Volume 22 — New Jersey Equity Reports

<p>J. A sale and conveyance by an executor under an order of the Orphans Court for the payment of testator’s debts, obtained after the lapse of a year from testator’s death, vests in the purchaser only such estate as the heir or devisee was seized of at the time of making the order for sale.</p> <p>2. A judgment against such devisee is unaffected by such sale and com veyance; it remains a lien on the land.</p> <p>3. Tho judgment creditor, in such case, has no right to any part or share of the surplus of the purchase money in the executor’s hands after the payment of debts.</p>

<p>1. A mortgage tliat has been satisfied, and delivered up to the mortgagor without being canceled, may be again delivered as a valid security by the mortgagor, and such new delivery gives it new vitality against the mortgagor, tut not as against intervening encumbrancers.</p> <p>2. The mortgage of-a married woman given as collateral security for the debts contracted by the brother of her husband in continuing and preserving the former business of her husband for his benefit, is satisfied and discharged by the release of the brother from such debts. It cannot he pledged by her husband for another purpose without her authority.</p> <p>3. But when the brother was discharged from his debts on condition that the assets of the business should bo assigned by him in payment of them, and that the creditor should retain the mortgage as security for the payment of the debts so assigned, such retention of the mortgage is for the purpose for which it was given, collateral security for the debts of iho husband’s brother ; and the husband would have power to continue the mortgage for that purpose without further consent of his wife, wore it not that by this arrangement she could no longer call npon the brother, for whom al-one she was surety.</p> <p>d. Although no express power is given to use or pledge a mortgage for a particular purpose, such power may he inferred from the circumstances of the ease, the situation of the parties, and the general object for whicli the mortgage was given.</p> <p>5. A complainant to whom a mortgage has been assigned as security for a specific debt, can only have a decree for that debt, although pending the foreclosure suit the whole mortgage is absolutely assigned to him. His remedy for the residue must be by supplemental hill or petition for surplus.</p>

<p>1. Filling the air around a dwelling-house with dense smoke and soot or cinders, or with noxious or offensive vapors or odors, or with annoying noises, to such a degree as will render living in the house uncomfortable to persons of ordinary sensitiveness on those matters, is a nuisance and unlawful injury, which will be restrained by injunction.</p> <p>2. If the title of the complainant is not disputed, and the injury is clear, it is not necessary that the fact of nuisanco should be first established by a verdict at law.</p> <p>3. It is well settled that a court of equity will not restrain, by injunction, any lawful business, or the erection of any building or works for such business, because it is supposed or alleged that sucb business will be a nuisance to a dwelling-house near it; it must be clear that the business will be a nuisance, and that it cannot be carried on so as not to be such.</p> <p>4. "Where the building or machinery is of itself no nuisance, the erection will generally not be stopped, but the defendant will be allowed to go on with it at the risk of not being permitted to use them in any way so as to cause a nuisance.</p> <p>i). As to the business itself, if it is not clearly shown that it will be a nuisance in the way it is meant to be carried on, the court will not restrain it, but will compel the complainant to wait for his protection until it is in operation and it can be shown, without doubt, whether it is a nuisance or not.</p> <p>6. No lawful occupation will be restrained or interfered with, unless it will actually interfere with the comfortablo enjoyment of life, and it appears beyond any reasonable doubt that it will so interfere.</p> <p>7. In a doubtful case, where the injury by prohibiting the business is great and certain, and the injury to the complainant, when it may occur, can be speedily remedied by an injunction applied for after the fact of nuisanco is ascertained by experiment, the defendant, after being warned of the peril, will, in general, be allowed to proceed at his own risk, until the complainant is actually injured.</p> <p>8. That the business proposed to be carried on by the defendant would injure the prestige of the complainant's house, make it less desirable for the better class of boarders who frequent it, and thus lessen her profits, is no ground for an injunction.</p> <p>9. Increased risk from fire, and the consequent large rates of insurance, constitute no ground for injunction.</p>

On application for writ of assistance. _ The case was argued upon the petition of Frederick B. Hinds, one of the defendants, who also became the purchaser of the mortgaged premises at a foreclosure sale by the sheriff.

<p>1. A devise of a building and lot to A, on condition tliat he will permit B “ to carry on the business of a druggist on that part of the premises then occupied by him for his business of a druggist (being part of the first floor of said building), so long as he should desire to use it for that purpose,” created no easements in the adjoining lot for the use of hydrant and for passage over said lot, in favor of B, though he had been allowed those privileges in the testator’s lifetime.</p> <p>2. The devise as to B, being only the privilege reserved of carrying on the druggists’ business in the parts occupied by him at testator’s death, is simply the right to occupy.</p> <p>3. The owner of lands can have no easement in or over his adjoining lands, and when he sells one parcel, the right to enjoy privileges and conveniences which he, when owner of both, enjoyed in the other, does not pass to the purchaser.</p>

The complainant obtained judgment against the defendant, C. F. Durant, in the Supreme Court of this state, February 27th, 1866, for $10,664.74. To the execution issued on this judgment the sheriff returned that the defendant had no goods or lands.

<p>1. A testator directed $40,000 .to be held in trust for his grandson, to be-paid to him when he arrived at the age of twenty-five years, with the increase thereon by accumulation. The testator died in 1856. The executors did not separate any sum of $40,000 from the rest of the estate for the-purpose of this trust. The great bulk of the estate remained invested in the-stock of the Society for Useful Manufactures, of which it consisted at the testator’s death. The par value of it was $100 per share; its real value at, testator’s death, $250 ; and its present value $300 per share. The society had mortgage debts at' testator’s death, many of which have since been paid off out of its assets, and have bought and sold real estate, but to what value does not appear. It declared irregular dividends on the shares since-his death, not based upon the earnings of the society, but upon the necessities of the executors and testator’s children. These have vaiied from four to seven per cent yearly, on the par value of the shares. The master was: directed to allow interest at the rate of seven per cent, for the time in which the executors received the interest at that rate, and at the rate of six percent. during the residue of the time. He has computed interest at seven per cent, during that part of the time in which the executors received dividends at that rate on the par value of these shares, and allowed interest, upon interest. The exceptants contend that interest should be allowed at, that rate only when the dividends amounted to seven per cent, on the real value of the shares in which the estate was invested, and that interest should not have been calculated upon interest. Held, that the master rightly allowed the seven per cent, on the par value during the time that that rate of interest was paid, and that the interest was properly computed, by yearly rests.</p> <p>2. The funeral expenses of the granddaughter of the testator, and the physician's bill in her last illness, cannot be ordered to be paid out of the-testator’s estate, there being no estate of her own out of which these expenses can be paid. She was under the age of eighteen years at her death,, in September, 1866. The income of $20,000 directed to be held in trust for-her had, by order of the court, been expended in her education and support, except $789, which was the increase by accumulation. The testator directed,, if she should die without issue under twenty-five, that the sum of $20,000) given to her, with the acumulations thereon, be added to his general estate, and considered as part thereof. That estate he gave to three of his children, then living. The will also directed that the granddaughter should be educated and supported out of this income until she was eighteen. The medical expenses exceeded the surplus of $789. Held, that the granddaughter being -entitied to the whole of the income for her support, there could be no accumulation in the sense in which that word is used in the will, so long as the physician’s bill, or any expenses incurred by or for her in. her lifetime remain unpaid, and that the surplus must therefore he applied to the medical expenses. If the medical expenses did not absorb the surplus, the funeral expenses would also be included in this provision for her support and maintenance, and any balance would have been applied for that purpose. But the principal of 820,000 was not subject to her support and maintenance, in case of her dying under twenty-five, hut was vested in the legatees. These expenses cannot bo ordered to be paid out of the estate of the testator.</p> <p>3. A gift of a fund with its increase from accumulation, amounts to a direction to the executor to accumulate, which can only be done by putting it at interest. And where the fund is large, and the time for holding it in trust long, this direction must he held to apply to the interest as well as to the principal.</p> <p>4. In all cases where the will contains no directions as to commissions or expenses of administration, specific legacies and bequests of specific sums are not charged with them, but are paid in full, and the commissions aie taken from the residue, or such assets as are not disposed of.</p> <p>5. If a father does not sufficiently provide for the support of a child or one to whom he stands in loco parentis, the courts cannot take from the legacies to others to furnish such support, or pay funeral expenses in case of death. When a legacy to a child of the testator is directed to bo paid on a future day, with no direction as to interest, in the case of an infant having no other means of support, they will order interest to be paid.</p> <p>6. Where a fund is given at a future day to several, with provision that if any die, their share should go the survivors, support for all will he ordered out of the fund; but tills is only in cases where all are included in the contingency of advantage from the gift over, and of loss by dying before the time specified. And in such case when there is an absolnte gift over on the death of all it will not bo ordered, unless by consent of the person to whom it is so given.</p>

<p>1. To correct deeds for fraud or mistakes in them, is one of the ancient and well established heads of equity jurisdiction, and it is the duty of the court, where such fraud or mistake is clearly proved, to correct it by anjr means in its power to effect the amendment and the object of it.</p> <p>2. Mistakes are corrected, even where they occur in the records of proceedings of courts, and exist in the records themselves. This is done, not by reviewing the judgments or proceedings of the courts, but by restraining the parties who may take advantage of such mistakes, from doing so, or by compelling them to execute proper papers for the purpose of such correction.</p> <p>3. The defendants having refused to correct the mistake in the deeds, after it was brought to their notice, and defended the suit when they knew it was wrong and against good faith to defend it, must pay the costs.</p>

<p>1. The law „as to' the effect and constitutionality of acts of Congress must be received by the state courts, as it may be from time to time determined and declared by the Supreme Court of the United States. Hence, under the recent decision of that court, declaring the act of 1862, making the notes of the Government a legal tender for all debts, constitutional, a mortgage mads before the passage of that act is payable in such notes.</p> <p>2. A change in the law, by decision, is retrospective, and makes the law at the time of the first decision as it is declared in the last decision, as to all transactions that can be reached by it. Hence, a tender having been made in United States notes before the commencement of this suit, the mortgage debt must be considered as legally tendered.</p> <p>3. But a tender of the mortgage debt does not, in this state, discharge the lien of the mortgage.</p> <p>4. The money not having been paid into court, or kept on hand uninvested since the tender, the mortgagors are not discharged from the interest.</p> <p>5. Defendants allowed sixty days to pay the mortgage debt, with interest; if paid within that time, no costs will be allowed ; if not paid, there must be a decree for the sale of the mortgaged premises, for the debt, with interest and costs.</p>

The complainant asks to have a deed given by the defendant, M. B. Northrup, to the defendant, W. S. Northrup, for a lot of land in Newton, set aside, on the ground that it was a fraudulent conveyance, made to hinder and delay creditors, and without consideration. The complainant was a creditor of M. B. Northrup, and obtained judgment against him in the Sussex Circuit Court, on the 18th day of June, 1869, on a suit commenced May 15th, 1869.

<p>1. In equity all suits must be in the name of the party really interested* and where the name of an agent or trustee is used, the cestui que trust must bo made complainant with him.</p> <p>2. A corporation is a necessary party to a suit in equity, brought in the name of the president, to enforce a contract signed by him as president and on behalf of the corporation.</p> <p>3. A contract to give in part payment for the purchase of lands, two mortgages, without stating when they were to be paid, whether with or without interest, or at what rate of interest, is the same, practically, as a •contract to pay a certain sum on terms or credits to be arranged between the parties, and will not be enforced for uncertainty.</p> <p>4. Specific performance will not be decreed of any contract, when any ' material part of the terms or conditions are uncertain.</p>

<p>1. A conveyance of lands described by courses, with the addition of the words, “ being the same premises conveyed to K, the grantor, by N, by deed dated,” &c., will convey the whole premises in that deed, although the description leaves out a small strip, such being the evident intention of the parties.</p> <p>2. A representation that a public alley over part of the premises, is only a private right of way in a few persons, when made by mistake, and when the rights in the property are substantially the same in either case, is not-such a misrepresentation as will bar specific performance.</p>

This matter was argued upon a rule to show cause why an injunction should not issue to restrain the corporate defendant as an insolvent corporation, from alienating its property, and to restrain the defendant, Robert Hayes, to whom that company had assigned its property, as general assignee, for the benefit of its creditors, after it became insolvent, from proceeding in a suit at la v commenced by attachment against, the complainant, and to restrain him and the auditor in…

<p>W. filed a bill to foreclose a mortgage, dated January 2d, 1868, given to-him by S. and wife on lands in Hoboken. The condition of the mortgage was for the payment of th'e principal in throe years, with interest half-yearly, with a provision that if not paid within thirty days after it was payable, the principal should be due at the option of the mortgagee. The mortgage was given to secure the purchase money of the premises. The deed contained a covenant that the premises were free from “ all assessments and encumbrances of what nature or kind soever.” The municipal authorities of Hoboken had constructed a sewer near these promises which was finished before this conveyance, and had assessed upon the premises $204, as their share of the expenses. These proceedings had been taken to the Supreme Court by certiorari. W. and S., at the date of the deed, entered into an agreement, under hand and seal, that if the Supreme Court should decide-the assessment legal and a lien upon the premises, W. should pay the assessment ; but if the decision should be-in favor of W., lie should be held harmless from all charges for building the sewer. The Supreme Court confirmed the proceedings relative to the construction of the sewer prior to the assessment of the -expenses ¡on these lots, and set aside the assessment. By the same order they appointed three new commissioners to assess upon these lots their share of the expenses of constructing that sower. They made a new assessment, August 10th, 1869, of §254. This assessment was confirmed by the common council, September 24th, 1869. The interest due on the mortgage, July 2d, 1869, had been paid. January 2d, 1870, S. served a notice on W. that the assessment had been made anew and confirmed, and unless W. paid it, he should claim a deduction to that amount from the mortgage. W. did not pay it, and S., within the thirty days, tendered to W. the amount of interest due on the principal of the mortgage less the assessment and costs for which the lots were liable. This tender was refusedj and the bill was filed to foreclose the mortgage, setting out that the interest not having been paid within the thirty days, the complainant had elected to consider the mortgage as due. S. filed a cross-bill. Held, that tlio agreement not providing for the result of the decision, it does not affect the question between the parties, which must be determined by the effect of the covenant in the deed against assessments and encumbrances. W. must, therefore, relievo the premises from the encumbrance, and S. is entitled to have the amount deducted from his mortgage. That tender of the interest on the balance saved the forfeiture. That the cross-bill was unnecessary to set up defence.</p> <p>2. A covenant that the premises conveyed are free from “ all assessments and encumbrances of what nature or kind soever,” binds the grantor to pay off an encumbrance existing at the date of the deed. And in a suit to foreclose the purchase money mortgage, the amount of such encumbrance must bo deducted from the amount due on the mortgage, and the decree will be only for the balance.</p>

<p>Money, will not be ordered to be paid into court, wbicb is not ascertained "to be due by an account or decree in the cause, or admitted to be due by the answer or other proceedings in the cause. A parol admission proved '.by affidavit is not sufficient.</p>

<p>1. Bill for an account of rents, and for partition of a strip fifty feet long by five feet wide, being the rear boundary line of the lots of the complainant and defendant. Decree, that each party is entitled to the half of the strip which adjoins his own premises, and, if the parties are agreed as to the direction of the line, division will be ordered to be made by a line drawn through the middle of the strip, parallel to, and equally distant from the sides, without the delay or expense of appointing commissioners.</p> <p>2. A tenant in common is not, in general, accountable to his co-tenants for rents ; hut when he takes possession of the premises, and excludes his co-tenant and takes the rent therefor, he must account for the rent, deducting expenses for repairs and taxes.</p>

<p>1. Specific performance will not be enforced where the contract does not designate, with certainty, the lands to be conveyed.</p> <p>2. A resolution “ that two acres be sold,” is vague and uncertain upon its face. The uncertainty is patent, and parol proof is inadmissible to explain it.</p>

<p>The argument in this case was upon general demurrer to the bill.</p>

<p>This cause was submitted on the bill and ex parte proofs, and report of the special master.</p>

<p>1. Whether the amount of property settled by a husband upon bis wife, in adjusting a suit for divorce, is greater than was reasonable, cannot be examined into, if he was of sufficient capacity to make the conveyance and to adjust the difficulties between himself and his wife.</p> <p>2. When a snit for separation and maintenance is proper to he brought, neither that nor an avowed determination to persevere in it can be considered as a threat.</p>

On rulo to show cause why an injunction should not issue against constructing a railroad, so as to obstruct Central avenue in Hackensack.

<p>1. An agreement with a defendant in execution to purchase the property for him at the sheriff’s sale will not create a trust in his favor unless in writing, or fraudulently used to obtain the property at an inadequate price.</p> <p>2. If an answer denies making an agreement stated in the bill, it is not necessary to plead the statute of frauds; the complainant must prove a valid agreement, which, in all cases within the statute, must be in writing.</p> <p>3. As against a purchaser who holds a legal title, good on its face, by conveyance from one who is charged with fraud in acquiring it, it is necessary that the complainant should prove notice of the facts constituting the fraud.</p> <p>4: Unreasonable delay in bringing suit for the specific performance of a contract to convey, will be a defence to the relief, especialty where the other party has made improvements in the mean time, or the property has greatly increased in value.</p> <p>5. A party cannot be charged with bad faith in making a contract to convey property bought at sheriff’s sale upon such contract, if, after a delay of five years without any offer to perform by the person to whom he agreed to convey, and who should have been the actor, he makes an offer to fulfill, which is declined, and waits two years longer before he disposes of the subject of the contract.</p> <p>6. An administrator is not a trustee of the real estate of his intestate for the heir, and as against the heir he may purchase for himself the real estate of the intestate at a judicial sale on foreclosure of a mortgage. He is not entitled to receive the surplus of the proceeds of the sale for the heir-at-law ; it must be paid directly to the heir.</p> <p>7. A purchase of the real estate of an intestate at a foreclosure sale by one who, by contrivance or fraud, had prevented a sale for a fair value, will be set aside as against the heir. But this relief will not be granted against a subsequent bona fide purchaser for a valuable consideration, without notice of the contrivance or fraud.</p> <p>8. A widow who procures a person to purchase at a foreclosure sale the real estate of her late husband at prices far below its real value, by the contrivanoe agreed upon to deter bidders, by giving out that the purchase is for the benefit of the widow and her family, is a party to the fraud against the heir and creditors, and does not come into court with clean hands to compel the confederate to convey to her.</p>

In this case, a subpoena duees teourn had been served upon his Excellency the Governor, commanding him, by his individual name, to appear and testify before an examiner of this court, and to bring with him an engrossed copy of a private stetute which had passed both houses of the legislature on the 30th of March, 1871, and been sent to him, as... Governor, for his approval.

<p>1. In the absence of any evidence to show the effect in the courts of another stale, of a judgment or decree obtained in that state, this court must give such effect to the'judgment as is indicated by the plain meaning of its words, and as would bo given by tlie rules of law in this state to a like judgment of its own courts.</p> <p>2. The reversal of a judgment generally, for a specified error alleged to bo the only error, is a reversal of the whole judgment, and not only of the part held to bo erroneous.</p> <p>3. The liability of a defendant as the representative of a party dying pendente. hte, like any other fact upon which a decree is founded, must appear by the record, and not by proof only.</p> <p>4. Courts of equity will decree the performance of contracts relating to lands without their jurisdiction. But in such cases, the decree cannot affect the land, but earn only be enforced when the court has jurisdiction of the person of the defendant, and thus compel him to execute the conveyance, in such case it is the conveyance; not the decree, that has effect.</p> <p>5. 'A judgment by a court of another state that a deed given for lands in this state is void, is a judgment as to the title of lands here, which that court has no jurisdiction to make. And it has no jurisdiction to decree a conveyance or delivery of possession founded on that decree. This rule is not varied by the Federal Constitution, or the act of Congress, declaring that the records and judicial proceedings of the courts of any state shall have such faith and credit given to them in the courts of another state, as they had by law or usage in the courts of the state whence they were taken.</p> <p>6. This court will not enforce a judgment of the courts of another state obtained by fraud. And in a court of equity it can make no diiference whether the fraud is set up in defence, or is in support of a suit to restrain further proceedings on the judgment. It will not inquire into or examine the merits of such judgment; but when the case shown by the record is such that no court could, upon any principles of law, have given the judgment unless imposed upon, this will be regarded and taken as proof that the judgment was obtained by fraud on the court.</p> <p>7. A court of equity will not entertain a suit for a specific sum of money, recovered by the judgment of a court in another state.</p>

<p>This case was submitted for final decree on pleadings and proofs, without argument.</p>

<p>1. A married woman has no power to charge her separate estate by any writing, even though it contain words which show a clear intention to‘bind1 such estate, except a mortgage acknowledged as required by law,' or, for debts contracted for the benefit of her separate estate, or for her own benefit on the credit of it.</p> <p>2. The words, “the said obligation to be charged upon the separate estate of the said Louisa Elliott,” in a note, signed by a married woman as surety for her husband, do not create a lien upon her separate estate.</p>

The bill in this cause was filed June 23d, 1871, by John Black and others, stockholders in the three corporations defendant, for themselves and such other stockholders as might choose to come in and cause themselves to be made parties, against the Delaware and Raritan Oanal Company, the Camden and Amboy Railroad and Transportation Company, and the New Jersey Railroad and Transportation Company, commonly called the United .Comjsanies of New Jersey, and the directors,…

The hearing of this cause was had upon hill, answer, replica! ion, and proofs, before the Vice-Chancellor, to whom the same had been referred.

<p>1. To support the defence of usury, the evidence must be clear and cogent.</p> <p>2. The act of April 12th, 1864, respecting usury, does not do away with the forfeiture, though it lessens the severity of the penalty. The same strictness of proof is required since the act as before.</p> <p>3. The fact of usury being exclusively within the knowledge of the parties, and their testimony respecting it conflicting, each testifying from recollection, and without any book of account or other record of their mutual dealings resulting in the mortgages alleged to be usurious; and neither being able to give a satisfactory statement of the various payments, loans, or securities included in the mortgages; held, that the usury was not established by the proofs.</p> <p>4. Where notes on which illegal interest had been reserved are included in a settlement of what is due between the parties, and a mortgage given upon a new agreement for the amount, the usurious taint will be extinguished.</p>

<p>1. Where the bond and mortgage call for interest, without naming the rate, the rate fixed by the law'at the date of the instruments will be chargeable.</p> <p>2. Where the mortgage is recorded in full, and provides for the payment, of interest during the ten years, at the end of which the balance of principal is to he paid, without saying how often during such time, a purchaser of the mortgaged premises lias notice from the record that some periodical payments of interest were intended, and the fact that these payments were to be yearly, may be proved so as to hind him.</p> <p>3. Such proof does not contradict or alter the terms of the instruments, or their expressed meaning, hut supplies their obvious omissions and corrects their ambiguities, subject to which the purchaser bought.</p> <p>4. It appearing that yearly payments were intended, held that this should he decreed to he the true construction of the mortgage, and that the complainant was entitled to recover the interest for each year remaining unpaid, and, under the circumstances of the case, the costs of the suit.</p> <p>5. Where the mortgage in such case provided that in default of payment of interest within sixty days after the same became due, the whole principal should he immediately due, the payment of such principal was not enforcedj because the conditions on which immediate payment depended were not stated with sufficient explicitness. The true interpretation and construction of the conditions being settled, they may he operative as to the future, hut, not as to the past.</p>

<p>The two causes were argued together, upon the pleadings and proofs, before the Vice-Chancellor, to whom the same had been referred.</p>

<p>The cause was argued on the pleadings and proofs, before the Vice-Chancellor, to whom it had been referred.</p>

<p>1. A preliminary injunction will not be granted on doubtful points of constitutional law; nor to restrain the execution-of laws because the authority delegated by them may he used unwisely, or injuriously to the public.</p> <p>2. This court will not interfere with the exercise of delegated powers, within the limits allowed by the acts conferring them, but the perversion or abuse of such powers, either actual or threatened, will be restrained, when made to appear.</p> <p>3. In this case an injunction denied because the provisions of the acts, however impolitic or oppressive, were within the power of the legislature to enact, and no sufficient cause was shown to interfere with the action of the commissioners.</p>

<p>1. Where it appears from the attestation clause, that the will offered for prohato as the last will and testament of the testatrix, was signed and declared by her to be such will, in the presence of the subscribing witnesses, the statutory requirement that both witnesses should be present at the same time, is shown to have been complied with.</p> <p>2. A cancellation of a legacy, by the testator, by drawing lines with a pen across the words, is a sufficient revocation.</p> <p>3. In this state, when the executor dies before the testator, a residuary legatee is entitled to administration in preference to legatees, next of kin and creditors. And it is not discretionary with the Ordinary or Surrogates to grant it to any other person than the residuary legatee, when he is willing and able to accept.</p> <p>4. Where the residuary legatee is a corporation aggregate, administration with the will annexed will be granted to one of tlioir own number, named by them for that purpose.</p> <p>5. Legatees, or their nominee, have no right to administration in preference to next of lcin. The residuary legatee has such right. And where there are next of kin, administration cannot be granted to a person of the legatee’s selection, until the next of kin have been cited, consented, or received notice.</p>

The bill in this case was to foreclose a mortgage. The answer stated that the mortgage was given to secure part of the consideration money, the premises being conveyed by deed with covenants of warranty, &c., and that the title was defective, inasmuch as the complainant owned only three-fifths of the premises.

<p>The opinion of the Chancellor is reported in 4 C. N. Green 410.</p>

<p>The opinion of the Chancellor is reported in 4 C. E. Green 194.</p>

<p>1. After acceptance of the deed for lands, possession taken, and payment of the purchase money, an action may he maintained whore there is a mistake by omission or repugnancy in the description, and the deed may be reformed. Quaere. Whether a hill for specific performance is the proper form ?</p> <p>2. A failure to disclose facts within the knowledge of the seller of lands, to constitute fraud, must amount to a suppression of such as he is hound, under the circumstances, in conscience and duty to disclose to the purchaser» and in respect to which he cannot, innocently, be silent. Where there is no fraud or mistake in such facts, a party may properly he remitted to his remedy at law'.</p> <p>3. The papers executed hy the parties relating to the purchase and sale of land may all be used, and they settle the meaning of the descriptive words and names used m these dealings, in preference to any other construction. Parol evidence of such meaning must he rejected where the conflict is apparent.</p> <p>4. Where there is a particular recital in a deed, and general words are afterwards inserted, the generality of the words shall he qualified hy the recital. The rule falsa demonstratio non nocet applies where there is repugnancy, and in such case the first grant by certain description prevails over a subsequent and variant demonstration.</p> <p>5. The terms “ our homestead,” “ the Wardell farm,” and “the premises which Henry Wardell died possessed of,” used in the papers, will he controlled hy the precedent particular description hy metes and hounds, when, followed hy the words in the deed — “ it being the same premises that Henry Wardell died possessed of, and it being hereby intended to convey to said Conover all the land and premises lying within the above boundaries.” They will not be held to include several strips of land lying outside of the boundaries, which were formerly part of the Wardell farm, and which have been separated therefrom, and advertised for sale in lots.</p>

John G. McLaughlin died, intestate, on the 2d of May, 1861, seized of a number of houses and lots in Jersey City, in one of which he resided at his death. He left his widow, Abby Ann McLaughlin, and six children, his heirs-at-law. Two of these children were minors at his death. Some of them were children of his widow, the others were children of liis wife. The widow remained in possession of the mansion-house until her death on the 20th of August, 1868.

The pleadings and facts in this case are stated in the opinion of the Chancellor. Briefly, the ease is this: The complainant, who is the appellant, prior to 1862 was the owner of certain lands in the county of Morris, consisting of a homestead farm, containing two hundred and eighty-two acres, and several lots lying adjacent thereto; together with personal property, comprising the furniture and library in the house, and stock of various kinds on the farm.

<p>1. Bill lilt'd and subpoena served are necessary before a Us pendens becomes constructive notice to persons who shall acquire title from the parties to the suit, pendente lite.</p> <p>2. The commencement of a suit in chancery is constructive notice, only as against persons acquiring title or an interest in the property in litigation after the suit is commenced. A person whose interest existed at the commencement of the suit, will not be hound by the proceedings unless he he made a party to the suit.</p> <p>3. In equity, upon an agreement for the sale of lands, the vendee, after the contract, is regarded as the equitable owner, and if the vendor thereafter sells the lands, he is considered as selling it for the benefit of the first purchaser, and liable to account to him for the profits of the second sale: or if the second purchaser is a purchaser with notice of the previous contract, he may bo compelled to convey to the first purchaser.</p> <p>•1. The defence of a bona, fide purchase may he made by jtlea, in bar of discovery and relief, or by answer, in bar of relief only. Proof of the actual payment of the whole purchase money is essential to that defence, whether it be made by plea or answer. If the defendant has been paid part only, he will be protected pro tanto only.</p> <p>(5. Where the subsequent purchaser has accepted a conveyance, and paid part of the purchase money in good faith before notice of a prior contract, if the first purchaser wishes to enforce his right to a conveyance of the lands, he must seek his remedy promptly. He may lose his right to specific relief by a conveyance of the land, by laches, and be remitted to the unpaid purchase money as tlio only relief that will ho equitable. By accepting an assignment of a security taken for such unpaid purchase money, he will lie held to have affirmed the sale.</p>

This causo was argued and decided on the merits at the last term. The decree of the Chancellor was reversed. The judgment of this court was duly entered on the minutes, with the usual order to remit, &c. This judgment, together with the pleadings, exhibits, and other papers, were sent to and duly filed in the Court of Chancery. At this term of this court a motion to re-hear the case was made, founded on a petition which counsel offered to read.

The complainant filed liis bill for the foreclosure of a mortgage against Holcomb and wife, who wore non-residents. Tho usual order was taken requiring the defendants to plead, answer, or demur oil or before August 26tli, 1869. August 26th, 1869, Holcomb alone filed a demurrer, which was overruled by an order made May 31st, 1870, directing the defendants to answer in forty days, and that on failure to answer, the bill be taken as confessed.

<p>1. On proof that a declaration of trust of real estate had been signed according to the statute of frauds, but was lost, the trust will be established.</p> <p>2. The answer denied the fact of the trust and the written declaration as alleged in the bill. Jield, that two witnesses are not necessary to overcome the positive and direct response of the defendant under oath in his answer but that it may be overcome and a decree made, either upon the strength o f two witnesses, or one alone with corroborative circumstances giving a turn io the balance, or a preponderance of proof in favor of the complainant, and thereby producing conviction to the mind.</p> <p>3. Belief will not be denied by reason of laches in filing the bill to establish the trust, if the delay is satisfactorily explained.</p>

<p>Decree opened, sheriff’s sale set aside, and mortgagor let in to make defense, on the ground of surprise and sacrifice.</p>

<p>1. M. M. W. brought an action at law against 3. T. W. The parties submitted the matters in difference in that suit to arbitration. Their agreement of submission contained t-lie following stipulations : “ In case the said arbitrators award that tlie said J. T. W. pay any amount to the said M. M. W.T the said 3*. T. W. agrees to make and execute his bond to the said M. M. W. in the penal sum of double the amount so awarded to he paid to the said M. M. W. by tlie said J. T. W., conditioned io pay the amount of such award in instalments of one-fifth of the said amount each, as follows: one-fifth thereof in cash, and tlie balance in yearly instalments of ono-fifth each, with interest on the same at seven por cent, per annum, payable half-yearly ; and if any instalment shall remain unpaid for the space of ton days after the same may become due, then the whole amount remaining unpaid to become due and payable at the option of the said M. M. W. And the said parties do agree, that in case the said 3. T. W. shall not, within thirty days after the said award shall bo made, pay one-fifth of the said amount so awarded, and execute and deliver the bond in maimer and form as above mentioned, and execute and deliver to the said M. M. W. a mortgage on the one hundred acres of land opposite his house to secure tlie payment of the same, or pay the amount of the said award, loss $500, then this submission may he made a rule of the Supreme Court of the state of A'ew Jersey, upon the application of either parly.” The arbitrators awarded that J. T. W. should pay M. M. W. the sum of §5853.70. llddr that by this agreement J. T. W. was'bound either to pay down the whole amount awarded, less §500, or to pay one-fifth of the amount awarded in cash, and secure the balance by bond and mortgage, m thirty days after the date of the award.</p> <p>2. M. M. I?. filed a bill against J. T. W. and certain alleged fraudulent encumbrancers and grantees, praying that J. T. W. might be specifically decreed to perform bis agreement, and that the alleged fraudulent mortgages and conveyances might he declared fraudulent and void as against the plaintiff. After answer and replication, a supplemental bill, or bill m the nature of a supplemental hill, was filed against the original defendants and one D. C., in which it was charged that the original defendants, or some of them, procured a sheriff's sale of the said property on certain paid judgments against J. T. W., with intent to defraud the plaintiff of his rights under the award : and the prayer of the bill was that the sheriff’s deed to D. C. might be decreed to be fraudulent and void. Held, that inasmuch as it was alleged- that D. C. was only the trustee of a naked trust, and that the property was bought at the sheriff’s sale by the original defendants, or some of them, in the name of D. C., to onable them the more effectually to accomplish the original fraudulent design, the plaintiff could maintain his supplemental bill.</p> <p>3. The defendants who answered the original bill haying in their answers specifically alleged a want of equity in the plaintiffs case: Held, that it was proper to consider and decide on demurrer to the supplemental bill the question thus raised.</p>

<p>1. The act to incorporate the trustees of religions societies does not, propino vigors, do more than vest the legal title in the ecclesiastical property in such trustees.</p> <p>2. The statute was designed to create a simple trust, so that the trustees must hold 'and dispose of the property in conformity to the directions of their eestuis que trust, who may be, either the congregation, or certain officials, according to the rules or discipline of the particular church or society.</p> <p>3. 'Where the question is whether a certain act done by the trustees in their corporate capacity, be within or without their power, the corporation is a proper and necessary party; but where such act has been enjoined, the injunction will not necessarily be dissolved on account of the non-joinder of such party.</p> <p>4. The general rule is that an appeal will lie from all orders either granting, refusing, sustaining, or dissolving injunctions.</p>

<p>A policy of insurance was taken by a wife on the life of her husbandr in favor of and made payable to her children. After the payment of several premiums, she assigned this policy in payment of a debt of her husband, and thereupon the assignee paid several successive premiums. After the death of the husband the children filed their bill claiming the whole sum insured. Held, that they wore entitled only to the value of the policy at the time of its assignment, on the ground that the gift from the mother to them was executed only to that extent.</p>

<p>1. An agreement between a creditor and his debtor tliat the former shall take the business of the latter and be responsible for and pay all the business debts, operates as a release of a debt of such creditor which is shown to be a debt connected with such business.</p> <p>2. The release of a debtor from all liability for a debt, is also a release and discharge of the mortgage of a third person given as collateral for such debt.</p> <p>3. A mortgage given for a specific purpose must be applied exclusively to that purpose, and any other disposition of it will he a fraudulent misappropriation, against which the mortgagor will he entitled to relief.</p> <p>4. A husband has no power, by virtue of the marital relation, to dispose of his wife’s separate property. He may become her agent in the management and disposal of it, hut the validity of his acts and the extent of his powers will be measured, as in the case of other agents, by the scope of the authority his principal has conferred.</p> <p>5. A husband was the agent of his wife in the making and delivery of a mortgage on her estate, which was made to A specifically as security for the debt of B. The debt being extinguished by the release of the principal debtor: JSfeld, that the husband, under the authority to deliver the mortgage for the purpose for which it was made, had no authority to re-pledge the mortgage to A as security for the collection of assets which had been transferred by the debtor to A in satisfaction of the debt.</p> <p>6. The assignee of a mortgage holds it subject to the same equities and defences that existed against it in the hands of the mortgagee.</p>

<p>1. As between tbe parties to an usurious instrument, or as against a subsequent holder with knowledge of the defect, the original taint of usuiy attaches to all substituted obligations or securities however remote, unless the transaction be purged of the original vice by expunging the usurious element.</p> <p>2. A new settlement of the accounts between the borrower and lender, and the cancellation of the original security, or the introduction of a new consideration in the shape of an additional loan, will not operate to give validity to any succeeding obligation which secures the usurious exaction.</p> <p>3. In setting up a defence of usury in a suit in chancery the defendant must, in his answer, as in a plea of usury in an action at law, set out the particular facts and circumstances of the supposed usurious agreement, that the court may see that the agreement was in violation of the statute.</p> <p>4. The burden of proof is on a defendant alleging usury, and the defense musí be sustained by such preponderance of evidence at establishes the truth of the allegations on which it depends, beyond a reasonable doubt.</p>

<p>1. When a final decree involves the hierits of the case settled by the interlocutory decree, an appeal from the final decree brings the whole case before the court.</p> <p>2. If a person having charge of the property of another so confounds it with his own that it cannot be distinguished, he must bear all the inconvenience of the confusion, and must separate his own property, or lose it, if the obligation of keeping an account rests upon him.</p>