over his name, and if there is not space, he erases his name, makes the notation, and re-writes his signature under it. He admits that he has sometimes forgotten to write his name as a witness. The otlier witness, Mr. Putnam, has no recollection at all of making the assignment. There is no evidence offered on the part of the respondents relative to the execution of the as- signment. The contention of the counsel of appellants is, that there is, in connection with the proof of alteration, such suspicious features as throw upon the respondents the burden of showing that the alteration was made before or at the time of execution ; that the respondents, having failed to prove the time and manner of the alteration, therefore the cancellation of the instrument should be decreed. The question as to the burden of proof in cases involving the 6 Stem-.] NOVEMBER TERM, 1880. 343 Putnam v. Clark, validity of altered papers, usually arises where the actor grounds his right of action upon the altered instrument. In this class of causes, by a rule long settled in this state, no presumption arises to invalidate an instrument because, from inspection, an alteration appears to have been made. Cumberland Bank v. Hall, 1 Hal. 215 ; North River Meadow Co. v. Shrewsbury Church, 2 Zab. J^I^; Hunt V. Gray, 6 Vr. m7. But while this is true, it is probably equally true that the ap- pearance of the alteration itself, or slight circumstances connected therewith, may exhibit indicia of unfairness, which, while falling short of proof thereof, would throw upon the propounder of the instrument the burden of showing that the alteration was fairly made, and that a failure upon his part to make such proof would support a finding against the validity of the instrument. Cases collected in S Greenl. on Ev. § 664^, note. Were this a cause in which the respondents were asserting a cTaim based upon this assignment, the question would arise whether such indications of unfairness exist. Such a cause would be presented by a foreclosure suit instituted by the re- spondents to foreclose the mortgage assigned. A similar cause would appear if tlie complainants, ignoring the alleged assign- ment, should file a bill to foreclose the same mortgage, and the respondents should come in and assert their right to the same, by virtue of this assignment. The present suit is not of this character. It is an attack upon the validity of a paper which it brings into court, and the avoid- ance of which it asks, upon the ground that it is a forged in- strument. The gravamen of the bill is that it was fraudulently altered. The complainants do not stand here defending against a person who produces an assignment and thereby asserts its genuineness, but they occupy the position of parties who themselves j)roduce the instrument and assert its falsity. They must prove that falsity. They cannot rest their case upon a technical presump- tion arising from circumstances of suspicion. They must prove it by showing affirmatively a collocation of circumstances which 344 COURT OF ERRORS AND APPEALS. [33 Eq. Van Houten v. Post. impress the mind with a conviction that the instrument was fraudulently altered. This the complainants have failed to do, and the decree of the chancellor should be affirmed. Decree unanimously affirmed. John R. Van Houten, executor &c., appellant, V. Geokge Post, respondent. 1. Where a parent bequeaths a legacy to a child it is understood to be a portion, and if, after the execution of the will, the parent gives a sum of money to the child equal in amount to the legacy, if it be ejusdem generis, it ■will be an ademption of the legacy, if so intended. 2. The advancement of a less sum, with intent to go on the legacy, will be an ademption pro tanto. 3. Evidence of parol declarations of testator of the fact of giving the money is not admissible, but such fact must be proved by other testimony. 4. Charges in books, made by parent against child, to show advancementa, admitted in evidence ; such testimony having been so long received by the courts of this state. 5. The fact of the money having passed from the parent to the child being proved, it will be presumed to be in satisfaction of the legacy ; but the presump- tion will be slight, and evidence of parol declarations of testator that he did not so intend, and also his declarations in reply thereto that he did so intend, are admissible. 6. Whether intended to be a gift, independent of the legacy, or the payment of a debt, or a portion in ademption of the legacy, is to be decided by the cir- cumstances and facts proved in each case. On appeal from a decree of the ordinary, reported in Van Bouten v. Fost, 5 Stew. Eq. 709. Mr. J. Hopper and Mr, J. D. Bedle, for appellant. Mr. T. D. Hoxsey, for respondent. 6 Stew.] NOVEMBER TERM, 1880. 345 Van Houten v. Post. The opinion of the court was delivered hy Parker, J. Rachael Van Houten executed her last will on the 20th day of October, a. d. 1857, and died in the year 1863. The executors named in her will were her son-in-law John R. Van Houten, and her sou George Post, the litigants in this suit. On April 27th, 1866, an account was filed for settlement in the orphans court of the county of Passaic. It purports to be the account of both executors, but was filed and sworn to only by John R. Van Houten. George Post, the other executor, filed exceptions to the account. Van Houten prayed allowance for the sum of $5,000, paid by him to his wife Catharine Van Houten for a legacy of that amount bequeathed to her by the will of her mother. To this claim for allowance by Van Houten, Post, who ia interested in the residue, excepted, on the ground that after the execution of the will the testatrix advanced the amount of said legacy to her daughter Catharine with the uatention of satisfying the same, and that thus the legacy was adeemed. The orphans court sustained this view and refused to allow Van Houten the credit he claimed. From the decree of the orphans court, Van Houten appealed to the prerogative court, and the ordinary affirmed the same, and ordered Van Houten to pay the costs of appeal out of his own funds. From the decree made by the ordinary Van Houten appealed to this court. The question to be decided is, whether the $5,000 legacy be- queathed to Catharine by the will of her mother was adeemed. This bequest is at the close of the eleventh item of the will, and is ordered to be paid out of the proceeds of certain land which the executors were ordered to sell. Where a parent bequeaths a legacy to a child, it is understood to be a portion, and if, after the execution of the will, the pareut gives a sum of money to the child equal in amount to the legacy, if it be ejusdeni generis, it will be an ademption of the legacy, if so intended. 2 Story's En. Jur. § 1111 et seq., and notes 346 COURT OF ERRORS AND APPEALS. [33 Eq. Van Houten v. Post. thei'do; S Wms. Exrs. {ed. 1877) 1439; S Reclf. on Wills 537, and notes. And if the advancement of a less sum, with intent to go on the legacy, be proved, it will be an ademption pro tanto. 2 Bed/, on Wills 588. To prove the ademption of a legacy it must appear, first, that the legatee received the money from the testator after the execu- tion of the will ; and secondly, that such money was advanced as a portion, with the intention of satisfying the legacy. There is some contradiction in the authorities as to the admis- sibility of the parol declarations of the testator, after the execu- tion of the will, upon the fact of the passing over of money to the child, and also as to the intent, especially where such declara- tions are not made contemporaneously with the act. After care- ful examination of the cases, the following are deduced and stated as rules upon tliis much-vexed question. To prove the mere fact of the passing over of the money from the parent to the child, evidence of the parol declarations of the testator is not ad- missible, but such independent fact must be proved by other tes- timony. Fawhner v. Watts, 1 Atk. Jfi7 ; Batton v. Allen, 1 Hal. Ch. 99 ; 2 Wms. Exrs. 1U4. To admit evidence of such declarations would be to revoke the provisions of a will by parol. There is no reason for such a de- parture from principle. Should a parent make an advance- ment to satisfy a legacy to a child, and there be no evidence of the fact of giving the money to the legatee, he can easily mani- fest his intention by executing a codicil. Charges in books made by parent against child have been so long admitted in the courts of this state, as tending to show ad- vancements, that the rule in reference to these cannot now be well changed, but such evidence as to the fact of passing over the money is of a low grade. The fact of the money having passed from the parent to the child, after the execution of the will, being proved, the next question is as to the admissibility of evidence to show the in- tention. Was it a gift independent of the provisions of the will, or a 6 Stem-.] NOVEMBER TERM, 1880. 347 Van Houten v. Post. loao, or payment of an obligation ; or was it intended as a portion in satisfaction of the legacy ? The current of authority holds that it will be presumed to be a portion, but that this presumption is slight, and to overcome it evidence of parol declarations of the testator is admissible to show tiiat he did not intend the money as a portion in satisfaction of the legacy, and, in reply thereto, his parol declarations that he did so intend, may be shown, to ascertain if the presumption be well or ill founded. Boseicell v. Bennet, 3 Atk. 77 ; Kirh v. Eddoioes, 3 Hare 509. The presumption arising from the passing of the money from the parent to the child is so slight and so easily overcome, that the rule may be stated to be that whether the money was intended to be a gift independent of the legacy, or the payment of a debt, or a portion in ademption of the legacy, must be decided by the circumstances and facts proved in each case. Declarations of a testator as to the object, when admitted in evi- dence to overcome or sustain the presumption, in order to adeem a legacy, should not be vague and uncertain, but should be stated with some particularity, so that they could be understood by the witness who heard them. Otherwise they should be entitled to but little weight. Declarations of the intention, to avail as evidence, should be made by a testator who, at the time of making them, was in the possession of his mental faculties. If the evidence in the case now under consideration proves that, at the time of making the alleged declarations as to intention, Rachael Van Houten, the testatrix, was insane, and not in condition of mind to make a will, such declarations, if admissible, should be disregarded in determining the question whether a provision in so solemn an instrument as a last will should be thereby rendered nugatory. For two years before the death of Rachael Van Houten she was insane. For some time previous thereto she was, as the witnesses say, out of her mind much of the time. In the early part of a conversation she would appear to be sane, but if the in- terview was prolonged she would become excited and furious. Especially would this be the case if the conversation related to 348 COURT OF ERRORS AND APPEALS. [33 Eq. Van Houten t'. Post. her property or her will. At such times, the witnesses say, she had not mind enough to make a will. For the last two years of her life she did not have lucid intervals. The declarations admitted by the orphans court were made by the testatrix about the time of the interview spoken of by Aaron S. Pennington in his testimony, or subsequent thereto, and to ascer- tain her state of mind then, it will be necessary to refer to his evidence. Mr. Pennington says that the testatrix made certain declara- tions to him, on the 26th day of October, 1859, as to the object of the giving of money which the exceptant claims was advanced by her to her daughter. He swears that he drew the will and superintended its execution in 1857, and that before he called on her, upon the occasion he speaks of, she had lost her mind in great measure, but when her partial derangement commenced he could not say. He further says that he went to see her a number of times, to ascertain if she was in a condition to make an alteration in her will about Adrian Post, in relation to his share, and on those occasions she would get flurried and unable to make a will, as he thought ; that the last time he saw her she was very much out of her mind, and told him she was afraid he would do her bodily harm. He further says that on the 26th day of October, 1859, the day she made the declarations to which he testifies, he would not have allowed her to cancel that will under any cir- cumstances, and that he doubted if on that day she had full capacity to make a new will. Some of the other witnesses speak of her declarations about the time of the interview with Mr. Pennington, or subsequent thereto; but in view of his evidence as to her state of mind, it is not necessary to examine their testi- mony. Whatever she said under those circumstances (if legal evidence) should have no influence in the determination of this cause. Leaving out of view all evidence of the declarations of the testatrix, for the reasons already stated, it remains to consider other testimony offered by the exceptant, for the purpose of proving that Catharine received the money from testatrix after 6 Stew.] NOVEMBER TERM, 1880. 349 Van Houten v. Post. tlie execution of her will, and the object for which it was received by her. It is said that, in some casual conversations, Catharine admitted that she had received from her mother $5,000, in satisfaction of the legacy. Declarations of a legatee, both as to the fact of the receipt of money and the object for which it was received, are important, and proof of this character should be examined with much care. The only testimony produced by exceptant on this branch of the case worthy of consideration, is that of Aaron S. Pennington. Upon the evidence of this witness the decision of the prerogative court is mainly based. Mr. Pennington was a gentleman of high character, and would not intentionally make any statement he did not believe to be true ; but from all the admitted facts in the cause, and from other parts of Mr. Pennington's testimony, it is evident that he was mistaken in his statement of what Catharine said to him about the advancement of the money. It must be observed that the examination of Mr. Pennington as a witness, took place nearly nine years after this alleged con- versation with Catharine. Mr. Pennington says, in substance, that about two years after the will was executed, he visited the testatrix, having the will with him, and that his recollection is that, as he came down stairs from the room of testatrix, he saw Catharine for a few moments, and told her that her mother said that the $5,000 (referring to the legacy) had been paid her in the house, and that she replied, " That is right." He adds that his impression of what Catharine said depends entirely upon his recollection. Mr. Pennington further says that, when he went to his office, he endorsed what the testatrix had said on the envelope in which the will was enclosed, and he thought he had also en- dorsed what " Caty " said, but found, when he came to give his testimony, he had not done so. If Catharine did say what, after the lapse of so many years, !Mr. Pennington thinks she said, is it not strange that he did not endorse her reply to him on the envelope at the time he endorsed the declaration of the testatrix ? His object must have been to preserve evidence, and, as a lawyer, he must have known thafe 350 COURT OF ERRORS AND APPEALS. [33 Eq. Van Houten v. Post. the admissions of Catharine were of far more importance than the declarations of testatrix, especially when the testatrix, as this witness says, had lost her mind to such an extent as not to be able to make a will upon that day. If the memory of the witness failed him as to his supposed endorsement of what " Caty " said upon the envelope, did it not also fail him as to what " Caty " did actually say ? One is in refer- ence to a supposed fact, and the other relates to a hurried con- versation, which is much more difficult to retain. The strongest evidence of inconsistency in the testimony of Mr. Pennington, showing conclusively great infirmity of memory, is the fact that on the 1st day of February, 1865, he wrote a receipt for Catharine Van Houten to sign, acknowledging the receipt from the executor of Rachel Van Houten of $5,000 — for the very legacy in question. Upon this instrument, signed by his wife, John R. Van Houten paid the money which in his account he asked the orphans court to allow him. Mr. Pennington was not the adviser of the Van Houtens alone, but was the counsel and confidential friend of the whole family of the testatrix. If Catharine had told him the legacy had been paid her, by advancement of money by her mother after making the will, would he have allowed the executor to pay her again ? An honorable and just man, such as all admit Aaron S. Pennington was, would not have suffered Catharine to receive a double portion. But it is said that, at the time he wrote the receipt, Mr. Pen- nington had forgotten that Catharine had told him she had received the amount of the legacy from her mother. This is an acknowledgment of his loss of memory. The writing of the receipt was about three years previous to the examination of Mr. Pennington as a witness, and if he had any memory of the conversation with Catharine, it would certainly then have been more accurate than at the subsequent period of his examination. The circumstances attending the writing of that receipt were calculated to call attention to what Catharine had said about the legacy, if she ever did say what the witness thinks she did. He 6 Stew.] NOVEMBER TERM, 1880. 351 Van Houten v. Post. knew that, by the will which he had drawn and kept in his pos- session until the death of the testatrix, Catharine's legacy of $5,000 was to be paid to her out of the proceeds of sale of certain land by the executors, which sale he was to approve. He did approve the sale and prepare a deed for the property, and also wrote a receipt for commissions, to be signed by the person wlio effected the sale ; and on the same day he wrote the receipt for the legacy for Catharine to sign. There should not have been any confusion in his mind, for there was no other $5,000 legacy bequeathed to Catharine. Is not the fact that Mr. Pennington wrote the receipt for the legatee to sign so inconsistent with his testimony as to what she had said to him about the legacy, as to conclusively demonstrate that his memory cannot be relied upon ? If the conversation with Catharine had, for the moment while writing the receipt, escaped his memory, would it not have occurred to him in time to have the money refunded to the executor? Although he must have seen the executor and legatee almost every day, there was no mention of the conversation with Catharine until some three years afterward, when he was examined as a witness. To justify Mr. Pennington in writing the receipt upon which Catharine was paid her legacy by the executor, it is not sufficient to say that he did not wish to take part in any dispute about the matter, nor be counsel for either party. There is no evidence that at the time the receipt was drawn there was any controversy about the legacy, nor did the difficulty concerning its payment arise until Mr. Van Houten presented his account for settlement. It was Mr. Pennington's duty to tiike part, if he had knowledge of a fact or declaration of the legatee which, if proved, would adeem the legacy. It cannot be sup- posed that so just a man as Aaron S. Pennington was known to be, would have remained silent and suffered Catharine to be paid 15,000 which he knew she had acknowledged she had already received. Much less would he aid such payment by drawing a receipt for the money, for her to sign. There is evidence that when John R. Van Houten desired to have his executor's account prepared for settlement with the 352 COURT OF ERRORS AND APPEALS. [33 Eq. Van Hoiiten v. Post. orphans court, he took the papers, including the $5,000 receipt, to Mr. Pennington for tliat purpose, and that the account claim- ing allowance for payment of the legacy to Catharine was pre- pared in his office. From the foregoing, it is evident that Mr. Pennington had entirely forgotten what Catharine had said on the occasion spoken of by him, and he says he never spoke to her again on the subject. If the testimony closed here, it is clear that there is not suffi- cient proof to justify the court in holding that the legacy was adeemed. But there is evidence on the part of the appellant. Catharine Van Houten denies positively that she ever told Mr. Pennington what he says he thinks she did, or that she ever told any one that her mother had given her any money in satisfaction of the legacy. Both Mr. and Mrs. Van Houten swear that she (Catharine) never had the $5,000, nor any part thereof, in pay- ment on the legacy. They say that prior to the construction of the house referred to in the evidence, or about that time, the tes- tatrix, while yet sane, made her daughter presents of a few small sums, amounting in all to about $300, to aid in the building, undertaken at the testatrix's request, and, in fact, in part for her accommodation, and toward which she had promised to con- tribute. This version of the transaction is sustained by the evidence of Adrian Post, a favorite grandchild, who resided with her, and knew more about her motives while she was in possession of her mental faculties than any other witness. He says his grand- mother never told him she had furnished a cent toward the house, but said she would help along a little towards it, for the house she lived in was not large enough for her own family. Mr. Van Houten says in his testimony that he built the house with his own money, except about $800, which he received from his wife, $300 of which he says her mother presented to her at different times. He states how he obtained the money to build the house, and produces a copy of records of deeds of lands sold by him prior to the commencement of the Avork, showing con- sideration-money expressed as received, greater in amount than 6 Stew.] NOVEMBER TERM, 1880. 353 Van Houten r. Post. the cost of the house. There is also evidence to show that at that time John R. Van Houten was abundantly able to pay for such a house from his own funds. If Catharine received $5,000 from her mother during her life, and after the execution of the will, in what sums was it handed to her? Was all given her at once, or at different times, and if so, how much at a time? To answer these important questions no evidence is produced. Is it not strange that if so large a sum ns $5,000 was given by the testatrix to her daughter, no one saw it done ? It must be remembered that even before she became insane, the testatrix was not capable of transacting such business without assistance. Mr. Pennington or Mr. Van Houten had attended to her financial affairs for several years before she lost her mind. The money could not well have been disbursed by her to Catharine without the knowledge of one or both of them. Both were wit- nesses in this cause, but neither testifies that he ever saw any money pass from the testatrix to her daughter. Again, where did the testatrix get the money to give to her daughter? There is nothing to sliow the receipt by testatrix of any considerable sum of money at the time of the building of the house, or within a reasonable time previous thereto. Several years before that event she had received $1,700 or $2,400 for a mortgage, but as her money when it came in was re-invested either by Mr. Van Houten or Mr. Pennington, it is not, in the absence of evidence, to be presumed that the testatrix had that money by her at the time of the building of the house. If not given to George Post, of which there is some evidence, or used in support of the family she had around her, some of whom were continually clamoring for money, it was doubtless re-invested. Could the testatrix, in her condition and with her surround- ings, have received a sum so large as to satisfy the legacy in question, without some evidence of the fact? Does not the tes- timony prove that for several years before her actual insanity, she was not able to transact such business alone ? When, from whom and in what sums did she receive the money ? Did she give any receipt or writing of acknowledgment, or cancel any 23 354 COURT OF ERRORS AND APPEALS. [33 Eq. Ruckman v. Ruckman. mortgage of large amount ? Or is there any parol testimony of the particulars of any such transaction ? No such evidence is produced. The testimony in the cause does not sustain the alle- gation that the legacy was adeemed. The claim of the appellant for the payment of $5,000 to his wife for her legacy should have been allowed him in his account before the orphans court. The decree of the ordinary affirming the decree of the orphans court is reversed. The appellant also appeals from that part of the decree of the prerogative court which directs the costs of the appeal to be paid out of his own funds. This part of the decree should also be reversed. While it is true that the mass of the testimony has no relevancy to the issue in the cause, and while the effort appears to have been made to reveal the family history from its beginning, in its most hideous and repulsive form, rather than to elucidate the question before the court, yet it cannot be perceived that one party was less eager to prolong such a disgraceful contest than the other, and as the litigants seem to have equally enjoyed this character of litigation for more than thirteen years, each party should pay his own costs in the appeal before the prerogative court, and also in this court, out of his own funds. Decree unanimously reversed. Elisha Ruckman, appellant, V. Margaret Ruckman, respondent. 1. A bond and mortgage belonging to a husband were assigned by him to one S., and by S. immediately re-assigned to the wife ; both assignments were duly acknowledged, and that to S. recorded, by the husband's direction, but the bond and mortgage and both assignments remained in the husband's pos- session, except once afterwards when the mortgage was delivered to the wife for a temporary purpose and then returned by her to her husband. There was no consideration for the transfer — Hdd, that as there was no delivery of the bond and mortgage and assignment to the wife, the title thereto never passed to or vested in her. 6 Stew.] NOVEMBER TERM, 1880. 355 Ruckman v. Ruckman. 2. Costs of printing a volume of three hundred pages of testimony, nine- tenths of which consisted of matters entirely irrelevant to the issue, not allowed to either party as against the other. On appeal from a decree of the vice-chancellor, reported in Rucknian v. Ruckman, 5 Stew. Eq. 259. Mr. John W. Taylor, for appellant. Upon the evidence there arises the question of law, whether there was a siifftcient delivery to make the assignments effectual, and vest the title to the mortgage in Mrs. Ruckman. Com. Dig., Fait A3, A 4; Coke Lit. 86 a; Shep. Touch. 58; 3 Wash. R. P., {4-th Ed.) 578 ; Folly v. Vantuyl, 4 Hal. 153 ; Cannon v. Can- non, 11 C. E. Gr. 316 ; Church v. Muir, 4 Vr. 319 ; Bump on Fraud. Conv., {2d Ed.) 447. Mr. R. Allen, jun., for appellant, cited — Ward V. Andlum, 8 Beav. 201 ; Silmon v. Wilson, 3 Edw. 36; ScoviUe v. Post, 3 Edw. 203; Wheeler v. KirUand, 8 C. E. Cr. 13 ; Skillman v. Skillman, 2 Beas. 403; Jackson v. Malsdorf, 11 Johns. 107 ; Finch v. Finch, 15 Vesey 44) Ambrose v. Ambrose, 1 P. Wms. 322; Gascoigne v. Throing, 2 Vern. 366; Garfield v. Hartmaker, 15 N. Y. 475, 10 Paige 567 ; Dills v. Stevenson, 2 C. E. Gr. 413; 3 Johns. Ch. 383, 521; 3 Ves. 361; 1 Jacobs 126; Fulton v. Fulton, 48 Barb. 583 ; Shirttoff v. Francis, 118 Mass. 154; Noble v. Smith, 2 Johns. 53-56 ; Smith v. Smith, 2 Strange 940, 956 ; Delmotte v. Taylor, 5 Bradf. 417 ; Tait v. Helbai, 2 Ves. 112. 31r. Jacob Weart and Mr. I. W. Scudder, for respondent. A gift can be made in two ways — by parol, or by deed in writing. The donee must be put in possession of the property actually or constructively. Possession is given in two ways — of goods and chattels by actual or constructive delivery. 356 COURT OF ERRORS AND APPEALS. [33 Eq. lluckuian v. Uiiclciiian. Of choses in actiou by an assignment in writing, or by a parol assignment and actual delivery. Belts v. Francis, 1 Vr. 152 ; Dilts V. Stevenson, 2 C. E. Gr. 4.07; 2 Kent's Comm. 439. A bond and mortgage is a chose in action, and may be as- signed in equity by a mere delivery. Galway v. Fullevton, 2 C. E. Gr. 389; Bower v. Hadden, 3 Stew. Eq. 173 ; Denton v. Cole, 3 Stew. Eq. 24.6 ; Hughes v. Nekon, 2 Stew. Eq. 549. If the bond and mortgage was assigned to defraud creditors, the assignment will be set aside as to creditors, but is good be- tween the parties. Tantum v. 3Iiller, 3 Stock. 551; Cutler v. Tattle, 4 C. E. Gr. 563; Sayre v. Fredericks, 1 C. E. Gr. 205 ; 1 Story's Eq. Jur. § 372. Where a party makes a transfer of property for the purpose of committing a fraud, the law will not give him any aid to re- cover the same back. Tantum v. Miller, 3 Stock. 551 ; 1 Story's Eq. Jur. § 298; Ruckman v. Ruckman, 5 Stew. Eq. 259 ; Cutler V. Tuitle, 4 G. E. Gr. 562 ; Baldwin v. Campfield, 4 -^^«^> Cli. 891 ; Crawford v. Bertholf, Sax. 458 ; Folly v. Vantuyl, 4 Hal. 153 ; Farlee v. Farlee, 1 Zab. 285 ; Cannon v. Cannon, 11 C. E. Gi: 316; Dilts v. Stevenson, 2 C. E. Gr. 413; Irons v. Small- peace, 2 B. & Ad. 551; 2 Spenc. Eq. Jur. 907 ; London and Brighton Railway Co. v. Fair dough, 2 Mann. & Gr. 691; Wesierlo v. De Witt, 36 N. Y. 345; Hackley v. Vrooman, 62 Barb. 670 ; WalUngsford v. Allen, 10 Fet. 549 ; Lucas v. Lucas, 1 Atk. 270 ; Martin v. Funk, 75 N. Y. 134; Sowerhye v. Arden, 1 Johns. Ch. 256, 258 ; Minor v. Rogers, 4O Conn. 512 ; Richardson v. Richardson, L. R. {3 Eq.) 691 ; Morgan v. MaUeson, L. R. {10 Eq.) 475 ; Wilson v. Hill, 2 Beos. 143 ; Black V. Black, 3 Stew. Eq. 227; Van Winkle v. Belleville Mutual Ins. Co., 1 Beas. 335. The opinion of the court was delivered by Green, J. This is a controversy between husband and wife, respecting the title to a bond and mortgage originally made to the hus- band, and alleged to have been assigned to the wife. It is in 6 Stew.] NOVEMBEE, TERM, 1880. 357 Kuckman v. Ruckman. form a foreclosure suit brought by the wife, now liviug apart from her husband, against the owners of the mortgaged premises. The bill sets out the bond and mortgage, and alleges that the husband by writing, under his hand and seal, assigned the same to one Richard L. Simonson ; and that Simonson immediately assigned the same to the wife; that both assignments were duly acknowledged, and the one from the husband to Simonson was afterwards placed on record by the husband's direction. By virtue of the assignments, the wife, in her bill, claims title to the bond and mortgage as a gift from the husband. The bill does not aver that the assignments, or either of them, were ever delivered either to Simonson or to the wife, but ex- ])ressly charges that the bond, mortgage and assignments remained in the possession of Ruckman, as the husband and agent of the wife. The prayer is, that the husband may be decreed to deliver the securities and assignments to the com- })lainant, and for a foreclosure and sale of the mortgaged premises. The husband, who was made a party defendant, answered the bill. He admits the formal execution of the papers, but avers that the same never passed out of his hands or from under his control, and that no delivery thereof was ever made, either to Simonson or to the wife. He denies that she ever had posses- sion of the assignments, or of the bond and mortgage, by virtue of any delivery, absolute or constructive, or that he ever held the same or any of them, as the agent of the wife or in trust for her. The decree below was in favor of Mrs. Ruckman, in accord- ance with the prayer of her bill, and the case is now brought to this court for review. The whole contest is between the husband and wife as to her title to the bond and mortgage. The owners of the equity of redemption make no defence. Ruckman is not asking relief. We are not called upon either to affirm his title or to declare the transfer fraudulent and void, as against his judgment and attaching creditors who were made parties to the bill. All these matters, though discussed on the hearing, may, for the purposes of this case, be safely laid out of view. 358 COURT OF ERRORS AND APPEALS. [33 Eq. Ruckman r. Kiickman. To maintain her action it is necessary for the respondent to establish her title to the securities in question. The burden is on her. In her bill she claims title by virtue of the deeds of assignment, and charges that the transfer from Ruckman to her Avas good as a gift. The two assignments were executed simultaneously. They constitute but one transaction. Simon- son was called in by Ruckman merely to act as a medium or instrument for passing the title. No delivery of either assign- ment was made to or by him. He merely affixed his name to an instrument prepared by Ruckman's direction without reading it or knowing the subject matter of the transfer. Xo title vested in him. He disclaims all interest under the assignment made by Ruckman. Nor was it the intention of Ruckman to vest any interest in Siraonson, but merely to use him as a medium for passing the title to the wife, should it become advis- able to make the transfer. The two assignments may be con- sidered as one instrument designed for passing title from the husband to the wife. Upon delivery to her, both would take effect as one deed. The formal execution of the assignments by signing, sealing and acknowledging is admitted, but their delivery to the re- Bjiondent is denied. This is the real issue in the cause. The transfer was purely voluntary and without consideration either valuable or meritorious. It does not fall within the line of cases where effect has sometimes been given by courts of equity to certain deeds, such as declarations of trust and family settle- ments, though retained in the custody of the grantor and never delivered during his life. It is subject to the universal rule upon which all the books agree, that delivery is one of the essential requisites to the validity of a deed. Was a sufficient delivery of the assignments made to the respondent to vest the title to the mortgage in her? The essence of the delivery consists in the intent of the grantor to perfect the instrument, and to make it at once the absolute property of the grantee, and his acts and declarations are the evidence of such iTitent. If both parties be present, and the usual formalities of execution take place, and the contract is to all appearance con- 6 Stew.] NOVEMBER TERM, 1880. 359 Euckman r. Euckman. summated without any conditions or qualifications annexed, it is a complete and valid deed, notwithstanding it be left in the cus- tody of the grantor. But where there is not an actual transfer of the deed, it must satisfactorily appear either from the circum- stances of the transaction, or the acts or words of the grantor, that it was his intention to part with the deed and put the title in the grantee. FoUy v. Vantuyl, 4- Sal. 153 ; Farlee w Farlee, lZab.279,286; Crawford v. Bertholf, Sax. 4^8 ; CaJinonv. Can- von, 11 C. E. Gr. 316; 4 Kent's Comm. 456; 3 Wash. E. P. 581. In this case, there is no evidence that either of the assignments was ever delivered to the respondent. She was not present at their execution. They never came into her hands. She never heard of the transfer for more than six months afterward. No one was present when the papers were executed but Ruckman, Simonson and the attorney who prepared them, and possibly one of his clerks. So far as appears by the evidence, not an act was done or word said by the appellant evincing any intent on his part to perfect the instrument, and to part with its pos- session or his control over it. On the contrary, he directed the attorney to send the assignment from Ruckman to Simonson to the clerk's office for record ; and the one to the respondent he placed with the bond among his papers in the bank, where it remained, according to Ruckman's account, until he destroyed it. The assignment was not made in pursuance of any contract or arrangement with the respondent, and no presumption arises from the mere fact that it was acknowledged, so long as it re- mained in the possession and under the control of the grantor. Even if it was the intent of Ruckman at the time of the execu- tion of the papers to perfect the gift by delivery, still it was revocable until carried into effect. A mere intention or promise to give, without some act to pass the property, is not a gift. There exists the locus penitentice so long as the gift is incom- plete and left imperfect. 3 Kent's Comm. 438. In Pringle v. ' Pnngle, 59 Pa. St. 281, the same principle was involved as in this case. The question arose upon the as- signment of a promissory note. Mr. Justice Sharswood. in his opinioii, says : 360 COURT OF ERRORS AND APPEALS. [33 Eq. Kuckman v. Kuckman. "The transfer of a chose in action, whether by instrument under seal or not, unless founded on a sale for valuable consideration, is not complete and exe- cuted until delivery to the assignee. In a gift of a chattel, actual delivery is essential. Until delivery, the gift is revocable by the donor. So, where there is a gift of a security or chose in action, and the donor executes an assignment, under seal or otherwise, and retains tlie paper in his own possession, he retains, at the same time, entire control over the gift. He may cancel or destroy the transfer. But it is urged that a seal imports consideration, and the transfer, on its face, purports to be for a valuable consideration, but the seal produces no effect until the instrument becomes the deed of the party by delivery, or what, in law, is equivalent thereto. Until then, the instrument, though signed and sealed, is still an unexecuted transfer in the eye of the law." But it was urged at the hearing, though not expressly stated in the bill, that even if the title under the assignments failed, still that the respondent claimed by a parol gift and delivery of the mortgage itself. It appears, by the evidence, that for some reason the appellant deemed it important to make a demand on the mortgagor for the balance due on the mortgage, and desired not to make it in his own name. He told his wife he wanted her to make the demand. He handed the mortgage to her, and told her what to say. They went together to Nyack in a wagon, and she made the demand in his presence and in accordance with his directions, having the mortgage in her hands, and, in the presence of the mortgagor, claiming it as hers. She carried it home again, and, by her husband's instructions, put it in his pri- vate box where he kept his papers. The circumstances, as detailed by the respondent, are not evi- dence of the delivery of the mortgage as a gift to the wife. It was not placed in her hands with the intention and for the pur- pose of transferring the title to her, but for an entirely different purpose, as expressed by the appellant at the time. All the time the mortgage was in her possession she was in her husband's presence and under his control. She was his mouth-piece, re- peating his words; his agent, acting by his direction. Not one act did she perform, not one word did she say,, of her own voli- tion. When they returned home she restored the mortgage to his custody, and never afterwards had it in her hands. She did not claim it as her property until after their separation. The title of the respondents has never been perfected by a de- 6 Stew.] NOVEMBER TERM, 1880. 361 Euckman v. Kuckman. livery, either of the assignments or of the mortgage itself, auJ for this reason she must fail in her action, both against the ap- pellant and the owners of the equity of redemption. It is a well- settled rule that courts of equity will lend no assistance towards perfecting a mere voluntary contract while it remains in fieri. They will only enforce gifts and assignments inter vivos when the gift or assignment is perfected and complete. If anything furllier remains to be done to complete the title of the donee, courts of equity, treating the donee as a mere volunteer, will not aid him to carry it into effect. 1 Story's Eq. Jur. § 706, and cases cited. Before disposing of the question of costs, the court desires to call attention to the amount and nature of the testimony taken in the cause. The printed book contains nearly three hundred pages of evidence, not one-tenth of which has any direct bearing apon tlie real issue between the parties. The remainder consists mainly of inquiries into the private affairs, social status, domestic relations, and general moral or immoral character of the parties — all of it totally irrelevant, and much of it disgusting in its details. The taking of such testimony is an onerous tax upon litigants, and the reading of it an imposition on the court. No costs therefor will be allowed either party as against the other. The decree should be reversed, and the complainant's bill dis- missed, but without costs, either in this court or in the court below, as between the parties to this appeal. The respondent's title to tlie bond and mortgage having entirely failed, the bill should be dismissed as to the other defendants, but no appeal having been taken on their behalf, they must seek relief in the court of chancery, and apply for the dismissal there. For reversal — Beasley, C. J., Depue, Knapp, Scudder, Van Syckel, Clement, Cole, Dodd, Greex — 9. For affirmance — Magie, Reed — 2. 362 COURT OF ERRORS AND APPEALS. [33 Eq. Colt I'. Miller. Morgan G. Colt et al., appellants, V. Elias N. MilLiER, administrator, &c., respondent. 3Iessrs. Bedle, Muirhead <& McGee, Mr. Ashbel Green and Mr. B. Williamson, for appellants. Messrs. C. & R. W. Parker, for respondent. Per Curiam. This decree unanimously aflBrmed for reasons given by the chancellor in the case below, 6 Stew. Eq. 6. Margaret Crater et al., appellants, V. Jacob Welsh, executor, respondent. Mr. A. Q. Keasbey, for appellants. Mr. Alfred Mills, for respondent. Per Curla-M. This decree unanimously affirmed for reasons given by the chancellor in the case below, 5 Stew. Eq. 177. Dajstiel F. Tompkins and wife, appellants, V, David Campbell, respondent. Mr. Fred. Adams, for appellants. Mr. Elwood C. Harris, for respondent. Per Curiam. This decree unanimously affirmed for reasons given by the chancellor in the case below, S Stew. Eq. 170. CASES ADJUDGED IN THE COURT OF CHANCERY OF THE STATE OF NEW JERSEY. FEBRUARY TERM, 188L Theodore Runyon, Esq.. Chancellor. Abram Y. Van Fleet, Esq., Vice-Chancellor. HULDAH H. ScHANCK V. Charles W. Schanck. Where a wife in anger told her husband that he "might go his way and she would go hers," and gave other evidence of her desire that they should live separate, but immediately retracted and besought him not to go, and he, not- withstanding her entreaties, left her, in a passion, and, without any attempt at reconciliation and without contributing anything towards her support or even communicating with her in any way, remained awiiy from her for three years, living all the time in the same county with her — Held, that she was entitled to a divorce for desertion. Bill for divorce. On final hearing on pleadings and proofs. (363) 364 CASES IN CHANCERY. [33 Eq. Schanck v. Scbanck. 3Ir. W. T. Hoffman, for complainant. Mr. B. Gummere, for defendant. The Chancellor. This suit is for divorce from the bond of marriage, and is brought by a wife against her husband. The ground is deser- tion. The bill was filed on the 12th of August, 1878, and it charges that the defendant has been guilty of willful, continued and obstinate desertion of the complainant for a period of three years and more before the filing of the bill. The time stated as the beginning 'of the desertion is the 25th of January, 1875. The parties were married in this state, in January, 1871, and they are and have been ever since the commencement of the alleged desertion, and were previously thereto for about two years, residents and inhabitants of Monmouth county. By far the greater part (and indeed almost all) of the large amount of testimony which has been taken in the cause has reference to matters (the history of the married life of the parties prior to the desertion) which in my view of the case it is not necessary or profitable to advert to at any considerable length. A glance at the main facts will be enough on that score. Immediately after their return from their wedding tour the parties went to reside in the city of New York, where the defendant was engaged in busi- ness as a broker. They boarded there until the middle of April, 1871, when he failed in business. He proposed to his wife to go to live with his parents in One hundred and fifty-second street, but she preferred to come out to Keyport, where her parents lived, and they came out accordingly, and boarded with her father until the spring of 1872, when they went to his mother's farm at Cream Hidge, in Monmouth county. They remained there until the scarlet fever broke out in the tenant's family (seven persons being ill of the disease at the same time), and then the complain- ant returned to her father's house, but the defendant stayed. The complainant, after six weeks' stay at Keyport, returned to Cream Ridge and stayed till November, 1872, when she and her husband went to Keyport, and from there, in same fall, to 6 Stew.] FEBKUARY TERM, 1881. 365 Schanck v. Schanck. Brooklyn. They boarded in the last-mentioned city until April, 1873, being supported by an allowance of $25 a week, made to the defendant by his father. While in Brooklyn, the defendant endeavored to obtain employment as a clerk, but without success. In April, 1873, his father having met with losses in business, refused to continue the allowance, but invited the parties to come to Cream Ridge, offering to board them in his house and pay the defendant ^1 a day for his services around the place. The defendant, having no other resources, went accordingly, but the complainant was unwilling to go, and remained with her parents at Key port, which is about thirty-five miles distant from Cream Ridge. The defendant, on the one hand, attributes her refusal to live with him at the farm to her dislike of agricultural life and her mortification at his accepting employment so far below the measure of his capabilities. She, on the other hand, avers that the reason was merely her unwillingness to live with his mother, whose sour temper and unpleasant treatment had rendered her unhappy during her previous stay there. The defendant con- tinued at the farm until the spring of 1874, when he entered into a new agreement to work it " on shares ;" he and his wife to have for their occupation a part of the house separate from that occupied by his parents. The complainant refused to go there. In February, 1874, an agreement was suggested and drawn up by a friend of the defendant's, at whose house the parties were paying a short visit of a few days together, by which the defendant, on the one hand, agreed to make an effort (by going to New York to "board, advertise and answer advertise- ments" for ten days, if his parents would furnish the money), to get employment in New York or its vicinity at a salary of not less than $600 a year with a prospect of promotion, and she, on the other hand, agreed that if he should make the effort and fail, she would go to the farm and without Complaint perform her duties there. She declined to go, however, and stayed with her parents ; her husband remaining on the farm, working it under the agreement, and visiting her occasionally. In January, 1875, he was at her father's house on one of his visits, and while there the occurrence took place from which the complainant dates the 366 CASES IN CHANCERY. [33 Eq. Schanck v. Schanck. desertion, aud of which it will be necessary to speak at length. The defendant then left the complainant, and though he has ever since lived on the farm and she at her parents' house ia Keyport, he had never, up to the commencement of this suit, con- tributed to her support or even communicated with her in any way. The transaction of January, 1875, just referred to, occurred on Friday night and Saturday morning, the 19th and 20th. Tlie complainant narrates it as follows : "Friday night we were talking, and I wanted him to get something to do, and got to talking about it, and he got angry with me, and I can't tell you what he said, but he left the room ; that was the time he went out of the house when he said he walked round several times, and then he came back again ; he was talking about everything ; he wanted me to live with his mother, aud I said I would not do it ; then I wanted him to get something else to do, and we were talking about that ; then he came back and went to bed, and the next morning he went to New York. Sometime before that, the visit before, when he came to our house, he asked me for the ring that was given with the under- standing that when I was tired of him, I would give it to him ; but he took it away from me himself, and I cried and he gave it back to me ; and he had before repeatedly asked me when I was tired to give him that ring back and he would understand ; after we had those words Friday night, Saturday morn- ing I turned round and gave him that ring ; I did so because I felt completely tired out with him — worried and worn out, completely exhausted — so that I thought that I could not stand it any longer; he took the ring and we then went down to breakfast ; he was very pleasant and talked with them all ; I was very silent, and when we went out of the dining-room door, he did not Bay good-bye to me, so I said to him, 'Ain't you going to kiss me good- bye?* he said 'Yes,' and kissed me and left; he came back Saturday night with the boat and treated me very coolly and indifferently ; he did not say anything — did not say a word ; I don't think we said five words to each other ; the evening passed, and at night we retired ; he and my father had a long conversation, and I heard him say that he had made so much on the farm — between $400 and $500 — and my father said, ' Haven't you got anything for your wife when you have made so much?' he said, 'Sometime I will give her something;' then I went up stairs and thought it all over; I thought I could not live this way any longer, so I went down stairs and said to him, ' Y'ou can go your way and I will go mine ; I can't stand tliis way of living any longer ; ' I went up stairs, and after awhile he came up and said, ' Where is that tin box with the papers ? ' and with that he kissed me good-bye, and as he got to the top of the stairs I ran out and took him by the coat, and he jerked himself away, so that he hit himself against the wall, and I halloaed to him to come back ; he paid no attention to me, and that was the last time I saw him." 6 Stew.] FEBEUARY TERM, 1881. 367 Schanck v. Scbanck. She gives as the reason why she ran after him and pulled him back, that she " had feeling for him, and felt sorry." She says that when he went away it was between ten and eleven o'clock at night. It appears that what she cried after him to induce him to come back, was " Charley, won't you come back?" She testifies that when she gave him the ring, and said he might go, she meant, not that he might go forever, but only for that time. From his testimony, which corroborates her in all essential respects in this narrative, it appears tliat the ring was given before their marriage, and that tlie understanding which she said existed between them as to using it as a means of denoting her desire to be released from him, had reference to their betrothal merely. He also says that when she told him he could go his way and she would go hers, her manner was sorrowful. It is quite evident from all the testimony on the subject that the diffi- culty between them arose from the complainant's dissatisfaction with the effort made by the defendant to obtain more suitable employment, and her conviction that she would be unable to live comfortably with his mother on the farm. There seems to be no reason for doubt that that conviction was well founded. It is urged, however, on behalf of the defendant, that it was her husband's right to choose his employment and his place of resi- dence, and it was her duty to accept his choice, and go with him to his domicile and reside there with him. The decisive question in this case is not, however, whether the complainant was right or wrong in refusing to go with her husband to the farm and accept his selection of a pursuit and place of abode, but whether what luck place between him and her, as above testified, justi- fied him in abandoning her, in depriving her of his society and of all support, and in never making any, even the least, effort to ascertain whether she had not changed her mind, or could not be induced to do so. It is urged, in his behalf, tiiat when she gave him the ring and subsequently told him he might go his way and she would go hers, she, in effect, deserted him, or at least expressed her desire for or consent to an indefinite separa- tion. But she swears, and her statement is corroborated by the circumstances as detailed in the testimony, that she had no inten- 368 CASES IN CHANCERY. [33 Eq. Schanck v. Schanck. tion of expressing a desire for a final sepai'ation, but only to express her resolve in regard to the subject which was the cause of difference between them. She appears to have intended to express only her determination not to go to the farm to live if she had to live in the same house with his mother, and that, too, merely because of her conviction that she could not live in com- fort there with his mother. But, moreover, after she had given the ring and made that expression, and her husband had gone out of the room to go out of the house, she strove to detain him, and called after him in a tone of entreaty, " Charley, won't you come back?" thus showing that she did not wish him to go, but desired that he should return to her in order that the subject might be further considered, perhaps with a view to a submis- sive compliance on her part with his wishes. Her father, as the defendant left the house, invited him to stay for the night, but the defendant, conceiving that he had been treated with indignity in what had passed, refused to listen to the entreating call of hia wife or her father's exhortation. For three years and a half before the bill was filed he denied his wife any, the least, attention or recognition, but permitted her to live in a state of separation from him, wholly dependent on her family for her support. His reason for it seems to have been the wound which his pride received when his wife told him he might go his way and she would go hers. Under the cii^Gumstauces of the case, the husband owed a duty to his wife — a duty to society — to avoid, as he well might have done, the consequences which his punctilious resent- ment (so exacting that he would not even condescend to propose the terms on which it might be appeased), has inflicted upon his wife. He was not at liberty to leave her uncared for and un- protected. If his excuse were her refusal to live on the farm, it could not be accepted, for he abandoned her in January, while the arrangement under which she refused to live on the farm was not to take effect until April following. But the expression of her resolution not to live on the farm was not, in fact, the occasion of his withdrawal from her. His complaint against her was not on that account, but on the ground of her treatment of him on the occasion of his last visit to her. He says that all 6 Stew.] FEBRUARY TERM, 1881. 369 Schanck v. Schanck. the time he expected she would come to him at the farm. In- deed, he corrects the record of his testimony lest he should be misrepresented where it made him say that she had not offered to live in the tenant-house on the farm. The proof is clear that she was quite willing to do that, and had offered to do it ; that she was not unwilling to live on a farm, or on his mother's farm, but was not willing to live in the same house with his mother. Manifestly, he was actuated in his abandonment of her merely by resentment and pique. When asked on the witness-stand whether his going away from her and refusing to see or com- municate with her was because he would not sacrifice his dignity sufiSciently to do so, he replied that he " would not under the past circumstances and her orders," and he admits that he never, after his withdrawal, signified to her the possession on his part of the slightest interest in her welfare, or contributed of his means a single cent for her support, or offered her a home with him. And he bases his justification of his conduct towards her on his regard for his self-respect, saying that he never expected to cross her father's threshold again until he should have received her invitation or that of her family to do so. It is clear that she never intended to desert him. Her letters offered in evidence by him contain the very strongest expressions of affection, and were undoubtedly sincere. Were he before the court asking a divorce from her on the ground of desertion, his application would be denied for the reason that he has been derelict in his duty towards her under the circumstances. Jen- twigs v. Jennings, 2 JBeas. 38 ; Cornish v. Cornish, 8 O. E. Gr. £08; Bowlby v. Bowlby, 10 C. E. Gr. 4.06. In Cornish v. Cornish, which was a suit by a husband against his wife fur divorce for desertion, the husband had come home late at night and the wife was slow in admitting him into the house. He resenting her tardiness and discontent at being so disturbed, threatened to chastise their child of a year old because, having been awakened by the noise of the altercation, it very naturally cried. She snatched the ,child up and flew into a passion, and declared her determination to leave the house (her husband's father's) and go to her father's house as a refuge from such treatment, and that 24 370 CASES IN CHANCERY. [33 Eq. Schanck v. Schanck. she would never live with her hvisband again and would get a divorce. Her husband harshly bid her look to the consequences of such a step. She went home that night. Said the chancellor, in refusing the divorce : "He [the husband] sent her away in this mood at midnight, with a hired man, to her father's house, three miles distant. He has never been to her since, to seek for reconciliation or ask lier to return. He has met her a number of times without speaking to her. Her temper may be too quick and too violent, but it was his duty to go to her after leaving under these circum- stances, and see if some contrition, some concession on his part, would not do away with the effect of his harsh conduct on that night. Her threat, in the anger of the moment, never to live with him and to obtain a divorce, is not sufficient excuse for not making the attempt. He has acted as if he were anxious to convert a small quarrel between him and his wife, in which he was both much and most to blame, into a legal ground for divorce. He has not made the advances or concessions which a just man ought to have made to put an end to this desertion." That reasoning is applicable to the case under consideration. It declares and defines the duty of the husband under such cir- cumstances as are presented here. And the reasoning is founded on a just view of the marital relation which imposes upon the husband the duty of maintaining, for the benefit of himself and his wife and also of society at large, the integrity of the matri- monial tie, and to that end requires of him effort, and, if need be, concession and persuasion. To the same purpose and in the same strain is the language of the court in Yeatman v. Yeatman, L. R. {1 P. & D.) J^9 : " It would be of evil example if this court should hold that mere frailty of temper, unless shown in some marked and intolerable excesses, was a reason- able ground to justify a man in throwing a young wife upon the world without the protection of his home and society. A woman so placed is open to many temptations. If she fail to resist them the husband who has already quitted her will not be slow to take advantage of her fall, making his own desertion a first step towards a claim for divorce. True, she may at once insist on return- ing to him, and may obtain a decree obliging him, if within the jurisdiction of this court, to receive her again, and tlius terminate the desertion. But angry feelings, the prompting of pride or the advice of others may intervene. The wife may not be inclined to protect hereelf by forcing her society upon a husband bent upon casting her off, and if the result is criminality, the original 6 Stew.] FEBRUARY TERM, 1881. 371 Schanck v. Schanck. fault still lies at the husband's door. If submission is the part of the wife, protection is no less that of the husband, and he is bound to extend that pro- tection to his wife, even against herself and her own impulses, so far as the fences, the restraints and the inducements of conjugal cohabitation may serve to that end." In this case, it is pertinent to say the defendant gives, as one of his reasons for not going to see his wife, that " he had heard reports, too, that wei-e not complimentary." The reports to which he refers appear to have been the merest idle village gossip, but such as they were she would in all probability have been s[)ared the annoyance and mortification of being the subject of them if her husband, thinking more of his wife than of his pique, had done his duty towards her. It is to be observed that the marital relation between these parties remained unbroken up to the time when the withdrawal took place, and that it was broken only by the defendant's ceasing to visit his wife. After he left her he neither requested her to come to him or to visit him at any place. He never proposed to her any terms of con- donation of what he appears to have regarded as her offence against him. When he saw her he would not recognize her. In short, in all things he treated her as a mere stranger. The husband who withdraws himself wholly from his wife's society, refusing to make any provision for or have any commu- nication with her, prima facie deserts her, and if he continues such treatment for three years, she will, in the absence of lawful excuse on his part, be entitled to a divorce. The defendant has so dealt with the complainant in this case, but to rebut the pre- sumption to which his conduct gives rise, he by his answer alleges (denying the desertion while he admits the withdrawal) that he has informed her that his house on the farm Avas always open to her and that it was his greatest desire that she should come and live with hifia, but she refused again and again until he lost all hope of reconciling her to his life and home on the farm. But in point of fact he has never communicated with her at all on any subject in any way since he left her. That he intended to abandon her there can be no doubt, for he did actu- ally abandon her. That he never placed any limit to the time 372 CASES IN CHANCERY. [33 Eq. Central K. E. Co. v. Standard Oil Co. the abaudoument was to continue, as by imposing terms or con- ditions her compliance with which would restore marital relations between them, is equally indisputable. It is also beyond ques- tion that he manifested no desire for nor expressed any expecta- tion of a renewal of connubial relations. He left her without providing for her support, and has lived in the same county iu which she has resided ever since, and for three years and more before this suit was brought he treated her as if he had cast her off forever, and gave her to understand nothing to the contrary. He has made himself amenable to the law which authorizes the court to decree a divorce for three years' willful, continued and obstinate desertion. The Central Railroad Company of New Jersey et al. V. The Standard Oil Company et al. After the court had refused a preliminary injunction for the removal of an oil pipe and to prevent its use by defendants, and had discharged an ad interim order staying the defendants in the premises, and an appeal therefrom had been taken and was pending, an application to this court to continue such ad interim order, merely on the ground of the appeal, was denied. Motion to continue interim stay pending determination of appeal. Mr. B. Gummere, for the motion. Mr. B. Gilchrist and Mr. A. P. Whitehead, of New York, oontra. The Chancellor. On the filing of the bill in this cause an order to show cause 6 Stew.] FEBRUARY TERM, 1881. . 373 Central E. K. Co. v. Standard Oil Co. why an injunction should not be issued pursuant to the prayer of the bill, was granted, with an ad interim stay prohibiting the defendants, the oil company, from using the pipe for the convey- ance of oil. The bill complains that the defendants have with- out authority invaded and usurped the property and franchises of the complainant company by laying pipe for the conveyance of petroleum across the property of the latter, and near and alongside of a bridge across the railroad, wliich the complainants insist was when the pipe was laid, and still is, the property of the railroad company. The pipe was laid in what is claimed by tlie defendants to be the space taken by condemnation by the municipal authorities of the city of Bayonne, for a public street, in which space the bridge is. The prayer of the bill is, that the defendants may be enjoined from interfering with the complain- ants in the removal of the pipe from the bridge and from over the railroad tracks, and from interfering with the complainants by laying, or for any purpose using, any pipe either over, on or under the complainants' railroad tracks in Bayonne or elsewhere, or in any manner, for the purpose of laying the pipe, interfering with or occupying the complainants' railroad ; and generally for other relief. The defendants answered the bill, and the order to show cause was argued on the pleadings and depositions and exhibits on each side, and the questions in dispute between the litigants were very fully and ably presented and discussed on both sides, and after full and very deliberate consideration the order was dischai'ged. This, of course, dissolved the temporary Note. — The following cases hold that after an order refusing an injunction, an application to continue or re-instate such injunction is not maintainable in the appellate court (Graves v. Graves, 2 Hen. & Munf. 22 ; Galloway v. London, S De G. J. & Sm. 59, 11 Jur. {N. S.) 537; Spears v. MutJunvs, 66 JS\ Y. 127) ; nor does an appeal from such order revive or continue it [Chegary v. Seojield, 1 Hal. Ch. 525; Hicks v. Michael, 15 Cal 107; Wood v. Bwicjht, .- Johns. Ch. 295 ; Nacoochee Co. v. Davis, 40 Ga. 309 ; Garrow v. Carpenter, 4 Steiv. & Fort. 336; Brevoort v. Detroit, 24 Mich. 322; Dutcher v. Culver, 23 Min.n. 415 ; Jew- ell V. Albany Bank, Clark Ch. 59 ; Hart v. Albany, S Paige 3S1 ; Fellows v. Eeermans, 13 Abb. Pr. (N. S.) 1; Blount v. Tomli7i, 26 III. 531). The following cases hold otherwise, but in some instances the proceedings are statiitory {Fenrice v. Wallis, 37 3Iiss. 172; Levy v. Goldberg, 40 Wis. SOS; 374 CASES IN CHANCERY. [33 Eq. Central R. R. Co. v. Standard Oil Co. Stay contained in it. From the order denying tlie preliminary injunction the complainants have appealed, and they now move for a continuance of the ad interim stay during the appeal. Whether, on the dissolution of an injunction, the court will con- tinue the prohibition pending an appeal from the order, is in the discretion of the court. The 148th and 149th rules of court provide that an appeal from an interlocutory order or decree shall not stay proceedings without an order of this court, or of the appellate tribunal, to be granted on such terms as the court may gee fit to impose. And in case of appeal from a final decree, the appeal, if taken in ten days from the filing of the decree, shall operate as a stay of execution, unless this court or the appellate court shall otherwise order ; that is, if the appeal be taken within ten days, no execution shall be issued without order, and if not taken within that time, and execution shall have been issued, the appeal will not stay it unless so ordered. In either case, the application, whether for execution or for a stay, is addressed to the discretion of the court, and will be granted only on good cause shown. Schenck v. Conover, 2 Beas. 31. " If the court," said the Chancellor (Green) in the case just cited, "in the exercise of this discretion, see that in case the decree should be reversed the party cannot be set right again — if the complainant proceeds to a sale under his execution — there is a strong reason for a stay of execution. If, on the other hand, the stay of execution is unnecessary to protect the rights of the appellant under the appeal and must operate prejudicially to the complainant, the court ought not to interfere." Turner v. Scott, 5 Rand. S32 ; Bre/fsler v. McCune, 56 III. 475 ; Yocom v. 3foore, 4 Bibb S21 ; Pittsburgh R. R. v. Hurd, 17 Ohio St. 144; Williams v. Pouns, 4S Tex. 141). Whether application for a continuance may be entertained by the chancel- lor, after an appeal, see Hart v. Albany, 3 Paige SSI ; Sixth Ave. R. R. v. Gilbert B. R; 3 Abb. N. C. 53 ; Butcher v. Culver, 23 Minn. 415; Haynes v. Hayes, 6S 111 SOS; Eldridge v. Wright, 15 Cal. 88; Penrice v. Wallis, 37 3fiss. 172; Helm v. Boone, 6 J. J. Marsh. 353). Where a restraining order, granted on a rule to show cause why an injunction should not issue, falls with the refusal of the injunction, it is neither appealable nor revived by an appeal from the order refusing the injunction [Powell v. Parker, 33 Ga. 644; Ogle v. Dill, 55 Lid. ISO; see Hunt- ington V. NicoU, 3 Johns. 566; Citizens Bank v. Walker, 26 Ark. 468).—R-ep. 6 Stew.] FEBRUARY TERM, 1881. 375 Central E. R. Co. v. Standard Oil Co. In the English practice such applications are not, in general, favored, Eden on Inj.375; 2 Joyce on Inj.l319,13W. In MonJchouse v. Corporation of Bedford, 17 Ves. 380, 382, Lord Eldon said that the execution of the decree would not be stayed by chancery on appeal unless the court saw that if it should turn out to be wrong the party could not be set right again. In Wdlford V. Walford, L. R. [3 Ch.) 812, Lord Justice Sir W. Page Wood, speaking on the subject, says the correct course is to stay pro- ceedings pending an appeal only when the proceedings would cause irreparable injury to the appellant and mere inconvenience and annoyance are not enough to take away from a successful party the benefit of his decree. In this state, in Van Walken- burgh v. Rahway Bank, 4- Hal. Ch. 725, where the application was to the court of errors and appeals on an appeal from an order dissolving an injunction, for an order in the nature of a temporary injunction retaining the parties and subject matter of the controversy in statu quo until the final hearing of the appeal, the court said that the application was addressed to the sound discretion of the court, and that when an injunction has been dissolved by the chancellor, the appellate court, upon appeal from that order, would usually revive the injunction, either (1) upon a pure injunction bill when the whole matter in controversy is the continuance of the injunction, and where, consequently, the whole object of the suit would be defeated if the party were not tem- porarily restrained by the order of the appellate tribunal ; or (2) where it clearly appears that the intervention of the power of the appellate tribunal is necessary to prevent great and irreparable mischief to the rights of the appellant. In the case in hand, no material injury is to be apprehended from the refusal to continue the injunction. The pipe had been laid when the bill was filed. The stop order was merely against the use of the pipe for the conveyance of oil until the order to show cause could be heard. No injuiy from leakage in such use of the pipe is reasonably to be apprehended. Nor is any to be anticipated from the presence of the pipe in case the complain- ants should desire to raise the bridge. The pipe crosses the air space above the railroad at the same height as the bridge, and 376 CASES IN CHANCERY. [33 Eq. Central K. E. Co. v. Standard Oil Co. until the railroad company or the receiver shall wish to raise the bridge, it cannot be in their way. If it shall be found to be so when the bridge is to be raised, this court can protect the rail- I'oad company's rights, whatever they may be, in the premises. As to the alleged infringement of the complainants' franchise, it does not appear to exist. It is urged, however, that the com- plainants insist that the oil company has usurped its property, and to permit the latter to continue to do so, is an irreparable injury. But it is a question to be determined whether such usurpation has, in fact, taken place, and, seeing that the pipe had been laid when the bill was filed, and there is no danger to be apprehended from the use of it for the conveyance of oil, nor any inconvenience from its presence in case the complainants should determine to raise the bridge, it is clear that no material injury will arise from tlie refusal to prevent, before the final hearing, the oil company from using the pipe. There is, in fact, no material injury to be fairly apprehended from the refusal to enjoin in limine. It is further urged, however, that such refusal will iiiflict irreparable injury on the complainants, because it will render relief more difficult, if not impossible, by reason of the fact that under the license which, as the complainants insist, the refusal substantially gives, the oil company may expend money in the enterprise of which the pipe is part, and thus create com- plications which equity will regard as obstacles to the granting of the rights of the complainants, while such obstacles will be prevented by a continuance of the stay. But as was Sd,id in JSaston V. K Y. & L. B. R. R. Co., 9 C. E. Gr. 4.9, 69, in answer to a like suggestion, the oil company will receive no license or immunity from the refusal of the court to interfere with it on the application for a preliminary injunction. After the bill has been filed, and it has been called into court on the charge of inva- sion and usurpation of the railroad company's property, if the oil company proceeds in the same direction, it must be at its peril. In denying the interim interference asked for, the court has not decided that the oil company is in the right in the matters com- plained of, except so far as the complainants' claim is based on alleged interference with the franchise of carrying goods for tolls. 6 Stew.] FEBRUARY TERM, 1881. 377 Central E. E. Co. v. Standard Oil Co. All that this court has determined is, that there is no ground to justify a preliminary injunction, and that it will wait until the final hearing to see whether it ought to issue its prohibitory man- date. I regard the language of Lord Brougham, in Walbwn v. Ingilhy, 1 31. & K. 61, 86, as apposite. The application was to stay, pending appeal from it, the execution of an order for pro- duction of books and documents. " It has been said more than onoe in this place, that such applications are better made in the House of Lords. And in one of the cases, Lord Eldon treated such an application as a misapprehension of the party's proper course, on the ground that the chancellor's order refusing to stay might itself be appealed from, and so on without end. He added, as another reason, that the court of appeal has the power of pit)tecting the party in the possession of the judgment against any vexatious delay consequent on the stay, by advancing the cause where it has been decided iit to grant the application. * * * J had every inclination, originally, to grant this application ; and if, on confer- ring with others whose experience gave great weight to their opinions, I had found that any doubt was entertained, upon the matter of the order or of this motion, I should probably have stayed the execution. But even then I am not sure that I should have done right; for certainly it would be giving encourage- ment to vexatious appeals upon a large class of the business which occupies these courts. Indeed, were this motion granted upon the allegation that refus- ing it will enable a party to do something which cannot be undone, or to obtain some advantage which can never afterwards be wrested from him, it is impos- eible to conceive any case of an order for paying money out of court, for dis- solving an injunction for appointing a receiver, in which the same ground existing much more plainly, the same course must not be pursued, and thus the very cases where it is of the most essential importance that speedy execu- tion sliould take place, the very cases in which this court possesses its peculiar jurisdiction because of that urgent necessity, will be those in which the argu- ment for suspending execution will be most powerful. In other and better words, in the language of Lord Eldon, the arm of the court will indeed be palsied." If the order complained of were an order dissolving an injunc- tion, and the bill be regarded as a pure injunction bill, the stay would not be continued unless, in the language of the court in Van Waikenhurgh v. Rahway Bank, the object of the suit would be unavoidably defeated if the defendant were not immediately restrained, or it clearly appeared that the intervention of the power of injunction was necessary to prevent great and irreparable mis- 378 CASES IN CHANCERY. [33 Eq. Central E. E. Co. v. Standard Oil Co. chief to the rights of the coraplainauts. I do not see that the object of the suit will be defeated, or irreparable injury be done to the complainants, if the stay be not continued. But in addition to the foregoing considerations, there is another which is entirely conclusive in this case. Tiie complainants have never been in possession of any judgment of this court in favor of their claim to interlocutory interference. No injunction was granted to them. On the filing of their bill they obtained not an injunction, but an order to show cause why an injunction should not be issued. The interim stay before mentioned, prohibiting the oil company from conveying oil by the pipes, was indeed incorpo- rated in the order; but it was granted only to give the court opportunity, without prejudice to the rights claimed by the com- plainants by the delay necessary for the inquiry, to inquire, on notice, whether there ought to be any preliminary injunction or not, to enable the court to be careful and circumspect and regardful of the rights of both parties in the use of the injunction power. Tiie fact of the granting of such a stay can give the party obtain- ing it no claim whatever to a continuance of it in case of refusal to enjoin and an appeal from the order of refusal ; for it is granted only pending preliminary inquiry. It is merely a prudential interference, limited to the time when the court shall have reached a conclusion as to the propriety of granting an interlocutory injunction. It appears to me too obvious to admit of any dispute or argument, that it is the duty of the chancellor in such a case, where he concludes on such inquiry that there siiould be no pre- liminary injunction, to refuse to continue the stay. If the argu- ment of the complainants on this point is well founded, such a stay, though followed by the clearest conviction on the part of the court, after hearing the order to show cause, that an injunction ought not to be granted, must be continued because of the mere fact of the taking of an appeal by the complainants. This would, in effect, be putting into the complainants' hands, to a certain extent at least, the power of continuing the stay. The true ground is, that tJie question whether the stay shall be continued or not is addressed to the discretion of the court, and the fact that the complainants have appealed from the order discharging 6 Stew.] FEBRUARY TERM, 1881. 379 Hutchinson v. Abbott. it, gives them no right whatever to its continuauce, and in no way and to no extent whatever binds the court to continue it. In the case under consideration there is no ground for continuing the stay. The motion, therefore, will be denied with costs. David S. Hutchinson V. Margaret Abbott et al. 1. Usury may be set up by the owners of the premises and by subsequent encumbrancers, under the petition of the holder of a mortgage for the surplus money remaining in this court after satisfying prior mortgages. 2. A promise by one of the mortgagors to the assignee, made after the assignment, to pay the interest on such mortgage promptly, does not estop him from setting up usury in the principal or in the interest previously paid ; nor does a claim by one of the mortgagors, to have the full amount of such mort- gage ded«cted by the assessor from the taxes on the premises, amount to an estoppel. Bill to foreclose. On application by petition for surplus money. Exceptions to master's report. Mr. A. G. Richey, for petitioner. Mr. J. S. AUkin, for respondents. The Chancellor. This is an application for the payment of the third mortgage out of the surplus money remaining after paying out of the proceeds of the sale of the mortgaged premises under the exe- cution the amount due on the f rst mortgage, with costs and exe- cution fees. There is a like application pending in behalf of 380 CASES IN CHANCERY. [33 Eq. Hutchinson v. Abbott. the holder of the second mortgage. The petitioner is Matthias H. Miller. His mortgage is for $1,000 and interest, and was given February 23d, 1872, to Edward H. Murphy, and by him assigned to Miller, July 2d, 1873. The contestants are the holders of the fourth and fifth mortgages, and the widow, execu- tors and devisees of Edward Abbott, deceased. All the mort- gages on the property, except the first, were given by the execu- tors. The contestants insist that Miller's mortgage was invalid and usurious in its inception, and, if valid, is subject to certain credits for excess of interest paid and for premium taken by Murphy to extend the time of payment of the principal. The fourth and fifth mortgages were both given after the petitioner's mortgage was assigned to him. The master to whom the peti- tion was referred reported that the sum of $800 only of princi- pal was due to the petitioner, but that, under the facts of the case, interest should be allowed upon it, deducting the excess of interest paid on the mortgage over what was due thereon under those facts ; and that the petitioner was, therefore, entitled to re- ceive out of the surplus money, after payment of the money due on the second mortgage, $800, with interest thereon from April 1st, 1876, less such excess of interest. The master finds that the petitioner's mortgage was and is usurious; that when it was made it was agreed between the mortgagors and mortgagee (Murphy) that the latter should advance only $900 of the $1,000 mentioned in and secured to be paid by the mortgage, and should retain $100 for premium for the loan ; and he also finds that interest was paid on the $1,000 from the date of the mortgage to April 1st, 1870 ; and that on the 1st of April, 1873, $100 were paid to Murphy, by agreement between him and the mortgagors, for an extension of the time for paying the principal for one year. He therefore, allowing interest on $800 from April 1st, 1876, up to which time the interest was paid, to the time of payment out of the surplus fund, deducts $119.40 as the interest on $1,000 from the date of the mortgage to April 1st, 1873, ($77.40), and in- terest on $200 ($42) from the latter date to April 1st, 1876, together, $119.40. The matter comes before me on exceptions to the master's report by petitioner and respondents. 6 Stew.] FEBRUARY TERM, 1881. 381 Hutchinson v. Abbott. It will be proper to notice, in the first place, the exception taken by the respondents to the validity of the petitioner's mort- gage, the allegation being that the executors, by whom it was given, gave it without authority. The will provides as follows : "Should any one or more of my children, with the approbation of my executors, deem it expedient to leave their common household before the period designated for the inheritance in fee simple as aforesaid, and live sepa- rate from the cost to my estate, and shall desire pecuniary assistance from it to aid them in a proper business or situation, I hereby authorize my execu- tors, if the same meet their approbation, to borrow or obtain on my estate any sum therefor, not exceeding 11,000, to pay the same to such child on his or their receipt therefor, which payment, without interest, shall be accounted for against him or her in the inheritance and distribution as aforesaid." The answer put in by the widow and executors and devisees of Edward Abbott in this cause merely denies that the peti- tioner's mortgage is a valid instrument, and alleges that if valid, there is not the whole amount of $1,000 due thereon, and it also, in general terms, denies the validity of the fourth and fifth mortgages. There is no proof whatever, however, on the sub- ject, except the will, and by that the executors had power, under certain circumstances, as appears above, to mortgage the prop- erty. The exception under consideration will, therefore, be overruled. To consider the exceptions filed by the petitioner: It is urged in his behalf that the contestants cannot set up usury against him because it has not been pleaded in the cause ; that is, because the holders of the fourth and fifth mortgages filed no cross-bill alleging the usury, in which way alone it is insisted they could have availed themselves of the defence of usury to their codefendants' nJortgage. It appears that neither they nor the petitioner answered the bill. The executors and devisees did, but did not set up usury. Under the circumstances, however, the defence may be made on the application for surplus money. In Brinkerhoff v. Franklin, 6 C. E. Gr. 334,, cited by petitioner's counsel, where one defendant, a mortgagee, had answered, im- peaching the mortgage of another defendant who had not answered, it was said that the rights of the defendants could be 382 CASES IN CHANCERY. [33 Eq. Hutchinson v. Abbott. settled on application of either for the surplus money or by cross- bill, as they might deem best. I see no objection to permitting usury to be set up in this case on this application. The proceed- ing is a direct one, an application to the court for payment of the petitioner's mortgage out of the surplus. The other defendants are called into court to respond to the claim, and they may do so by setting up usury. But it is insisted that there was no usury, and if there was the mortgagors would be, and those who claim under them are, estopped from setting it up. The proof, how- ever, is that when the petitioner's mortgage was made, Murphy, the mortgagee, took a premium for the loan of $100. Murphy testifies that the application for the loan was made to him by Samuel L. Abbott, one of the mortgagors, (who seems to have negotiated it), and that on the application he told Abbott he would charge him $100 for making the loan. Abbott swears that the $100 were not for expenses, but for a " bonus," and Murphy does not deny it. The mortgagors received only $900. The usury is clearly proved. It is also proved that on the 21st of March, 1873, a note for $100 at one year was given by two of the mortgagors to Murphy, pursuant to agreemwit between them and him in consideration of his agreement to extend the time for payment of the mortgage for one year, and the note appears to have been paid. The master properly credited the amount of this note on the principal of the mortgage. Nightin- gale V. Meginnis, 5 Vr. J^61 ; Trusdell v. Janes, 8 C. E. Gr. 1^1 ; S. C, oyi appeal, Id. 654 / Terhune v. Tayl(yr, 12 C. E. Gr. 80. But the petitioner insists that the mortgagors and the holders of the fourth and fifth mortgages are estopped from setting up usury or claiming a credit for that payment, because when the petitioner in October next succeeding the date of the assignment to him, which was in April, called on Samuel L. Abbott for payment of the interest then due on his mortgage and conse- quently informed him that he had become the owner of the mortgage by assignment, Abbott promised to pay the interest on the mortgage as it should become due. As the petitioner states it, what was said on the subject was as follows : The peti- tioner told Abbott that he had got the mortgage from Murphy. 6 Stew.] FEBRUARY TERM, 1881. 383 Hutchinson v. Abbott. Abbott said that Murphy had not told him he was going to part with it, and said he supposed the petitioner would keep it, or something to that effect. The petitioner replied that he supposed he might do so provided the interest was promptly paid, and Abbott said that should be done. Abbott admits that he said something to the effect also that the mortgage was a safe one. This promise to pay the interest promptly while the petitioner should continue to hold the mortgage, operates as an estoppel, so far as the interest thereafter paid was concerned ; for it is to be presumed that on the faith of it the petitioner continued to hold his mortgage as otherwise he might not have done. But the estoppel does not extend to the principal, for the petitioner, when he took the assignment of his mortgage, did not do so on any representation whatever in any way of the mortgagors or any of them. When he went to see Samuel L. Abbott it was not until six months after he had got the mortgage. It is enough to say « that it is obvious that Abbott was under no obligation to make any statement or give any warning as to the mortgage, the amount actually secured by it, its liability to the defence of usury or any other defence, or to speak as to its sufficiency or collecti- bility or otherwise. Having undertaken to pay the interest he is estopped by the promise for the reason before given, but neither he nor those claiming under him are estopped from making defence as to the principal or from claiming the application thereto of the $100 paid for extension. Nor does any estoppel arise from the fact that one of the mort- gagors, in the assessment of taxes upon the mortgaged premises, claimed a deduction of $1,000 as the principal of the mortgage. That was not a representation made to the petitioner, and besides it appears to have been made as late as 1876. The principle on which the amount due on the petitioner's mortgage should, under the cir- cumstances, be computed, is to allow $800 only of principal and all interest paid up to April 1st, 1876, from which date the interest is in arrear, and interest on $800 thereafter at seven per cent, per annum, the rate which the bond bears, until the money be paid, deducting the interest ($14.50) on the $100 retained on the making of the loan, from the date of the mortgage, February 384 CASES IN CHANCERY. [33 Eq. McKeown v. McKeown, 23d, 1872, to March 24th, 1874, when the $100 note given for premium for extension fell due and was paid, and the interest (|28.30) on $200 from that time to the 1st of April, 1876. The petitioner is, under the circumstances, entitled to his costs of suit, including costs of his exceptions. The priority or validity of the second mortgage appears not to be disputed. Mary Ann McKeown V, John James McKeown et al. A resulting trust in lands claimed from the payment of the purchase-money thereof, either by the complainant alone or in common with others, will not be raised against the consideration clause of the deed, and after great delay on complainant's part, except by clear proof. Bill for relief. On final hearing on pleadings and proofs. Mr. J. Lippencott, for complainant. Mr. J. Chapman, for John James McKeown. The Chancellor. This suit is brought to establish a resulting trust in favor of the complainant in a house and two lots of land in Weehawken, the title whereto is in her brother jj'ohn. The defendants are John and his wife, and another brother, Joseph, and his wife. The latter two are made parties on account of a conveyance of the property in question made by John to Joseph in 1872. The latter swears, however, that the conveyance to him was to secure a loan, which was repaid and the property reconveyed. The 6 Stew.] FEBRUARY TERM, 1881. 385 McKeown v. McKeown. allegation of the bill on which the complainant's claim rests, is, that she being out at service and making good wages, and hav- ing little or no personal expenses, laid up her money for years in her mother's hands, on the understanding and agreement that when the deposit should amount to enough for the purpose, it should be employed by her mother in buying a house for her ; that in pursuance of that understanding and agreement her mother purchased, for $400, the land in question, paying for it out of the complainant's money in her hands, and afterwards, with like funds, built a two-story frame house, at a cost of $1,000, on it ; that the complainant, so soon as the building was com- pleted, moved into it and had exclusive use of one room (she still however, it appears, continued at service), and occupied the rest of the house in common with her father and mother ; that she always, up to the time when John ejected her from the pro])- erty and took exclusive possession himself, which was May 1st, 1872, supposed that the title had been taken in her name, but she then found it had been taken in his. The proof on her part consists of her testimony as to her depositing her wages with her mother for safe keeping, and verbal statements made by her mother as to the money with which the lot was purchased and the house built, and a statement made by John that he borrowed the money to build the house from his mother. The testimony as to the statements of the mother is incompetent, and if it were not so, it would be entirely unreliable. She appears to have said, on one occasion, that the property was "between John and Mary Ann" (the complainant), that they both had money in it ; and on another occasion she said that it belonged to both of them, and that their father had some money in it too. In the same con- versation she claimed the property as her own. On the trial of an indictment in 1872, against John and his father for an assault and battery on Mary Ann, she swore that not a penny of Mary Ann's money was in the house, nor the money of any one else but John. Mary Ann had, on the trial, sworn that she owned the property. It would seem that both Mary Ann and her sister, Mrs. Currie (sworn for her in this cause), charged their mother with having perjured herself in that statement. The statements 25 386 CASES IN CHANCERY. [33 Eq. McKeown v. McKeown. of the mother on the subject, if competent, would manifestly be of but little value. But the case shows the purchase by John of the lots in 1866, for $400, and he swears that he paid that money with his own money ; that of the $400, $200 were money which he had in a savings bank, and the rest was money which he had in his mother's hands, where he had placed it for safe keeping. He built the house. He swears that he paid for it entirely with his own money and money which he borrowed, but that he borrowed only $170 of it from his mother, which he repaid to her. He exercised all acts of ownership over the property, pay- ing taxes for it as his own, and obtaining insurance on the build- ing as his property, and, as far as appears, his absolute right to the property was not questioned until 1872. It was then denied by the complainant, but she did not file her bill until September, 1878. The mother did not die until the summer of 1874, so that the complainant for two years or thereabouts, while her mother was living, after her claim was denied both by John and her mother, took no steps to establish her claim to the property. And it was not until four years after her mother's death and six years after her right to the property was denied that she brought her suit. Her delay may be accounted for by her ignorance and helplessness. As before stated, she was a servant, and it is quite probable that she is fairly to be regarded as inops consilii; and her delay is, indeed, not to be looked upon as the delay of those better aware of their rights, and the means by which they may be maintained, would be. Yet it is unfortunate for her that, for whatever reason, her application for relief was deferred until after the death of her mother. It appears, too, by the evidence of Joseph, who swears that the land was purchased and the house built by James, with his own money, that when John bought the property he showed Joseph the deed, and that the latter read it in the presence and hearing of the complainant. He swears, also, that the complainant had an account in the Greenwich Sav- ings Bank ; that he saw her bank-book and was with her wlien she made a deposit there, which she said was $140, and he swears that she said it was the last of the money which John owed her, and that she had got it from her mother. John swears that he 6 Stew.] FEBKUARY TERM, 1881. 387 McKeown v. McKeown. repaid the $170 in several payments, the last of which was $140. All the documentary evidence is in favor of John, and he swears (and he is corroborated in material ];espects by Joseph) that he bought the land and built the house entirely with his own money or money which he borrowed. If any money of Mary Ann's which was not repaid, indeed, went into the property, I am unable to find clear proof of it; and it is established that when a trust is sought to be raised as a resulting trust from the payment of the purchase-money, the proof must be very clear of the payment of the purchase-money by the person in whose favor a trust by im- plication of law is sought to be raised ; the fact must be distinctly establisiied by satisfactory evidence. And further, that a result- ing trust will not be held to arise upon payments made in common by one asserting his claim and the grantee in the deed, when tl)e consideration is set forth in the deed (as it is in this case) as mov- ing solely from the latter, unless satisfactory evidence is offered, exhibiting the portion which was really the property of each, and establishing the fact that the payment was made for some specific part or distinct interest in the estate. Cutler v. Tuttle, 4- C. E. Gr. 54-9. In this case, as was said in the case just cited, the tes- timony relied on is unsatisfactory as to the question whether any, and if so, what portion of the consideration money of the convey- ance was the property of the complainant, and is too unreliable to justify the court in divesting a title evidenced by deed of con- veyance, and in favor of a person whose claim is rested on the uncertain foundation of parol proof. It is true that McAtavey swears that while John was building the house, he told him that he got the money for building it from his mother, but the defend- ant absolutely and positively denies it. He says that the build- ing cost him between $900 and $1,000; that he had to borrow some of the money to pay for it; that he borrowed $100 of John M. Gibson and $100 of his brother Joseph, and about $170 from his mother, $370 in all, and furnished the rest of the money him- self. Again, the admission is, at most, that he obtained the money from his mother, not from the complainant; and, besides, it is not necessarily a confession that he obtained all of the money to build the house from that source. He admits that he borrowed 888 CASES IN CHANCERY. [33 Eq. Van Doren v. Dickerson. $170 from his mother to aid him in building, but swears that he repaid it, adding $30 to it to cover interest. I think it is quite probable that money which his mother received from Mary Ann for safe keeping went into the property ; but the burden of proof is on the complainant, and I cannot find such evidence of the necessary facts as would warrant a decree in her favor. The bill will be dismissed, but without costs. Emma Van Doeen V. Charles S. Dickerson et al. On a sale of lands, $500 were retained by the purchaser, out of the consider- ation, as an indemnity against an alleged right of dower in the premises, and a bond and mortgage thereon, given by him to the vendor to secure that amount and "lawful" interest, the principal payable only on the extinguishment of the claim. — Hdd, (1) That the mortgage could be foreclosed for arrears of interest, although the principal had not become due through the extinguishment of the alleged claini of dower. (2) That the dower claimant could not, on this foreclosure, although made a party defendant, be required to litigate her right to dower in the premises. Bill to foreclose. On final hearing. On pleading and stipu- lation as to facts. Mr. 0. Jeffery, for complainant. Mr. F. D. Smith, for defendants Dickerson and wife. 6 Stew.] FEBRUARY TERM, 1881. 389 Van Doren v. Dickerson. The Chancellor. The mortgage which the bill in this suit was filed to foreclose, was made to secure the payment of a bond given in 1864 by John W. Lee to Peter T. B. Van Doren, in the penalty of $500, with the following condition : " Whereas, the said Peter T. B. Van Doren, by a deed dated March Slst, 1864, duly executed by himself and wife, and delivered this day, hath con- veyed unto said John W. Lee, two certain tracts of land situate in the village of Denville, in said county of Morris, whicli lands were formerly owned by Francis Lindsly, and are particularly described in said deed, to which, for a description thereof, reference is hereby made ; and whereas, it is alleged, though not admitted, but denied by the parties hereto, that the wife of said Francia Lindsly has, or claims to have, an inchoate right of dower in said lands ; and whereas, it was understood by said John W. Lee that he was to have a clear title to said lands, and it has been agreed by said parties to leave in the hands of said John W. Lee, five hundred dollars of the said purchase-money ae an indemnity against any such claim of dower by the wife of said Francia Lindsly : Now, therefore, the condition of this obligation is such that if the above- named John W. Lee, or his heirs, executors or administrators, shall, at any time hereafter, when said Van Doren shall deliver to him or them a release of all claim to said land and premises hereinbefore mentioned, duly executed and acknowledged by said Francis Lindsly and wife, or by the wife of said Lindsly, in case she shall survive her husband, pay to said Van Doren, or his executors, administrators or assigns, the said sum of five hundred dollars, and in the meantime shall pay to said Van Doren, or his executors, administrators or assigns, the lawful interest on said five hundred dollars annually, during the joint lives of said Francis Lindsly and wife ; or if, in case the said Julia P. Lindsly shall die in the lifetime of her said husband, the said John W. Lee siiall pay the said five hundred dollars at her decease, the interest being paid as above mentioned ; or, in case the said release shall not be executed, and said Julia P. shall survive her said husband and shall claim her right of dower in said premises, if the said Peter T. B. Van Doren, or his heirs, executors or administrators shall, at all times, fully indemnify said John W. Lee, his heirs and assigns, and save them harmless against said claim, and against all costs and damages which he may be put to or sustain by reason thereof, and the said John W. Lee, or his executors or administrators, shall pay said sum of five hundred dollars, with the interest which may have accrued tliereon ; or, in case said Julia shall survive her husband, and shall die without making any claim to said premises, if, at her decease, said Lee, or his executors or admin- istrators shall pay said five hundred dollars with interest, then said bond or obligation to be void, or else to be and remain in force. It is, however, under- stood that in no event is said money to be payable until one year from the dale hereof.'* 390 CASES IN CHAXCERY. [33 Eq. Van Doren v. Dickerson. In 1869, Lee conveyed the mortgaged premises to the defendant Charles S. Dickerson. In 1880, Van Doren assigned the bond and mortgage to the complainant. When the bill was filed there was interest due and in arrear. The bill was filed not only against Dickerson and his wife, but also against Mr. and Mrs. Lindsly mentioned in the condition of the bond, the latter per- sons being made parties in respect to the claim of dower men- tioned in the condition of the bond, and which it was designed thus to litigate in order to establish the fact in this suit that Mrs. Lindsly had no dower, contingent or otherwise, in the property. The Lindslies did not answer the bill, but Dickerson and his wife did. By the answer, the right of the complainant to a foreclosure of the mortgage is denied, on the ground that the principal of the bond is not due according to the terms of the condition ; Mrs. Lindsly having never released her claim to dower in the premises. The answer, while it does not claim that there is no interest due and in arrear, insists that certain payments of interest, which have been made at the rate of seven per cent, per annum, were in excess of the amount due at the times when they were made, because the interest which the mortgage bore was only six per cent., seeing that that was the legal rate when the mortgage was given, and the mortgage calls for " lawful" interest. And they ask that an account be taken of the excess, and that it be credited on account of interest ; but they offer to pay any interest which may be shown to be due and in arrear. There can be no doubt of the right of the complainant to a foreclosure of the mortgage for arrears of interest. The interest was, by the terms of the condition of the bond, payable annually. The interest paid was up to April 1st, 1869, at the rate of six per cent, per annum. That was the legal rate at the date of the bond, and from thence up to March 15th, 1866, when it was changed to Beven, and it so remained until July 4th, 1878, when it was changed to six. From April 1st, 1869, the interest paid aj^pears to have been at the rate of seven per cent., probably by agreement, though there is no proof on that head. In the absence of any agreement to pay seven per cent., the interest would be now payable at six per cent. Jersey City v. O'CaUaghan, 12 Vr. 34.9. But if there 6 Stew.] FEBRUARY TERM, 1881. 391 Van Doren v. Dickerson. was an agreement to pay seven per cent, while that was the legal rate, the answering defendants are, of course, entitled to no credit for the dijBTerence in rate. Conover v. Lewis, 6 C. E. Gr. S30. The mortgage was given to secure the payment of the interest as well as the payment of the principal ; and, though the principal is not due, the holder of the mortgage is entitled to foreclose for the interest in arrear. Our statute {Rev. 117 § 71}.) provides that when a decree of the court of chancery shall be made for the sale of mortgaged premises (in cases where the whole sum secured by the mort- gage is not due), either for non-payment of any portion or install- ment of the debt or demand intended to be secured by the mort- gage, or the non-payment of interest due, or both, and it shall appear to the court that a part of the mortgaged premises cannot be sold to satisfy the amount due without material injury to the remaining part of the mortgaged premises, and that it is just and reasonable that the whole of the mortgaged premises should be «old together, it shall and may be lawful for the said court to decree a sale to be made of the whole of the mortgaged prem- ises, and to apply the proceeds of the sale of said premises, or so much thereof as shall be necessary, as well to the payment of the interest, installments or portions then due, and also the costs then due and payable, as to the payment of the whole or residue of the debt or demand which hath not become due and payable, and the residue of the proceeds of such sale to be paid to the person or persons entitled to receive the same, or to be brought into court to abide the further order of the court, as the equity and circumstances of the case require ; provided, always, that when the residue of the debt or demand intended to be secured by tiie said mortgage is payable at a future day without interest, and the mortgagee is willing to receive the same, the court shall deduct a rebate of legal interest for what the mortgagee shall re- ceive on the said debt or demand, to be computed from the time of the actual payment thereof to the time such residue of the debt or demand would have become due and payable. In such a case as this the court will see to it that the rights of the parties are secured and protected, and will give direction 392 CASES IN CHANCERY. [33 Eq. Van Doren v. Dickereon. to the proceedings accordingly. Am. L. I. & T. Co. v. Ryerson, 2 Hal. Ch. 9 ; Campbell v. Macomb, Jf, Johns. Ch. BSlf, ; Brinck- erhoff V. Thallhimer, S Johns. Ch. IfS6 ; Lyman v. Sale, Id. 4^7. The question as to whether Mrs. Lindsly has contingent dower in the premises has not been settled by her default in this suit. She was not a proper party to the bill, and could not be called upon to litigate the question in the suit to all the matters wherein she was a stranger. Wilkins v. Kirkbride, 12 C. E. Gr. 93, and cases there cited ; Eagle Fire Co. v. Lent, 6 Paige 685 ; S. P. Gihan v. Bdleville Lead Co., 3 Hal. Ch. 531. The principal of the mortgage is not due. The answering defendants, as before stated, tender themselves ready to pay the interest. If they pay it, with the costs of this suit, the proceedings will be stayed, otherwise there will be an order of reference, to inquire whether a competent part of the mortgaged premises can be sold without injury to the remainder, to pay the interest and costs. In case the interest and costs are paid, or in case of sale to raise and pay them, the complainant will be at liberty hereafter, from time to time, as the annual interest shall accrue and be unpaid, or when the principal shall become due, to go before a master on the foot of the decree in this cause, and obtain a report as to the sum then due and payable, to the end that on sucli report being made to this court, an order may thereupon be made for a sale of the premises (or of the residue, if a sale shall have been made of part, to raise and pay the interest now due and costs), or a competent part or parts thereof to satisfy what shall be re- ported to be due, with the costs attending such report and sale. 6 Stew.] FEBRUARY TERM, 1881. 393 Weiland v. Townsend. CoNEAD F. "Weiland V. Nathaniel Townsend et al. A trustee was, by a will, clothed with extensive discretionary powers, and there was no provision for succession in the trust in case of his failure to act. He died — Held, that this court would execute the trust through a successor to be appointed by it, and by substituting equitable rules in the place of arbi- trary power. Bill for relief. On final hearing on pleadings and proofs. Mr, A. Flanders, for complainant. Mr. J. H. Rogers, for defendant N. Townsend. The Chancellor. This suit is brought by Conrad Weiland in his own behalf, and as guardian of his two minor children, the offspring of his deceased wife, Annie, daughter of George Wylie, deceased, late of Paterson, against Nathaniel Townsend, administrator cum tesiamento annexo, and trustee under the will of George Wylie Note. — The following cases show what words have been held to confer such a trust, coupled with a power, as a court of equity could enforce after the death or removal of a trustee vested with discretionary powers : Bartley v. Bartley, 3 Drew. 384, " at his or their entire discretion to pay rents for the benefit of one, two or more of the children of A B, the tenant for life," with a power to appoint new trustees; but they all died without any new appointment. Heviett V. Hewett, 2 Eden 332, power for devisees for life to cut down such timber as four trustees or the survivor " should assign, allow or direct ;" and all of the trustees were dead. Maberly v. Turton, 14 Fes. 499, a power to apply dividends for the mainte- nance of children, with the approbation of their parents ; and none of the trustees ever acted. 394 CASES IN CHANCERY. [33 Eq. Weiland r. Townsend. and Jaue Wylie, the widow of the testator, and Georglana and Martha Wylie, her children by liim, and John F. Wylie, his son by a former wife. The principal object of the suit is to obtain an immediate distribution of the testator's estate (it appears to be all personal), which is now in the hands of Town- send, as administrator and trustee, as above mentioned, among the next of kin of the testator. The testator died on or about the 1st of June, 1867. By his will, after directing that his debts be paid, he provided as follows : " I order and direct, further, that the whole of the balance of my estate, of whatsoever nature and wheresoever situate, be and it is hereby placed in trust ill the hands of my executor and trustee below named, who shall be and is empowered and directed to carry out and complete certain business engage- ments in which I am now interested, to form new engagements of like nature, to buy and sell property as, in his discretion and judgment, I myself might do. " I further order and direct that the members of my immediate family shall be provided for by my said trustee out of my estate, each member thereof to re- ceive an equal allowance, the amount of which shall be subject to the discre- tion of my said trustee; but each sum shall be at least sufficient in such case to keep the recipient thereof from actual want. " I further order and direct that the trust which I hereby create shall cease and determine at the end of twenty-one years, when the balance of my estate remaining after the performance of the above conditions, shall be divided among my then legal representatives and assigns, in such propor- tions as to my said trustee may seem just and proper ; and I do hereby em- Lockwood V. Stradley, 1 Dd. Ch. 298, a trust in executors and their survivor "to sell lands at such time or times as they can do it to the best advantage ♦ * * as they may think best in their discretion," and to invest and ulti- mately divide the proceeds ; all the executors being dead. Ball v. Bull, 8 Conn. 47, " to A and B * * * with full confidence that they will * * * dispose of such residue among our brothers and sisters and their children as they shall judge shall be most in need of the same ; this to be done according to their best discretion." Both A and B died. See also OUbert v. Chapin, 19 Conn. 350. Mastin v. Barnard, 33 Ga. 520, in trust for testator's daughters, "provided that my said executors may allow to the husbands of my daughters the net general proceeds of their shares, if they think it prudent to do so." They turned over one daughter's share to her husband, who afterwards died. aty of Portsmouth v. Shackford, 46 N. H. 423, " to dispose of, for the benefit of my brothers and sisters, as he [the trustee] might from time to time judge I would have done, if I could have foreseen the circumstances." 6 Steav.] FEBRUAHY TERM, 1881. 395 Weiland v. Townsend. power him to make such division according to his best discretion and judg- ment ; and, in making such disposition of my estate, I am governed bv con- clusions whicli are the result of long and careful reflection. " And I do hereby appoint as such trustee, and also as executor of this will, Francis A. Canfield, in full confidence that its provisions will be faithfully executed." The will was proved in Passaic county, and letters testa- mentary thereon issued to Francis A. Canfield, on or about the 15th of June, 1867. He died in 1876, and the defendant Nathaniel Townsend was appointed by the orphans court of that county, in that year, administrator cum testamento annexo, and trustee in his place. He was required to give bonds in the sum of $62,000, which he gave accordingly. The debts have all been paid, and all the duties to be discharged by Townsend in regard to the estate are those of a trustee. The complainant insists that the will gave Canfield only a mere power, and that the power, being a discretionary one, expired with him ; and that the residue of the estate is therefore immediately divisible among the next of kin of the testator. But it is clear that Canfield was clothed with more than a mere power. He was clothed with a trust. The testator declares that he })laces the residue of his estate in trust in the hands of his executor and trustee, and he subsequently speaks of the provision as the trust which, by the will, he has created. He authorizes the trustee to Davis V. Christian, 15 Gratt. 11, a testator conferring a power to sell lands in order to carry on a partnership, gives therewith a power which, although discretionary, survives. Favlker v. Davis, 18 Gratt. 651, lands were conveyed to trustees in trust for N. and his wife, and the survivor of them for life, and then to their children, and if N. should think it expedient to sell the lots, then to carry out the sale and invest the proceeds on the same trusts. N. dies, and the court may exe- cute the trust to sell. Chase V. Davis, 65 Me. 102, "two-fifths for J. C. and S. C. in trust for S. and his wife, and if, after five years from my decease, they shall, in the exercise of their best judgment, consider it for the best interest and happiness of S. and his wife, to transfer to them said two-fiftlis, they are hereby authorized to execute such transfer." J. C. and S. C. duly qualified as executors and trustees, and S. C. died. Wikon v. Pennock, Z7 Pa. St. 238, " If he [the trustee] shall think it expe- dient, and the said M. shall assent thereto ;" and the trustee died. 396 CASES IN CHANCERY. [33 Eq. "Weiland v. Townsend. buy and sell property at his full discretion, aud in terms gives him full power to divide the balance of the estate which may remain at the expiration of the time limited for the duration of the trust, among the tastator's then legal representatives and their assigns in such proportions as to the trustee may seem just and proper, expressly and explicitly empowering him to make the division according to his discretion and judgment. The title to the estate was by the will vested in the trustee. Apart from the testator's declaration that he placed the estate in the trustee's hands in trust, denominating and characterizing the deposit as a trust and the depositary as a trustee, it was necessary for the ex- ecution of the ample power, and the exercise of the wide dis- cretion given to the trustee by the will, that he should have the title. The distinction between a naked power and a trust baa been said to be generally something like this : that a naked power is a mere authority over any subject matter, enabling the donee to control its disposition without vesting the thing itself, or any interest in it, in him ; a trust, on the other hand, is where the thing or an interest in it is vested in the donee, upon the confi- dence that he will make a certain disposition of it. Withers v. Yeaden, 1 Rich. Eq. 3^4- The discretionary power given by the will to the trustee was coupled with a trust for the benefit of the testator's family. Such a power this court will itself ex- ecute according to equity, where the trustee dies before executing Hinklln v. Hamilton, 3 Humph. 569, a successor to an executor who failed to apply to the court to obtain the state's consent to the manumission of a slave, may be appointed after such executor's death, and required so to apply. Baillie v. Me Worter, 56 Ga. 183, on the appropriation of trust funds to satisfy a creditor of the cestui qtie trust, the court appointed a receiver, the trustee having died. Mosby v. Moshy, 9 Graft. 584, " whenever my executors think best, they shall sell my land in B." One executor died and one had been removed. In the following instances the courts have refused to interfere : Hibbard v. Lambe, Amb. 309, "the residue to be disposed of in charity to such persons, and in such manner as my executors, or the survivor of them, shall think fit." Two of them having died, and a third being very infirm, appli- cation was made to the court to have other trustees added. Cole V. Wade, 16 Ves. 27, "for such of my relation.s and kindred as they [the executors], in their discretion, shall think proper." Both executors died, tho 6 Stew.] FEBRUARY TERM, 1881. 397 Weiland v. Townsend. it, or refuses to execute it, or if, from any circumstance, the exe- cution of the power by him becomes impracticable. Perry on Trusts § S4.9, Such a trust as that created by the will — a trust to take in hand and manage an estate at the trustee's full discre- tion, to make allowances almost entirely at his discretion to the testator's family, and at the termination of the trust to divide the estate among the testator's heirs or next of kin, or their assigns, in such proportions as to him may seem just and proper, acting in the matter according to his own discretion — cannot, for obvious reasons, be delegated, unless the creator of the trust himself has so provided. Where a testator gave his property to his son in trust to apply the income to the use of himself and family, and to give by deed or will all beyond what he should so apply, unto all or any child or children of his own, in such proportions and in such manner as he should see fit, and the sou died, having devised the property to his wife, with directions to his executors to act under the will of his father, it was held to be a trust coupled with a power to appoint at his son's discretion among his children; that the power could not be delegated; that tlie son's will was not an execution of the power, and that his chil- dren took equally under their grandfather's will. Withers v. Yeaden, uhi sup. See also the cases cited in Perry on Trusts § 251. And it is laid down as a general rule that where a power survivor devising his interest in testator's estate to B. Neither B, nor a trus- tee designated by tlie court, could execute it. Down V. Wcrrrall, 1 Myl. & K. 561, to executors " to apply the same as I [tes- tator] shall appoint, and in default of appointment as to any part, to settle such part at their discretion, either for pious and charitable purposes, or other- wise, for the benefit of my sister and her children ;" not executable by the representative of the surviving trustee. Newman v. Warner, 1 Sim. (N. S.) 457, " for W. and C. and the survivor of them and the executors and administrators of such survivor, at the request and by the direction of A and E," to preserve contingent remainders. Afterwards C. died and W. was resident abroad. Robaon v. Flyght, 4 De G. J. & S. 608, a power to lease lands, vestei! in two trustees and their survivor and his representatives, where one trustee died and the other disclaimed, was considered as not cast on the heir-at-law of the testator. See Oarfoot v. Garfoot, 2 Johns. Ch. 21. Beloie ■V. WTiite, 2 Head 703, to three trustees, with power in them or their 398 CASES IN CHANCERY. [33 Eq. Weiland v. Townsend. is given to trustees, the exercise of which is arbitrary, and the settlement contains no proviso for the appointment of new trus- tees with similar powers, it is not competent for the court, on the substitution of new trustees by its own inherent jurisdic- tion, to invest such trustees with that arbitrary power. Leuin on Trusts J^d. But the court will not suffer the trust to fail for want of a trustee, and it will therefore appoint a successor, substituting equitable rules in the place of arbitrary power. In the case under consideration the new trustee does not, according to his answer, claim the right to exercise the arbitrary power given by the will to the trustee thereby appointed. He declares that the only control he has ever exercised over the estate has been for the purpose of preserving the trust funds and prop- erty, and executing the trust for the benefit of the testator's im- mediate family; that he never has assumed to himself the dis- cretionary powers granted to Canfield by the will, nor has he ever assumed to exercise the same control over the property of the estate which came into his hands as the testator could (in the language of the will) have exercised if living, nor to complete any business arrangement entered into either by Canfield or the testator ; and he adds that he knows of no business engagements or arrangements to be carried out. He further says that he has not claimed, and does not claim, the right to buy and sell prop- survivor, to sell and convey any part or all of the property, for the use of testator's daughter and her children, to vest and revest the proceeds, and t» manage the whole in any way they might think promotive of the interests of the beneficiaries. Bailey v. Burges, 10 B. I. 422, " to B, his heirs and assigns, upon farther trust from time to time, as and when the said B shall deem it expedient to sell or mortgage the whole or any part * * * at his discretion." B was removed by the court from the trust, on his own application. Littleton v. Addington, 59 Mo. 275, a widow and another were empowered to sell lands " as they might deem best for the interests of the estate, and to use the proceeds with like discretion." The widow, after ceasing to act as exeqji- trix, has no power to sell. Riddle V. Cutler, Ifi Iowa 547, interference with a trust was refused, where a spendthrift had conveyed his property to a temporary trustee until a perma- nent one could be selected, and the former was dead and the latter not chosen. Such power cannot be exercised, ordinarily, by an administrator turn testa- 6 Stew.] FEBRUARY TERM, 1881. 399 Weiland v. Townsend. erty on account of the estate, nor the right to enter into new business engagements, except under the advice of court. He has, he admits, made allowances to the members of the imme- diate family of the testator (but always, as he alleges, only out of the income of the estate, and having regard to the amount of the income and the rank and condition in life of the family), and he claims the right to make such allowances. He appears to have taken the advice and direction of the Passaic orphans court in reference to the propriety of making allowance to the complainant and John F. Wylie, and was advised by that court to make no allowance to the former, but to make one to the lat- ter. The amount of the annual allowance to be made to the members of the testator's immediate family is, by the will, i^ub- ject to the discretion of the trustee, with proviso that the allow- ance shall be at least sufficient to keep the recipients thereof from actual want. This discretion is one which the new trustee can- not exercise ; but the amount of the allowances must be fixed by this court. The testator clearly intended that the trust which he created by his will should last for twenty-one years. He makes no other provision for his widow than that contained in the trust — the allowance to be made by the trustee for her support, and the mento annexo. Brush v. Young, 4 Dutch. 237 ; Moss v. Barclay, 18 Pa, St. 179; Tainter v. Clark, IS Mete. 220 ; Abell v. Howe, 43 Vt. 403 ; Belcher v. Branch, 11 B. I. 226; Knight v. Loomis, 30 Me. 204; Atfy-Gen. v. Garrison, 101 Mass. 223; 1 Wms. on Exrs. 654, note (lo^) ; Dominic v. Michael, 4 Sandf. 374; Fer- rebee v. Proctor, 2 Dev. & Bat. 439 ; Armstrong v. Park, 9 Humph. 195 ; Be»- ley's Estate, 18 Wis. 451; Wooldridge v. Watkins, 3 Bibb 349; Tarver v. Haines, 55 Ala. 503 ; Muldrow v. Fox, 2 Dana 74; Coleman v. McKinney, 3 J. J. Marsh, 246; Lockwood v. Stradley, 1 Del. Ch. 298; Oreenough v. Welles, 10 Oush, 571. CJontba: Brown v. Armistead, 6 Band. 694; Mosby v. Mosby, 9 Oratt. 5S4; Hester v. Hester, 2 Ired. Eq. 330; Mathews v. Meek, 23 Ohio St. 272; Elstner V. Fife, 32 Ohio St. 358 ; Bain v. Mattesm, 54 N. Y. 663; Evans v. Chew, 71 Pa. St. 47 ; Harrison v. Hendersm, 7 Heisk. 315; Anderson v. McOowan, 45 Ala. 462; S. C, 4^ Ala. 280. N. 'Q.—Conklin v. Egerton, 21 Wend. 430 ; 25 Wend. 224,douhted in Elstner V. Fife, 32 Ohio St. 371; Anderson's Estate, 5 N. Y. Leg. Obs. 305; and WUhera V. Yeaden, 1 Rich. Eg. 325, qualified in Lines v. Dardev, 5 Fla. 79. 400 CASES IN CHANCERY. [33 Eq. Weiland v. Townsend, distribution to be made at the end of twenty-one years from his death. His language is : " I further order and direct that the trust vrhich I hereby create shall cease and determine at the end of twenty-one years, when the balance of any estate remaining after the performance of the above conditions shall be divided among my then legal representatives and afisigns." His intention was that the estate should be held and managed by the trustee for the period which he designates as the duration of the trust ; his immediate family to be supported out of it in the mean- time, and that it should then be justly aud equitably divided among those who would at that time, by law, be entitled to it, either as his heirs or next of kin, according as the property should be real or personal ; and he confided the division to the trustee be- cause the latter, from his administration of the estate in the meantime, making the allowances, &c., would be able to make the distribution according to justice. The distribution, now that the trustee whom he appointed is dead, must be made bj this court. In the meantime, and until the time for distribu- tion arrives, the estate will be managed under the direction of As to an administrator de bonis non, see Hull v. Hull, 24 N. Y. 64-7 ; Hep- bum's Estate, 8 PhUa. 206 ; Bell v. Humphrey, 8 W. Va. 1 ; Meredith's Estate, 1 Para. 4^8. And an administrator durante minore estate. Monsell v. Anndrong, L. R. {14 Eq.) 4^S. And an administrator or trustee authorized by special act of the legislature. Corbell v. Zeluff, 12 Gratt. 226 ; Tindal v. Drake, 60 Ala. 170; McComb v. Gilkey, 29 Miss. 146 ; Lothrop v. Stedman, 4^ Conn. 583. The court of chancery may appoint a trustee where such power is conferred by testator on either one of two other courts, and they neglect to exercise it. GTiffi.th V. State, 2 Del. Ch. 4^1. Whether the survivor of two or more trustees can exercise a discretionary power of sale given to all, see Clinej'eller y. Ayres, 16 III. 329; Barllett v. Sutherland, 24 Miss. 395 ; Mallet v. Smith, 6 Rich. Eg. 12 ; Clark v. HomthaU 47 Miss. 434; Evans v. Chew, 71 Pa. St. 47 ; Phillips v. Stewart, 59 Mo. 491; Parker v. Sears, 117 Mass. 513; Davis v. Christian, 15 Qratt. 11 ; Hamilton v. Love, 2 Keir 243 ; Marks v. Tarver, 59 Ala. 335 ; Saunders v. Schmaelzle, 4^ Oal. 59; Niles v. Stevens, 4 Denio 399; Taylor v. Morris, 1 N. T. 341; Chaxet X. Villeponteaux, 3 McCord 19 ; Miller v. Meetch, 8 Pa. St. 417 ; Bell v. Humphrey 8 W. Va. 1. Or the executor of an executor, Chambers v. Tulane, 1 Stock. 146. See, further, 8 Am. Law Rev. 669 ; 2 Wms. on Exrs. 951} £ White & Tud. Lead. Cos. in Eq. 1833.— Rep. 6 Stew.] FEBRUARY TERM, 1881. 401 Thompson v. Thorp. this court. There will be a reference to a master as to the amount and character of the estate ; in what investment it stands and the character of those investments ; what is the annual in- come derived therefrom, and in what payments it is received ; the fitness of the present trustee, and whether he should give new bonds, and if so, to what amount, if he be favorably re- ported upon ; and who now constitute the testator's immediate family, and what allowance ought to be made to each one for his or her support. Bei'hiah Thompson V. Nathan H. Thorp et al. Under the charter of the city of Eahway, adopted in 1865, the lien of the city for ordinary municipal taxes and for assessments for street improvements, is prior to a bona fide mortgage on the premises made and registered before the levy or assessment. Bill to foreclose. Question submitted on briefs. On stipula- tion of counsel as to facts. Messrs. Shafe)' <& Durand, for complainant. Mr. L. Lupton, for city of Rah way. The Chancellor. By a stipulation made by the respective counsel of the com- plainant and the city of Rahway, it is agreed that the whole of the principal of the complainant's mortgage is due, with large arrears of interest ; that the mortgaged premises are the same on which the taxes and the assessment for benefits for the widening of Main street in Rahway, also mentioned in the pleadings, were 26 402 CASES IN CHANCERY. [33 Eq. Thompson v. Thorp. assessed ; that tliat assessineut and the taxes were assessed after the complainant's mortgage was recorded ; that the taxes were assessed against the mortgagor, as owner of the property j that the property is the same which was sold for non-payment of the taxes of 1876; that no notice was given to the complainant by the city of the non-payment of the taxes ; that the assessments, as well that for widening as those for taxes, were duly and legally made, and that the sale of the property for taxes was also legally made, and that the assessment still remains unpaid. The question presented for decision is, whether, under the charter of the city of Kahway, taxes (which were the usual ones for city, county and state purposes), and the assessment for widening Main street, all of which were assessed on the property subsequently to the date and recording of the complainant's mortgage, are liens prior to that of the mortgage. The mort- gage was made and registered in May, 1870. The taxes in question were assessed for the years 1876 and 1877, and the assessment for widening, in September, 1870. By the charter, which was passed in 1865 (P. L. of 1865 p. 4^9 § 57), it is provided that all taxes and assessments which shall be assessed or made upon any lands or real estate in the city, shall be and remain a lien thereon until paid, for the amount of such taxes or assessments, with interest thereon at the rate of twelve per cent, per, annum, and all costs and fees; and that such lien shall remain upon such lands and real estate, notwithstanding any devise, descent, alienation, mortgage or other encumbrance thereof, and notwithstanding any mistake in the name of the owner or owners, or omission to name the owner or owners of such lands and real estate; and that any assessment of taxes, in which such mistake or omission occurs, shall be valid and effec- tual in law, and if unpaid shall be returned in the list of delin- quent taxes ; and such lands and real estate shall be proceeded against, and sold in the manner provided by the act. By a sup- plement to the charter (P. L. of 187 J/, p. ^75), it is provided that the lien of taxes shall begin from and after the day on which the taxes are declared to be due and payable, which is fixed by the charter as on the 15th of October. Though the taxes in question 6 Stew.] FEBRUARY TERM, 1881. 403 Thompson v. Thorp. were uot assessed until afler the registering of the mortgage, yet under the provision of the 57th section of the charter, the lien of the former, though subsequent in date, is paramount to that of the mortgage. Trtbstees of Public Schools v. City of Trenton^ 3 Stew. Eq. 667, 674-, 675. In that case the charter declared that the tax should be a lien for two years from the date of the tax warrant, notwithsttmding any devise, &c., and it also contained the provision that the certificate of sale should constitute a lien on the premises sold, after it should have been recorded. The same provision, that the certificate of sale shall constitute a lien on the premises sold, after it shall have been recorded, is found in the charter of Rahway, and it is, in the brief of the complain- ant's counsel in this case, stated to be the only provision making taxes a lien on real estate so as to affect the rights of prior mort- gagees. But by the construction which, under the authority of the case just cited, is to be given to the 57th section, that is mani- festly an error. The charter, by the 83d section, makes the assessments for benefits in opening or widening streets &c., a lien on the land and real estate assessed, from the time when the improvements shall have been made. By the 86th section, it is declared that every such assessment shall be payable with interest thereon from the time when it is ratified by the common council until it is paid, and that the interest shall be deemed and held, to all intents and purposes, to be a part of the assessment, and, as such, a lien upon the lands and real estate in respect whereof the assessment is made. By the 89th section, it is provided that the common council may direct the city treasurer to collect the assessments by public sale at auction, of the lands and real estate whereon they have been imposed or are a lien. The 90th section requires the treasurer to make a transcript and give notice. The 91st sec- tion makes it his duty to sell and deliver a certificate of sale, and it adds that all further proceedings which are authorized by the act in respect to the sale and redemption of lands or real estate for the non-payment of taxes, may in like manner be had in cases of sales of lands or real estate for the non-payment of assessments, where such assessments are made a lien on lands and 404 CASES IN CHANCERY. [33 Eq. Thompson v. Tliorp. real estate by the provisions of the act. The 65th section pro- vides that no mortgagee whose mortgage shall have been duly recorded before sale for any tax or assessment, shall be divested of his rights in the property sold, unless six months' notice, in writing, of such sale, shall have been given to him by the pur- chaser, or by any person or persons claiming under him &c. The next, the 66th section, provides that the owner, mortgagee, occupant, or any person or persons having a legal or equitable interest in any lands and real estate sold for taxes or for any assessment under the provisions of the act, may redeem in two years from the sale, and if the person redeeming be a judgment creditor or mortgagee, he shall have a lien on the property for the amount paid by him, with interest at seven per cent, per annum, as if included in his judgment or mortgage, and may enforce payment thereof in the usual manner. By the 67th section, it is declared that if there be no redemption within tJie time limited, a declaration of sale shall be given, by virtue of which the purchaser or purchasers, and his and their legal repre- sentatives, shall lawfully hold and enjoy the lands and real estate sold, with the rents, issues and profits thereof, for his and their own proper use, against the owner or owners thereof, and all persons claiming under him or them, until the term for which the purchaser may have agreed to take the property shall be ended. It will have been seen that the provision of the 57th section of the charter, giving priority of lien, applies, by its express terms, to assessments for benefits, as well as to taxes. It is clear that that provision is, on the authority of the case before cited, conclusive on the question submitted, both as to the taxes and the assessments for widening. In City of Paterson v. O'Neil, 5 Stew. Eq. 386, the provision for redemption by the mortgagee &c., was regarded as an important element in determining whether the charter of the city disclosed an intention on the part of the legislature to postpone the lien of a mortgage to the lien of taxes subsequently assessed. That charter contained no provision for priority, such as that contained in the 57th section of the charter under consideration ; nor did it provide that notice to the mort- gagee should be necessary before his title could be divested. But 6 Stew.] FEBHUARY TERM, 1881. 405 Bentley v. Heinlze. the court considered the fact that there was a provision that the land should be assessed for its full and fair value, and that mort- gages on the land should not be taxed in the hands of any person in this state, and a provision that the assessment should be valid notwithstanding any error or omission in naming the owner, and the provision for redemption, evincive of an intention on the part of the legislature to make the lien of the tax paramount to that of the mortgage. The intention of the legislature in the case in hand, to put municipal assessments for benefits on the same footing as to liens as taxes, is manifest, and the necessity of doing so as a matter of policy is obvious. The city is entitled to priority for the taxes and assessment Ransom Bentley V. Ferdinand Heintze et al. A judgment creditor may set aside a sheriflf's sale of mortgaged premises when the mortgage was fraudulently given by the judgment debtor to protect his property, for an amount greater than he owed, and the creditor was deterred from bidding at the sale, which was under prior judgments, by the fact that the amount of the fraudulent mortgage, with those judgments, amounted to more than the value of the premises. Creditor's bill. On final hearing on pleadings and proofs. Mr. C. H. Hartshorne, for complainant. Mr. C L. Corhin, for Mr. Wanner. Mr. E. D. Deacon, for Heintze. The Chancellor. The bill is filed by Ransom Bentley, a iudgment creditor of 406 CASES IN CHANCERY. [33 Eq. Bentlev v. Heintze. the defendant John J. Wanner, to reach, for the satisfaction of his judgment, certain land in Jersey City, wjiich, on the 18th of January, 1877, was owned by Wanner, and was then sold by the sheriff of Hudson county under two executions against goods and lands. One of the executions was issued on a judgment in the supreme court recovered July 8tli, 1876, by Aaron Hirsch and others against Wanner, for $316.29; the other, on a judg- ment recovered in tlie Hudson circuit court, September 12th, 1876, by Nicholas B. Cushing against Wanner, for $448.51. The complainant's judgment was recovered against Wanner in the supreme court, September 9th, 1876, for §6,000 (penalty; real debt, $3,187.25). A writ of fieri facias de bonis d terris was issued thereon on the 14th of that month, and levied on the property the next day. The levies under both the other judgments were prior to that of the complainant. When the sale was made there was on the property a mortgage given by Wanner and his wife to the defendant Heintze, August 18th, 1876, and recorded on the 21st of that month, purporting to have been given to secure the payment of $7,000 in five years, with interest half-yearly. The property was struck off and sold at the sheriff's sale to Solomon Childs, one of the plain- tiffs in the Hirsch judgment, for $550, and he, pursuant to an understanding had at the sale between him and Heintze, trans- ferred his bid to the latter, who paid the money and took the sheriff's deed for the property to himself accordingly. After payment of the Hirsch judgment, there was left a balance of $174.23, M'hich Heintze obtained on account of his mortgage, on application to the supreme court; his mortgage being subse- quent in date to the Hirsch judgment, but prior in date and registry to the other judgments. The complainant did not, in person or by attorney, attend the sale. His attorney testifies that he intended to attend and bid upon the property for the complainant, but abandoned the inten- tion on learning, from a search of the records, of the existence of Heintze's mortgage, the amount of which, and tlie Hirsch and Cushing judgments, was more than the value of the prop- erty. Heintze subsequently, by deed of August 23d, 1879, con- 6 Stew.] FEBRUARY TERM, 1881. 407 Bentley v. Heintze. veyed the property to "Wanuer's wife, subject to the payment of taxes assessed after the year 1876, aud water rents which became due before 1875. The consideration of that deed was $4,000, no part of which was paid, but it was secured by a mortgage from Mrs. Wanner and her husband to Heintze on the property for that sum, pay- able in three years, with interest. At the time of the delivery of these papers, a lease of the property was given to Heintze for three years, at a rent of $800 a year, payable monthly in advance. The consideration of the deed was made up of the money which was due to Heintze from Wanner when the first-mentioned mort- gage was made, and the payment of which that mortgage was given to secure ; the money paid for the property at the siieriff's sale, taxes and insurance premium paid on the property by Heintze ; money paid by Heintze for, or on account of, repairs to the premises, and the amount of a judgment recovered against Wanner, in the Hudson circuit court, by William M. Fleiss and Benjamin W. Allen, May 26th, 1877, for $797.09 (subsequent to the before-mentioned judgment, all of which were recovered in 1876), which Heintze had purchased (at fifty cents on the dollar) at Wanner's request, and of which he held an assignment, and interest on all those moneys, besides expenses of searches, conveyancing, &c. When the mortgage of $7,000 was given, there was due to Heintze from Wanner only the sum of $502.21, for so much money paid by Heintze, March 25th, 1876, to take up a note given by Wanner to David Ettling, and endorsed by Heintze, and protested for non-payment, and $750 lent by Heintze to Wanner, August 1st, 1876, together about $1,250, besides some interest thereon. How it came that a mortgage for $7,000 was given, Heintze explains as follows : He says that a short time before the mortgage was given. Wanner applied to him to lend him more money, and he refused to do so until after he should have been secured for the money he had already lent him (he says Wanner was then getting worse financially every year), and Wanner told him he would secure him by giving him a mortgage on the house for $7,000, and asked him if that would satisfy him, and Heintze replied that it would. Wanner subse- 408 CASES IN CHANCERY. [33 Eq. Bentley v. Heintze. quently got the mortgage drawn, and he and his wife executed it, and Wanner brought and deliv^ered it to Heintze. Wanner, according to Heintze, gave him a chattel mortgage also for the same debt, at or about the same time, but, according to Wanner, the chattel mortgage was given previously, to secure the loan of $750. It appears to have been a subsisting and valid security for the money. When the real estate mortgage was given, it was understood between them that Heintze was not to renew the chattel mortgage at the end of the year. They say it was under- stood that on the credit of the mortgage of the house and land Heintze was to lend Wanner the money to pay debts (some of which were pressing) for repairs which had been done to the house (Heintze occupied it for a restaurant and saloon, as tenant of Wanner) and taxes on the property, and to secure to Heintze payment for repairs which he might make (and which Wanner expected him to make), and advances of money to Wanner from time to time. He seems, however, to have advanced very little, if any, and up to the time of the sheriff's sale, had advanced none. The property was sold the following January. Heintze states that he was not aware of the fact that it was advertised to be sold until the day of the last adjournment, when, he says, he was informed by the sheriff that the sale had been adjourned for a week. He attended the sale. Wanner and his counsel were there, and so was Mr. Childs, the judgment creditor before men- tioned. Before the property was put up for sale, Heintze agreed with Wanner's counsel (to use Heintze's own language), that he would buy the property himself at the sale, or get it of whomso- ever should buy it, and sell it to Wanner's wife. Heintze bid $500, and Mr. Childs $550, and the property was knocked down to the latter. There was an understanding, however, between Childs (who Heintze says was a friend of his) and Heintze that the latter was to have it, and therefore Heintze did not bid above Childs's bid of $550. All the testimony on the subject tends directly to the conclu- sion that the property was bought in by Heintze for Wanner. Heintze says that Wanner wanted him to buy the property, and 6 Stew.] FEBRUARY TERM, 1881. 409 Bentley v. Heintze. suggested to him that he should buy it and sell it to Wanner's wife, because he. Wanner, could not hold it himself. As before stated, the supreme court, on application of Heintze, ordered that the surplus money, after paying the Hirsch judg- ment, should be paid over to Heintze on his mortgage. He did not, in fact, receive it, but it was paid over to Wanner by Heintze's direction. Mr. Collins, who was acting for Wanner, and also for Heintze, in obtaining the surplus money, says, on that subject, that he understood that Wanner was in want of money, and begged Heintze to let him have it, and Heintze did so. Not- withstanding their denial, the evidence leads to the conviction that the $7,000 mortgage was intended by both Heintze and Wanner to cover up the property from the creditors of the latter. Heintze says he knew that Wanner was laboring under pecuniary embarrassment ; and he also says that he was a friend of his, and he wanted to see him get along. For the $750 Heintze had, as before mentioned, security in a chattel mortgage, and it is not pretended that it was not adequate. Heintze's statement as to how it happened that the $7,000 mortgage was made for so much, when the actual debt was only about $1,300, has already been given. Wanner's is as follows : To the question, " If you gave him a chattel mortgage on your goods for $750, why did you include that $750 in your $7,000 mortgage?" he answers : "That is right, that is included in the $7,000 mortgage; T gave him the $7,000 mortgage ; he would not lend me any more money, and then I gave him the $7,000 mortgage to make all his claim good, and if I got in want or trouble, he would help me with more money ; on that ground I gave it to him ; he waa the only friend to help me when I was moneyless, and that is the reason I gave him that mortgage, to secure him and to make sure that he would get his money back." When asked how he came to give Heintze a mortgage for so much, he answers that Heintze desired to have the mortgage for a larger sum than he owed him, so as to make him secure. In the beginning of August, 1876, the firm of William M. Fleiss 410 CASES IN CHANCERY. [33 Eq. Bentley v. Heintze. & Co., of New York, sold goods to Wanner on credit. To obtain the credit, Wanner stated to Mr. Fleiss, in substance, that he owned real estate in Hudson county of the value of about $50,000, and alleged that it was unencumbered. About a month afterwards, Mr. Fleiss having learned that he had given the two mortgages, the chattel mortgage and the $7,000 mortgage (but Fleiss then understood that the latter was for only $1,700), sent for him and asked an explanation. Wanner then told him that his object in giving the mortgages was to protect himself against some suits which had been (or might be) brought against him as endorser, in case judgment should be recovered against him; and he gave as his excuse for his action that he did not feel bound to pay the money for the recovery whereof the suits were brought. Mr. Fleiss having ascertained from the record that the real estate mortgage was for $7,000, instead of $1,700, spoke to Heintze on the subject, and asked him about the mortgage ; btit Heintze ■would say nothing more than he had given value for it. Again, at the sheriff's sale, nothing whatever 'was said in regard to the mortgage ; no mention was made of it nor any reference to it. Indeed, it appears that Mr. Collins, Wanner's counsel, did not know of its existence until his firm was employed by Heintze to obtain the surplus money. Heintze admits that he has paid rent ever since the sheriff's sale. It appears that he has paid it to Wanner. It is receipted for by Wanner in his own name alone U|) to September, 1879 (the bill was filed in January following), and since that he appears to have receipted for it in the names of both his wife and himself. It appears by the evidence that the size and character of the mortgage, the fact that it was a mortgage purporting to secure not past debts and future advances, but a debt of $7,000 and interest, prevented the complainant's attorney from bidding on the property for his client, at the sheriff's sale, by inducing him to believe that it was useless to attend the sale at all. After the Hirsch judgment, came, according to the records, the mortgage for $7,000. Next came the Cushing judgment, and then the complainant's. The complainant's attorney swears that his sole reason for not attending the sale was, that he knew the encum- 6 Stew.] FEBRUAEY TERM, 1881. 411 Bentley v. Heintze. brance of the Heintze mortgage was more than the value of the property. He valued the premises at between $6,000 and $7,000. He further says that had it not been for that mortgage, he would have bid enough to have secured at least a part of his client's debt. There were due on the Hirsch judgment, $375.77 ; on the $7,000 mortgage, only about $1,300, and on the Gushing judgment about $460, altogether about $2,135; and these were all the encumbrances ahead of the complainant's judg- ment. The apparent amount, however, owing to the delusive character of the complainant's mortgage, was about $7,800. It is urged that there was a cloud upon the title at the time, which was subsequently removed ; but it is very evident that it did not, in fact, affect the price of the property at the sheriff's sale; and, besides, the property, which brought only $550, rented then for $800 a year, and has rented for that sum ever since. After Heintze purchased the property, he, at the request of Wanner, bought the Fleiss judgment. He paid for it, as before stated, only fifty cents on the dollar, but he insisted on receiving secu- rity by the $4,000 mortgage, for the whole amount due on the judgment. Thus, it may be remarked, if the transaction under consideration is allowed to stand, the Fleiss judgment is paid by Wanner out of the property by means of the shift of the title, to the exclusion of the Gushing judgment and that of the com- plainant, both of which are older, and under both of which the property was levied upon in 1876, while the Fleiss judgment was not recovered until 1877, after the sheriff's sale. The Fleiss suit was commenced by capias ad respondendum ordered on proof of fraud in the contracting of the debt. It appears that the complainant's attorney did not learn of the conveyance from Heintze to Wanner's wife, until a short time before the bill was filed. The cpmplainant resides in Saratoga county. New York. The sheriff's sale and the deeds to Heintze and Mrs. Wanner, and the mortgage for $4,000, will all be set aside. There will be an account to ascertain the amount justly due to Heintze on the $7,000 mortgage at the time of the sheriff's sale, with interest thereon since that time, and also the rest of the amount due him under his mortgage, as between him and Wanner, and of the 412 CASES IN CHANCERY. [33 Eq. Bohde r. Lawless. amount due on the Hirsch judgment (including execution fees), with interest from the same period. Also the amount due on the Cushing judgment and the complainant's judgment, with interest from the same time. The property will be resold, and out of the net proceeds of the sale, the costs of this suit will first be paid. Heintze will then be paid the amount found due in the account on the Hirsch judgment, and the amount due on his mortgage at the time of the sheriff's sale, with interest on both ; thirdly, the Cushing judgment will be paid; fourthly, the com- plainant's judgment ; fifthly,- the amount which, as between Heintze and Wanner, but not as between Heintze and the com- plainant and Cushing, remains due the former under the mort- gage ; aud if there be any surplus, it is to be paid to Mrs. Wan- ner. Fbederick Bohde et al., executors, V. Pateick Lawless et al. It is no objection to a petitioner's right to set aside a voluntary conveyance of lands, made to defeat a personal decree for deficiency on a foreclosure, that at such foreclosure sale the mortgaged premises were bought by the petitioner (the mortgagee) at much less than their actual value, where no fraudulent or inequitable couduct on the petitioner's part is shown. Creditor's bill. On final hearing on pleadings and proofs. Mr. J. C. Besson, for complainants. Mr. J. Chapman, for Margaret Lawless. The Chancellob. The defendant Patrick Lawless, in 1873, gave his bond of that date, to Peter Lawless, conditioned for the payment of 6 Stew.] FEBRUARY TERM, 1881. 413 Bohde V. Lawless. $5,000 in five years, with interest. The payment of it was secured by a mortgage, on real estate in Hoboken, given by Patrick and his wife to Peter. In 1874, Peter assigned the bond and mortgage to the complainants, executors of Clans Dorcher, deceased. They obtained a decree of this court for foreclosure and sale upon the mortgage, May 24th, 1879, with a personal decree for deficiency against Patrick Lawless. The mortgaged premises were sold, under the execution issued on the decree, to the complainants for $500, leaving a deficiency of over $5,000. By an order of this court, a writ of fieri facias de bonis et terris was issued against Patrick Lawless to the sheriff of Hudson, where he lived. It was returned nulla bona aut tene- mental and the bill in this cause was then filed. In October, 1879, Patrick Lawless, by his deed, conveyed to Yinceat F. Flanagan certain other land in Hoboken which he then owned, and Flanagan, on the same day, conveyed the property to Pat- rick's wife. The bill is filed to subject that property to the pay- ment of the complainant's debt, the deficiency before mentioned. It asks an answer without oath. The answer gives the following statement of the consideration of the conveyance to Lawless's wife from her husband through Flanagan : " That Patrick, having been sick for a number of years and unable to pro- vide for the family, consisting of himself, his wife and five children, his wife had worked, and by means of her labor and from moneys borrowed from her friends, had been able to accumulate some moneys, which she had giveu to him, and that this property was conveyed to her for a good consideration, in order that she might be secured to herself and her friends for the moneys advanced, and that a home might be retained for the family." Lawless, who is the only witness sworn on the subject, says that he had the deeds for the property made to his wife and the title put in her name because he owed her money which she had fur- nished him when he was sick; that he had been sick during a period of from seven to nine years, and during the time of his sickness his wife provided for him, and did all she could for him ; that he made the conveyance (which he says was made after 414 CASES IN CHANCERY. [33 Eq. Bohde V. Lawless. he kaew the foreclosure had been begun) to compensate his wife for money she had given him when he was not able to be around ; that his wife lent him money from time to time — $80 at one time and $64 at another; that the latter loan was made, he thinks, in 1879 ; that she got the money by earning it; that she used to take care of her brother's property, and he paid her for it; that he has no memoranda of the moneys furnished him by her, nor did he ever give her any note ; that he asked her for the money when he was " short," and she let him have it ; and that the $64 above mentioned were the last he got from her. It is quite clear that the conveyances should be set aside as against the complainants' debt. See Post v. Stiger, 2 Stew. Eq. 544/ Clark v. Rosenkrans, 4- Stew. Eq. 665. They were evidently voluntary, and are therefore not valid as against the debt which then existed. The bill avers that the property was worth about $2,000. The answer is silent on that point, and there is no evidence on the subject. On the hearing it was insisted that the fact that the complain- ants were the purchasers of the mortgaged premises at the sale under the foreclosure, for $500, while the property was and is worth a large sum beyond that amount (perhaps enough to cover the entire amount of the deficiency), is of itself enough to induce this court to refuse to aid the complainants in enforcing payment of the deficiency. But it is quite evident that that consideration cannot avail the defendants. The complainants are before the court seeking payment of a lawful demand, and they have been guilty of no fraudulent or inequitable conduct to debar them from the aid of equity. There will be a decree for the complainants 6 Stew.] FEBRUARY TERM, 1881. 415 Lydecker v. Palisade Land Co. Maria D. Lydeckee V. The Palisade Land Company et al. The provision of the act of 1879 (P. L. of 1879 p. S4O) that taxes thereafter assessed should be a lien on the premises paramount to any alienation &a, thereof, makes such lien prior to that of a mortgage on the lands given before 1879, and is within the power of the legislature. Bill to foreclose. On final hearing. Mr. R. P. Wortendyke, for complainant. Mr. P. W. Stagg, for the inhabitants of the township of Pali- The Chancellor. The bill is filed to reform and foreclose a mortgage on land in the township of Palisades, in Bergen county. The mortgage was given in 1872, by Jacob S. Wetmore to the executors of Samuel R. Demarest, deceased, by whom it was assigned to the complainant. There are no words of inheritance in it, but the estate granted is to the executors, " their survivors or survivor, or their or his successors and assigns, to them and their own proper use, benefit and behoof forever." The mortgage was given to secure part of the purchase-money of the mortgaged premises on the conveyance thereof by the executors to the mort- gagor, by deed of even date with the mortgage. It expressly conveys the property with all and singular the tenements, hereditaments and appurtenances, and the reversions and remain- ders, rents, issues and profits, and all the estate, right, title, in- terest, property, possession, claim and demand whatsoever, as well in law as in equity, of, in and to the property. The inten- 416 CASES IN CHANCERY. [33 Eq. Lydecker v. Palisade Land Co. tiou to convey a fee is evident, and the mortgage will be re- formed accordingly. The property is subject to the taxes for 1879 and 1880. The complainant insists that notwithstanding the provisions of the act entitled "A further act concerning taxes, making the same a first lien on real estate, and to authorize sales for the payment of the same," passed in 1879 (P. L. of 1879 p. 3Jfi\ her mort- gage is paramount to the lien of those taxes. That act provides that any and all taxes which shall or may thereafter be laid, assessed or imposed, pursuant to the laws of this state, against any person or persons or corporations, for or on account of any lands, tenements, hereditaments or real estate, situate, lying and being in this state, together with lawful interest thereon accruing, and all costs, fees, charges and expenses in relation to the levy, assessment and collection of said taxes, shall be, become and remain, from and after the date of such levy and assessment, a full and complete first and paramount lien on all the lands, tene- ments, hereditaments or real estate, on account of which such levy and assessment shall be made, for the space of two years from the time when such taxes so assessed were payable, and that any and all estates therein, whether legal or equitable, and any and all mortgages, alienations, devises, descents, liens and encumbrances of every kind and nature, of, in, upon or against such lands, tenements, hereditaments or real estate, shall be in every respect subject and subservient to the lien of the aforesaid taxes, interest, costs, i^^^ charges and expenses. The language of the act is too plain to admit of any question as to the intention of the legislature. But the complainant insists that the act is in contravention of her constitutional right ; that it impairs the obligation of her mortgage by giving taxes priority of lien over it, such lien not having existed when her mortgage was given. But it is established that the legislature has power, by virtue of its sovereignty, to make taxes a lien upon the estate of all parties interested in the land, and to make the tax title paramount to all other and prior claims and encumbrances. Ti'ustees of Publio Schools v. Oily of Trenton, 3 Slew. Eq. 667 ; City of Paterson v. O'Neill, 5 Stew. Eq. 386. There will be a decree in accordance with these views. 6 Stew.] FEBRUARY TERM, 1881. 417 Atha V. Jewell. Benjamin Atha et al. Claude B. Jewell et al. Complainants bought lands adjoining their factories in 1879. The title to an interest therein (supposed to be one-sixth) was in some doubt, but no claimant therefor had appeared since 1846, and they were assured that their title to the whole was good. In order to fortify their title, they took a transfer of a declaration of sale of the premises for taxes, made in 1869. Afterwards they contracted for the erection of buildings and machinery on the lands, to be used in connection with their other works, and erected the buildings thereon accordingly. On a bill quia timet, filed by them to quiet their title to the before-mentioned interest, certain claimants appeared, and the proceedings in that suit were dismissed as to them. On a bill for partition — Held, that the circumstances of the case were not such as to deprive complainants of the right to equitable partition between them and the owners of the interest. Bill for partition. On final hearing on pleadings and proofs. Mr. D. A. Ryerson, for complainants. Mr. A. Q. Keashey, for defendants. Note. — Where improvements have been made by a tenant in common, in good faith, he is entitled, on a partition of the land, to have the part so im- proved alloted to him, or, if such allotment be injurious to his cotenant, then to receive compensation therefor. Freeman on Part. §§ 509-511. Also, Eeed V. Reed, 68 Me. 568; Pope v. Whitehead, 68 N. O. 191; Collett v. Henderson, SO N. a 337; Sanders v. Bohertson, 57 Ala. 465; Spitts v. Wells, 18 Mo. 468; Nelson v. Leake, S5 Mks. 199 ; Paddock v. Shields, 57 Miss. 340 ; Boberts v. Beckwith, 79 III. 246; Allen v. Hall, 50 Me. 253 ; Beeves v. Beeves, 11 Heitk. 669. See Fair v. Fair, 121 Mass. 559 ; Carland v. Jones, 2 Jones Eq. 506 ; Withers v. Thompson, 4 Mon. 323. The rule seems well settled that one tenant cannot charge his cotenant with any part of the costs of improvements put on their lands, without the lattei-^s consent. Chambers v. Jones, 72 III. 275 ; Austin v. Barrett, 44 Iowa 438 ; Great V. Jack, 3 Watts 238 ; Carland v. Jones, 2 Jones Eq. 506 ; Freeman on Part. ? 262 ; Thurston v. Dickinson, 2 Bich. Eq. 317 ; Morgan v. Morgan, 23 La. Ann. 502. See McAdam v. Orr, 4 Watts & Serg. 550 ; Drennen v. Walker, 21 Ark 5S9. 27 418 CASES IN CHANCERY. [33 Eq. Atha V. Jewell. The Chancellor. This is a suit for partition. The laud of which partition is .sought is a lot of about one and fifty-eight hundredths acres lying on the southerly side of the Passaic river, in the city of Newark. It was formerly the easterly part of a tract of salt meadow of about six acres. The complainants,, Messrs. Atha and Illingworth, claim to be the owners of five-sixths of the property. They bought it in 1879 of David S. Brown and wife. Their deed is dated July 19th in that year. At the same time they bought from the same parties the lot of about one and thirty-two hundredths acres adjoining it on the westerly side. When they purchased those two lots they were the own- ers of the land adjoining the latter lot on the westerly side, and were in the occupation of it, carrying on there a very extensive business in the manufacture of cast steel, &c., and they pur- chased the two lots in order to extend their works. Soon after buying them they took possession, and immediately began filling in the low places on them and erected a high fence, at a cost of about $500, along the northeasterly and southeasterly sides of the lot of which partition is sought. On the two lots they erected a large frame furnace building about one hundred and nine feet by eighty-five feet, about two-thirds of which are on the lot in suit. They also erected another small building, a gas-house, on the lot. The permanent improvements put by them on the two lots cost them upwards of $30,000, and were necessary facilities for the conduct of their busi- Or, for repairs expended on the premises without notice or request. Doane v. Badger, 12 Mass. 66; Mumford v. Brmim, 6 Cow. 4'^5 ; Stevens v. Thompson, 17 N. H. lOS ; Taylor v. Baldvdn, 10 Barb. 582, 626; Deck's Appeal, 57 Pa. St. 467; Culvert v. Aldrich, 99 Mass. 74; Young v. Oammel, 4 Greene (Iowa) 207 ; Coolidge v. Hager, 43 Vt. 9. ^itVer, after such notice and request. LouvaUe-v. 3Tenard, 6 111. S9 ; Gard- ner V. Diederichs, 41 HI- 158 ; Anderson v. Greble, 1 Ashm. 1S6 ; Denman v. Prince, 40 Barb. 213 ; Grannis v. Cook, 3 N. Y. Sup. Ct. 299; Sears v. Mum- son, 23 Iowa 380; Reed v. Jones, 8 Wis. 421; McBearman v. McClnre, SI Ark. 559 ; Graham v. Pierce, 19 Gratt. 28 ; Clark v. Plummer, 31 Wis. 44^. The costs of such repaire, semble, are a personal charge on the cotenant. Huston V. Springer, 2 Rawle 97 ; see Sarman v. Osborne, 4 Paige 336. And if he refuse to contribute, he cannot maintain an action for damages against his cotenants because they did not repair. StaUings v. Corbeti, 2 Speer 613. 6 Stew.] FEBRUARY TERM, 1881. 419 Atba V. Jewell. ness. There is a large amount of machinery in the build- ings. It appears that when they bought the lot in suit they were aware of the fact that there might be a question as to their title, so far as regarded an undivided sixth of the land. The property had been conveyed by Ellison Conger as his own in 1846, and again subsequently, after he had regained the title, in 1861 ; but it was supposed that his title might not have been perfect, but there had been many years (more than thirty) of non-claim by any one interested adversely to him and those who held under him, and during all that time no one except him and those claiming under him, had given any attention whatever to the property. It had been sold as long ago as 1869, for unpaid taxes of 1868, and the city had bought it in and had taken a declaration of sale, which was transferred to the complainants as a fortification of their title. Their title, if Ellison Conger, indeed, was not the owner of the whole property, was supposed to liave been made good through limitation as to the undivided interest before referred to. They believed it was good and that they might safely pro- ceed to put permanent and costly improvements on the property, and they did so accordingly. They had been told of the possible defect in the title, but relied on their possession and the title ob- tained from their grantors. They appear, according to Mr. Atha's testimony, to have been advised that as far as their busi- The representatives of a tenant for life cannot claim from the remaindermen the value of improvements erected by such tenant. Scott v. Guernsey, 4^ N. Y.106; Cannon v. Hare, 1 Tenn. Ch. 22; see Bond v. mil, S7 Tex. 626; Way V. Way, 42 Conn. 52 ; Piper v. F%irr, 47 Vt. 721 ; Broijles v. Waddell, 11 Heisk. 32. Whether the benefit of improvements put upon the premises by one tenant, pending a partition, can be claimed. Parsons v. Copeland, 38 Me. 537 ; West- ervelt v. Haff, 2 Sandf. Ch. 98; Annely v. De Saussure, 12 S. 0. {N. S.) 438; Coble v. Clapp, 1 Jones Eq. 173; Taylor v. Foster, 22 Ohio St. 255. After partition, the liability for improvements erected before, ceases. Crafts V. Orajts, 13 Gray 360 ; Hoyt v. Kimball, 49 N. H. 322 ; Grier v. Fletcher, 1 Jred. 417 ; Beardsley v. Knight, 10 Vt. 185. The improvements are estimated, not at their cost, but at the value which they have imparted to the premises. Moore v. Williamson, 10 Rich. Eq. 323 ; Pope V. Whitehead, 68 N. C. 191. And the allowance, semble, ought to bo sought by cross-bill. Mahoney v. Mahoney, 65 111. 406. — ^Kep. 420 CASES IN CHANCERY. [33 Eq. Atha V. Jewell. uess purposes (meauiug the use of the property) were concerned, the title which they had would be just as good for them as if their title of record were perfect, but if they should waut to sell or mortgage the property the defect might affect the valuation. After purchasing the property, they, by advice of counsel, took proceedings under the act to " compel the determination of claims to real estate iu certain cases and quiet the title to the same." The result was the appearance of claimants to the in- terest, but the bill was dismissed as to them, and this suit was then begun. At the time when the complainants obtained in- formation that the claimants insisted upon the validity of their title to an interest in the property, the buildings had not been built on the property, but they had been contracted for, and foundations for them and for the machinery to be put into them had either been laid or preparation by driving piles had been made therefor, and the machinery had been ordered. Mr. Atha testifies that at that time they had been involved in an ex- pense in the improvements of over $25,000, and if they had then stopped them tliey would have been liable on the contracts, on which they had actually paid a considerable sum of money, and that work to the amount of $10,000 or $15,000 had been done. And he further says that they could not have stopped them without very great sacrifice. The main question presented is, whether the complainants are, in equity, entitled to consideration with respect to those improve- ments. The defendants insist that they are not, but that parti- tion should be made of the property as it was when the bill was filed, making no allowance to the complainants for the improve- ments. On the one hand, the complainants insist that there remains of the lot a piece of twenty feet front on the river, run- ning through to the rear, not occupied by their buildings, which is enough to answer all equitable claim of the defendants in the partition; that that piece, or part of it, as justice may require, may be assigned iu severalty to the defendants, or if the whole of it should not be enough for that purpose, owelty may be awarded. On the other hand, the defendants urge that the com- plainants have forfeited all claim to equitable consideration, be- 6 Stew.] FEBRUARY TERM, 1881. 421 Atha V. Jewell. cause of their attempts, which the defendants impute to them, to defeat by bill to quiet title what is now conceded to be the just claim of the defendants to a share of the property, and also because their improvements were made after they had knowledge of the existence of such claim, and knew that its validity and justice would be insisted on. Under the circumstances disclosed by the evidence, tlie fact that the complainants filed the bill to quiet the title cannot disentitle them to the consideration and protection of equity in the premises. As before stated, for more than thirty years there had been neither claim made nor atten- tion given to the property, either by the defendants or any one under whom they claim. Whether there was in fact any valid outstanding claim of title to the property, was believed to be quite doubtful, and if any such there were, there was doubt as to the amount of the interest and who owned it. The case was one of the kind for which the statute was designed, and there is no room for the imputation of fraudulent design in the filing of tiiat bill. When the complainants received information that there was a claim which it was insisted could be established, to an interest in the property, they had proceeded to a considerable distance in their improvements, which had been undertaken while as yet they presumed that their title was good to the whole of the property. Nor is there, in their proceeding to make their contemplated improvements, then already in fact not only contracted for, but begun — improvements very necessary for their business — any ground for attributing to them the inequit- able design of rendering the defendants' interest less valuable or more easy of acquisition by themselves, by reason of their having occupied the greater part of the property with their improve- ments. It is an established principle that a court of equity, in decreeing partition, does not act ministerially and in obedience to the call of those who have a right to the partition, but founds itself on its general jurisdiction as a court of equity, and admin- isters its relief ex cequo et bono, according to its own notions of general justice and equity between the parties. It will, therefore, by its decree adjust thrf equitable rights of all the par- ties interested in the estate, and see to it that partition is made 422 CASES IN CHANCERY. [33 Eq. Atlia V. Jewell. accordiugly. And in making these adjustments, it will not con- fine itself to the mere legal rights of tlie original tenants in common, but will have regard to the legal and equitable rights of all other parties interested in the estate which have been de- rived from any of the original tenants in common, and will, if necessary for this purpose, direct a distinct partition of several portions of the estate in which the derivative alienees have a distinct interest, in order to protect that interest. Sto7'2/^s Eq. Jur. §§ 656 h, 656 c. So, if improvements have been made by a tenant in common, suitable compensation will be made to him on the jiartition, or the part on which the improvements are will be assigned to him. Id. § 656 b. In BrooJcJield v. Williams, 1 Gr. Ch. Slf-ly a person owning certain shares (four-sixths) of a small tract of land of fourteen acres, tore down the old house and barn on it, which had gone to decay, and built a new house and out-buildings at a cost of $2500, and greatly improved the lot by cultivation and making new fences. He knew that he owned only four-sixths of the property, and he had no consent (there was no objection or opposition) to the improvements from his co-tenants in common. The court said he had acted in good faith and with an honest purpose of improving the property, and protected him in his improvements accordingly. In Doughaday v. Croivell, 3 Stock. SOI, a suit for partition, the complainant had ac- quired seven-eighths of a tract of fifty acres, and had tried in vain to get a deed for the other eighth. After her failure to get the remaining eighth, she put valuable improvements on the land. The court gave her partition on equitable terms, so as to secure to her the benefit of her improvements. In Hall v. Paddock, 6 C. E. Gr. 311, the bill was for partition. The complainant's title was defective, but he was not aware of it M^hen he made his improvements (which were very considerable) on the property. He sought equitable partition against the defendant, who, having established his claim by ejectment, was proceeding to a partition at law. The chancellor said : "The rule that a tenant in common who has made improvements on the land held in common, is entitled to an equitable partition, is well established 6 Stew.] FEBRUARY TERM, 1881. 423 Atha V. Jewell. and is hardly disputed by counsel. The only good faith required in such im- provements is that they should be made honestly for the purpose of improving the propferty, and not for embarrassing his co-tenants or encumbering their €8tate or hindering partition. And the fact that the tenant making such improve- ments knows that an undivided share in the land is held by another, is no bar to equitable partition." It is quite clear that the complainants in this case are entitled to the aid of equity ; that they are entitled to have a partition in which the land on which their buildings stand will be set off to them. But it may be that the residue of the land, if awarded to the defendants, will not be enough to answer the purposes of an equitable partition, so far as they are concerned, either be- cause it would not be sufficient in quantity, or if sufficient in quantity, would not sell for as much as it would bring if sold with and as a part of the whole lot, and therefore is not enough in value. If that be so, the complainants must pay owelty. In BrooT^idd v. Williams, ubi supra, the Chancellor said : "The justice of the case, however, strikes me as plain (and that is mainly to be looked at) that the complainants should be allowed their share in the land on which the buildings erected by their ancestor are located. If the land on which they stand be more than their share, they must make recompense in money, but if the remaining lands are sufficient to give the defendants their share in value, it must be given out of them." The question as to whetner the complainants shall be required to account to the defendants for use and occupation was suggested on the hearing. It appears, as before stated, that the complain- ants went into possession of the property in or about July, 1879. It also appears that they expended money in the improvement of the lot by filling in and fencing. They have undoubtedly, since they began to build, which was about the time they took possession, had exclusive use of the land. Mr. Atha says that as near as he can say, they began their improvements the latter part of July, 1879. He adds that they had driven between five and six hundred piles before October 1st, 1879, and they fenced the property. But there was never any rent received from the property. It produced nothing, was a mere building lot, and it 424 CASES IN CHANCERY. [33 Eq. Murphy v. Coates. does not appear that the complainants occupied more than what would have been their share if their share had been assigned to tliem in severalty. The defendants never demanded, nor, as far as appears, expressed any desire to have any possession of the residue of the lot. Under the circumstances there should be no account for use and occupation. If the complainants filled in the lot, or otherwise improved it, as they did, with the fence, it would be taken into account if there were an account for use and occupation. There will be a reference to a master to ascertain and report the respective interests of the parties in the property, and whether a decree can justly and equitably be made by assigning to the complainants the part of the lot whereon the buildings stand and to the defendants their share out of the rest of the land ; and whether the part of the lot whereon the buildings stand is more than the share of the complainants, and if so what owelty should be paid by them to make the partition equitable, if that part be assigned to them. Edwaed H. Murphy V. David Coates et al. Two mortgages were given, one in 1854 and the other in 1855, and duly recorded, to H., wlio died in 1874, and gave them to his daughter M. In 1879, M. asked of the mortgagor, who then owned the mortgaged premises, an ac- knowledgment that the mortgages, on which nothing had ever been paid, were still valid securities, to which the mortgagor agreed, and, in the presence of a witness, signed such an acknowledgment, endorsed on each mortgage. After- wards the mortgages were assigned by M. to the complainant, who sent them to the mortgagor to obtain his admission as to the genuineness of his signature (his mark), and the mortgagor thus obtained possession of them, and ever after professed to be unable to find or produce them. — Hdd, that the acknowl- edgment destroyed the presumption of payment from lapse of time as to the mortgagor, and that, as a second mortgagee, such mortgagee had 6 Stew.] FEBRUARY TERM, 1881. 425 Murphy v. Coates. such constructive notice from the record, where the mortgage was uncanceled, as to put him on inquiry, and that the proof in the case showed, outside of the acknowledgment, that the mortgages had never been paid. Bill to foreclose. On final hearing on pleadings and proofs. Mr. James Buchanan, for complainant. Mr. James Buchanan, for answering defendants. The Chancellor. The bill is filed to foreclose two mortgages on land in Trenton, given by David Coates to Louis Hargous, one, April 6th, 1854, for $200, payable in one year, with interest, and the other, Jan- uary 15th, 1855, for $278, also payable in one year, with interest. Each mortgage was duly recorded in the month in which it was given. Hargous died in March, 1874. He held the mortgages at his death. By his will he gave the residue of his estate, of which residue the mortgages formed part, to Maria M. Hargous, who thus became the owner of the mortgages. She was one of the executors. In March, 1879, she, being desirous of obtaining from Coates, who still owned the mortgaged premises, as he does yet, an acknowledgment that the mortgages (on whicli nothing has ever been paid) were still unpaid and were valid securities, obtained Coates's signature (which he appears to have given readily) to an endorsement on each of the mortgages and each of the bonds which they were respectively made to secure ; that no part of the principal or interest had been paid from the date of the instruments, and that the whole of the principal and the interest from the date of the instrument was due and unpaid. Peter Hargous, the nephew of Maria M. Hargous, obtained Coates's signature to the endorsements. He called on Coates with the bonds and mortgages for the purpose, and took James Cun- ningham with him. The latter swears that Hargous told Coates that he had the papers, and asked him if he was willing to sign them, and HargoUs asked Cunningham to read them, which he 426 CASES IN CHANCERY. [33 Eq. Mur[)h_v V. Coates. did twice, and Hargous then asked Coates if they were satisfac- tory, and Coates said Yes, lie owed tlie money and was willing to do everything that was rigiit ; that Hargous asked Coates to sign the papers, and Coates said he would not, for he could not write, but asked Ciinniughani to write his name for him, and said that if Cunningham would do so, he would make his mark; that Cunningham wrote Coates's name, and Coates took the pen and made his mark, and that this was done on all the papers. Peter Hargous swears that he told Coates that he had come to get him to sign, and told him his reason for wanting him to sign, viz., to save his aunt from any loss, and says he added that he Unew Coates would do what was right after the endorsements were read to him. He further says that after the endorsements were read to Coates, the latter signed them, and that there were four papers. On the 11th of June, 1879, Maria M. Hargous assigned the bonds and mortgages to Edward H. Murphy, the complainant. On the 4th of August following. Murphy sent Peter Bakes with them to Coates to get the acknowledgment of his signature (his mark) on the endorsements. Bakes went to Coates's house and showed him the papers, and Coates said he knew nothing about them. Bakes asked him about his mark, and he replied that he did not know anything about that. Coates told Bakes to come again the next day. Bakes asked him if he was ready to make the acknowledgment, and Coates asked him to let him see the papers, and Bakes handed them to him, and Coates kept them and refused to return them. He has ever since professed to be unable to produce them. It is not improbable that he has destroyed them. In February, 1876 (before he signed the acknowledgments), Coates executed another mortgage on the same property to the defendant Frederick Walter, for ^276, and interest. Both Coates and Walter contend that no suit for foreclosure can be maintained on the complainant's mortgages, because, as they insist, they are, from lapse of time, presumed to have been paid. But the presumption of payment which arises in regard to mort- gages from lapse of time, without payment of interest or demand made, is only a presumption, and it is one which may be rebutted. 6 Stew.] FEBRUARY TERM, 1881. 427 Stevens v. Eeeves. Wanmaher^s Exrs. v. Van Bushirh, Saxt. 685 ; Barned v. Earned, 6 C. E. Gr. ^Ii£. lu this case, as to Coates, he has acknowl- edged, both verbally and in writing, that neither principal nor interest has been paid. And as to Walter, the second mortgagee, he had notice (constructive notice, at least, from the records) of the existence of the complainant's mortgages, and inquiry would have led him to the knowledge that they were wholly unpaid. The records showed the mortgages, and as far as the records ■went, that they were not satisfied, for they were not canceled of record. Coates, in his testimony in this cause, swears' that nothing was ever paid on account of either principal or interest. Har- gous, the mortgagee, appears to have been his employer, and to have been very indulgent to him. Again, it may be remarked, that Walter's mortgage was given, not to secure a loan, but to secure a precedent debt, which, he says, had run for a good Avhile, it might have been for years ; and though he says it includes a sum of money (he says he thinks about $60), which he alleges he lent to Coates, that money was lent some weeks before the mortgage was given, and does not appear to have been lent on the security of the mort- gage. The complainant is entitled to a decree for foreclosure and sale, and his mortgages are entitled to priority over the mortgage to Walter. James H. Steveks V. CoRTLANDT V. Reeves and wife. A mortgage was given in 1871, to a partnership firm, payable in ten yeera. In 1875 the firm assigned it to the complainant, as collateral security for their note. — Hdd, (1) That usury, taken by the complainant from the partners on their note, could not be set up as a defence by the mortgagor on foreclosure. 428 CASES IN CHANCERY. [33 Eq. Stevens v. Eeeves. (2) That the omission of the assignor as a party to a foreclosure by the com- plainant (-who held the mortgage as collateral, as before stated), no objection on that ground being raised by the answer, and no necessity for his being made a party appearing, could not be set up at the hearing. Bill to foreclose. On final hearing on pleadings and proofs. Mr. 31. B. Taylor, for complainant. Mr. J. B^Huffman, for defendants. The Chancellor. The questions presented by the briefs of counsel are these four : First, Avhether the amount of a certain check of $120, drawn by R. D, Edwards & Son, on the First National Bank of Camden, dated June 21st, 1875, and payable to complainant or bearer, which is admitted to have been paid on account of the mortgage in suit, is included in a general credit of interest paid to " March, 1875," on the note, as collateral security for which the complain- ant holds the bond and mortgage. Second, whether the amount of two other checks, drawn by R. D. Edwards & Sou, on the Cumberland National Bank, one for $100, dated May 11th, 1875, payable to self or bearer, and the other for $246, dated May 29th, 1875, payable to the complainant or order, should be credited as payments on the note. Third, whether the defend- ants iare, seeing that they have not set up usury in their answer, entitled to a credit of the unlawful interest proved to have been jiaid on the note from its date to March 18th, 1875 ; and fourth, whether the mortgagees, who assigned the bond and mortgage to the complainant, as collateral security for the payment of their note to him, are necessary parties to this suit. The bond and mortgage are dated March 11th, 1871, and were given by the defendants to Richard D. and James H. Edwards, to secure the payment of $1,178 in ten years, in equal annual payments, with interest annually. The note, as collateral to which the complainant holds them, is for $1,000 and interest, is 6 Stew.] FEBEUARY TERM, 1881. 429 Stevens v. Keeves. dated March 18th, 1875, and was made by the mortgagees, by their firm name of R. D. Edwards & Son, in his favor. First, as to the $120 check. The complainant swears posi- tively that the amount of it was included in the credit, endorsed on the note, of interest paid up to March, 1875. He says that check paid the interest in full on the note up to March 18tli, 1875. Opposed to this is the testimony of James H. Edwards, who says that that check was not, to his knowledge, included in the credit of March 18th, 1875; that he is positive it was not; that it was a credit to go on the note outside of that; that it is not included in any of the credits on the note, and that it should be credited on the note on the day of its date. On cross-examina- tion he says that he paid all the interest himself, but cannot tell on what day, as he has nothing to show for it ; that he paid it in money and took no receipt for it, and that he never paid interest in checks. He adds that he has overhauled the books and finds no checks to the complainant's credit for interest. Being re-examined in chief, he says, to the best of his knowledge, the interest was all paid up to March 18th, 1875, before he gave the check. It is quite probable he is mistaken when he says that he never paid interest on the note in checks, for he cer- tainly did make payments on account of the note in checks. He claims to have given the check in controversy on account of the note, and he also swears that two other checks for $100 and $246 respectively, dated in May, 1875, were, to the best of his knowledge, given to the complainant as payments on the note; and he testifies also, positively (and correctly), that another check for $100, dated in August, 1878, and still another for $75, given on or about September 1st, 1875, were given on ac- count of the note. Moreover, the qualified way in which he expresses himself when he says the amount of the check was not covered by the receipt for interest up to March 18th, 1875, is some evidence at least that he is not quite confident of the ac- curacy of his recollection. Again, as will be seen when his tes- timony in reference to the two checks dated in May, 1875, for $100 and $246 respectively, is considered, his testimony is not entitled to such credit as that his statement (certainly somewhat 430 CASES IN CHANCERY. [33 Eq. Stevens v. Eeeves. qualified, to say the least of it), from recollection should be per- mitted to countervail the positive testimony of the complainant to the contrary. Edwards swears that "to the best of his knowledge " those checks were payments on account of the note. The complainant, on the other hand, swears that they were not, but were checks drawn by E,. D. Edwards & Son on the Cum- berland National Bank, to be deposited to their own credit in the First National Bank of Camden, of which the complainant was at that time cashier. The books of the bank corroborate him, but Edwards's testimony on the subject is in no way sup- ported. The conclusion is that those checks and the §120 check should not be credited on the note; the amount of the latter having already been credited thereon, and the former not having been given to the complainant at all, nor on account of the note in any way, but the amounts thereof having gone to the credit of R. D. Edwards & Son for their own use. It is admitted by the complainant that he received interest at the rate of twelve per cent, per annum on the note from its date up to March 18th, 1875. The complainant's counsel insists that the defendants cannot, under the practice of the court, be permitted to avail themselves of this fact by way of defence or even of credit on the note, because the defendants have neither set up usury in their answer nor claimed the benefit of the un- lawful interest. But the defendants are in no situation to plead or claim the benefit of the unlawful interest. The note was not given by them and does not represent their debt. The bond and mortgage are the evidences of their indebtedness, the note of that of R. D. Edwards & Son. If unlawful interest has been paid on the note it is a matter which does not cancern the defendants, and of which they can have no advantage. The bond and mortgage were assigned to and are held by the complainant merely as collateral security for the note. That fact does not appear by the bill but it does by the proof. The com- plainant produces two assignments, one written on the mortgage and the other a separate paper. The former, by its terms, ex- pressly assigns the bond and mortgage as collateral security merely. That assignment not having been acknowledged could 6 Stew.] FEBRUARY TERM, 1881. 431 Stevens v. Keeves. not be recorded, and therefore the other, which is, by its terms, absolute, was executed and acknowledged and recorded. In his testimony, the complainant says the assignments were as collat- eral security for the payment of the note and he also says that when the note is all paid the mortgage should be canceled. The defendants, who are the mortgagor and his wife, state in their answer that they have paid the amount of the mortgages, and that the latter paid it to the assignee. This is not proved, indeed, and the answer is not evidence of the fact, but the state- ment is in accordance with the allegation of the complainant that the mortgagees have no claim to any surplus of the amount apparently due on the mortgage over the amount due on the note. Richard D. Edwards, the senior partner of the firm of R. D. Edwards & Son, is dead; James H. Edwards, the other partner, has, as has been seen, been a witness in the cause and he has not denied or questioned the above-mentioned statement of the complainant that when the note is paid the mortgage should be canceled. He has not set up any claim to any sur- plus or any interest in tlie mortgage in view of any surplus. Though it is a general rule that if the assignment of a mortgage be not absolute, but merely as collateral security, the assignor is a necessary party to the suit [Ililler v. Henderson, 2 Stooh. 820), yet if no necessity appears on the face of the pleadings for mak- ing him a party, and it does not appear that he has any interest, the objection made at the hearing that he is not a party will not prevail. Woodruff v. Depue, 1 MoCart. 168. Here it does not appear by the bill that the mortgagees have any interest in the surplus. The answer is silent on the subject. It makes no objection for want of parties. The complainant alleges in his testimony that the mortgagees have no interest in the surplus, and the surviving mortgagee, when on the stand as a witness, does not deny it. Moreover, the entire testimony is devoted to proof not as to how much is due on the mortgage, but how much is due on the note, and the complainant proposes to take no decree for any surplus. The objection of want of parties cannot prevail. There avIII be a decree for the complainant for the amount due on the note, §1,410.70, and his costs. 432 CASES IN CHANCERY. [33 Eq. Woolsey v. Cummings Car Works. Benjamin F. "Woolsey V. The Cummings Car Works. Exceptions to a master's report on the accounts of a receiver appointed by this court, involving his management and disposal of the trust property, and the amount of his compensation, considered and overruled. In insolvency. On exceptions to master's report. 3fr. F. McGee, Mr. B. 0. Babbitt and Mr. W. P. WihoUy for exceptants. Mr. G. Collins, for the receiver. The Chancellor. Pursuant to orders of this court, the master reported upon the accounts of Mr. Chaddock, the receiver appointed by this court for the creditors and stockholders of " The Cummiugs Car Works," and the proper allowance to be made to him for his ser- vices in the trust. Certain of the creditors have excepted to the report. The several exceptants are Josiah F. Bailey and others, trustees for some of the creditors, Abuer A. Griffing and E. S. Jaffi'ay & Co. The exceptions of the last named are identically the same. To consider those filed by the trustees : The first and second complain of conclusions of fact drawn by the master from the evidence. In these conclusions he is fully sustained by the proof. The exceptions will consequently be overruled. The third is an objection to the finding of the master with respect to part of the price of certain goods of the trust, sold by him to a creditor. The receiver took, in part payment, at its full amount, a note of the company, on which the creditor would be entitleil to a dividend in the distribution of the net proceeds of the assets ; and took, at the same time, a \yell-secured guaranty in writing 6 Stew.] FEBRUARY TERM, 1881. 433 Woolsey V. Cummings Car Works. for the payment of the difference, whatever it might be, between the amount of the dividend, when declared, and the amount at which the note was taken. The transaction appears to have been for the advantage of the trust in the price at which the goods were sold ; and the length of the credit given is not such as to amount to a breach of trust, especially in view of the pains taken and means employed to guard the trust against loss in the trans- action. That exception will be overruled. The fourth exception is to the amount of compensation allowed by the master. There were three sales of the property of the trust. The first, which was of the real estate, machinery, tools, &c., took place in the latter part of May, 1877. It was set aside for inadequacy of price, and the property was again sold (but for a higher price) on tlie 1st of October following. The last sale was of certain choses in action, sold to close up the trust, and it took place in May, 1878. The master, after a review of all the facts, reports that the receiver's compensation should be $200 a month, from the time of his appointment, October 17th, 1873, to the 1st of May, 1878. He also reports that the receiver should be allowed something for his services and expenses in finding a receiver's certificate of the New York and Oswego Midland Railroad Com- pany, delivered by Mr. Chaddock to certain creditors of the car company by mistake (two being delivered instead of one, to which alone they were entitled), the loss of which was not discovered until the examination before the master. The receiver was the treasurer of the car company. At a meeting of the creditors and stockholders, held in view of its embarrassments and the neces- sity of applying for the appointment of a receiver, he was desig- nated as the proper person to be appointed receiver, and the amount suggested as his compensation was the amount which he was receiving as treasurer, $200 a month, for his expenses of living; his compensation, however, to be fixed, of course, by this court. He stated to the meeting that he would act as receiver if appointed, and would draw $200 a month for the expenses of his living, leaving it to this court to fix his compensation. He has rendered services of a very valuable character to the trust for a considerable length of time; he conducted, under order of this 28 434 CASES IX CHAXCERY. [33 Eq. Woolsey v. Cummings Car Works. court, the business of the company, raih'oad car building, and he has generally given to the business of the receivership, careful and valuable attention. I find in the evidence no reason for any imputation whatever that in any of his transactions in the trust, he has been governed or actuated by any unworthy motives, or sought to promote his private ends. Xor do I think the allow- ance too great. The exception on this point, therefore, should be overruled. There is nothing before me from which I could make an award of compensation to the receiver in respect of his trouble or expense in finding the missing certificate, if I deemed it proper to make one; but, in my judgment, he is not entitled to any compensation in the matter. He would have been charge- able with the value of the certificate if he had not been able to find or account for it. Of the exceptions of Mr. Griffing and Messrs. E. S. Jaffray & Co., the first objects to the payment by the receiver of the mortgage encumbrances which were on the property of the com- pany at the time of its failure, because they were made, as alleged, without authority ; but it is clear from the evidence that the pay- ments referred to, if made without an order, were made in the exercise of a sound discretion. The second exception is an objection to the order authorizing the receiver to carry on the business for the benefit of the trust. Obviously, the propriety of making the order, cannot be called in question by an exception to the master's report on the receiver's account. The exception will, therefore, be struck out. The third objects to the finding of the master that the business done by the receiver in manufac- turing under the authority just mentioned, was productive of profit to the trust. The fact is immaterial to any question legiti- mately arising on the master's report, unless it be as to the amount of compensation to be allowed to the receiver. That would be affected by losses incurred in the manufacturing business through his negligence or misconduct; but no loss on those accounts, or either of tliem, is charged or appears. The exception will be overruled. The fourth exception is the same as one which has been already considered, the third exception of the trufetees, which was overruled. The fifth and sixth exceptions refer to the com- 6 Steav.] FEBRUARY TERM, 1881. 435 Woolsey v. Cummings Car Works. pensation to be allowed to the receiver. For reasons already given on the exception on the same subject by the trustees, the exception will be overruled. The seventh, eighth, sixteenth, eighteenth and nineteenth exceptions are objections to the form of the receiver's accounts and the alleged non-production of vouchers. It appears, by the master's report, that the trustees and Mr. Griffing appeared before him at the taking of the account, and that the only objections made to the account or the allowance thereof, were those on which he has passed, none of which have any reference whatever to the subjects of the exceptions now under consideration. The other exceptants, Messrs. E. S. Jaffray & Co., did not appear before the master, and were let in to except on condition that they should adopt the exceptions of Griffing. Under the cii'cumstances, the exceptions last specified should be struck out. The ninth, tenth, fourteenth, fifteenth and twentieth exceptions are merely general complaints, in the most general terms, of mismanagement of the trust estate. They will all be struck out. The eleventh is a charge of fraud and imposition, ©n the part of the receiver, on the court, in obtaining an order authorizing him to make a contract with the New Jersey and New York Railroad Company. The twelfth is a mere personal allegation of non-compliance, on the part of the receiver, with that order. The thirteenth charges misrepresentation, fraud and imposition on tlie coart, on the part of the receiver, in obtaining an order to make a settlement with the last-mentioned railroad company. For reasons before stated, these exceptions will all be ^ruck out. The seventeenth is an objection that the receiver ought not to be allowed for commissions paid on sales of goods of the trust to the railroad company just mentioned. This excep- tion will, under the circumstances, be struck out, on the ground of surprise. The objection is made, for the first time, by the exception. Though all the exceptions will be either overruled or struck out, the exceptants will not, under the circumstances, be required to pay costs. Their action in excepting and pursuing the exceptions, was in behalf of all the creditors. 436 CASES IN CHANCERY. [33 Eq. Newark Savings Institution v. Forman. The Newark Savings Institution V. Samuel R. Foeman et al. The act of 1880 (P.L. of 1880 p. S55), providing that in foreclosure proceedings thereafter commenced, no personal decree for deficiency shall be taken, applies to mortgages given before the date of its passage, and is not, so far as cases in which there is a remedy at law are concerned, unconstitutional as depriving a party of any remedy for enforcing a contract which existed when the contract was made, because a more efficacious remedy of the same sort at law remains, and the legislature may, without infringing the prohibition of the constitution, take away one of two or more equally efficacious remedies of the same sort. Bill to foreclose. Demurrer. M7'. JE. Q. Keasbey, for demurrants. Mr. A. S. Hubbell, for complainant. Note. — The following cases illustrate the rule that a statute taking away one remedy for enforcing a contract or right is not unconstitutional if another remedy remain. Abolishing distress for rent. Van Rensselaer v. Snyder, 9 Barb. 303, 13 N. Y. 299 ; Guild V. Rogers, 8 Barb. 502 ; Lockelt v. Uscy, 28 Qa. 345; Conkey v. Hart, U N. Y. 22; Van Rensselaer v. Says, 19 jV. Y. 68. Requiring that the makers and endorsers of a note shall be sued together. McMillan v. Sprague, 4 How. {3fiss.) 647 ; see Givens v. Western Bank, 2 Ala. 397 ; Baldwin v. Newark, 9 Vr. 158. Repealing a statute authorizing a state to be sued. Memphis B. R. v. Ten- nessee, (S. C. U. S.) 21 Alb. L. J. 355 ; Tennessee v. Sneed, 96 U. S. 69; or a county, Hunsaker v. Borden, 5 Cal. 288. Repealing a statute authorizing tbe forfeiture of a corporation's franchises for non-payment of its debts. Aurora Co. v. Holthome, 7 Ind. 59 ; State v. Tom- beckbee Bank, 2 Stetv. SO ; see Powell v. Sammons, 31 Ala. 552 ; Story v. Fur- man, 25 N. Y. 214; Ireland v. Turnpike Co., 19 Ohio St. 369; Read v. Frank- ford Bank, 23 Me. 318. Aliter, as to a repealer exempting the stock from liability, but rendering the stockholders personally liable. Hawthorne v. Calef, 2 WaU. 10 ; see Conant v. Fow Bchaick, 24 Barb. 87; Read v. Frankfort Bank, 23 Me. 318; Coffin v. Rich, 45 Me. 507 ; Syracuse Bank v. Davis, 16 Barb. 188. 6 Stew.] FEBRUARY TERM, 1881. 437 Newark Savings Institution v. Forman. The Chancellor. This cause and two others (foreclosure suits) staud as on de- murrer, by order of the court, upon the claim aud prayer of the bills for a personal decree for deficiency, which is sought, in two of them, against a person who assigned to the complainant the bond which the mortgage was made to secure, guaranteeing pay- ment. In the other it is prayed against the obligor in the bond, to secure payment of which the mortgage was made, in tiie two cases first mentioned, the mortgages were given in 1873, and in the last the mortgage was given in 1875. The question is whetJier, in view of the provision of the first section of the act " concerning proceedings on bonds and mortgages given for the same indebtedness, and the foreclosure and sale of the mortgaged premises thereunder" (P. L. of 1S80 p. '265), this court has juris- diction to make such decree. That section is as follows : " In all proceedings to foreclose mortgages hereafter commenced, no decree shall be rendered therein for any balance of money which may be due com- plainant over and above the proceeds of the sale or sales of the mortgaged property, and no execution shall issue for the collection of such balance under such foreclosure proceedings." Rescinding a summary remedy against a stockholder in default as to pay- ments on his stock. North East Alabama B. R. Case, 37 Ala. 679. Repealing a resort to a mandamus. State v. Gaillard, 11 S. C. 309, affirmed in U. S. S. C, March 2d, ISSO ; or a scire facias, Parker v. Sharnonhouse, 1 Phil. (jV. C.) 209 ; or an action of debt on a judgment after execution returned, Grosvenor v. Chesley, Ji8 Me. 369 ; Dennis v. Arnold, 12 Mete. 44^. Altering, by general statute, the venue of an action against an insurance com- pany for loss under a policy. Howard v. Kentucky Ins. Co., 13 B. Mon. 2S2 ; Sanders v. Hillsborough Co., 44 N. H. 238 ; see Gut v. State, 9 Wall. 33 ; Osbom X. State, 24 Ark. 639. Repealing an act allowing a landlord to claim rent out of the proceeds of property seized on execution on the demised premises. Stocking v. Hunt, 3 Denio 274; see Barry v. McGrade, 14 Minn. 163. Providing that equity alone shall have jurisdiction of suits to recover prop- erly which had been set apart under the homestead laws and subsequently sold. McLellan v. Weston, 59 Ga. SS3. Preventing a judgment being obtained as soon as it could have been by the remedy in force when the debt was contracted. Knoup v. Piqua Bank, 1 Ohio 438 CASES IN CHANCERY. [33 Eq. Newark Savings Institution v. Forman. The next section is as follows : " In all cases where a bond and mortgage has or mav hereafter be given for the same debt, it shall be lawful to proceed first to foreclose the mortgage, and if, at the sale of tlie mortgaged premises under said foreclosure proceedings, the said premises should not sell for a sum suflBcient to satisfy said debt, interest and costs, then and in such case it shall be lawful to proceed on the bond for the deficiency ; and that in all suits on said bond, judgment shall be rendered and execution issue only for the balance of debt and costs of suit." The third section is as follows : "If, after the foreclosure and sale of any mortgaged premises, the person who is entitled to the debt shall recover a judgment in a suit on said bond for any balance of debt, such recovery shall open the foreclosure and sale of said premises, and the owner of the property at the time of said foreclosure and sale may redeem the property by paying the full amount of money for which the decree was rendered, with interest to be computed from the date of said decree, and all cost of the proceedings on tlie bond ; provided, that a suit for redemption is brought within six months after the entry of such judgment for the balance of the debt." I have quoted the second and third sections because it is insisted bv the complainant's counsel that the court should, in construing St. 60S ; Johnson v. Higgins, 4 Mete. (Ky.) 566; Coolei/s Const. lAm. {4th ed.) *287 ; Woodz v, Buie, 5 How. {Miss.) 285. Providing punishment for a crime, of a milder form. Stale v. 3IcDonald, 20 Minn. 136; Stale v. Kent, 65 N. C. 311; Cooky's Const. Lim. {4th ed.) ^267; see Elliott v. Elliott, 38 Md. 357. Rescinding a mortgagee's right to occupy lands during the period allowed for redemption after foreclosure. Berthold v. Foi, IS Minn. 501 ; see Thome V. San Francisco, 4 Col. 127 ; Everson v. Shorter, 9 Ala. 713 ; Maynes v. Moore, 16 Ind. 116. Reducing the time limited for an appeal. Smith v. Packard, 12 Wis. 571 ; fee Burch v. Newbury, 10 JV. Y. 374 ; Palmer's Case, 40 N. Y. 561 ; Jacquins v. Com., 9 Cash. 279; Willard v. Harvey, 24 N. H. 344; Hauser v. Hoffman, 32 Mo. 334; Sayrea v. Com., 88 Pa. St. 291, 19 Alb. L. J. S3; Atkinson v. Dun- lap, 50 Me. Ill ; Beaupree v. Hoerr, 13 3linn. 366 ; Griffin v. Cunningham, 20 Gratt. 52 ; or, the right to redeem a mortgage, Butler v. Palmer, 1 Hill 324; Holland v. Dickerson, 41 Iowa 367 ; see Cargill v. Power, 1 Mich. 369. Reducing the notice of sale under a mortgage. Webb v. Moore, 25 Ind, 4; Cook V. Gray, 2 Houst. 455 ; Ashudot B. R. v. Eliot, 52 N. H. 387. 6 Stew.] FEBRUARY TERM, 1881. 439 Newark Savings Institution v. Forman. the first, take into consideration the constitutional objection to which, he insists, the second and third are liable, and consider the three together. Bat the first is clearly independent of the other two. It is a simple enactment, intended to deprive the court of the power to enter a personal decree for deficiency in a foreclosure suit, and it may therefore stand alone. It is urged that that section cannot, without a violation of the complainant's constitutional rights, be applied to these suits, inasmuch as the bonds and mortgages were given prior to the passage of the act, and the constitution prohibits the legislature from passing any law depriving a party of any remedy for enforcing a contract, which existed when the contract was made. Up to the passage of the act of 1866 {Rev. p. 118 § 76), the fifth section of which provides that it shall be lawful for the chancellor, in any suit for the foreclosure or sale of mortgaged premises, to decree the payment of any excess of the mortgage debt above the net proceeds of the sales by any of the parties to such suit who may be liable, either at law or in equity, for the payment of the same, provided there be a prayer to that effect Taking from a court of law, by special statute, the determination of matters of law in a particular case. Bank of Ky. v. Schuylkill Bank, 1 Pars. 180. Taking away the remedy in equity against the representatives of a deceased partner when the survivor is insolvent, and transferring it to law. Bartlett v. Lang, 2 Ala. 401; Paschal v. Whitselt, 11 Ala. 472. Taking away a resort to equity to remove the apparent lien of a void assess- ment. Lennon v. New York, 55 N. Y. 361. Giving a court of law jurisdiction where a person is a partner in two firms, one of which is plaintiff and the other defendant in a suit at law. Hepburn V. Qurts, 7 Watts 300. Providing that only an action on the case could be maintained to recover damages for the escape of a debtor. Thayer v. Seavey, 11 Me. 284. Giving courts of quarter sessions exclusive jurisdiction over petit larceny committed a second time. People v. Bawson, 61 Barb. 619. Giving the court of common pleas exclusive jurisdiction over naturaliza- tions. Beavin's Petition, 33 X. H. 89. Whether a statute providing that no action can be maintained for liquors sold, is constitutional. Reynolds v. Geary, 26 Conn. 179 ; Opinion of JuitMes, 85 N. H. 539; Lord v. Chadbourne, 42 Me. 429; Beebe v. State, 6 Ind. 501; Cooky's Const. Lim. {4th ed.) *583. Whether a lien law can be repealed so as to divest liens already acquired, see 440 CASES IN CHANCERY. [33 Eq. Newark Savings Institution v. Forman. in the bill of complaint, no i)ersonal decree for deficiency was made in any foreclosure suit where there was a remedy at law, liut only when there was no remedy except by means of equi- table subrogation. And it is believed that the first suit in which a personal decree for deficiency was made in this court, even on that ground, was the case of Klapworth v. Dresslei', 2 Beas. 62, decided in 1860. Since the passage of the act of 1866, the court has exercised jurisdiction in accordance with the above provision of that statute. Still, during all that time the rem- edy at law has existed, as it still does, against the obligor of the bond secured by the mortgage, and against any guarantor of the bond. So far, therefore, as such persons were concerned, the remedy given in equity was cumulative merely, and the first sec- tion of the act of 1880 is a mere repealer of the fifth section of the act of 1866. The taking away of the remedy in equity in cases where a complete remedy at law of the like sort exists (as where the decree is prayed against the obligor in the bond or a guarantor), obviously only deprives the party of one of two remedies of a like character. It does not deprive him of any remedy more effective than the legal one ; for the proceeding to collect the money after the decree for deficiency is the same as the remedy on a judgment at law. It does not deprive him of a Streubel v. Milwaukee R. B., 12 Wis. 67 ; Wahash Canal Co. v. Beers, 2 Black 44S; Weaver v. Sells, 10 Kan. 609 ; Doellner v. Bogers, 16 Mo. SJ^O ; Hall v. Bunte,,20 Ind. S04; Frost v. Ilsley, 54 Me. 345 ; Evans v. Montgomery, 4 Watts & Serg. 218; Templeton v. Home, 82 Bl. 491; Martin v. Hewitt, 44 Ala. 418 ; Brooks V. Memphis, 3 Cent. L. J. 356 ; Bailey v. Mason, 4 Minn. 546; Bangor V. Coding, 35 Me. 73; Watson v. N. Y. C. R. B., 47 N. Y. 157; Christman v. Charleville, 36 Mo. 610 ; Parmort v. Tucker Co., 2 Col. 471 ; Allen v. Hain, 63 Me. 532 ; Coddington v. Beebe, 5 Dutch. 550. Whether execution can be stayed or suspended, conditionally, on judgments rendered on pre-existing contracts, Branson v. Kimie, 1 How. 311 ; McCracken V. Hay ward, 2 How. 60S ; Moore v. Fowler, Hempst. 536 ; Huntzingerv. Brock, 3 Grant's Cas. 243; Williams v. Waldo, 4 Bl 264; Smith v. Bryan, 34 lit. 364; Farnsworth v. Vance, 2 Coldw. 108 ; Chadwick v. Moore, 8 Watts Bank v. Dugan, 2 Bland S54- In this case, there was no opposition to the application that the petitioner be made a co-complainant, and the original complain- ants make no objection to the granting of the present motion. The application will be granted, but on terms that the petitioner indemnify the original complainants against all future costs of the suit. The Mutual Life Insueance Company op New Yoek V. "William Goddard and others. 1. A eheriflfs sale made by virtue of process issuing out of this court, may be set aside on petition, and without bill, even after the sale has been carried into effect by the delivery of a deed. 6 Steav.] FEBEUARY TEEM, 1881. 483 Mutual Life Insurance Co. v. Goddard. 2. A person whose property has been sold at judicial sale, to his injurv, may always, if he applies promptly, and is without fault, have the sale set aside upon showing that he was prevented from attending the sale by fraud, mistake or accident. 3. A sale made in violation of a promise to adjourn to a future day will be set aside. On application to set aside a sheriff's sale, heard on petition, answer and depositions. Mr. William P. 3Iiller, for petitioners. Mr. Richard W. Parker, for complainants. The Yice-Chancellor. This is an application to set aside a sale of mortgaged premises made by virtue of process issued out of this court. The com- plainants were the purchasers, and have received a deed for the lauds. The parties claiming to"be aggrieved apply for relief by petition. This mode of procedure is challenged by the complain- ants, who say that after a sale, made in execution of the process of this court, has been carried into effect by the execution of a deed, the power of the court is exhausted, and the transaction so completely ended that it cannot be successfully impugned except by an original suit, regularly brought in the ordinary way. This objection cannot prevail. It was very fully considered by Chancellor Williamson in Campbell v. Gardner, 3 Stock. 4^8, and held to be untenable ; and since then the practice sanctioned by that adjudication has been so frequently approved by all of his successors that it must now be considered to be firmly estab- lished. The petitioners claim relief on the ground that they were pre- vented from attending the sale, and also from taking such other steps as were necessary for the protection of their interests, by the promise of the complainants that the sale should not be made on the day on which it was made, but should be adjourned to a future day. There can be no doubt that a person whose prop- erty has been sold, at judicial sale, to his injury, may always, if 484 CASES IX CHANCERY. [33 Eq. Mutual Life Insurance Co. v. Goddard. he applies promptly, and is without fault, have the sale set aside upon showing that he was prevented from attending the sale by fraud, mistake or accident. This rule is so familiar that it need not be vouched for by the citation of authorities. Chancellor Williamson, in the case just cited, held that the party aggrieved in such case, in order to entitle himself to relief, need not show that he had been misled by a person connected with the sale, but if it appeared that he had been misadvised by a stranger, to whom he had applied for information, sufficient ground might exist for invalidating the sale. The facts upon which this application rests are undisputed. The sale was made August 31st, 1880. Some days prior to that date, the solicitor of the complainants promised the solicitor who was then acting for the petitioners, that the sale should be ad- journed from August 31st to September 7th, 1880, and, imme- diately after making this promise, he directed one of his clerks, in the presence of the solicitor of the petitioners, to see that the sale was adjourned. The arrangement made by the solicitors provided for further adjournments, conditional on the payment of certain sums of money, but the promise to adjourn from Au- gust 31st to September 7th was unconditional — that was to be made in any event. The petitioners were at once informed that the sale would be adjourned, and neither they nor their solicitor attended at the place of sale on the 31st of August. The person directed to attend to the adjournment of the sale did not have it adjourned ; so far as appears, he did not speak to the sheriff on the subject. The solicitor of the complainants did not attend the sale, nor was he at his office on the day of the sale. An agent of the comj)lainants, who has charge of their real estate in this state, called at the office of their solicitor on the day of the sale, and shortly before it took place, and being there in- formed that no arrangement for a further adjournment had been made, he proceeded to the place of sale and directed the sheriff to sell. A sale was made, and this agent bid off the property for the complainants at a sum representing less than one-half of its value. The deed made to the complainants bears date on the day of sale, and it appears that the complainants took posses- 6 Stew.] FEBRUARY TERM, 1881. 485 Mutual Life Insurance Co. v. Goddard. sion of a part of the property ou the same day, and have since then received its rents. In view of these facts, it is obvious the court cannot allow this sale to stand. It was made in violation of a promise which the petitioners had a right to believe would be kept. Their con- duct shows that they did believe it would be kept. It may be that its violation was accidental, but the violation is none the less harmful on that account, and its force, as a ground for equitable relief, is not at all weakened by that fact. Stated plainly, the complainants occupy this positi(«i : they have ac- quired title to the petitioners' property at a sale made under the authority of this court, by a breach of faith, and now seek to keep it, with the sanction of this court. That cannot be done. But the complainants deny that they were bound to keep faith with the petitioners, because they say the promise of their solicitor was obtained by fraud. It may be that a person who procures a promise to adjourn a sale by intentional falsehood or deceit, will not be entitled to ask relief in equity against a sale made in violation of such promise. But no such fraud is proved in this case. Shortly before the jjromise to adjourn was made, one of the petitioners applied to the person under whose direc- tion the sale was made, at the complainants' office in New York, for an adjournment, and was there told that unless $300 was paid the sale would take place on the day for which it was then appointed. The petitioner at once said he could not pay that sum; he was asked how much he could pay, and he replied that he had $100 with him, and could probably raise $50 more. At this point in the conversation, the petitioner says, he was direct- ed to make his application to the solicitor. He says he did so as soon as he could find the solicitor at his office, and was told by him that he would enter into no arrangement respecting an adjournment until he had first communicated with his clients. The petitioner then directed his solicitor to negotiate an adjourn- ment. The petitioner admits tliat he did not tell the complain- ants' solicitor that he had been told, at the complainants' office in New York, when he first applied there, that unless $300 was paid the sale must proceed. His failure to do so is the fraud 486 CASES IN CHANCERY. [33 Eq. Mechanics National Bank i-. Burnet Manufacturing Company. which the comphnnant8 say justified thetn iti breaking their jiromise. Tliis omission does not, in my judgment, furnish the slightest evidence of fraud. It is not pretended that the peti- tioner was expressly directed by the complainants to carry any information to their solicitor, or that he was directed to say to him that an adjournment should only be granted on certain terms. He was simply directed to apply to him for an adjourn- ment. But even if he had been expressly directed to inform the solicitor that an adjournment should only be granted in case a condition was complied with, I think he was absolved from all duty to act as tiie medium of communication, if it be true, as he says it is — and his statement on this point is uncontradicted — that when he told the solicitor he had been directed by the com- plainants to apply to him for an adjournment, the solicitor at once said that he would enter into no arrangement with him until he had first communicated wuth his clients. The petitioner was justified in understanding, from this remark, that no com- munication he made would be credited as true until it was first verified by the complainants. Silence under such circumstances was not fraud. If the solicitor did as he said he would, it must be assumed that he had full information as to the terms on which his clients were willing to grant an adjournment, before he promised that the sale should be adjourned. In my opinion the evidence does not raise the least suspicion of fraud. The sale must be set aside, with costs. The Mechanics National Bank at Newark V. The H. C. Burnet Mantjfacturixg Company and Wil- liam S. Squier. 1. Objections which relate to the regularity of a judgment at law, or to the validity of the instrument upon which it is founded, are not relievable in equity. € Stew.] FEBRUARY TERM, 1881. 487 Mechanics National Bank v. Burnet Manufacturing Company. 2. The remedy for grievances of this character is either by application to the court in which the judgment is entered, or by writ of error. 3. A judgment at law can only be impeached in a court of equity for fraud in its concoction, or upon a purely equitable defence, or upon the ground that a good defence at law has been lost by fraud, ignorance or accident. 4. Fraud perprelated by means of a judgment is entitled to no more immu- nity than a fraud perpeti-ated by any other means. 5. If a judgment, founded upon a just debt, is entered not for the purpose of securing or collecting the debt, but for the purpose of being used as a cover, to protect the defendant's property from his other creditors, the court will denounce it as a fraud and set it aside, as it would any other fraudulent con- trivance. On final hearing on bill, answers and proofs taken before vice-chancellor. Mr. Albert P. Condit, for complainants. Mr. John Lilly, for defendant Squier. Mr. John Whitehead, for corporate defendants. The Vice-Chancklloe. The complainants are judgment creditors of the H. C. Burnet Manufacturing Company. Their judgment was recovered in the supreme court of this state, October 19th, 1878. The defendant, William S. Squier, was also a judgment creditor of this corporation. He had six judgments. They were entered in the first district court of the city of Newark, on September 4th, 1878. Executions were immediately issued on them, and a sale made thereunder on the eleventh day of the same month. The sale embraced all the property of the corporate defendants seizable by execution. The judgment debtors were, at the time of the sale, engaged in the manufacture and sale of inks, muci- lage and sealing wax, and though their property consisted of a large number of different articles, some manufactured, some in course of manufacture and some in a raw state, some packed in boxes and some unpacked, it was all sold in one bulk. The 488 CASES IN CHAXCERY. [33 Eq. Mechanics National Bank v. Burnet Manufacturing Company defendant Squier purchased the whole. The complainants seek to have this sale set aside and to hold Mr. Squier responsible for the value of the goods, on the ground that he obtained his judg- ments and afterwards used them, not for the purpose of collecting or securing his debt, but to place the property of his debtors where it could not be reached by legal process, and thus enable them to defraud their creditors. If the case made by the bill is established by the proofs, there can be no doubt that the com- plainants are entitled to relief. The defendants, however, deny that the complainants are entitled to the character they assume. They say they are not judgment creditors. They urge two objections against the validity of the complainants' judgment. First, they say the court in which they recovered their judgment never acquired jurisdiction of the person of the corporate defendants, the sum- mons in the action having been served on a person not authorized to receive service for the corporation ; and second, they aver that the debt on which the judgment is founded was not the debt of the corporate defendants, but of one of their officers. These objections, I am of ojjiuion, cannot be considered here. The court which pronounced the judgment in question was entirely competent to hear them, and to give adequate relief, if it found that the defendants were entitled to it. Courts of equity sometimes give relief against judgments at law, but only where it is shown that the defendant was ignorant of thfe facts on which his defence rests until after the time for making defence at law had passed ; or that he was prevented from making defence by the artifice or fraud of his adversary, or by accident unmixed with negligence or fraud on his part, or that his defence is a matter of pure equity cognizance. But in cases where the grievance he attempts to urge is one that the court which pronounced the judgment is competent to hear and decide, and he has either urged it there unsuccessfully, or has negligently omitted to do so, this court can give no relief. Reeves v. Cooper, 1 JBeas. 223 ; Vaughn v. Johnson, 1 Stock. 173 ; Holmes v. Steele, 1 Stew. Eq. 173. The precise question mooted in 6 Stew.] FEBRUARY TERM, 1881. 489 Mechanics National Bank v. Burnet Manufacturing Company. this case was decided in Stration v. Allen, 1 C. E. Gr. 229. Chancellor Green there said : "Objections which relate to the regularity of a judgment, or to the validity of the instrument upon which it is founded, constitute no ground for tlie inter- ference of this court. If the instrument upon which a judgment is entered was without consideration, or invalid, or if the judgment itself is unauthorized, or illegal, the remedy for the party aggrieved would be by apjilication to the court in which the judgment is entered, or by writ of error. They are ques- tions exclusively for the cognizance of those courts. It seems to be conclu- sively settled that a judgment can only be impeached in a court of equity for fraud in its concoction." This court is not at liberty, therefore, to entertain the objec- tions interposed by the defendants. There seems to be no proof in this case which will justify the conclusion that the judgments of the defendant Squier were not founded upon a just debt. But this does not preclude an inquiry whether they were not obtained and used for a fraudulent pur- pose. A judgment may be founded upon an honest debt, and yet it may be obtained under such circumstances and used for such purposes as to make it a fraud. If it is recovered not for the purpose of securing the debt, but solely to be used as a fraudulent cover to protect the defendant's property from his other creditors, it is a fraud, and the courts may deal with it as they would with any other fraudulent contrivance. Fraud per- petrated by means of a judgment is no more entitled to immunity than a fraud perpetrated by means of a deed or mortgage. Jones V. Naughrigkt, 2 Stock. 298. That the forms of law have been pursued is no protection in a court of equity, if the result aimed at and reached is fraud. Metropolitan Bank v. Durant, 7 a E. Ch\ 35; S. C, on appeal, 9 C. E. Gr. 556. If a judgment creditor uses his judgment for a fraudulent purpose, as against subsequent judgment creditors, he will be postponed until after they are paid. As for example, if, after levy, he allows the property to remain in the possession and under the control of his debtor for such length of time and under such circumstances, as to justify the conclusion that his object in obtaining it was not to secure or collect his debt, but to protect 400 CASES IN CHANCERY. [33 Eq. Mechanics National Bank v. Burnet Manufacturing Company. his debtor in the enjoyment of liis property and to prevent his other creditors from seizing it for the satisfaction of their debts, his judgment and levy will be declared void as to subsequent judgment creditors. Casher v. Peterson, 1 South. 317; Wil- liamson V. Johnson, 7 Hal. 86; Caldwell v. Fifield, 4- Zab. 150. Fraud destroys whatever it taints, whetlier it be perpetrated through the machinery of the law or by other means. The important question then is. Did the defendant Squier obtain his judgments for the purpose of perpetrating a fraud, or has he made a fraudulent use of them? They were obtained under very extraordinary circumstances. He is a dealer in chemTcals, and furnished the corporate defendants with all the material they required in their business. At the time he sued, the corporation had but a single officer, at least so Mr. Squier believed. He says the secretary was the only officer he knew or recognized, and he exercised absolute control over all the affiiirs of the corporation. He and the secretary were on exceedingly intimate and friendly terms ; he had been permitted for some time to store his cliemi- cals on the premises of the defendants, and for more than a month prior to the time when he sued, he had been furnished a room in the factory of the defendants, by the secretary, where he received his mail and attended to his correspondence. His six suits were brought on the 29th of August, 1878. He heard of the com- plainants' claim about this time, but he says lie never thought the corporation owed them anything. When he sued, his whole claim amounted to SI, 163. 15. Of this amount he says $242.17 was borrowed money, and advanced in three loans : $25 August 17th ; $50 August 24th, and $167.71 on August 27th. He says he paid in addition, on August 24th, in the purchase of a judg- ment against the corporation, the sum of $146.95. He made the purchase at the request of the secretary, and took an assign- ment of the judgment. He admits he believed the corporation was solvent when he sued. The judgment purchased seems to have been the only one which, up to that time, had been recov- ered against the corporation, and, so far as the evidence shows, no creditor had previously sued them. He and the corporation, prior to this time, had been in the habit of issuing notes for the 6 Stew.] FEBRUARY TERM, 1881. 491 Mechanics National Bank v. Burnet Manufacturing Company. accommodation of each other. Before bringing his suits he made no effort either to collect his debt or to have it secured, though the corporation undoubtedly, with very little effort, could have raised the sum necessary to pay it, and had property amply sufficient to secure it. He says he asked, on August 28th, for the return of the $167.71, loaned August 27th; payment was not made, but he does not pretend that his demand was repulsed offensively, so that his indignation was aroused, or that any dis- closure was made which excited his fears. In his narrative of what preceded the suits, nothing can be found which justifies his conduct, or discloses the slightest reason or motive for his suits. In view of the facts, as he states them himself, it is impossible to resist the conviction that his suits were not the result of a scheme, concocted by him and the secretary, to attain some object which he now desires to conceal. The events occurring at the sale, as well as those which unde- niably preceded and succeeded it, show, I think, with even greater clearness, the real purpose of the parties. Mr. Squier says, after he obtained his judgments, he told the secretary he was going to sell if he was not paid. The secretary was not disturbed by this announcement, at least he did nothing and said nothing to prevent the threat from being carried into execution. A short time before the sale, it is proved that the secretary exhibited a bundle of papers, which he said were the advertise- ments put up by the constable, and that they had not been up five minutes before they were taken down. No attempt has been made to prove where the notices of this sale were set up, or to show that they remained up for a longer time than that men- tioned by the secretary. On the day before the sale and on the day of the sale, the secretary made an inventory of all the tangi- ble property of the corporation. Why he did so does not appear. It was not exhibited at the sale. The defendant says he never saw it. The hands employed in the factory wei'e kept at work until midday on the day of sale, when they were sent away by order of the secretary, and given leave to use the balance of the day as a holiday. They wei'e not discharged, nor informed of the sale, nor does it appear that the slightest intimation was given 492 CASES IX CHANCERY. [33 Eq. Mechanics National Bank v. Burnet Manufacturing Company. to them that it was at all uncertain whether they would be required to resume work in the morning. It does not appear that any of them were at the sale, and there is nothing to show that they knew a sale was to be made. The secretary sent a messenger for a person that Mr. Squier had requested to attend the sale, but who had not appeared when the constable was ready to proceed. As already stated, the property was sold as an entirety. The constable thinks he sold it in three lots, but the bidding at the sale, as given by Mr. Squier, shows conclusively that he is mis- taken. Who gave direction as to how the property should be sold, neither Mr. Squier nor the constable can tell. Mr. Squier is sure he did not, while the constable says that he publicly asked for direction, and received it, but cannot tell from whom it came. Immediately after the sale, Mr. Squier took possession of the property and also of the factory, though he had acquired no right to the term of the corporation in the factory. He says he told the secretary that he should continue the business, and desired him to remain in charge. The secretary at once con- sented to do so. Though Mr. Squier positively affirms that he had no understanding or arrangement with the secretary before the sale, yet I think it is impossible for any one to listen to his story describing what transpired between them after the sale, without seeing, almost as clearly as though no effort to conceal anything had been made, that both fully understood that the business was to be continued, and that the secretary was to remain in charge. Mr. Squier admits that he expected the workmen to return the next morning and resume work. Business was resumed the next morning in the name of the corporation, and was con- tinued in its name until this suit was brought. The name of the corporation was used with the consent of its secretary, in order, as it is said, that Mr. Squier might have the benefit of it as a trade mark. The goods sold were shipped in the name of the corporation, with the words "From W.S. Squier" written across the shipping receipt, and charged upon the books of the corpora- tion. The accounts so charged were afterwards assigned by the corporation, acting by its secretary, to Mr. Squier. In one 6 Stew.] FEBRUARY TERM, 1881. 493 Mechanics National Bank v. Burnet Manufacturing Company. instance it is proved that an account so charged was collected by draft on the debtor, drawn by the corporation, the secretary, of course, acting for the corporation. A short time after the sale, debts due to the corporation, amounting to about $1900, were assigned by the corporation to Mr. Squier, upon which, he says, he advanced to its secretary, at various times, about $1500. He says he has collected on the accounts so assigned, about $650, and that the officers and agents of the corporation have collected and appropriated the balance. These facts, in my judgment, speak for themselves. They require no comment. They demonstrate, beyond doubt, the true character of this transaction. They permit but one deduction, and that is, that the judgments and sale were an entirely friendly proceeding, contrived and arranged by Mr. Squier and the secre- tary of the corporation, for the purpose of effecting an ostensible change in the ownership of the property of the corporation, with intent to defeat the enforcement of the complainant's claim. The assignment to Mr. Squier of the debts due to the corporation, is, I think, tainted with the same illegality. It was the natural sequence of what preceded it, and is manifestly infected with the same evil purpose. A decree will be advised setting aside the sale and assignment, and requiring the defendant Squier to account for and pay what- ever he may have received under either. The complainants are, of course, entitled to costs. 494 CASES IN CHANCERY. [33 Eq. Haydock v, Haydock. The Executoes of Eden Haydock, deceased, V. Eliza P. Haydock. 1. The question whether an act is the product of undue influence or not, must always be largely controlled by the state of liealth and condition of mind of the person alleged to have been unduly influenced. 2. Whatever destroys free agency, and constrains a person to do what is against his will, and what he would not do if left to himself, is undue influ- ence, whether the control be exercised by physical force, threats, importunity or any other species of mental or physical coercion. 3. Undue influence is not measured by degree or extent, but by its eflect; if it is sufficient to destroy free agency, it is undue, even if it is slight. On final hearing, on bill, answer and proofs taken before the vice-chancellor. Mr. Garret Berry and Mr. J. Henry Stone, for complainants. Mr. Benjamin A. Vail and Mr. James R. English, for defend- ant. The Vice-Chancelloe. The object of this suit is to set aside two gifts made by a hus- band to a wife shortly before his death. The grounds alleged are want of capacity and undue influence. Eden Haydock died April 29th, 1879. He left a widow, the defendant in this suit, and an only child, a daughter by a former wife. By his will, which was executed March 23d, 1871, he gave his widow $1,000, payable immediately after his death, and an annuity of $600 during her widowhood, payable in semi- annual installments, the first payment to be made at the expiration of a year from his death. The balance of his estate is given to his daughter. His estate, exclusive of the gifts, amounts to a trifle less than $16,300. The gifts represent a value of $9,000. They were made at different 6 Stew.] FEBRUARY TERM, 1881. 495 Haydock v. Haydock. dates, the first, February 24th, 1879, and embraced niue shares of the capital stock of the United New Jersey Railroad and Canal Company, and seven bonds of the city of Rahway, having a face value of $7,000 ; and the second was made March 10th, 1879, and consisted of a promissory note for $5,000. Regular transfers were made, and the gifts completed by formal delivery. The evidence respecting the state of the donor's mind when the gifts were made is very conflicting. That on the part of the complainants shows a case of utter imbecility, a mind so thoroughly decayed as to be unable to comprehend the simplest matters — and this is shown to have been its condition for some months antecedent to the time when the gifts were made; whilst the evidence for the defendant shows a mind somewhat enfeebled by the decay incident to old age, which, to some extent, had lost its original power and grasp, and in which memory was quite defective, but yet possessing sufficient vigor to uuderstaud, in a reasonable manner, the ordinary affairs of life, and to deal with them rationally* The facts and circumstances adduced by the parties in support of their opposing theories are, in my judg- ment, so nearly equal in force and weight, that, did the decision of the case depend solely upon the solution of the question of capacity, a problem of almost insoluble difficulty would be pre- sented. But I think the rights in dispute may be safely and properly determined without a struggle with the difficulty just mentioned. The case hinges, I think, upon the solution of another question ; one which I regard as comparatively free from difficulty. The question to which I refer is, were these gifts procured by the exercise of undue influence? The determination of this question must always be largely controlled by the state of health and condition of mind of the person alleged to have been unduly or unfairly influenced. A mind naturally weak, or which has become impaired by age, disease or grief, is much more subject to any sort of control than one naturally strong and unimpaired. It is always, therefore, a matter of the first importance to the tribunal charged with the duty of deciding this question, to know fully the situation and surroundings, and the exact condition of 496 CASES IN CHANCERY. [33 Eq. Haydock v. Haydock. mind and state of physical health of the person alleged to have been imposed upon. No definition of wliat the law denominates undue influence can be given which will furnish a safe and reliable test for every case. Each case must be decided on its own special facts. All that can be said, in the way of formulating a general rule on this subject, is, that whatever destroys free agency, and constrains the person whose act is brought in judgment, to do what is against his will, and what he would not have done if left to himself, is undue influence, whether the control be exercised by physical force, threats, importunity or any other species of mental or physical coercion. The extent or degree of the influence is quite immaterial, for the test always is, was the influence, whether slight or powerful, sufficient to destroy free agency, so that the act put in judgment was the result of the domination of the mind of another rather than the expression of the will and mind of the actor. Turne)' v. Cheesman, S BIcCart. S43, S65 ; Ex- ecutors of Moore v. JBlauveU, 2 McCari. 367 ; Lynch v. Clements, 9 a E. Gr. 4S1. Cases of this class generally cast upon the tribunal charged with the duty of deciding them responsibilities of the weightiest character. It is the duty of the courts to inflexibly maintain the right of the citizen to exercise full and complete dominion over his property, in making such disposition of it as to him may seem proper, but they are under a duty, equally solemn and imperative, not to allow him in his old age, after his strength and vigor have departed, and he has fallen into decrepitude and weakness, to be despoiled of his property by any sort of coercion or trick. It is their duty to uphold the rights of the strong, but it is also their duty to protect the weak. At the time the gifts were made, Mr. Haydock was upwards of seventy-five years of age ; his wife was about fifty-five. For two or three months preceding the gifts, Mr. Haydock had been confined to the house by sickness ; he was so feeble, physically, as to require assistance in dressing and undressing ; he saw few persons besides the members of his household and his physician. From the 15th of January, 1879, up to the time of his death, he 6 Stew.] FEBRUARY TERM, 1881. 497 Haydock v. Haydock. he was almost constantly in charge of his wife and her brother, George Bayright. Prior to the date just mentioned, George Bayright and his wife had kept house at Asbury Park, but at that date they closed their house, and Mrs. Bayright went to Brooklyn, and Mr. Bayright went to Rah way, where Mr. Haydock resided, and took up his residence with him, where he remained, except for short intervals, until Mr. Haydock died. Mr. Hay- dock and his daughter had no intercourse after the fall of 1878. On November 30th, 1878, his daughter procured a commission of lunacy to be issued against him. Before it issued, the proofs show that Mrs. Haydock had consulted counsel as to what steps it would be necessary for her to take to have a guardiau ap- pointed for Mr. Haydock, and in the conference stated that she thought he required a guardian. The commission sued out by the daughter was executed December 24th, 1878, and resulted in a finding that Mr. Haydock was then of sound mind. The evidence leaves no ground for doubt that Mr. Haydock had suf- ficient mind at this time to understand the nature of this pro- ceeding. Its institution deeply wounded him. He thought it degraded him, and that it was prompted solely by mercenary motives. He did not appear before the commissioners ; the con- dition of his health rendered it imprudent, if not dangerous, for him to do so, but he was represented by his wife and also by counsel. No evidence has been offered tending to show that he prepared the defence made to the lunacy proceedings, nor that he gave any direction or instruction concerning it. The finding of the jury gave him great satisfaction. When he first heard of it he expressed his satisfaction by exclaiming " Richard is himself again ! " Even prior to this proceeding, there can be no doubt that his wife possessed a strong influence over him. There are some phases of his conduct which show that he stood in dread of her. On one or two occasions it is proved that he said, after having done something which displayed great infirmity of mem- ory, as an offer to pay a debt a second time, " Don't tell Eliza." The attempt of the daughter to have him placed under the con- trol of a guardian, and the defence made in his behalf by his wife, naturally had the effect of weakening the influence of the 32 498 CASES IN CHANCERY. [33 Eq. Haydock v. Havdock. daughter and increasing that of the wife. The wife admits that her influence over him was all-powerful. While under cross-ex- amination she was asked if she had not proposed to her husband to make over his property to her, to which she replied she had not, but added, "I suppose if I had asked him to do so, he would have done it." If she is not mistaken in lier estimate of her power, it would seem that he must have been a very plastic instrument iu her hands, and that she could mould his will into any form dic- tated by either her interest or her fancy. His mind at this time was in a state of decay ; senile dementia had undoubtedly commenced. He was very forgetful ; he did not comprehend either readily or clearly ; his perceptions were blunted ; all his intellectual faculties were dull and stupid. Those who had known him longest, and were best able to contrast the present condition of his mind with its state when in its original vigor, almost with one accord looked upon him as an intellectual wreck. There is evidence in the case, coming from sources enti- tled to great respect and confidence, which, without anything to countervail it, would be abundantly sufficient to support a finding that at the time the gifts were made, Mr. Haydock did not possess testamentary capacity, even according to the low standard fixed by the adjudications of this state. But there is countervailing evidence, and I am not persuaded that the court ought to declare the gifts void solely on the ground of want of capacity. It is certain, however, that Mr. Haydock was in a condition of extreme dependence. He was weak in body and feeble in mind ; he could do little for himself; he was compelled to look to others for almost everything that could make life either desirable or endurable. He was in a position where he would be likely to be easily controlled and to yield to light influences, especially if exerted by a person in whom he had confidence, or upon whom he was dependent. This brings us to the main question : Were these gifts the product of undue influence? The defendant says they were purely voluntary, and that she did not even know of her hus- band's intention to make them until he was ready to execute it. They were the subject of conversation between them, though, 6 Stew.] FEBRUAEY TERM, 1881. 499 Havdock v. Havdock. according to the testimony of the defendant's brother George, they had been fully determined upon nearly a month before the first was made, and the securities which were to be the subject of them had been separated by Mr. Haydock from his other secu- rities and their value computed. Considering the intimate aod confidential relations of the parties, their constant association, and the strong inducement the husband was under to make known to his wife any generous purpose lie may have entertained towards her, the reticence attributed to him strikes my mind as not only unnatural and improbable, but as a circumstance justi- fying the most painful suspicions. What reason is it possible to assign for this extraordinary silence ? Whether the gifts were dictated by love for the wife, or by hatred for the daughter, or were the product of mingled love and resentment, the feeling was one that men do not usually conceal without a motive. It can hardly be believed that a man in his situation would have attempted to perpetrate a surprise. Childish minds are usually frank and open ; they attempt no concealments and keep no secrets. If the generous purpose ascribed to Mr. Haydock had originated with him, I am unable to believe tliat it would have been possible for him, in his weak and dependent state, to have withheld all knowledge of it from his wife until he was ready to execute it, and the fact that she solemnly declares that he did, introduces a circumstance in support of her claim so unnatural and improbable as to shock credulity and to cast deep distrust upon her whole case. The defendant's brother George would not say that he never heard the defendant ask or importune her husband to make over his property to her. All he can be induced to say on this point is, that he may have heard her ask him to do so, but if he did he does not recollect it. This style of testifying has very much the appearance of an attempt to suppress the truth. There are witnesses whose moral sense seems to be much less out- raged by a suppression of the truth than by a downrigiit denial of it. They seem to think the shock to conscience will be much less violent if they merely pretend to forget, than it would be if they ventured upon a bold, blunt denial. In this case, the trans- 600 CASES IN CHANCERY. [33 Eq. Haydock v. Haydock. action inquired about had only recently occurred, if it ever oc- curred at all, and it was of a character likely to fasten itself so firmly upon his memory that he could not forget it. It was a thing which, if he heard, he could not forget, and if he did not hear it, he would be able to say, positively, that it never occui'red in his presence. Under some circumstances, feigned forgetful- ness of a fact may be very satisfactory proof of its existence. A female servant who lived in tlie family of Mr. Haydock from September, 1878, up to the middle of February, 1879, swears diat Mrs. Haydock talked to her husband almost every day about his money affairs; that Mr. Haydock said very little; in the language of the witness, she could hardly get a word out of him, and that his disinclination to talk about his business made her very angry. She also says that Mrs. Haydock had papers which she wanted Mr. Haydock to sign, and that she heard Mrs. Haydock say more than once, when she was angry, that she would not stay with him. This witness seemed to me to be entirely trustworthy. There was nothing in her deport- ment nor in her story which created the slightest doubt of the substantial truth of her testimony. She was free from all inter- est or bias, and had no motive to misrepresent or withhold the truth. Another female servant, who lived in the family for some weeks after the one whose testimony has just been re- ferred to left, testifies to acts and expressions by Mrs. Haydock constituting coercion of the most offensive sort. If her testi- mony is true, Mr. Haydock was almost constantly, during the time she was in his family, importuned to sign papers and make over hLs property, by methods which, in his situation, amounted to absolute torture. But there are portions of her story which, I am satisfied, are inventions. She is also self-contradicted. Standing alone, her testimony would be entitled to no considera- tion whatever, but viewed, as it must be, in connection with the other evidence in the case, I do not think it can be discarded as without truth or force. The conclusion I have reached, after listening to the witnesses, and attentively observing their manner while testifying, and after giving their evidence the most patient and careful consid- 6 Stew.] FEBRUARY TERxM, 1881. 501 Haj-dock v. Haydock. eration, is, that the gifts in question were procured by the exer- cise of undue influence. I have not adverted to all the evidence which has led me to this conclusion. Usually, in cases of this kind, there are many little things, which, in the abstract, are mere trifles, so small as to be diflicult to describe as sej^arate mat- ters, but which, when combined, and considered in the concrete, exercise a very potent influence upon the judgment. There are many such trifles in this case. Besides, the transactions brought under review belong to a class which it is the habit of courts of equity to examine with a watchful jealousy. A wife may make a valid gift to her hus- band, but such gifts are not favored in equity, and, if challenged, a court of equity will examine them with an anxious watchful- ness and caution and a dread of undue influence, and never sanction them unless they appear to be the free act of the wife. 2 Story's Eq. Jur. § 1296. The reason is obvious. The husband is master; the wife occupies a position of dependence, and in many cases his superior position enables him to control her will by his wish. The parties here had exchanged their original positions. The wife, in con- sequence of her husband's weakness, had taken his place, and he had sunk into hers. For this reason, I tjiink, the court is bound, in determining the validity of the gifts in question, to apply the salutary principle just stated, and, unless convinced that they were the free, voluntary, and well-understood acts of the donor's mind, must set them aside. I am not so convinced, and shall, consequently, advise a decree for complainants. The complain- ants are entitled to costs. 502 CASES IN CHANCERY. [33 Eq. Blakeley v. Blakeley. Jane Blakeley V. Sidney Blakeley et al. L When no fraud is alleged, and where incapacity is the ground on which a deed is sought to be set aside, the test is, had the grantor suflScient mind to comprehend, in a reasonable manner, the nature and effect of what he was doing ? 2. A suitor who seeks to set aside a deed on the ground of incapacity, must do something more than show insanity ; he must show that the transaction he seeks to invalidate was affected by the grantor's derangement. 3. A deed made by a person of non-sane mind, before unsoundness is estab- lished by inquisition, is not void, but merely voidable, and may be confirmed in lucid intervals so as to be unimpeachable. On final hearing on bill, answer, and proofs taken before a master. Mr. John A. Miller, for complainant. Mr. Wm. B. Guild, jun., for defendants. The Vice-Chancellor. The complainant seeks to set aside a deed made by her mother to one of the defendants, on the ground that her mother, Note. — A deed or contract made during insanity may be ratified by the gran- tor, if his sanity be subsequently restored (Breckinridge v. Onnsby, 1 J. J. Marsh, 2S6 ; Allen v. BerryhiU, 27 Iowa 534; Carrier v. Sears, 4 Allen SS6 ; Bassett v. Broum, 105 Mass. 551 ; Taylor v. Patrick, 1 Bibh 168; Waiters v. Barral,S Bush 598); including an invalid marriage (Cole\. Cole, 5 Sneed 57 ; Crump V. Morgan, S Ired. Eq. 91. See Johnson v. Johnson, 45 Mo. 595 ; Jones v. Jones, S6 Md. 44"^ ; Andrews v. Page, 3 Heisk. 654) ; or waiving a right of dower (Brown v. Hodgdon, 31 Me. 65 ; but see Pinkerlon v. Sargent, 102 Mass. 568) ; or a contract made during intoxication {Eaton v. Perry, 29 Mo. 96 ; Blagg v. Hunter, 15 Ark. 246 ; Barrett v. Buxton, 2 Aik. 167 ; Arnold v. Hickman, 6 Munf. 15 ; Matthews v. Baxter, L. R. {8 Exch.) 132) ; or one obtained by fraud {Moxon V. Payne, L. R. {7 Ch.) 44^; Montgomery \. Pickering, 116 Mass. 227 ; Bradley v. Chase, 22 Me. 511; Pearsoll v. Chapin, 44 Pa. St. 9; 6 Steav.] FEBRUAHY TERM, 1881. 503 Blakeley v. Blakeley. when she executed the deed, was insane. The deed was made by a mother to a daughter, both of whom bore the masculine name of Sidney. The mother's mental condition is thus described in the bill : Her mind was so unsound and deranged that it was impossible for her to understand the purport and effect of a deed, and she was incapable of receiving an intelligent impression. If this is a correct description of the mother's mind when she executed the deed, there can be no doubt that it must be adjudged voidable, for the test in this class of cases, when no fraud is alleged, is, had the grantor the ability to comprehend, in a reasonable manner, the nature and effect of the act he was doing ? If he had, the deed is valid; if he had not, it is voidable. It is not indispen- sable, in order to validate his act, that he should be entirely free from delusion or mania; he may be irrational on some subjects and yet his deed be valid. A suitor seeking to set aside a deed on the ground of insanity in the grantor, must do something more than show the mere fact of insanity ; he must, in addition, show that the transaction which he challenges was affected by the grantor's derangement. Chief Justice Beasley, speaking for the court of errors and appeals, in Lozear v. Shields, 8 C. E. Gr. 510, said it was a mistake to suppose that if any phase of insanity was shown, the transaction brought in question must necessarily be held invalid. Mania does not, per se, vitiate a transaction, for the question in such cases is, has the transaction called in question been affected by it? Proof of a morbid turn of mind, on a subject entirely disconnected from the transaction Hanson v. Field, 4I Miss. 712 ; First Nat. Bank v. Gay, 63 Mo. 33); or, by forgery {Brook v. Hook, L. R. {6 Exch.) 89 ; Wilkinson v. Stoney, 1 Jebb & S. 509; Ashpitel v. Bryan, 2 B. & S. 492 ; Union Bank v. Middlebrook, 33 Conn. 95; Howard v. Duncan, 3 Lans. 174; Thorn v. Bell, Hill & Den. 430; Green- field Bank v. Crafts, 4 Allen 447; Dow v. Spenny, 29 Mo. 3S6 ; see Bell ads. Shields, 4 Harr. 93; Forsyth v. Day, 46 Me. 176; Terry v. Bissell, 26 Conn. 23 ; Walker v. St. Louis Bank, 5 Mo. App. 214). While there may be a ratification of a tort ( Cooley on Torts 127 ; Broom's Max, *679; see Stickney v. Munroe, 44 Me. 195 ; Perrin v. Claflin, 11 Mo. IS; Moore V. Rogers, 6 Jones 297), semble, there can be none of a crime {Morse v. State, 6 Conn. 9). 604 CASES IN CHANCERY. [33 Eq. Blakeley v. Blakeley. brought in judgment, is absolutely irrelevant. Substantially the same views were expressed by the supreme court in Eaton V. Eaton, S Vr. 113. If the proofs on the part of the complainant are believed, it is fully proved that the mother was under the influence of insane delusions, of a very marked and decided character, about the time she executed the deed in question. She believed she was in danger of being murdered by a number of different persons, among whom were her daughter Sidney and a prominent clergy- man of the Roman Catholic church. So strong was this delusion with respect to her daughter, that there were times when she would not take food prepared by her, declaring she believed it was poisoned. She also accused her, unjustly, of striking her with an iron bar, and of driving her from her own house. It is also proved that shortly before the deed was made, she approached one of her grandchildren, with a knife in her hand, declaring that she meant to kill her; that while under the influence of a mad freak, she cut a night-dress, belonging to this grandcliild, into strips; it is also proved that she attempted to commit suicide, by cutting her throat with a pair of scissors, and twice reported, to one or more of her relatives, that the daughter to whom she made the deed in question had been dead for some time. She seems, also, to have believed that those to whom she entrusted the care of her money were endeavoring to defraud her. If this evidence stood alone, I think it would be very difficult to resist the conviction that the grantor's mind was so thoroughly wrecked, and her reason so completely dethroned, when she made the deed There must be an affirmance or disaffirmance of the entire contract {McGuire V. OaUahan, 19 Ind. 128 ; Arnold v. Richmond Iron Works, 1 Gray 457 ; Hun- ter V. Steinbridge, 17 Ga. 243). What acts amount to a ratification {Grant v. Thompson, 4 Conn. 203 ; Bas- sett V. Brown, 105 Mass. 551; Van Deusen v. Sweet, 51 N. Y. 37S ; Williams V. Inabet, 1 Bailey 343; Bond v. Bond, 7 Allen 1; FUzpatrick v. Comrs., 7 Humph. 224; Ladd v. Hildebrant, 27 Wis. 135 ; Thacher v. Pray, 113 3fass. 291; Gore v. Gibson, IS M. & W. 626, Pollock, C.B.; Humphreys v. GuUlcrn, 13 N. H. 385; Reinskopf v, Rogge, 37 Ind. 207; Leslie v. Wiley, 47 N. Y. 648 ; Kirk V. Glover, 5 Stew. & Port. 340; Dean v. Yates, 22 Ohio St. 388). See, further, Scanlan v. Cobb, 26 Am. Law Reg. 312, note. — Eep. 6 Stew.] FEBRUARY TERM, 1881. 505 Blakeley v. Blakeley. in question, that it was impossible for her to have .had anything like a reasonable understanding or clear apprehension of the act she was engaged in, when she executed it. But almost every witness who testifies to acts or expressions tending to show insanity, also says there were times when she was rational. They agree, with almost entire unanimity, that in all her business matters she seemed to be sane. They describe her as economical to meanness ; one says of her that she was so stingy as actually to deprive herself of the necessaries of life. In all matters of business she seems to have acted with care and caution ; and her business transactions, so far as they have been brought to the attention of the court, seem to have been managed with sound judgment and good sense. She obtained title to the property in controversy only a week before she made the deed now sought to be set aside. The deed to her bears date May 19th, 1877, and that to the defendant May 26th, 1877. The complainant does not deny her mother's competency to acquire property; indeed, the evidence shows that she negotiated the purchase with great shrewdness and tact. No change in her mental condition is shown to have taken place between the date of the deed to her and the date of the deed from her. If she was competent to buy, she was competent to convey. Her capa- city to acquire is not disputed. The acquisition of this property by the grantor, so short a time before she made the deed in dis- pute, and the fact that in making the contract of purchase, she acted with shrewdness and sound judgment, are facts possessing almost decisive weight on the question of capacity. Relief should not be given in equity on a case which, in its fundamental facts, is glaringly inconsistent. But the question of the case is. Did the grantor, when she exe- cuted this deed, comprehend, in a reasonable manner, the nature and effect of her act? The act itself, in view of the facts, was neither irrational nor unjust. She paid $1,650 for the property. She had already given the house where she lived to one of her sons. The grantee of the deed in question was her youngest daughter. She was the only one of her children who had re- mained with her in her old age. The others had left her, and gone 506 CASES IN CHANCERY. [33 Eq. Blakeley v. Blakeley. out into the world to do for tliemselves. This one sometimes went to service, but when she did so, she either gave her wages to her mother or expended them in the purchase of necessaries or comforts for her. The mother said she was the best child she had. This praise was fully warranted by the daughter's filial conduct. Her love for her mother was very strong. On one occasion, when it was suggested that her mother should be sent to a lunatic asylum, she at once declared that her mother should never be sent there while she could get money enough to keep her out. She may not have been wise in her love, but there can be no doubt about its sincerity. While the other children were laboring to accumulate property for themselves, this daughter was devoting her life to her mother. They were not only willing that she should make this sacrifice for her mother's sake, but they seemed to expect her to do it. It was, therefore, both natural and just that the mother should feel a strong preference for this daughter. But the most satisfactory evidence in elucidation of the ques- tion propounded by the case is, what the mother said in explana- tion of her purchase, and why she had conveyed the property to the defendant. Sixteen witnesses have repeated remarks made by the mother upon this subject. Three of them testify that the mother said, in March or April, 1877, she was going to buy a property for Sidney. One of the three also says that she said Sid- ney had worked hard ; had been good to her ; had waited on her, and taken good care of her. The others testify to declarations, extending from May, 1877, to January, 1878, showing that the mother fully understood that she had purchased a property in East Orange, and had afterwards conveyed iv it. He appears to have been in the occupation of the property at the time as a tenant, and perhaps was therefore willing to buy it. It may be added that it does not appear that the property was then — in the spring of 1871, before the financial panic occurred — worth more than $4,000. Elmendorf, tiie other as- signee of Wallace, says Smock was anxious to buy, and that he (Elmendorf) thought the price Smock offered (which was $3,500) was the full value of the property. But further, the executor might have put in his claim under the assignment, and if he had done so he would have been entitled to a dividend on the amount of any deficiency left after applying the proceeils of the sale of the mortgaged premises to the payment of his debt. Bell v. Fleming^s Exrs., 1 Beas. 13. His omission to do so was a dere- liction of duty. As before stated, the estate paid, on compro- mise, forty per cent. The executor should be held responsible for the loss on this loan, and therefore all his claims for allow- ance in respect to the property after it was bought in by him must be disallowed, and of course the charges against him for rents received from it will be stricken from the other side of the account. I have no doubt he acted honestly in the matter of this loan, but he not only took a second mortgage for security, but he did not observe the rule by which prudent business men are governed in their investments of their own money on mort- gage of real estate, not to lend to the extent of more than two- thirds of the value of the property. I am constrained, there- fore, to visit the loss on him rather than on the estate. While this conclusion renders it unnecessary to pass on the question raised as to whether the executor, if that property was the property of the estate when he sold it, was not bound to ad- vertise it according to the directions of the act " relative to sales of land under a public statute or by virtue of any judicial pro- ceedings" {Rev. 104,0), it may be remarked that the sale was not within the provisions of that act. The executor has not, I am satisfied, been guilty of any inten- tional wrons: or misconduct in the discharge of the duties of his 532 PREROGATIVE COURT. [33 Eq. Youmans v. Petty. office, ami he ought not, therefore, to be deprived of his com- missions. The commissions will be computed according to the rule laid down on the subject in Tmker v. Tucker, 6 Steiv. Eq. 235 ; that is, he is entitled to commissions on the amount on which he is to be allowed commissious in the third or final account at the same rate at which they would have been allowed had the money on which they are computed constituted part of those accounted for in the former accounts. He is to be allowed commissions only once on the entire estate, notwithstanding the several ac- countings, and that only at the statutory rate, taking all the sums on which commissions are computed together, and apply- ing the statute thereto accordingly. The decree of the orphans court will be reversed in the respects above indicated, but without costs. Hannah Youmans et al., appellants, V, Luther Y. Petty, respondent. Where a contest over the probate of a will has been duly certified into the circuit court, and the proceedings there appear to have been regular, and the verdict of the jury properly certified into the orphans court, and a decree in conformity with the verdict entered, objections addressed to the discretion of the circuit judge and overruled by him, or objections which, if raised at all, ought to have been raised in the circuit, are no ground for reversing the decree of the orphans court. On appeal from a decree of the orphans court of Warren county refusing probate of a paper writing purporting to be the will of John M. Youmans, deceased. Mr. J. F. Dumont and Mr. H. S. Harris, for appellants. Mr. J. G. Shipnujn, for respondent. 6 Stew.] FEBRUARY TERM, 1881. 533 Youmans v. Petty. The Ordinary. The appeal is from the decree of the orphans court of Warren county, refusing to admit to probate a paper writing purporting to be the last will and testament of John M. Youmans, deceased. The appeal is from the whole of the decree except so much as awards costs and counsel fees, and the ground of appeal is that the decree is, with the exception before mentioned, erroneous in every part, because the circuit court of Warren county should have decided that the paper is the will of John M. Youmans, deceased, and should be admitted to probate accordingly. It will be perceived that the objection is to the result of the litigation in the circuit court, into which, for trial before a jury, the ques- tion involved in the controversy over the instrument was certi- fied by the orphans court, on application in behalf of the caveator. By the record, the question appears to have been duly certified into the circuit court, and the issue there appears to have been duly framed, and the cause duly tried. The verdict of the jury was certified to the orphans court, and the circuit judge certified, also, that there was no request that the testimony or charge be re- duced to writing ; that no exception was taken, either to the rulings of the court or the charge, and that there was a motion on behalf of the proponents for a new trial, and a motion that the cause be certified thereon into the supreme court, both of which were denied. They were both in the discretion of the circuit judge. I am unable to find any error in the decree complained of. The act [Rev. 756 §§ 19, 20) authorizes the orphans court, on application of either party to a contest over a will, to certify the questions involved into the circuit court of the county, for trial before a jury, and it provides that the verdict shall be subject to be set aside, and a new trial granted in the circuit court, as in other cases in that court, and that the circuit judge may, on the application for a new trial, certify the application to the supreme court for its advisory opinion. It also provides that on the certificate of the circuit judge the orphans court shall proceed to make a decree touching the probate of the will, in accordance with the finding of the issue in the circuit court. There does not appear to have been any objection in the orphans court to the making of the 634 PREROGATIVE COURT. [33 Eq. Schaedel v. Eeibolt. decree in accordance with the finding of the circuit court. And though there was objection to the action of the court in certify- ing the question into the circuit court, the order that the question be certified was not appealed from, and it may not be out of place to remark that if it had been, there appears to have been no error in the exercise of the discretion which the act gives to the orphans court in the matter. The decree will be affirmed, with costs. Philip Schaedel, guardian, appellant. Henry Reibolt, administrator, respondent. Where appellant took into his own family an orphan, and educated and sup- ported her until she was sixteen years old, when she went elsewhere to work, and received her own earnings for a time, but becoming sick she returned — ffeld, that appellant was entitled to recover from her estate the expenses of her last illness and funeral. Aliter, as to clotliing and board furnished. Appeal from decree of Essex orphans court. Mr. S. Morrow, for appellant. Mr. E. Q. Keasbey, for respondent. The Ordinary. The appellant, Philip Schaedel, and his wife, took the deceased ward, Augusta Reibolt, out of the Newark Orphan Asylum, where she had been placed for support at the hands of charity. She was then about seven years old. They appear to have taken her to bring up, and they seem to have reared and cared for her, not only up to the time when, at the age of about sixteen, she left their house to go out to service, but afterwards, whenever she returned to them, and during her long, last illness (which was 6 Steay.] FEBRUARY TERM, 1881. 535 Schaedel v. Eeibolt. for many months), as tenderly as they would had she been their own child. She went to service of her own choice, and while at service regarded their house as her home, and returned to it from time to time accordingly. They swear that she received and kept for her own use all the wages which she earned. She learned the trade of dressmaking in Newark, while she lived with them. While she was living with them, and before she went out to ser- vice, she was entitled to some money from her grandfather's estate. That money was in the hands of Henry Sauerbier as her guardian, he having been duly appointed as such. While she was at service in Paterson, she became apprehensive lest she should lose her money through the insolvency of Sauerbier, and procured the appointment of Schaedel as her guardian, and he collected the money from Sauerbier. Early in the fall of 1877, she returned to Schaedel's house sick of pulmonary consumption, and stayed there until she died, on the 18th of March following. Schaedel provided for her well during her illness, and had her decently buried after death. He claims credit in his account of his guardianship for payments made for her in the changing of guardians, for money paid for collecting the money from Sauer- bier, compensation for her board &c,, including care and attend- ance and physician's bills in her illness, and for money paid for her funeral expenses, to an amount in the aggregate very con- siderably exceeding the money received by him for her as her guardian, and the interest thereon. Her administrator, her brother, excepted to all these credits, and they were all disallowed. He insists that Schaedel was bound to furnish the board, care and atteudance, and medical aid for which he claims credit witiiout compensation or re-imbursement therefor ; and so, too, as to the expenses of her funeral, that he was bound to pay them, and that he has no claim against her estate on account of those matters, or any of them. The proof is, as before stated, that the appellant and his wife did their whole duty towards Augusta, and cared for her as if she had been their own child, from the time when they took her from the orphan asylum until her death. They sent her, not only to the public school, but for three years, at Sclinedol's expense, to a private school ; and they not onlj 536 PKEROGATIVE COURT. [33 Eq. Schaedel v. Reibolt. educated her in the ordinary branches, but employed teachers to instruct her in book-keeping and in music. She went to school till she was fourteen years old. For the last three years of the time she went to a private school. After she became fourteen years old, she, as before mentioned, learned the business of dress- making, but lived with them all the time, and they clothed her. She appears to have left their house of her own accord when she was about sixteen years old, to work for herself, and continued to work on her own account, at various places in the neighbor- hood of Newark, until early in the fall of 1877, when Mrs. Schaedel dissuaded her from going out any more, because of her failing health, and she thenceforward, until her death, which occurred in March, 1878, lived with them, but as before stated, was sick of consumption. The proof is that she kept her own wages, and spent them in clothes &c. Miss Cullman, indeed, swears that on one occasion she saw her pay $12 to the appel- lant's wife, which the witness says she had brought from a place in Broad street (she was at one time employed at service at ]\Ir. Lockwood's house in that street), but this is positively denied by Mrs. Schaedel, and both she and her husband swear unqualifiedly that they never had any of her earnings. Her brother's testi- mony as to what he says Augusta told him on the subject is, of course, incompetent. Miss Cullman says Augusta began to be ill in August or September, 1877, but adds that she was fre- quently sick before that time and had a doctor. It appears quite clear that the quasi parental relation which before then had existed between Augusta and Schaedel terminated when she, of her own accord, went out to work for herself, and the fact that she regarded his house as her home, and returned to it as such in the intervals of employment, would not affect that conclusion. For the time that she was a member of his family previously, he could have no claim against her for necessaries furnished to her, nor she any against him for her services rendered in the family. Haggerty v. McCanna, 10 C. E. Gr. IfB. And so, too, to a certain extent with regard to the same matters when she returned from time to time to his house as her house. It appears, it should be remarked, that she stayed at his house during such 6 Stew.] FEBRUARY TERM, 1881. 537 Merrill v. Kush. intervals of employment for considerable periods, at one time all winter, and at another (in 1877) from April to August. Her board (and clothing, too, if he provided it on such visits or stays) he would be regarded as giving to her, in view of their relations, unless it was otherwise understood between them. But neither justice nor law required him, under the circumstances, to pay her physician's and nurse's bills duriug her long illness, which resulted in her death, and finally to bury her at his own expense ; and neither justice nor law forbids his being indemnified for those payments out of her estate, but, on the other hand, both require the contrary. The appellant should be allowed all his charges except that of $667.50 (made, he swears, by advice of counsel), under date of April 30th, 1876, which is for board and clothing of Augusta from October 1st, 1867, to April 30th, 1876, and the charge of $40 under date of July 15th, 1876, for her board and washing during her sickness from May 1st, 1876, to July 15th, 1876. The court below appears to have ordered him to pay out of his own pocket a counsel fee of $25 to the exceptant's counsel, and the costs of the trial of the exceptions, and the costs of settling the account. Those ought all to be paid out of the estate. The decree of the orphans court will be reversed, and the account restated here in accordance with the views expressed in this opinion. RosEAiTNA Merrill, appellant, V. WrLLLA.M J. Rush, executor, respondent. The testamentary capacity of a testatrix eighty-three years of age when her will was executed, who mentioned twenty of her intended legatees to her scriv- ener, and noted the omission of one of them when he read the will over to her, supported by the testimony of the surviving attesting witness and scrivener of her will, and by her physician and other witnesses, established, although her 538 PREROGATIVE COURT. [33 Eq. Merrill v. Rush. forgetfulness in regard to some minor matters was shown, and it appeared that she had made an unjust and unfounded accusation against a person who, how- ever, had no natural claims upon her bounty. Appeal from the decree of the orphans court of Warren county, admitting to probate the will of Rachel Rush, deceased. Mr. Henry S. Harris, for appellant. Mr. L. De Witt Taylor, for respondent. The Oedinary. The appeal brings up for consideration the question whether a paper purporting to be the last will of Rachel Rush, deceased, late of the county of Warren, and executed by her as such, shall be admitted to probate. The testatrix, at the time of her death, October 8th, 1878, was of very advanced age, being a little over ninety. When the will was made she was over eighty-three years of age. It was made, then, about seven years before she died. By it, after ordering the payment of all her just debts and funeral expenses, she gave to certain of her grandchildren, by name, $50 each ; to Rachel Rush, daughter of her son, Peter J. Rush, her feather bed and bedding and $50 ; to the daughters of her deceased daughter Margaret, $50, to be divided among them equally ; to the Baptist church of Montana, Warren county, S50 ; to her six daughters-in-law, $100 each, and to her two daughters and six sons the residue of her property ; and she appointed her son, William J. Rush, executor. Of the testa- mentary witnesses, only one, James Vliet, is living. He drew the will. It is dated January 11th, 1871, and was executed on the day, or the day after, it bears date ; probably the former. Mr. Vliet had drawn two wills previously to this for her, and he drew this at her request. She appears to have sent for him to get him to draw it, and he went to her place of residence at the house of her son, Peter J. Rush, where she had lived for many years. She told him that she wanted to make some alter- 6 Stew.] FEBRUARY TERM, 1881. 539 Merrill v. Eush. ations in her will, and he made a note, at the time of the altera- tions, which she wished to make. He drew the will accordingly, and returned with the paper to the same house the next day. "When he arrived there he and she retired to a separate room, and he then read the will to her. As he read it she perceived that he had omitted one of the persons to whom she desired to make a bequest — Mary M. Beers, daughter of her daughter Maria — and remarked that he had left her out. He thereupon made the correction, by interlineation, and finished reading the will to her, and she pronounced it to be right. At his first call upon her, she spoke to him about procuring a witness, and it was under- stood between them that he would see Martin H. Tinsmau, and bring him with him to witness the execution of the will with him. He brought Tinsman accordingly, and the latter, with Mr. Vliet, witnessed the execution of the will by her. As before stated, Tinsman is dead. The will was executed with all due legal formalities. The attestation clause is as follows : " Signed, sealed, published and declared by the above-named Eachel Rush, to be her last will and testament, in the presence of us, who were present at the same time, and subscribed our names as witnesses in the presence of the testator and each other." The attestation clause is perfect, and it may be added that the proof aliunde establishes all the requisites of the statute. After the will was executed, Mr. Vliet inquired of the testatrix what directions she would give as to the custody of the paper. She said she desired him to retain it, and he did so, from that time up to a few days after her death. He was well acquainted with her. As before stated, he had drawn two previous wills for her. One was executed in March and the other in June, 1868, and he had had the custody of them. They remained in his custody after cancellation, and appear to be there still. He testifies that the will was drawn in conformity to her directions, and that at the time of the execution of the paper she was of sound and disposing mind, memory and understanding. There is no proof whatever of the exercise of undue influence over her in the making of the will. Its admission to probate is resisted, 640 PEEROGATIVE COURT. [33 Eq. Merrill v. Rush. on the ground that when it was made she had not testamentary capacity. In the will she makes bequests to more than twenty of her grandchildren, making mention of them by name in every instance but one (the daughter of her daughter Margaret), with correct reference to their parentage. She mentions each of her daughters-in-law, and makes a bequest to each, and then gives to her daughters and sons the entire residue of her property. She gave to Mr. Vliet the instructions for that will, as before stated, and he testifies that no one except him and her was present at the time. It is urged, on behalf of the caveatrix, that the tes- tatrix was under delusions in i-egard to an injury done to a horse belonging to her, from which it died, and also as to certain small articles of household furniture of little value, which she alleged had been stolen from her. The injury referred to she imputed to Charles B. Rush, and the theft to his wife. She lived with them from the death of her husband, which occurred in the fall of 1867, until the spring of 1868. The horse was with her there. She appears to have been very much attached to it. "While she was there she cliarged Rush with having unduly worked it, and there were unpleasant, not to say unfriendly, words between them on the subject. The horse was not injured, and did not die at his place, but at her son's, where she lived at the time. Her suspicion or belief that Rush had maliciously done the injury which resulted in the death of the horse was unjust to him, but it evidently arose from her state of feeling towards him in connection with the difficulty before referred to, which had occurred between them in respect to the horse. As to the household articles which she charged his wife with having stolen, the latter testifies that some of them were given to her by the testatrix, and it appears that as to the others, certain dishes, the testatrix had given them to her daughters, and had probably forgotten the fact. The hallucinations, if such they may be called, had no reference, however, to any person who had reason to expect to be a recipient of her bounty, or who had any claims by nature upon her in her distribution of her estate. There is no evidence that they in anywise affected her testamentary dispo- sition of her property, and if there were evidence that it had 6 Stew.] FEBRUARY TERM, 1881. 541 Merrill v. Rush. done so, probate of the will would not be denied on that account where the denial would not avail those who, but for the delusion, would have been recipients of the testator's bounty. Stackhouse V. Horton, 2 McCart. W2. Her conviction as to the cause of the death of the horse was the offspring of the ill opinion which she had of Charles B. Rush. In the charge made against his wife in respect to the dishes, there is evidence of failing memory. It appears, however, affirmatively, in respect to both these charges, that she readily yielded to the considerations which would convince a sane mind. Asa Kinney, a witness sworn on behalf of the caveatrix, says that after he told her she could not punish Rush for the injury to the horse, because she could not prove that he was on the ground when the injury was done, she gave the matter up. She seems, also, to have accepted the statement of her daughter that the dishes had been given by her to her daughters. It is charged, also, that the condition of her mental and bodily health was such, while she was living with Charles B. Rush, from the fall of 1867 to the spring of 1868, as to indicate testamentary incapacity, but the circumstances adduced are evidence only of the failure of memory in reference to recent matters, incident to old age, and a disregard of the proprieties of life with respect to cleanliness. As to this latter circumstance, the proof depends wholly on the testimony of Rush and his wife. She lived with them, as before stated, from the fall of 1867 to the spring of 1868. She lived nearly ten years after she left their house. She lived at three different places afterwards. If her mind was so far gone when she lived at Charles B. Rush's as that she had, by reason of want of mental capacity, no regard for the decencies of life (for what is charged upon her is said not to have been done through or when she was in a state of illness), it is remarkable that the like evidence of insanity was not found in her conduct afterwards. It is reasonable to suppose that Dr. Hulshizer and Mrs. Fangboner, of whom more particular men- tion will be made hereafter, should not have known of any such evidence of incompetency. The opinions of witnesses other than the testamentary witnesses or experts, are not competent on the subject of capacity. The testimony of Mr. Vliet has already 542 PREROGATIVE COURT. [33 Eq. • • Merrill v. Rush. been adverted to. Dr. Hulshizer speaks of the testatrix, during the last few years of her life, from a period prior to the year 1872. As before stated, the will was made in January, 1871. He testifies that he attended her at different times from a period probably shortly before 1872 to her death, but that she did not require any particular attention from a physician ; that the con- dition of her health during the time that he knew her was go(xl ; that he talked to her several times, and took pleasure in talking to her, on account of her age. He says that he never saw any- thing that would lead him to question her competency ; that in the conversations that he had with her, she would be very explicit in recounting to him the occurrences of her past life; that from what she would tell him on those occasions, he thought her mind was remarkable ; that she always recognized him, and that prior to the last two or three years of her life, he never saw anything that led him to believe that she was not of sound mind. Mrs. Fangboner, who knew the testatrix from May, 1869, up to the time of her death, and was intimately acquainted with her — sometimes, as she says, seeing her every month, and in 1874, being at the house where the testatrix lived, from April to October, all the time, and prior to that time, as she testifies, having seen the testatrix every month — had frequent oppor- tunities of observing her mental condition, and appears from her intelligence to have been able properly to estimate the qualities of the testatrix's mind. She testifies that she frequentl}» con- versed with the testatrix, when she was there at the house, and while she lived there, as above mentioned, she conversed with her every day. She speaks of the qualities of her mind, and says she observed nothing to lead her to conclude that the testatrix had become irrational, but the contrary. Other wit- nesses give testimony to the same effect. It is alleged, on the part of the caveatrix, that the testatrix did not know what property she had, and this is urged as strong evi- dence of want of capacity. The allegation is that she supposed her property amounted only to $900, whereas, in fact, she had $5,000, and the interest of §10,000 for her life. It is very probable that, in speaking on the subject, she spoke of her annual income, which 6 Stew.] FEBRUARY TERM, 1881. 543 Merrill v. Kush. was about $900, as her property. But it is quite evident from her will that she knew that she had much more than $900, for she gives nearly $3,000, in small legacies, to her grandchildren and daughters-in-law, and then gives the residue of her estate — presumably, under the circumstances, the greater part — to her eight children. Moreover, she knew who had charge of her property, and if she was, indeed, ignorant of so important a fa it as the amount of her property, Mr. Vliet, who knew all about it, could not have failed to discover it. The will is not only a natural one, but it evinces great care on the part of the testatrix for those who had a right to her estate or to remembrance in her will. As before stated, she mentions a score of her grandchil- dren, and did not forget the family of the caveatrix (who is a granddaughter), for she gave a legacy to her sister. On a con- sideration of all the evidence, it seems to me quite clear that the testatrix, at the time of making the will in question, was pos- sessed of testamentary capacity, and that it is her true last will and testament. The decree of the orphans court will be affirmed, with costs ■^f appeal to be paid by the appellant. CASES ADJUDGED IK THF COURT OF ERRORS AND APPEALS OF THE STATE OF NEW JERSEY, ON APPEAL FROM THE COURT OF CHANCERY. MARCH TERM, 1881. George W. Smith, appellant, V. The Mayor and Common Council of Newark, respondent. 1. The supplement to the charter of the city of Newark, framed April 15th, 1868 (P. L. o) 1868 p. 1002), construed, and held to be constitutional. 2. The burden of showing error is on the appellant, and in a case of doubt- ful statutory construction, the court will not reverse. On appeal from a decree of the chancellor, reported in ^ith V. Newark, 1 Stew. Eq. 5. Mr. F. W. Stevens^ for the appellant. The bill is filed to remove the cloud from the title to the lands of the complainant, arising from the assessment for grading, curbing, guttering, paving and flagging North Broad street, now Belleville avenue. 35 (545) 546 COURT OF ERRORS AXD APPEALS. [33 Eq. Smith V. Mayor and Common Council of Newark. The question to be considered is a narrow one, and, stated in very general terms, is this : Do the facts stated on the record bring the case within the ruling of this court in Bogert v. City of Elizabeth, 12 C. E. Gr. 668, where the bill to set aside an unconstitutional assessment was sustained ? or do they bring it within the ruling of this court in Jei'sey City v. Lembeck, 4- Stew. Eq. 255, where the bill to set aside an assessment which was illegal, but not unconstitutional, was dismissed ? I. The provisions of the statutes under which the assessment was made are unconstitutional. Doyle v. Newark, 1 Vr. 303 ; P. L. oj 1868 p. 1002 ; State, Doyle, pros. v. Newark, 5 Vr. 237 ; 3 a E. Gr. 527 ; 8 Vr. J^J^ ; 12 C. E. Gh'. 569 ; Gi-aham v. Pater- son, 8 Vr. 381 ; Passaic v. State, Del. Lack. Preston v. Preston, Cro. Eliz. 817 ; Mumford v. Stocke)', 1 Conn. 78 ; Cornell v. Lamb, 20 Johns. 407 ; Enos^s Case, Litt. 58 ; Day v. Leal, I4 Johns. 4O4 > Hamilton v. Cul- lender, 1 Dall. 4-^0; Andrews v. Smith, 9 Wend. 53 ; Hill v. Beebe,il3 N. Y. 556. So that the taking of a second mortgage for the same debt will not relinquish the first without an express release of the first, aud this even where the note and mortgage given in renewal is for a larger amount than the original. Burnhisel v. Furman, 22 Wall. 170 ; Boyd v. Beck, 20 Ala. 703 ; Packard v. Kingman, 11 loioa 219; HiU v. Beebee, 13 N. Y. 556; Hutchinson v. Swartsweller, 4 Stew. Eq. 207, and the cases therein cited. III. As between the chattel mortgages of Francis M. Hoag, Frederick Fisher and Edward Sayre, it is not material where Hoag filed his chattel mortgage. Meech v. Patchin, I4 N. Y. 71 ; National Bank of the Metropolis v. Sprague, 6 C. E. Gr. 530; De Courcey v. Collins, 6 C. E. Or. 360. IV. Whether the preferences sought by Albert H, Hewes and Edward Sayre, in obtaining the judgments, are not fraudulent as against the defendant Francis M. Hoag. Albert H. Hewes is the son, aud Edward Sayre is the son-in- law of the defendant Margaret V. Hewes. Whatever puts a party upon inquiry amounts, in judgment of law, to notice, providing the inquiry becomes a duty, as in the case of purchaser and creditor, and would lead to the knowl- edge of the requisite fact by the exercise of ordinary diligence. Troup V. Hurlbut, 10 Barb. 354 ; 4- Kent's Com. 179. 6 Stew.] MAECH TERM, 1881. 557 Hoag V. Sayre. Notice to a subsequent attaching creditor of a valid mortgage, not recorded, is equivalent to a record. Tucker v. Tilton^ 55 N. H. 223 ; Oooding v. Riley, 50 N. H. J^OO ; Patton v. iMoore, 32 N. H. 382. Knowledge is regarded as equivalent to notice of the highest degree. 1 Lead. Cas. in Eq. llfS ; Crocher v. Crocker, 31 N. F. 507; Wooster v. Sherwood, 25 N. Y. 278. If there be an existing mortgage at the time the judgment is rendered, that judgment will bind only the equity of redemp- tion, whetlier the mortgage be recorded or not. Jones on Mort. % 4.60 ; Knell v. Green Street Building Ass., 3^. Md. 67 ; Hackeit v. CaUender, 32 Vt. 97. If a creditor have actual notice of a prior unrecorded mort- gage at the time of obtaining his judgment lien, he will hold his lieu subject to such mortgage. Jones on Mort. § 4-^1. V. Disregard of notice amounting to fraud. Curtis v. Mundy, S Meic. 4.05. Notice, if sufficient to put him upon inquiry leading to the truth, will, in general, be regarded as good notice of the ulti- mate fact to be established. Gh-een v. Slayer, 4- Johns. Ch. 38 ; McDaniel v. Flower Brook Manufacturing Co., 22 Vt. 274-; Mayhin v. Kirby, 4- Rich. Eq. 105 ; Raritan Water Power Co. v. Veghte, 6 C. E. Gr. 4.63; Hoy v. Bramhall, 4, G. E. Gr. 563; Danforth v. Dart, 4- Duer 101 ; Sterry v. Arden, 1 Johns. Ch. 261 ; Pendleton v. Fay, 2 Paige 202 ; Tuttle v. Jackson, 6 Wend. 213; Hoy v. Bramhall, 4. C. E. Gr. 572; 4. Kent 179; Jones v. Smith, 1 Hare 4^. It is bad faith for one to attempt the circumvention of the true owner of the property by endeavoring to anticipate him ia gaining the advantage to be derived from an acquisition of the legal title. Kennedy v. Daly, 1 Sch. & Lef. 355 ; Coble v. Nonemaker, 78 Pa. St. 501 ; Kepler v. Davis, 80 Pa. St. 153. VI. To what extent is the complainant, Edward Sayre, a creditor ? YII. Mortgages to indemnify sureties. Rights of sureties and of creditors. 558 COURT OF ERRORS AND APPEALS. [33 Eq. Hoag V. Sayre. If the indemnity is against a contingent liability, there can be no substitution until the liability has become absolute. Os- born V. Noble, 4-^ Miss. 4-^9 ; Hall v. Ciishm' Boyse v. Rosshorough, 6 H. ofL. Cas. 2; Tyler v. Gardiner, 35 N. Y. 559. V. To establish the presence of undue influence, there must be shown, as present and operating at date of will — (rt) Importunity incapable of being resisted, by reason of weakness. (6) Importunity harassing the testator into submission. (e) Importunity yielded to for the sake of peace. (d) Physical restraint or coercion. (e) Threats. (/) False statements. 37 678 COURT OF ERRORS AND APPEALS. [33 Eq. In matter of will of Lucy H. Eddy. The influence of affection, of kind offices, or even of decent persuasion, will not invalidate a will. Influence, to be undue, must be a fraudulent one, controlling the will, and destroying free agency. Marshall v. Flinn, 4- Jones {N. C.) 199 ; Eckert v. Flowry, JtS Pa. St. 4.6; ElUoWs Will, 2 J. J. Marsh. SJfi ; Lynch v. Clements, 9 C. E. Gr. 1^4. The opinion of the court was delivered by Beasley, C. J. With respect to the principal feature of this litigation, I agree with the views expressed by the chancellor, to the effect that the writings propounded should be admitted to probate. But, upon a careful consideration of the facts of the case, I have been led to the conclusion that there should be a modifica- tion of the decree, so far as to allow costs and counsel fees to the contestants. The case, I think, is an exceptionally strong one on the side of the caveators. It would serve no useful purpose to discuss the evidence, or even to sketch the case in outline; it is enough to say that the circumstances were such as necessarily to excite well-founded doubts as to the mental capacity of the testatrix, and as to the force and character of the influence under which the testamentary act in question was performed, and that, therefore, there was plainly reasonable cause for the investigation induced at the instance of these caveators. Therefore, in my opinion, as I have said, their counsel fees and costs should be given to them out of the estate. With respect to the amount of allowance : The investigation was necessarily protracted, and related to a subject of importance. I think that $2,500 should be allowed for the services of counsel in both courts, together with the costs of the caveators in each court. The decree should be reversed, in order to be modified in these respects. For affirmance — Depue, Magie, Reed, Van Syckel, Green — 5. 6 Stew.] MARCH TERM, 1881. 579 Davis y. Clark. For reversal — Beasley, C. J., Dixox, Knapp, Parker, ScuDDER, Clement — 6. Thomas W. Davis, appellant, Jacob F. Clark, respondent. 1. The vendee of land cannot claim, in a foreclosure suit, a deduction from the mortgage-money, on the ground that his vendor, who was not the mort- gagor, misstated the number of acres of the land conveyed, and that the ven- dor of such vendor, who was the mortgagee and complainant, when he sold such lands, made a similar misstatement. 2. To authorize such deductions, the mortgagee and the owner must be privies in contract. 3. A sold a farm to B, misstating the number of acres, taking a mortgage for pai-t of consideration. B sold, making a similar misstatement, to C who as- sumed payment of the mortgage. — Held, on a foreclosure by A, that C, could not set up these facts in order to offset his damages against the mortgage. On appeal from a decree of the chancellor, reported in Clark V. Davis, 5 Stew. Eq. 530. Mr. P. L. Voorhees and Mri James Wilson, for appellant. I. The mortgage sought to be foreclosed in this case is for part of the purcliase-money of the mortgaged premises, con- veyed by the respondent as a farm containing two hundred and forty-four acres, when in fact, and as it was afterwards discov- ered and ascertained, it only contained about two hundred and twenty-two acres. II. The appellant is entitled to relief in this case on the answer filed by him, without filing a cross-bill. O'Brien v. Hul- fah, 7 a E. Gr. 473, 476, 477; Dayton v. Mdick, 12 C. E. Gr. 362, 5 Stew. Eq. 570. 580 COURT OF ERRORS AND APPEALS. [33 Eq. Davis V. Clark. III. The appellant is entitled to the defence set up in his answer, and to have the mortgage debt of the respondent re- duced ])roportionate to the difference between the contents of the mortgaged premises, as represented at the time of the convey- ance by the respondent, and the true and actual contents thereof, as afterwards ascertained. 1 Siory Eq. Jur. §§ I4.I, 15^, 156, 193; 2 Jones on Mort. § 1506; Bingham v. Bingham, 1 Ves. sen. 126 ; Cocking v. Pratt, 1 Ves. sen. JfiO ; (Jalverley v. Wil- liams, 1 Ves. jun. 210 ; Hill v. Buckley, 17 Ves. 4-01 ; Champlin V. Layton, 6 Paige 1S9, 18 Wend. Jfil ; Belknap v. Sealey, 2 Duer 570 ; Quesnell v. Woodlief, 2 Hen. & Ilunf. 173, note ; Nelson v. Matthews, 2 Hen. & Munf. 16 If,; Harrison v. Talbot, 2 Dana 258 ; Miller v. Chetwood, 1 Gr. Oi. 199 ; Coster v. Mon- roe Mfg. Co., 1 Gr. Ch. ^67; Blair v. McDonough, 1 Hal. Ch. 327; Course v. Boyles, 3 Gr. Ch. 212; Hopper \. Lutkins, 3 Gr. Ch.U9; Waldron v. Letson, 2 McCart. 126; Weart v. Rose, 1 C. E. Gr. 290; State v. Jersey City, 6 Vr. 381; Cum- mins V. Wire, 2 Hal. Ch. 73; Miller v. Brolasky, 4. Hal. Ch. 626, 789, 1 Stock. 806. Mr. M. P. Gray and 3Ir. A. Brovming, for respondent. The opinion of the court was delivered by Beasley, C. J. The essential facts of this case may be thus stated : Clark, the respondent, was the owner of a certain tract of land, which he sold and conveyed to one Josiah Davis, taking from him a mortgage for a part of the consideration. Josiah Davis sold and conveyed these same premises to Thomas W. Davis, who is the appellant, and who, in part payment of the price agreed on, as- sumed this mortgage. The bill was for the foreclosure of the mortgage thus assumed. The defence to such proceeding is, that the quantity of land, in a material degree, was misrepre- sented, first on the sale of such land by Clark to Josiah Davis, and second, by the latter on his sale to the appellant, the con- 6 Stew.] MARCH TER]N[, 1881. 581 Davis V. Clark. teution being that, to the extent of such deficiency, there should be a rebate from the sum due on the mortgao-e. But such a contention has neither precedent nor principle to rest upon. The flaw in the position is, that there is no privity of contract between the appellant and the respondent touching the quantity of land in question. The effort, therefoi-e, is to recoup the damages, as against this mortgage, arising from the breach of a contract to which the appellant was not a party, and is not a privy. If, in point of fact, the respondent, when he sold this property to Josiah Davis, misstated the number of acres contained in the tract, so as to render himself answerable in a suit, such right of action has not passed to the appellant, by tlie conveyance of the premises by Josiah to him, for there is no covenant in the deed, to that effect, running with the land. When such covenant exists, an offset of the kind now claimed may be made, and such effect is plainly justifiable, on the prin- ciple that as the covenant runs with the land, it creates a privity of contract between the subsequent grantee of the premises and the original grantor. Such was the ground of decision in the case of Coster v. Monroe Mfg. Co., 1 Gr. Ch. 4-^7. But, as has been said, such conventional relationship is, in the present case, entirely wanting. If the respondent has broken his con- tract with Josiah Davis, it is for him to vindicate his rights, for he has never transferred to this appellant the right to represent him in this respect. For it is confounding all legal ideas to as- sert that because Josiah Davis, on his part, has subsequently, and in a completely independent transaction, broken a similar con- tract made with the appellant, that thereby a right of action accrued to the latter, not only against Josiah Davis, but likewise against the grantor of Josiah Davis, with whom he has no con- nection, by way of stipulation, either directly or indirectly. If Josiah Davis has injured the appellant, by means of breaking his contract or otherwise, he is answerable to hi in for the resulting damage, but from such liability it is impossible to de- duce a transfer by the former of a right of action which he has against a third party. Besides, if such a transmission of a cause of action could, by any possibility, be implied, it is obvious that 582 COURT OF ERRORS AND APPEALS. [33 Eq. Davis V. Clark, in a proceeding enforcing such a right, Josiah Davis would be a necessary party. For if, in this action, to which Josiah Davis is not joined, it should he found that the respondent had broken his bargain with him, and if the appellant should be permitted to offset, against the money due on this mortgage, the damage so resulting, it is undeniable that Josiah Davis would not be bound in any degree by such a result, and he would be at liberty, un- affected by such decree, to prosecute the respondent on the same ground, for any loss sustained by him. So, a decree in the re- spondent's favor on the issue in this suit, whether he violated his agreement with Josiah Davis, would be no bar against an action for the same cause by the latter. The attempt to invest the ap- pellant with the right claimed is not only inconsistent with cor- rect principle, but is full of consequential crudities. It will be found, upon looking into the authorities, that the doctrine which prevails in equity by force of which a deduction is allowed to be made from the moneys due on a mortgage, by reason of damages having been sustained by a deficiency in the stipulated quantity of land conveyed, is the effect of the equitable principle that in a court of chancery the vexation of a circuity of action will be obviated as far as practicable. Where the mort- gagee is liable to the mortgagor for damages in consequence of the failure of the land to come up to the represented acreage, an offset of such damages will be allowed in a foreclosure of a mortgage given for the price of the land. In such a situation, the stipulation as to the number of acres is an independent term from the stipulation for the payment of the price, and the off- set alluded to is made by way of recoupment and in order to lessen the litigation. It is on this ground that the decisions rest, and no case has been referred to, that carries the doctrine beyond the point of permitting such offset in cases in which the mortgagee has a right of action against the mortgagor. And in this case no such right of action exists. Let the decree be affirmed. Decree unanimously affirmed. € Stew.] MARCH TERM, 1881. 583 Fuller V. Fuller. "Warren F. Fuller, appellant, • V. Anna M. Fuller, respondent. Mr. Theo. Ryerson and Mr. G. Collins, for appellant Mr. J. B. Vredenhurgh, for respondent. On appeal from a decree founded on the following findings of Mr. J. D. Bedle, advisory master : ■ The evidence in this case, on each side, is very unsatisfactory in many respects, yet, after a good deal of examination and care, I have reached the following conclusions : 1. That tlie defendant is guilty of adultery, and particularly on September 27th, 1878, in Jersey City, with some person unknown. 2. That the complainant is also guilty of adultery, and par- ticularly with Margaret Frauham, December 1st, 1878, in Jer- sey City. 3. As to condonation : The inclination of ray mind is, that this defence is sustained, yet a definite determination of it is un- necessary. 4. The prayer for divorce is denied, and the bill dismissed. 6. The complainant to pay the costs of both sides, and de- fendant to have liberty to apply for any order proper as to coun- sel fees, disbursements and alimony pending the suit. The opinion of the court was delivered by Beasley, C. J. This was a bill filed by a husband against his wife for a divorce, on the ground of her having committed the crime of adultery. In her answer, the wife denied this charge, and re- 584 COURT OF ERRORS AND APPEALS. [33 Eq. Allen V. Williams. criminated the husband. The master who heard the case in the court of chaucery advised a decree refusing the prayer of the bill, putting his conclusion on the ground that, "after a good deal of examination and care," he liad become satisfied that the complainant as well as the defendant had been guilty of a viola- tion of their matrimonial duty in the respect alleged. He, how- ever, says " that the evidence on each side is very unsatisfactory in many respects." Upon a careful review of the case in this court, we have con- cluded that the decree should be affirmed, but we place this result on the ground that the principal testimony on each side is so untrustworthy, as well on account of the bad character of the witnesses as of the great improbability of their narrations, that it is not sufficient for the purpose of founding a conclusion of the guilt of either the husband or the wife of the offence charged. Let the decree be affirmed. Decree unanimously affirmed. Thomas E. Allen et al., appellants, V. Elias S. Wllllams et al., respondents. 1. Where a statute relating to drainage authorized the commissioners to purchase a mill property, and such commissioners, having previously made an assessment to meet the general expenses of the scheme, entered into a con- tract to purchase under a large penalty ; and not being in funds at the day for performance, in consequence of the non-payment, in part, of such assessment, advanced their own moneys to make up such purchase-money — Held, on bill filed, that they were entitled to be re-imbursed by an equitable enforcement of such assessment. 2. When persons acting for others under statutory authority advance moneys in good faith and beneficially for the persons whom they represent, re-im- bursement of such moneys will, as a general rule, be allo^ved in a court of equity. 6 Stew.] MARCH TERM, 1881. 585 Allen V. Williams. 3. The claim in this case held to be an equitable one, and one which, being equitable, and also for an unliquidated amount, could not be enforced bv mandamus. On appeal from a decree of the chancellor, whose opinion is reported in Williams v. Allen, 5 Stew. Eq. 4-85. Mr. B. Williamson^ for appellants. Mr. H. C. Pitney, for respondents. The opinion of the court was delivered by Beasley, C. J. The facts upon which the bill in this case rests are fully stated in the opinion of the chancellor, and consequently it does not appear to be necessary at this time to do more than refer to those which seem to me necessary to render perspicuous the views about to be expressed on the several points raised in the argu- ment before this court. The object of the bill is to enforce certain assessments that were made by the three original commissioners by virtue of an act entitled "An act to enable the owners of swamps and marshy lauds lying on the upper Passaic and its tributaries, in the counties of Morris and Somerset, to drain the same," approved April 21st, 1868, (P. L. of 1868 p. 1181). The validity of this assessment is not in question, as it has already been accredited by a decision of this court. Having made this assessment, these commissioners entered into a writteu contract for the purchase of a certain mill property, known as Dunn's mill, and therein bound themselves, in a penalty of $3,000, to pay for the same within a time stipulated. On a bill exhibited by the present defendants, calling iu ques- tion the power of these commissioners in this respect, the chan- cellor justified such exercise of authoi'ity, and, " with the con- sent of the parties in open court, ordered the commissioners to hold such mill property in trust for the purposes of said act." Prior to the making of this decree, the time fixed for the ])ay- ment of such property, by the terms of their contract, having 586 COURT OF ERRORS AND APPEALS. [33 Eq. A lien V. Williams. arrived, and not having collected from the assessment before mentioned sufficient moneys for such indebtedness, the commis- sioners made up the deficiency out of their own resources, and thus obtained a title for the property in question. At this stage of these proceedings, these commissioners were superseded by the appointment of their successors, and after that event, the statute under which these proceedings had taken place was re- pealed, saving, however, all rights which had been acquired under it. It has been already adjudged that after this repealing law, the right to enforce and make assessments requisite to settle all outstanding leg-al liabilities resided in the new board of managers. Two of the original managers have died, and the complainants are the survivors and the representatives of those deceased, their object being to levy, through the aid of the court of equity, on the lands originally assessed by them, so much of the assessment as will be sufficient to re-imburse them for the moneys paid by them out of their private means in the purchase of the mill property before mentioned. These are some of the facts extracted from the bill, which has been demurred to. The claim to relief thus made is opposed, principally, on two grounds, the first of these being, that the advance of the moneys of which re-imbursement is sought was a breach of duty on the part of these managers, and consequently that they have no standing to ask for aid from a court of equity. In support of this position, it is insisted that the statute in question does not confer upon these officers the right to borrow money, and that the exercise of such authority is contrary to its spirit and policy. So far as the facts are concerned, I think this position well taken, for I can find in none of the provisions of this law, nor in its general object, any appearance of an authority to resort to loans for tiie })urpose of carrying into effect the statutory scheme. The plan upon which this improvement was to have been made is obviously based on moneys in hand derived from assessments, and it must, therefore, be conceded that when these officers paid the consideration, in part, for these lands with their own moneys, they did an act for which they can point to no authority in the law under which they were acting. But it does not follow from 6 Stew.] MARCH TERM, 1881. 587 Allen V. Williams. this concession that these land-owners, for wh6m these complain- ants were agents in this matter, can take to themselves the benefit of this pnrchase without paying for it. The bill of complaint, in this respect, alleges that these premises were purchased "at the wish and desire " of these land-owners, and it was afterwards decided in the chancery suit already referred to, that such pur- chase was one of the specified duties imposed on these complain- ants by this statute, and by the same clause it was directed, with the consent of these land-owners, who were defendants in that suit, that the complainants should hold said property in " trust for the purposes of said act." When this decision was made, the moneys now in question had been advanced by these managers, and when, therefore, in that position of things, these defendants assented to a decree which vested in them the beneficial use of these lands, it must be inferred that they intended to pay for it. Such an assent must be deemed an approval, in a most conclusive form, of the entire transaction embraced in this purchase. Nor do I think that in the absence of such ratification, these com- plainants would have been destitute of a rigiit to reclaim these moneys. They were officially bound to acquire this property, and accordingly they entered into an agreement to take the title to it in a designated time, binding themselves to comply with such contract under a penalty of $3,000. This engagement a[>pears to have been in all respects reasonable, for they had already made an assessment which, if paid in due course, would have put them in possession of the requisite funds. These just expectations were not realized, in consequence of the default of these defendants not paying their quotas of the assessment in question. The consequence was, that the complainants were placed in the dilemma of either losing the land, which it was their duty to obtain, and of subjecting their principals to a heavy loss under the penal clause in the agreement, or of raising the money out of their private means. It does not seem to me that, in adopting the last branch of this alternative, they acted in a manner that is open to the faintest hostile criticism. Such con- duct seems to me not only unobjectionable, but j)raiseworthy, and certainly the censure of those who, by their fiiilure to pay 588 COURT OF ERRORS AND APPEALS. [33 Eq. Allen V. Williams. their just dues, had necessitated it, is entitled to no consideration. These payments can hardly be called voluntary, for they were made uuder the constraint of an unexpected emergency. They were plainly beneficial to the body of persons represented by these managers, and moneys expended under such conditions can, upon the ordinary principles of equity, be reclaimed by the agent making such outlay. Such is the rule often exemplified in the dealings of courts of equity with the accounts of trustees. In that particular, the doctrine is, that all disbursements which the court, on application, would have sanctioned, will be affirmed if the trustee makes them without order, and that expenditures for the good of the estate will, under any ordinary circumstances, be allowed to him. In Gibson v. Bott, 7 Ves. 150, the court said it would protect an executor in trust in doing, without aa order, what it would order him to do. The following cases exhibit other applications of the principle : Fountaine v. Pellett, 1 Ves. SJjB ; Marry v. De Rotlenham, 6 Johns. Ch. 52 ; Mathews V. Dragand, 3 Desauss. 25 ; Altemus v. Elliott, 2 Barr 62. The present case, with respect to the matter now in hand, calls for a settlement founded on a principle quite as liberal as is this equi- table doctrine. The disbursement in question was constrained by the default of the persons who now except to its enforcement, while, at the same time, they have accepted its benefits ; it was made in good faith, by statutory officers, in behalf of those whose interests had been confided to their keeping, and it would be strange indeed if such circumstances would not lay, in a court of equity, a claim for repayment. In connection with the act of the complainants in purchasing this mill property, their subsequent conduct with respect to it was strongly condemned by the counsel of the defendants, in his argument before this court. The part of such conduct that was deemed objectionable was the act of the complainants in dealing with this property after the expiration of their own term of office, and after the appointment of their successors. After these events, what the complainants did was this, they tore down the mill-dam and sold the mill thus mutilated ; it is urged that, being out of office, this was a gross breach of trust. But this, it seems to 6 Stew.] MARCH TERIM, 1881. 589 Allen V. Williams. me, is not a feature that will injuriously affect these complain- ants' right to a standing in equity, and it is that right alone that, on this demurrer, is drawn in question. Grant that it be true that these managers have despoiled and squandered the trust estate, how does it follow that from such an incident, tiiey will lose their lien on the assessment in question, if they can show, after all deductions for mistakes or misconduct in regard to the property that was in their hands, the balance is in their favor? At the present time this court is not called upon to decide whether or not there has been any abuse of their author- ity on the part of these complainants; that is a matter that will be settled in the progress of this cause. I can see no solidity in the contention that, because of the misconduct of these agents, they have forfeited all claim to enforce this lien, no matter what the amount of the loss of the cestuis que trust may be relatively to the disbursements by their trustees. If the latter amount exceeds the former, the complainants, in my opinion, have a right to have such difference raised by means of the assessment in question, in their favor, by the court of equity. The remaining objection to the right to exhibit this bill con- sists of the position that the complainants have an adequate and easy remedy at law, by a mandamus, to compel the present man- agers to raise by sale, under the original assessment, the moneys in question. But even on the assumption that the complainants' rights could have been effectuated by the process indicated, it does not follow that such process must, of necessity, be resorted to. The test of the right of the complainants to pursue their present course of law, is the consideration whether the subject matter of the litigation is, from its inherent nature, of equitable cognizance, for if this be so, such jurisdiction cannot be ousted by the fact that a common law remedy to enforce such right also exists. And that this particular matter now in controversy is of equitable cognizance, appears to me very plain. An action in a common law court would not have lain for these moneys. It is not a claim in personam, but in rem, for the statute authorizing this procedure does not make these defendants personally liable, but imposes the burthen of the cost of the improvement on a 590 COURT OF ERRORS AND APPEALS. [33 Eq. Allen V. Williams. definite portion of their lands. Also, the demand for tlie moneys advanced by those managers lias tlie qualities, not of a legal, but of a conscionable right. Its elements are these : by the purchase of this mill property, the vendor of such property became vested with a lien in equity upon the lands of the defendants, embraced in the assessment, as security for the payment of the consideration- money, and when the complainants paid that money in ease, and for the benefit of, the defendants, and in a due discharge of their official duty, they, by that act, became entitled to be subrogated to the rights of suit for and in such security ; and the right to this subrogation is plainly cognizable in a court of chancery. I am not aware tliat such a right could be executed under the forms of a court of common law. That it could not iiave eifect given to it by the process of mandamus, seems very evident. If the right to subrogation was a legal right, and the amount of the com- plainants' claim was not in dispute, then, indeed, an order from the supreme court contained in its prerogative writ, might well go to the present commissioners to raise such definite amount by enforcing tlie assessment. But, as has been said, subrogation is an equitable contrivance, and the amount of the claim is so far from being admitted, that, as we have seen, the defendants insist that deductions, to an unaseertiiined extent, must be made from the moneys advanced by these managers. In proceedings on mandamus, how could such questions be settled ? There seems to be no precedent for such an attempt, and it is altogether incon- sistent with the nature of the remedy, which is only apposite when the duty the performance of which is sought to be enjoined, is of a fixed and definite character. I know of no instance in which a mandamus has been issued for the purpose of raising an unliquidated amount of money. In the case of Reg'ma v. Clark, ■5 Q. B. 887, 89^, it was explicitly decided that a mandamus would " not go for the payment of a sum not ascertained." For these reasons, I think the decree appealed from should be affirmed. Decree unanimously affirmed. G Stew.] MAECH TERM, 1881. 591 Cubberly v. Cubberly. Samuel D. Cubberly, appellant, V. James D. Cubberly et al., respondents. A third person may maintain a suit to enforce a promise made, on a lawful consideration, for his benefit, and the promisee is not a necessary party to such suit. On appeal from a decree of the Chancellor, reported in Cub- bei'ly V. Cubberly, 6 Stew. Eq. 82. Mr. Chilion Bobbins, for appellant. Mary M. Danser, of New York, made her will about Decem- ber 13th, 1876, by which she bequeathed and devised a large amount of property to various persons and institutions. The will contained a residuary clause, giving her executor power to distribute the residue of her estate, after satisfying her special devises and bequests, " to such charitable or religious societies or associations and corporations, or for such other benevolent pur- poses, as he may see fit." Mary M. Danser died in the city of New York, in February, 1877, without revoking or altering her will. She left no lineal descendants. Her next of kin were Smith J. Danser, of Day- ton, Ohio, who was her uncle; Mrs. Mary Golder, of New York city, and Mrs, Susan S. Robinson, of New Bedford, Mass., who were her aunts. Her next of kin were entitled, at her death, to all of her estate not disposed of by her will. The complainants and defendant and Alex. H. Cubberly are chil- dren of Lucy A. Cubberly, who was, in her lifetime, an aunt of the testatrix, and are therefore first cousins of the testatrix. The will was offered for probate in February, 1877, before the surrogate of New York county. Its admission to probate was contested by Smith J. Danser and others. So far as appears by the bill, these parties contestant never withdrew their oppo- sition till the matter was finally compromised. 592 COURT OF ERRORS AND APPEALS. [33 Eq. Cubberly v. Cubberly. "Whilst these legal proceedings were pending, and wiili full knowledge" &e., Samuel D. Cubberly "did then and there rep- resent and tell to the said Mary A. Golder and Francis S. Avery that the said Smith J. Danser had given up all hopes of success in said legal proceedings, and had abandoned the same and re- turned to his home in the state of Ohio, all of which was untrue, and was known to him to be untrue at the time." The defendant proposed that Mrs. Golder and Mrs. Robinson "should give to him a power of attorney authorizing him to take such steps as he might see fit to recover any interest said M. A. G. and S. S. R. might have in the estate of the said Mary M. Danser, deceased, other than specific legacies, and to do every- thing necessary and proper thereto ; that they should give him cue-half of all such interest that might be recovered, and that he should pay all the costs, fees and expenses of such measures as he might undertake in pursuance thereof." This proposition Avas at that time (March, 1877) rejected. It was repeated at different times, and finally accepted. The contest over the will was compromised September 20th, 1877, the will admitted to probate, and the residuary clause de- creed to be null and void. The effect of this was to distribute the residue of the estate to the next of kin of the testatrix, above named. The said Golder and Robins«n each received out of the fund so distributed about §76,000, and that each one of them paid to the defendant $38,000, thus giving him $76,000. The complainants each claim one-fifth of this, after deducting from the whole sum the fees, costs and expenses paid by the de- fendant under the terms of the agreement. The foundation of their claim is the above-alleged agreement and promise of the defendant to divide with them. I. The responsibility of the defendant to the complainants, if any, arises solely from the agreement above stated. It is admitted that " if one person make a promise to another on lawful consideration, for the benefit of a third person, such third person may maintain an action, even at law, upon it." But this case cannot be ruled by that principle. In this case, the maxim ex dolo malo non oritur actio fully ap- 6 Stew.] MARCH TERM, 1881. 593 Cubberly v. Cubberly. plies. Broom's Max. 702 ; State v. Thatcher, 6 Vr. 44^ ; Nich- olson V. Gooch, 5 E. & B. 999 ; Tivaz v. Nicholls, 2 M. G. & S. 500. II. That the complainants might have set up a case which, leaving out the statement of the false pretence, would not have been liable to demurrer, makes no diflPerence. The defendant, in case of such omission, might have set it up by plea or intro- duced it in evidence, when the result would have been the same as if it had been stated in the bill. The rule that no man shall set up his own iniquity as a de- fence is never applied where the rights of third parties are to be affected. Hooper v. Lane, 6 H. of L. Cases 44^, 4-'^l I Smith v. Hubbs, 10 Me. 71 ; Cowles v. Bacon, 21 Conn. Jf.65 ; Nellis v. Clarh, 20 Wend. 21,,. The defendant has done right in demurring. A man is not justified in omitting to demur to a bill, even if fraud is charged, against which he desires to answer. Nesbit v. Bevridge, 9 Jur. {N. S.) lOU; Mitf. PL 128; Broom's Max. 1,59; 2 Dan. Ch. Pr. 1399. III. The defrauded parties, Mrs. Golder and Mrs. Robinson, have the right to rescind the agreement and recover back the money paid the defendant, upon the ground of gross fraud. Kerr on F. & M. 296 &c. ; Pearsall v. Chapin, U Pa- St. 9. The bill nowhere states that they, knowing of the fraud, have confirmed or acquiesced in the contract ; this must fully appear, or their right to avoid the agreement and proceed against the defendant is unaffected. Pearsall v. Chapin, sup.; Kerr on F. & M. 295, 300, 309, and cases cited ; Add. on Con. §§ UO, 14,10 ; Bishop on Con. §§ 203, 205 ; Thurston v. Blanchard,22 Pick. 18 ; Stevens v. Austin, 1 Mete. 557 ; Huguenin v. Bosely, 14- Ves. 273 ; Bridgman v. Green, Wilm. Judg. 58; Reynolds V. Rochester, 4 Ind. 4^. IV. The complainants are equally guilty with the defendant in the fraud charged. It was held in Lincoln v. Claflin, 7 Wall. 132, that the subsequent participation by a person in a 38 694 COUET OF ERRORS AND APPEALS. [33 Eq. Cubberly v. Cubberly. fraud and its fruits was as effectual to charge him as preconcert; and combination for its execution. So a person is innocent of a fraud only so long as he does not insist upon deriving any benefit from it. When he does so insist, he at once becomes a party to the fraud. Scholefield v. Templer, Johns. (Eng.) Ch. 155; 1 Story Eq. Jur. § 193; Hartoff \. Hartoff, 21 Beav. 259; Robson v. Colze, 1 Doug. 228; .People V. Mather, J,, Wend. 261 ; Burtis v. Tisdall, 4. Barb. 571. Where several are concerned in a fraud upon the rights of a third person, equity will not afford them relief as against one another. Bolt v. Rogers, 3 Paige 154- ; Odenheimer v. Hanson^ 4 MeLean 4^7 ; Van Dor en v. Staats, 2 Pen. 887 ; Gregory v. Wilson, 7 Vr. 315. And this is so even though the greater fraud may be on one side or the other. Bolt v, Rogers, sup.; Nellis V. Clark, 20 Wend. 24. When once a fraud has been committed, no one can derive any benefit from it, except it be an innocent person who subsequently acquires an interest in the subject matter of the fraud, and from whom some consideration passes. In such cases, and when it can be done, such innocent persons are made whole. Scholefield v. Templer, sup. ; Prero v. Walters, 4 Scam. 35. The rule that where the fraudulent transaction has been com- pleted, and the money received by one wrong-doer, an action will lie against him in favor of any other one of the wrong-doers, for his share, is not in force in this state. Todd v. Rafferiy, 3 Stew. Eq. 254; Watsm v. Hurray, 8 C. E. Gr. 257 ; Gregory v. Wil- son, 7 Vr. 320. V. Courts do not sit to divide up the fruits of fraud, not even upon the application of a person to whom the money in part be- longs, who is innocent of the fraud, and especially if such person would be liable to the party defrauded for the share received by him. Todd v. Rafferty, 3 Stew. Eq. 254 / Gregory v. Wilson, 7 Vr. 315 ; WaUon v. Murray, 8 C. E. Gr. 257 ; Van Dorea v. Staats, 2 Pen. 887 ; see, also. Price v. Polluck, 8 Vr. 44 / Church V. Muir, 4 Vr. 318. VI. If the complainants are entitled to any relief at all, Mrs. 6 Stew.] MARCH TERM, 1881. 595 Cubberly v. Cubberly. Golder and Mrs. Robinson are necessary parties, either com- plainants or defendants, to this suit. If the arguments on which the defendants rely may be rescindi il by the parties defrauded, and they may proceed at law or in equity to establish their rights against the defendant, or any who may take through him, then the necessity of their being joined in and concluded by this suit is at once apparent. The rights of the parties concerned cannot be settled and protected, and complete justice done, in their absence. Hicks v. Campbell, 4- G. E. Gr. 1S3; Irick v. Black, 2 C. E. Gi\189; Keller v. Keller, 3 Stock. 458. Mr. E. L. Campbell, for respondents. I. Neither Mary Ann Golder, Susan S. Robinson nor Frances T. Avery had any interest in the money for which the respond- ents bring suit. So far as they are concerned, the agreement is executed, and no injury to them is alleged or indicated. Mrs. Avery was a mere attorney in fact. 1 Story Eq. Jur. {11th eel.) W2, W3, and cases ; Sherwood v. Andrews, 2 Allen 79. II. Even if it were otherwise, the bill alleges that they still purpose we shall have the money ; this, if material, is part of our bill to be proved, and necessarily by them as witnesses. III. The bill sets out a " trust " which a court of equity will execute. Wil Eq. Jur. *4£3; Eaton v. Cook, 10 C. E. (h\ 55; Bay V. Roth, 18 N. Y. US; Foot v. Foot, 58 Barb. 258. IV. The bill presents a case of " account," of which a court of equity will take jurisdiction. 1 Story Eq. Jur. 4-4^, 459, 459 a, and cases ; 3 Black. Com. 164- V. The bill sets out a case of equitable jurisdiction on tiie ground of " discovery." 1 Story Eq. Jur. 690, 691, and notes ; 2 Id. 1483, 1488, 1489. VI. The bill presents a case of equitable jurisdiction on the ground of " fraud." 1 Story Eq. Jur. 184, 1S5. 596 COURT OF ERRORS AND APPEALS. [33 Eq. Perrine v. Vreeland. The opinion of the court was delivered by Beasley, C. J. The points argued before this court are the same questions presented for consideration in the court of chancery ; and being of opinion that the case, in such respects, was properly disposed of, I shall vote to affirm the decree. Decree unardmously affirmed. Mary M. Perrine, administratrix of estate of William Vree- land, deceased, appellant, V. Peter Y. B. Vreeland et al., respondents. On appeal from a decree of the chancellor, reported in Per- rine V. Vreeland, 6 Stew. Eq. 102. Mr, S. B. Ransom, for appellant. Messrs. Beniley & Hartshorne, for respondents. The opinion of the court was delivered by Beasley, C. J. The facts of this case, and the reasons for the conclusion embodied in the decree appealed from, are fully stated in the opinion of the chancellor ; and as I entirely concur in the views thus expressed, I shall vote to affirm that decree, on the grounds thus stated. Decree unanimously affirmed. 6 Stew.] MAECH TERM, 1881. 597 Richardson v. Peacock. William B. Richardson, appellant, V. James M. Peacock, respondent. Defendant sold to complainant the fixtures and good will of a business which largely consisted in purchasing poultry in designated districts, and shipping it to New York for sale ; and also covenanted with complainant that he would not, at any time, send or ship to New York any poultry coming from those districts. Afterwards, he engaged in New York in the sale of poultry on com- mission, ordering all his supplies to be shipped from those districts, sometimes in advance of his sales, sometimes to fill contracts of sale previously made. — Held, that in so doing he was violating his covenant, and should be restrained. On appeal from a decree of the chancellor, reported in Rkh- ardson v. Peacock, 1 Stew. Eq. 151. Messrs. A. C. Scovel and P. L. Voorhees, for appellant. I. The said James M. Peacock, notwithstanding the cov- enant entered into by him in the pleadings in this case men- tioned and referred to, before and at the time tlie injunction in this case was served upon him, had the right to carry on the business in which he was then engaged in the city of New York, to wit, the business of selling poultry on commission for such persons as would ship or send poultry to him to sell for them on commission. II. In selling poultry as a commission merchant or agent of others who sent and shipped their poultry to said Peacock at New York city, to sell for them on commission, he, the said Peacock, did not, in any way or manner, violate his said cove- nant. III. The said Peacock, notwithstanding said covenant, has the right to carry on the business in the pleadings and evi- dence in this cause mentioned and described, and which was carried on by him at the time when the bill in said cause was filed. 598 COURT OF ERRORS AND APPEALS. [33 Eq. Richardson v. Peacock. Mr. S. H. Grey, for respondent I. The covenant between Richardson and Peacock, upon which the bill was filed, was a valid contract. Miichdl v. Rey- nolds, 1 P. Wins. 181 ; Hitchcock v. Coher, 6 Ad. & Ell. 439 ; Filkinton v. Scott, 15 M. & W. 657 ; Ross v. Sadgbeer, 21 Wend. 167 ; Horner v. Greaves, 7 Ring. 735 ; Chappell v. Brock- way, 21 Wend. 163; Whittaker v. Howe, 3 Beav. 383 ; Duffy V. Shockey, 11 Ind. 71 ; Gale v. Reed, 8 East 86. The opinion of the court was delivered by Dixon, J. This bill was filed to restrain the defendant from violating his covenant. It appears that up to November 14th, 1863, the defendant was engaged in the poultry business at No. 121 South street, Philadelphia, which was carried on by his purchasing poultry in the counties of Salem, Cumberland, Camden and Gloucester, in this state, and in South street, for certain persons in New York and Washington, to whom he sent it, at a commission of ten per cent., and by his making similar purchases for himself, and shipping to commission merchants in New York or Washington, for sale on his own account, at a commission to them of five per cent. This business, with the fixtures and good will, the de- fendant sold to the complainant, on the date mentioned, for $2,000; and he likewise covenanted with complainant that he would not at any time send or ship any poultry coming from said counties or South street, to either New York or Washing- ton ; and that he would not ship any poultry to said cities so that the same might in any way interfere with or prejudice the business he sold out. This is the covenant which it is claimed he has broken. The case is not one of a mere implied contract, growing out of a sale of the good will of a business. Such a sale, without more, while it does not prevent the vendor from carrying on a similar business, and, perhaps, dealing with the old customers, 6 Stew.] MAECH TERM, 1881. 599 Kichardson v. Peacock. will prevent his soliciting the old customers by any means other than the general advertisement of his business. Laboucher-ev. Lawson, L. R. {13 Eq. Cas.) 322; Leggott v. Barrett, L. R. {15 Ch. Div.) 306. But here there is an express covenant, the binding force of which is not impugned by the defendant, and the sole question is whether it has been violated. The defendant admits that at the filing of the bill he was engaged as a commission merchant in the poultry business in New York city ; that he had but five consignors, one stationed in South street, Philadelphia, one in Gloucester county, and three in Salem county ; that iiis business consisted in making sales of poultry in New York, and ordering these parties to ship to the purchasers what was required to fill his contracts, and also in receiving such poultry as they might ship to him in New York, and selling it for them; and in either case, his compen- sation was a commission on the price. We think this was in violation of his covenant. True, he did not personally ship or send the poultry which he had agreed not to ship or send, but he ordered and procured it to be shipped and sent, for his own gain, and in such a manner as to lessen the opportunities for profit which the complainant might otherwise have enjoyed in his business. It is not as if the defendant had simply established himself in the poultry commission busi- ness in New York, and there had sold whatever was sent him, although, included in it, had been poultry coming from the interdicted territory; but the fact is, that his wiiole business in New York rested upon his procuring shipments from this territory, and he actively solicited and caused such ship- ments to be made. These transactions were plainly prohibited by the terms of his bargain, and the chancellor rightly decreed that he should be restrained. Decree unanimously affirmed. 600 COURT OF ERRORS AND APPEALS. [33 Eq. Pinnell v. Boyd. Charles Pinnell,, appellant, V. Adonijah S. Boyd et al., respondents. Where the mortgagor and the second mortgagee have a right to set up the defence of usury against the first mortgage, a sheriff, selling the land on fore- closure of the second mortgage, does not, by conveying subject to the first mortgage, deprive the purchaser of the right to set up the same defence. The sheriff has no power to waive the usury. On appeal from a decree advised by the vice-chancellor, and reported in Pinnell v. Boyd, 6 Stew. Eq, 190. Mr. 8. B. Ransom, for appellant. I. The appellant, Adonijah S. Boyd, the defendant below, was a second mortgagee. He foreclosed his mortgage, to pay which the premises were sold by the sheriff of the county of Hudson. The respondent, the complainant below, was not made a party in that suit. Boyd purchased the premises under his own foreclo- sure sale. So he not only acquired title under a foreclosure of a mortgage subsequent to that of the respondent, but he was the mortgagee who held the mortgage under which he acquired iiis title. It is not alleged or pretended in the bill that the appellant took his mortgage subject to the lien of the respondent's mortgage. It does not in any way appear that respondent's mortgage was in any way referred to by the mortgagor when he executed the mortgage to Mr. Boyd. Brolasky v. Miller, 1 Stock. 807. II. The defendants below, the appellants here, are not, by reason of any averments in the bill and admissions made in tlieir answer, precluded from setting up usury against the coini)lain- ant's mortgage. Dolman v. Cooh, 1 McCart. 63 ; Brolashy v. Miller, 1 Stock. 8U; Conover v. Hohart, 9 C. E. Gr. 123; Lee v. Stiger, 3 Stew. Eq. 610. 6 Stew.] MARCH TERM, 1881. 601 Pinnell v. Boyd, III. The answer does not admit that Boyd purchased the premises subject to Pinnell's mortgage. IV. The vice-chancellor says: "Even if it were possible to so read the answer in this case as to be able to say that it did not admit the material fact charged in the bill, still we would be bound to regard the silence of the answer upon this point as an admission of the fact. A material and controlling fact, which is clearly and fully averred in the bill and not denied or alluded to in the answer, must be taken as confessed." The rule, as stated by the vice-chancellor, is not of universal application. Scudder v. Van Amhurgh, ^ Edw. Ch. 29 ; Galla- tin V. Cunningham, Hopk. Ch. 48; Mitf. 215, 216; 2 Mad. 322, 823, 324; Frost v. Beekman, 1 Johns. Ch. 302; Murray v. Fin- nister, 2 Johns. Ch. 157 ; Denning v. Smith, 3 Johns. Ch. 34^. Mr. J. C. Besson, for respondent. The opinion of the court was delivered by Dixon, J. This bill was filed to foreclose a first mortgage upon lands in Hudson county. It alleged that the mortgagor had given a second mortgage to A. S. Boyd, on the same premises ; that Boyd had foreclosed his mortgage, and that on his foreclosure, the sheriff had sold and conveyed the premises in fee, to Boyd, and then charged that said premises were sold to Boyd with full notice of complainant's mortgage, and subject to the lien thereof. The defendant, Boyd, answered, admitting the complainant's mortgage, his own subsequent mortgage, his foreclosure, and the sale to himself, as stated in complainant's bill, and then, with requisite particularity, set up usury, in the complainant's mort- gage, to the amount of ^200. The proofs fully establish the usury as alleged; but the vice-chancellor refused to give effect to such defence, because of the averment in the bill, undenied in the answer, that the property was sold on the prior foreclosure, subject to comnlaiuant's mortgage. From the decree thereupon 602 COURT OF ERRORS AND APPEALS. [33 Eq. Pinnell v. Boyd. made, Boyd appeals, and thus is presented the question for deci- sion. The principles governing the case have been already settled in this court. The defence of usury in a mortgage may be set up by the mortgagor, or by any one claiming under and in privity with him, as, for example, by subsequent mortgagees, or by purchas- ers at sheriff's sale. Brolashy v. Miller, 1 Stock. 807. But the mortgagor may waive the usury, and then those hold- ing under him, by subsequent conveyance, cannot avail them- selves of the defence; likewise, one who has acquired from the mortgagor the right to plead the usury, may also remove the taint as to himself, and those thereafter deriving title from him. Wm^ck V. Dawes, 11 C. E. Gr. 5Jt8. From these principles, it follows that Boyd possesses the right to reduce the complainant's mortgage for usury, both in his capacity as mortgagee and as purchaser at sheriff's sale, unless the mere averment that at such sale the property was sold sub- ject to the complainant's mortgage, shows a defeasance of the right. It has been held that if the mortgagor convey the property by deed, expressly subject to the amount of the existing mortgage, the grantee cannot set up the usury, for such language imports a waiver. But no case is cited to the effect that a sheriff, selling lands under a^./a. against the mortgagor, to satisfy a subsequent mortgage which itself preserved the defence, has any power so to purge the taint. And, plainly, he can have none. His duty is to sell the property, in the interest of the defendant and the sec- ond mortgagee, for the best price it will bring, and obviously, he ■would be defeating this aim, if he should impose conditions pre- venting the purchaser from asserting the rights concerning the land, which these parties possess. He has no power to do so. His sale and conveyance transfer to the purchaser the same right to allege the usury in the previous mortgage as they wjiose estate he conveys, had, and though he declare, at his auction and in his deed, that he sells subject to the prior encumbrance, such a.^ 688 INDEX. [33 Eq. Jurisdiction — Continued. 10. Righu which inhere in the party seeking aid in court, must de- termine the juiistliction, and not those of the defendant. Jersey City V. Gardner, 622 L. Laches. See Specific Performance, 1, 2 ; Estoppel; Injunction, 1, 2 Pleading, 8 ; Setting Aside Sales, 3. Legacy. 1. A parent gave testamentary power to her executors to sell a certain house and lot, and to set apart $3,000 of the amount derived therefrom for the sole and separate use of her daughter Julia (the wife of C), who was to receive the interest and income thereof during her natural life, and at her death it was to be paid to the persons who at that time might be her heirs at law ; and further provided that, if Julia sliould so elect, the fund might be invested in a house and lot, which she might select, and which should be conveyed to her ; with a further declaration that Julia should enjoy the same free from the control of her husband. Testatrix's house and lot have been sold. Julia's husband is dead, and on bill to compel the executors to pay over to her absolutely the $3,000 — Held, that since Julia could re- quire the executors to purchase a houso and convey it to her, for her sole and absolute use and disposition, she is entitled to have the |3,000 paid to her directly and absolutely. Courter v. Howell, 80 2. A testator gave the interest on certain funds, which were to be se- curely invested on bond and mortgage, to his wife for life or widowhood, for the support of herself and their son, with a pro- viso that on her remarriage, her right to such interest should cease, and it should be payable for the support of the son only ; and if she should remain unmarried until the son attained his majority, he should be entitled to one-half of the income for his own use ; and that at her decease all tne estate should go to the son absolutely, so soon as he should marry or become of age, but if he should die without heirs, or before he came into full pos- session, then over. The widow and two others were appointed executors. The testator died in 1840, and his widow, who, with one of the other appointees, proved the will, remarried in 1847. In 1848, the executors who proved the will filed their final ac- count, and invested the fund as directed by the will, until its re- payment to the executor in 1873, when it was invested in first mortgage on city lots, then worth three times as much as the fund invested. Afterwards, the mortgagor became insolvent, and the executor, on foreclosure, was obliged to buy in the prop- erty, in order to protect the fund. The son came of age in 1860. He was married to complainant in 1858, and died in 1864, leav 6 Stew.] INDEX. 689 Legacy — Continued. ing a child born of tlie complainant in 1860, who is still living. — Held, (1) On construction of the will, that the son was enti- tled to the entire estate on the remarriage of the widow, and the gift over was defeated by the son's leaving lawful issue surviving at his death. — Held, also, (2) That the executor's discretion as to the security of the investment in 1873 appearing to have been fairly exercised, and he having obtained advice from reputable counsel that the principal of the fund did not go to the son un- less he survived his mother, he is guilty of no breach of trust, either because he continued to hold the fund after the gift over was defeated, or because of the investment in 1873, and that the land is the fund. Perrine v. Vreeland, 102 3. Where a parent bequeaths a legacy to a child it is understood to be a portion, and if, after the execution of the will, the parent gives a sum of money to the child, equal in amount to the legacy, • if it be, ejusdem generis, it will be an ademption of the legacy, if so intended. Van Houten v. Post, 344 4. The advancement of a less sum, with intent to go on the legacy, will be an ademption pro tanto. Id., 344 5. Evidence of parol declarations of testator of the fact of giving the money is not admissible, but such fact must be proved by other testimony. Id., 344 6. Charges in books, made by parent against child, to show advance- ments, admitted in evidence ; such testimony having been so long received by the courts of this state. Id., 344 7. The fact of the money having passed from the parent to the child being proved, it will be presumed to be in satisfaction of the legacy ; but the presumption will be slight, and evidence of parol declarations of testator that he did not so intend, and also his declarations in reply thereto that he did so intend, are admis- sible. Id., 344 8. Whether intended to be a gift, independent of the legacy, or the payment of a debt, or a portion in ademption of the legacy, is to be decided by the circumstances and facts proved in each case. Id., 344 9. A testator gave to his wife the use and income of his house and lands, for her life, and directed his executors to supply her out of his estate with everything that she might need or desire for her comfort, sustenance and happiness. He then gave a specific legacy to S. ; several pecuniary legacies to others, and devised his house and lands, after his widow's death, to the trustees of a church, as a parsonage, on certain conditions. — Held, (1) That the executors must resort to the principal of the personalty, for the widow's support, if the income thereof be insufficient. (2) That the payment of the general legacies must be postponed until after the widow's death, and would be subject to ratable 44 690 INDEX. [33 Eq. Legacy — Continued. abatement if there should be a deficiency. (3) That the specific legacy must be paid now, and without abatement. Bonham v. Sonham, 476 10. A court of equity will give effect to an assignment of an expected legacy executed in the lifetime of the testator, if made for a valu- able consideration. Bacon v. Bonham, 614 11. In such case, absence of fraud, good consideration and adequacy of price, should be proved, affirmatively, by the party claiming the benefit of the assignment. Id., 614 Lien. 1. A statutory lien on lands for annual water-rents cannot be extended by construction so as to include water furnished by the city com- missioners under a contract with a tenant for years ; and hence a Bale of the premises occupied by such tenant, for default in pay- ing such water-rents, is ultra vires, and may be set aside on appli- cation of the owner. Carpenter v. Hohoken, 27 2. A prior mortgage to " S. & Co., a firm composed of T. S. and J. S.," will be postponed to a subsequent one given to secure a loan made upon the strength of an agreement of J. S., surviving part- ner, and one of the executors of T. S., deceased, to the effect that the lender's lien should be preferred. Mut. Life Ins. Co. v. *Siur- ges, 32S See Corporation, 12 ; Fraudulent Conveyance, 3 ; Municipax Corporation, 2 ; Partition, 1 ; Taxes, 2. M. Marshaling Assets. 1. On marshaling the assets of both partnership and individual estates, under separate assignments for the benefit of creditors, the partnership creditors are not entitled, after exhausting the partnership assets, to resort to the individual assets until after the individual creditors' claims have been satisfied. Davis v. Howell, 72 2. An ancestor bought certain lands, and, by his deed, assumed to pay a mortgage thereon, and its amount was allowed to him as so much of the purchase-money. JSdd, that this was not such a personal assumption of the mortgage as entitled the heir, to whom the premises descended, to exoneration out of the personal estate for the amount of the mortgage. Mount v. Van Ness, 262 3. Where there are three encumbrances on the same property, the first of which is entitled to priority over the second, but is sub- ordinate to the third, which is subordinate to the second, they will be marshaled as follows : the third, if it be for as large a sum or a larger sum than the first, will be paid to the extent of the 6 Stew.] INDEX. 691 Marshaling Assets— Conlimced. sum secured by the first ; then the second encumbrance will be paid in full if the property is sufficient, and then tlie residue to the third, if there be a residue; and then the first encumbrance will come in. The principle of Clement v. Kaighn, 2 McCart. 4S, approved and developed. Hoag v. Sayre, 552 4. A took a chattel mortgage for $2,150 and failed to record it; B, with knowledge of the first mortgage, took a second one for $1,160; C obtained a judgment for $3,000 on the same day with the second mortgage, and made a levy. — Held, that C had the first lien to the extent of $2,150, the amount of the first mort- gage; then that the residue of the judgment and the second mortgage should be paid pari passu, and, lastly, that the first mortgage should come in for payment. Id., 552 See Lien, 2. Maxims. Jus dicer e, non dare, 187 Omnia pi'cesumumtur contra spoliatorem, 257 Nemo est hceres viventis, 47 Vigilantihus non dormientibus jura subveniunt, 21 Mines. See Waste. Mortgage. 1. A statute requiring mortgages to be registered, or to lose their priority as against subsequent judgment-creditors, or bona fide purchasers or mortgagees of the same premises, without notice, applies to a mortgage given to the state. A suit for the foreclo- sure of a mortgage given after, but registered before, one given to the state on the same lands, is a suit " arising out of any pre- vious lien or encumbrance" (Bev. 122S), to which the state may be made a party, and have its rights in the premises determined. Clement v. Bartlett, 43 2. In determining the question whether a deed, absolute on its face, ia what it purports to be, or a mortgage, the fact that the parties, after the execution of the deed, still understood that the relation of creditor and debtor continued, in respect to the debt on which the deed is founded, must generally be regarded as decisive in showing that the instrument was intended to be a mortgage. Budd v. Van Orden, 143 3. The only infallible test of the value of a merchantable article is what it is actually sold for at a fair sale. Id., 143 4. A mortgagee in possession, holding under a deed absolute on its face, who sells the mortgaged premises, is bound to account to his mortgagor at the price at which he sold, though he may be able to show, by the opinion of competent judges, that such price is in excess of their market value. Id., 143 692 INDEX. [33 Eq. Mortgage — Continued. 5. In nscertaining the sum for whicli a decree for deficiency should be made, the sum for which the mortgaged premises were sold must, so long as the sale stands, be taken, as between the parties to tjie suit, as a conclusive test of the value of the mortgaged premises. Snyder v. Blair, 208 6. On such an inquiry, the court is not at liberty, in case the market value of the premises happens to exceed the sura realized at the sale, to deduct the market value and enter a decree only for the balance of the mortgage debt. Id., 208 7. A bond and mortgage belonging to a husband were assigned by him to one S., and by S. immediately re-assigned to the wife ; both assignments were duly acknowledged, and that to S recorded, by the husband's direction, but the bond and mortgage and both assignments remained in tlie husband's possession, except once afterwards when the mortgage was delivered to the wife for a temporary purpose and tlien returned by her to her husband. There was no consideration for the transfer. — Held, that as there ■was no delivery of the bond and mortgage and assignment to the wife, the title thereto never passed to or vested in her. jRuckman v. Ruckman, 354 8. Two mortgages were given, one in 1854 and the other in 1855, and duly recorded, to H., who died in 1874, and gave them to his daughter M. In 1879, M. asked of the mortgagor, who then owned the mortgaged premises, an acknowledgment that the mortgages, on which nothing had ever been paid, were still valid securities, to which the mortgagor agreed, and, in the presence of a witness, signed such an acknowledgment, endorsed on each mortgage. Afterwards the mortgages were assigned by M. to the complainant, who sent them to the mortgagor to obtain his admission as to the genuineness of his signature (his mark), and the mortgagor tlius obtained possession of them, and ever after professed to be unable to find or produce them. — Held, that the acknowledgment destroyed the presumption of payment from lapse of time as to the mortgagor, and that, as to a second mortga- gee — such mortgagee had such constructive notice from the record, where the mortgage was uncanceled, as to put him on inquiry, and that the proof in the case showed, outside of the acknowledg- ment, that tlie mortgages had never been paid. Murphy v. Coates, 424 9. A bona fide release of an assumption of a mortgage was verbally agreed upon before suit brougiit to foreclose the mortgage, but the release was not executed until after suit brought. AVithout knowledge of the existence of the suit, it was executed and the consideration paid. — Held, to discharge the assumption. G'Neill v. Ckirh, 444 10. Where a person took an absolute conveyance, but which was, in 6 Stew.] INDEX. 693 Mortgage — Continued. point of fact, a mortgage, and sold the premises as his own, repu- diating the inteiest of the grantor, and took a mortgage for part of the consideration money — Held, that it was not inequitable to charge him, in his accounts with the grantor, with the amount of the money secured by the mortgage taken by him, as so much cash in hand. Van Orden v. Budd, 5G4 See Agent, 2 ; Dower ; Evidence, 5 ; Executors, 5 ; Jurisdic- tion, 2 ; Marshaling Assets, 2 ; Parties, 2 ; Set-Off ; Us- ury ; Constitution, 2 ; Municipal Corporations, 2 ; Trusts, 3. Municipal Corporation. 1. Complainant moved back a fence along a public street, and threw out a strip of land six feet in width, thereby rendering the street more dangerous for travel, by throwing a ditch running along the fence nearer the centre of the street. Thereupon the street commissioners began to cut away part of the strip of land, in order to alter the ditch and render the passage of the street safer. — Held, that complainant could not enjoin the acts of the commissioners in that matter, because (1) if he had dedicated the strip of land, the commissioners had authority (under the act for "the improvement of Somervilie") to improve it; and (2) if he had not dedicated it, such injury was not irreparable, and he ; could obtain adequate redress at law. — Held, also, that since such ' commissioners had power to remove encroachments on highways only by resolution or ordinance, their threatened removal of complainant's fence so as to add to such highway an additional strip of land from five to nine feet wide because of an alleged en- croachment to that extent, without any official direction by res- olution or ordinance, and without first ascertaining whether there was an actual encroachment, the complainant and his grantors having been in quiet possession of the premises for thirty years, might be enjoined. Doughty v. Somervilie, 1 2. Under the charter of the city of Eahway, adopted in 1865, the lien of the city for ordinary municipal taxes and for assessments for street improvements, is prior to a bona fide mortgage on the premises made and registered before the levy or assessment. Thompson v. Thorp, 401 3. The supplement to the charter of the city of Newark, framed April 15th, 1S6S (P. L. of lS68p. 1002), construed, and held to be constitutional. Smith v. Neivark, 545 See Injunction, 2 ; Parties, 1 ; Pleading, 2. N. Notice. See Injunction, 3 ; Mortgage, 8. 694 INDEX. [33 Eq. O. Orphans Court. See ExEcxjTORs, 13; Jurisdiction, 4; Practice, 2. Parent and Child. 1. Where appellant took into his own family an orphan, and educated and supported her until she was sixteen years old, when she went elsewhere to work, and received her own earnings for a time, but becoming sick she returned — Held, that appellant was entitled to recover from her estate the expenses of iier last illness and funeral. Aliter, as to clothing and board furnished. Sehaedd V. Reibolt, 634 See Legacy, 3-8. P. Parties. 1. Where the authority of commissioners is terminated by their as- sessment and return to the common council, they are unnecessary parties to a suit to set aside a sale of lands ordered by the com- mon council and predicated on their proceedings. Carpenter v. Hohoken, 27 2. The omission of the assignor as a party to a foreclosure by the complainant (who held the mortgage as collateral), no objection on that ground being raised by the answer, and no necessity for hia being made a party appearing, could not be set up at the hearing. Stevens v. Reeves, 427 3. A defendant to a creditor's bill, after having been admitted as a co-complainant, may have the conduct of the cause committed to himself, on the ground of great delay on complainant's part, and on terms as to indemnifying complainant against future costs in the cause. Thompson v. Fisler, 4S0 4. A party who, having acquired an interest during the pendency of the suit, applies, under the chancery act, to be made a party in order to move to open the decree, must present, in his petition, a case of substantial equity. Id., 480 5. Claiming in the conrt below the right to be let in as a party for a specified purpose, he cannot object, on appeal, to the order re- fusing his admission, that he had the right to be Joined to the suit for another purpose. Davis v. Sullivan, 569 iSee Agent, 1; Appeal, 1; Contract, 1; Dower; Mortgage, 1. Partition. 1. A testator gave his homestead farm to three of his children equally, and further gave legacies to his widow in lieu of her dower, " se- cured on good freehold security, and the interest thereof paid half-yearly to her ; " and also the interest on a legacy to a 6 Stew.] INDEX. 695 Partition — Continued. daughter for life. He then, after the payment or securing of the above-named legacies, gave all the residue of his estate, including the remaindere of the legacies, to the three first-named children. One of them and a person not of the family were the executors. They had never filed any account. On a bill for a partition of the farm by such executor — JEeld, (1) that the legacies were charged on the whole farm, and the amount due thereon ought to be ascertained before a sale was ordered on partition ; (2) that the complainant, who, by purchase from his brother, since tes- tator's death, had acquired another third of the farm, and had occupied it since then, could not be called to account by the de- fendant, for the one-third of tlie proceeds of the farm during his occupancy, without a cross-bill ; (3) that since the amount of the personal estate, and the extent of the deficiency thereof to satisfy the debts and legacies, did not appear, a sale would not be ordered until after the executors have settled their account in the orphans court. Adams v. Beldeman, 77 2. Complainants bought lands adjoining their factories in 1879. The title to an interest therein (supposed to be one-sixth) w;is in some doubt, but no claimant therefor had appeared since 1846, and they were assured that their title to the whole was good. Im order to fortify their title, they took a transfer of a decla- ration of sale of the premises for taxes, made in 1869. After- wards they contracted for the erection of buildings and ma- chinery on the lands, to be used in connection with their other works, and erected the buildings thereon accordingly. On a bill quia timet, filed by them to quiet their title to the before-men- tioned interest, certain claimants appeared, and the proceedings in that suit were dismissed as to them. On a bill for partition — Hdd, that the circumstances of the case were not such as to de- prive complainants of the right to equitable partition between them and the owners of the interest. Atha v. JeweU, 417 See Setting Aside Sales, 3. Partnership. See Lien, 2 ; Marshaling Assets, 1 ; Usury, 4. Payment. See Agent, 2 ; Mortgage, 8. Pleading. 1. To a judgment-creditor's bill to set aside a conveyance of lands, alleged to be fraudulent as against such creditor, to which the grantor (the debtor), his wife and their grantee were made de- fendants, the wife did not demur, as she might have done, but filed a plea setting forth a sheriff's sale and conveyance of the 696 INDEX. [33 Eq. Pleading — Continued. piemises to her, under an execution issued out of this court against her husband and another, before the alleged fraudulent conveyance. — Held, on argument of the plea, tliat it is not good, because it does not set out any order or decree on which the ex- ecution issued. Wesling v. Schrass, 42 2. Where, on a bill to remove cloud from title, arising from a mu- nicipal assessment and sale thereunder, it was averred merely that the city was made a party to a suit for foreclosure of a mort- gage on the premises, and a decree obtained therein, and the premises sold — Meld, on demurrer, that such decree and pro- ceedings do not bar the city from selling such premises under a valid assessment, where it is not alleged that such mortgage was prior to the assessment, or that the assessment was attacked or called in question in the foreclosure suit, or the city called on to redeem because the assessment may have been paramount to the mortgage. Dickinson v. Trenton, 63 3. In 1868 and 1869 the New Jersey Western Eailroad Cbmpany, acting under legislative authority, constructed parts of a railroad in this state, and tlie complainants and others subscribed and paid for its stock. In 1870 it was consolidated with other rail- roads, built or to be built, by an act authorizing compensation to such stockholders of the New Jersey Western as were dissatis- fied therewith. A mortgage, covering all the property of the consolidated roads, was given, and the legality of the consolida- tion recognized by subsequent legislation. Against some of the defendants there appeared to be some grounds for applying for relief. — Held, that it cannot be satisfactorily determined, on the statements of the bill, whether the complainants have, by acqui- escence, lost their rights as stockholders, and the demurrer, being too general, was overruled. Hoxsey et al. v. New Jersey Midland Railway Co., 119 4. A material and controlling fact, which is clearly and fully averred in the bill and not denied or alluded to in the answer, must be taken as confessed. Pumell v. Boyd, 190 5. A bill which fails to make a case, which if omitted or proved will entitle the complainant to a decree, must be held bad on general demurrer. Kip v. Kip, 213 6. In equity pleadings, such degree of certainty should be adopted as will give the opposite party full information of the case he is called upon to meet. Id., 213 7. At or after final hearing, it is too late to object to mere want of precision in the bill. Id., 213 8. A bill alleging that a contract about a mortgage given to S. & Co., was made by that firm or their survivors and legal representa- tives, and setting out who are the surviving partner and leading 6 Stew.] INDEX. 697 Pleading — Continued. representatives of the deceased, and making them defendants, is • not so vague as to justify the vacation of a decree based upon the contract, especially after the decree has been executed. Mutual Life Ins. Co. v. Sturges, 328 9. Where a bill alleged that a deed was given merely to secure a debt, and the answers admitted that the grantors made a certain deed in writing, of such date and of such purport and effect as in the bill mentioned and set forth — Held, not to be such an ad- mission of the nature and effect of the deed as to preclude all inquiry on the subject. Brown v. Balen, 469 See Executors, 1 ; Husband and Wife, 1 ; Injunction, 4 ; Pab- TiTiON, 1 ; Setting Aside Sales, 3. Possession. See Guardian, 2 ; Husband and Wife, 2, 3 ; Mortgage, 4, 10. Post Office. See Assignment, 1. Powers. See Corporation, 4-6 ; Trusts, 5. Practice. 1. A bill may be dismissed at the hearing, without reference, if, on the pleadings and proofs, the court can then decide the question. Tillotson V. Gesner, 313 2. Where a contest over the probate of a will has been duly certi- fied into the circuit court, and the proceedings there appear to have been regular, and the verdict of the jury properly certified into the orphans court and a decree in conformity with the ver- dict entered, objections addressed to the discretion of the circuit judge and overruled by him, or objections which, if raised at all, ought to have been raised in the circuit, are no ground for re- versing the decree of the orphans court. ToumaTis v. Petty, 532 See Executors, 7 ; Injunction, 3 ; Setting Aside Sales, 1 ; Usury, 2 ; Parties, 3. Prerogative. See Mortgage, 1. Presumption. See Cancellation, 2 ; Legacy, 7 ; Mortgage, 8. Quia Timet. See Pleading, 2. 698 INDEX. [33 Eq. R Railroads. See Constitution, 1 ; Cobpobation, 13-16. Ratification. See Insanity, 3. Receiver. 1. Exceptions to a master's report on the accounts of a receiver ap- pointed by this court, involving liis management and disposal of the trust property, and the amount of his compensation, consid- ered and overruled. Woolsey v. Cummings Car Works, 432 See CoBPOEATiON, 1-3. Reformation of Instruments. 1. Deed reformed by striking out an assumption of a mortgage in- serted through the mistake of the scrivener, and accepted by the grantee in ignorance thereof. O'Neill v. Clark, 444 2. Complainant held a mortgage on an undivided two-thirds interest in certain lands, to secure debts owing to him by the two hold- ers of that interest. To induce the owner of the remaining third • to join in an absolute conveyance of the premises to him, he agreed to personally assume two prior mortgages thereon. — Hdd, that he could not afterwards have such assumption expunged from his deed, on the ground of fraud or mistake, and have such deed declared to be a mere security for the payment of the debts of the two grantors. Brown v. Balen, 469 See JimiSDiCTiON, 5. Rules. 148 and 149, 374 s. Sale of Chattels. See Executors, 6 ; Mortgage, 3. Sale of Lands. 1. A sale under a decree obtained in this court cannot be attacked collaterally by setting up that the solicitor who acknowledged service of the subpoena on the party affected by it in the suit in ■which the decree was made had no authority to do so, nor that the ticket accompanying the subpoena did not apprise such party of the ground on which he was made defendant to the suit. Dickinson v. Trenton, 63 Bee Executors, 7, 11 ; Fraudulent Conveyance, 6 ; Usury, 5. 6 Stew.] INDEX. 699 Setting Aside Sales. 1. A sale under a decree in chancery may be set aside, even after deed delivered, by an order made in the original cause, either for impropriety in the sale, or for the purpose of letting in a de- fence to the action. Mut. Life Ins. Co. v. Sturges, 328 2. A judgment creditor may set aside a sheriff's sale of mortgaged premises when the mortgage was fraudulently given by the judg- ment debtor to protect his property, for an amount greater than he owed, and the creditor was deterred from bidding at the sale, which was under prior judgments, by the fact that the amount of the fraudulent mortgage, with those judgments, amounted to more than the value of the premises. Bentley v. Heintze, 405 3. A petition to set aside a master's sale in partition was dismissed, where an application to the master to adjourn the sale was made after the sale had begun ; the price obtained for the premises was satisfactory; the master's discretion as to selling nine lots in gross, fairly exercised, and the petitioner was in laches in pre- senting his petition. Thorne v. Andrews, 457 4. A sheriff's sale made by virtue of process issuing out of this court, may be set aside on petition, and without bill, even after the sale has been carried into effect by the delivery of a deed. Mut. Life Ins. Co. V. Goddard, 482 5. A person whose property has been sold at judicial sale, to his injury, may always, if he applies promptly, and is without fault, have the sale set aside upon showing that he was prevented from attending the sale by fraud, mistake or accident. Id., 482 6. A sale made in violation of a promise to adjourn to a future day will be set aside. Id., 482 See Appeal, 1 ; Lien, 1. Set-Oflf. 1. The vendee of land cannot claim, in a foreclosure suit, a deduc- tion from the mortgage-money, on the ground that his vendor, who was not the mortgagor, misstated the number of acres of the land conveyed, and that the vendor of such vendor, who was the mortgagee and complainant, when he sold such lands, made a similar misstatement. Davis v. Clark, 579 2. To authorize such deductions, the mortgagee and the owner must be privies in contract. Id., 579 3. A sold a farm to B, misstating the number of acres, taking a mort- gage for part of consideration. B sold, making a similar mis- statement, to C, who assumed payment of the mortgage. — Held, on a foreclosure by A, that C could not set up these facts in order to offset his damages against the mortgage. Id., 679 Solicitor. See Costs, 1, 5, 7 ; Sale of Lands. 700 INDEX. [33 Eq. Specific Performance. 1. Great delay in seeking relief is a good bar to a suit for specific performance. Johnson et cU. v. Somerville, 152 2. Sixty years' delay constitutes a bar. Id., 152 3. A suitor asking a court of equity to give him the benefit of the exercise of its discretionary power, must siiow a good conscience, good faith and reasonable diligence. Id., 152 4. Where there is a conveyance of land, voluntary on its face, made by a defendant in a suit just before a judgment for a large sum is rendered against him, which would be a lieu on the land if such conveyance had not been made, and the evidence fails to show, by strong proof, that it was made in good faith and for a valua- ble consideration, the specific performance of an agreement with the vendee for the purchase of the land will not be enforced. TiUotson V. Gesner, 313 5. If the title to land be doubtful, equity will not compel the defend- ant, in a bill for specific performance, to expose himself to the hazard of litigation. Id., 313 6. The specific performance of contracts is a mode of redress grounded upon the impracticability or inadequacy of legal remedies to compensate for the damages which the party seeking it will suflfer by the default of the other in keeping his bargain. Brown v. Brown, 650 7. It is only when the remedy at law will not put the party in a situation as beneficial to him as if the agreement were speci- fically performed that equity will interfere. Id., 650 8. Where jurisdiction exists, the remedy is not of right ; the court holds it in judicial discretion, controlled by principles of equity and justice. Id., 650 9. The bargain or promise to be enforced, whether written or verbal, must possess, in substance and external form, the requisites of a valid contract. Id., 650 10. It must have been completely determined between the parties, and its terms definitely ascertained. Id., . 650 11. So long as negotiations are pending over matters regarded by the parties as material to the contract, and until they are settled, and the minds of the contracting parties meet upon them, it is not a contract, although, as to some matters, they may be agreed. Id., 650 12. Where it was sought to compel the specific performance of a parol agreement to assign in trust, for the benefit of the complain- ant and five other creditors, the defendant's interest under a will, and it appeared that at the interview during which the alleged parol agreement was entered into, the terms and condi- tions of the assignment were in a measure, but not entirely, ascertained ; it being understood at that lime thai the assignee 6 Stew.] INDEX. 701 Specific Performance — Continued. was to pay the creditors first, and then reconvev the remainder to the assignor, but as to provision for the defendant's own sup- port out of that interest, and his release and discharge from those creditors' claims no agreement was reached ; and after- wards the defendant, using a form drafted for him by the credi- tors, containing such provision, prepared, signed and sealed an instrument of assignment, and at the instance of one fif the credi- tors omitted therefrom all such provision, but refused to deliver the instrument, on the ground that such provision was first to be made, and the creditors to release and discharge him from their demand — Hdd, that there is no such contract established be- tween the complainants and defendant as a court of equity can and will perform by its decree. Id., 650 13. In such case there was no delivery of the deed of assignment, and, therefore, the suit cannot be maintained as a proceeding to obtain possession of a deed or muniment of title. Id., 650 14. What acts or words shall constitute a delivery must depend upon the circumstances of each case. Id., 650 15. A specific performance will not be decreed unless the existence and terms of the contract be clearly proved. If it be reasonably doubtful whether the contract was finally closed, equity will not interfere. Id., 650 16. The proposal made by the defendant was, as to all the creditors named, an entirety, and was not capable of severance. Id., 650 17. The failure of a part of the creditors to agree to a condition em- bracing all would be a total, not a partial, failure to accept such conditions. Id., 650 18. A devise of rents arising out of the residue of the testator's real estate, which the executors were authorized and directed to sell, is an interest in lands within the statute of frauds, and its transfer must be evidenced by a note or memorandum signed by the party to be charged therewith. Id., 650 19. In order to enforce the performance of a contract within the statute of frauds, on the ground of part performance, (1) the parol agreement relied on must be certain and definite in its terms ; (2) the acts proved in part performance must refer to, result from, or be made in pursuance of the agreement proved ; (3) the agreement must have been so far executed that a refusal of full execution would operate as a fraud upon the party, and place him in a situation which does not lie in compensation. Id., 650 20. The assignment in this case cannot be regarded as the written memorandum required by the statute of frauds, because it was not delivered. Id., 650 See Trusts, 1 ; Frauds and Perjuries. 702 IXDEX. [33 Eq. Statutes. 1. A thing which is within the intention of the makers of a statute, is as much within the statute as if it were within its letter. Mc- Oregor v. Rome Ins. Co., 181 See Appeai-, 3. Statutes of Great Britain. 22 and 23 Car. II., c. 10, 621 1 Geo. IV., c. 119, 296 7 Geo. IV., c. 57, 297 15 and 16 Vict., e. 86, I U, 247 Statutes of New Jersey (Private). Camden Horse K, R. Co., 1S66, p. 64O, 270 Central K. R. of N. J., 1847, p. 133, 129 Colgan, Ann, relief of, 1836, p. 320, 179 New Jersey Midland E. R., 1871, p. 1030, 123 Oxford Iron Co., P. L. 1859, p. 377, 198 Town of Bergen, P. L. I864, p. 420, 627 United Companies R. R., 1869, p. 1026, 125 Statutes of New Jersey (Public). Assignments, Rev. p. 38, § 8, 200 Bev. p. 37, § 5, 261 Bev. p. 36, 289 Chancery, Bev. p. 117, g 74, 391 Bev. p. 124, ^ 103, 463 Bev. p. 117, § 41, 573 Bev. p. 118, ^ 76, 439,210 Bev. p. 120, I 86, 307 Corporations, Bev. pp. 136, 177, § S, 162 Ba>. p. 191, I 80, 186 Bev. p. 196, I 103, 159 Bev. p. 195, § 99, 161 Bev. p. 188, \ 63, 194 Costs, P. L. 1879, p. lOS, 62 Evidence, Beo. p. 378, § 5, 5 P. L. 1880, p. 52, 5 Mortgages, Bev. p. 708, I 32, 449 Pev. p. 706, 45 P. L. ISSO, p. 255, 437 Municipal Corporations— Bay onne, 1869, p. 398; 187S, p. 469, 130 1S72, p. 686, 131 Hoboken, 1859, p. 433, 28 Newark, 1868, p. 1002, 549 1857, p. 166, 550 Rahway, 1S65, p. 499; 1874, p. 475, 402 Somerville, 1863, p. 479, 3 6 Stew.] INDEX. 70S Statutes of Ne-w Jersey (Public) — Continued. Orphans Court, Bev. p. 777, § 115, 237 Bev. p. 781, I 129, 250 B^. p. 756, II 19, 20, 533 Bev. p. 775, § 105, 621 Passaic Drainage, 1868, p. 1181, 585 Railroads, Bev. p. 929, § 101, 166 Eoads, P„ev. p. 1009, I 70, 276 Sale of Infants' Lands, Bev. p. 1052, 47 Lands, Bev. p. IO4O, 531 State, Bev. p. 1223, 45 Taxes, 1879, p. SJfl, 416 Title, Bev. p. 1189, 549 Trustees, Beo. p. 1224, i i, 27 Sureties. See ExECTJTOES, 2. T. Taxes. 1. It is a universal principle that a purchase, at a tax sale by one whose duty it was to pay the taxes, shall operate only as an ex- tinguishment of the tax. One man can acquire no rights against another by a neglect of a duty which he owes to the other. Foley V. Kirk, 171 2. The provision of the act of 1879 (P. L. of 1879 p. S40) that taxes thereafter assessed should be a lien on the premises paramount to any alienation &c. thereof, makes such lien prior to that of a mortgage on the lands given before 1879, and is within the power of the legislature. Lydecker v. Pcdisade Land Co., 415 See Municipal Coeporatiok, 2; Usubt, 3. Tenant for Life. See Waste. Tender. A judgment creditor of a mortgagor, who had been made a party defendant to a bill to foreclose a mortgage (a prior lien on the premises), before answering, and with intent to redeem the mort- gage, tendered the complainant the amount due thereon, together with the accrued interest and taxed costs, which he, without ob- jecting to the amount of costs, refused to accept. — Seld, that his conduct was obstructive and vexatious, and that he must pay the costs of a cross-suit to redeem, although it appeared that the costs of notice to an absent defendant in the foreclosure suit were unknown to the clerk, and had not been taxed or tendered. The judgment creditor, however, was decreed to pay those costs. Hendee v. Howe, 92 704 INDEX. [33 Eq. Time. See Assignment, 1 ; Jurisdiction, 4 ; Laches. Title. See Specific Pekformance, 5 ; Taxes, 1 ; Trusts, 1. Trusts. 1. A trust to sell or improve lands ; to invest and re-invest the pro- ceeds; to collect rents and income; to pay taxes, assessments, commits. uiis, and other annual expenses and charges ; to pay over the net income, and to divide the estate, vests a fee simple title in the designated trustees, not limited to the lifetime of the donor's children, which trust descends to the heir at common law, the eldest son of the survivor of the trustees, and his con- tract to sell lands of the estate may be specifically enforced. Zabriskie v. 3IoiTis and Essex R. R. Co., 22 2. A valid trust of personal property may be created by mere spoken words, and proved by parol evidence. Danser v. Warwick, 133 3. A valid trust of a mortgage debt may be created by parol, for though a trust thus created will not pass any interest in the land held in pledge, yet it is good as to the debt, and will entitle the cestui que trust to the payment of his debt out of the proceeds of the sale of the land. Id., 133 4. A resulting trust in lands claimed from the payment of the pur- chase-money thereof, either by the complainant alone or in com- mon with others, will not be raised against the consideration clause of the deed, and after great delay on complainant's part, except by clear proof. McKeovm v. McKeown, 384 5. A trustee was, by a will, clothed with extensive discretionary pow- ers, and there was no provision for succession in the trust in case of his failure to act. He died. — Held, that this court would exe- cute the trust through a successor to be appointed by it, and by substituting equitable rules in the place of arbitrary power. Wei- land V. Townsend, 393 See CoEPOBATioN, 7 ; Husband and Wife, 1. u. Ultra Vires. See C!oBPOBATioN, 4-6 ; Lien, 1. Undue Influence. 1. The question whether an act is the product of uildue influence or not, must always be largely controlled by the state of health and condition of mind of the person alleged to have been unduly influenced. Hay dock v. Haydock, 494 6 Stew.] INDEX. 705 Undue Influence — Continued. 2. Whatever destroys free agency, and constrains a person to do what is against his will, and what he would not do if left to himself, b undue influence, whether the control be exercised by physical force, threats, importunity or any other species of mental or physical coercion. Id,, 494 3. Undue influence is not measured by degree or extent, but by its effect ; if it is sufficient to destroy free agency, it is undue, even if it is slight. Id., 494 See Wills, 2, 4. Usury. 1. A purchaser of the mere equity of redemption, in premises cov- ered by a usurious mortgage, who purchases subject to the lien of the mortgage, cannot set up usury as a defence. Pinnell v. Boyd, 190 2. Uaury may be set up by the owners of the premises and by subse- quent encumbrances, under the petition of the holder of a mort- gage for the surplus money remaining in this court after satisfy- ing prior mortgages. Hutchinson v. Abbott, 379 5. A promise by one of the mortgagors to the assignee, made after the assignment, to pay the interest on such mortgage promptly, does not estop him from setting up usury in the principal or in the interest previously paid ; nor does a claim by one of the mort- gagors, to have the full amount of such mortgage deducted by the assessor from the taxes on the premises, amount to an estop- pel. Id., 379 4. A mortgage was given in 1871, to a partnership firm, payable in ten years. In 1875 the firm assigned it to the complainant, as collateral security for their note. — Held, that usury, taken by the complainant from the partners on their note, could not be set up as a defence by the mortgagor on foreclosure. SleveTis v. Beeves, 427 6. Where the mortgagor and the second mortgagee have a right to set up the defence of usury against the first mortgage, a sheriff^ selling the land on foreclosure of the second mortgage, does not, by conveying subject to the first mortgage, deprive the purchaser of the right to set up the same defence. The sheriflf has no power to waive the usury. Pinnell v. Boyd, 600 V. Vendor and Vendee. See Fkaudxjlent Conveyance, 4 ; Set-Ofp ; Specific Pebfobm- ANCE. 45 706 INDEX. [33 Eq. w. Waiver. S>v^mpn*»y!f!|y^;g7?^ afflr.