Volume 23 — New Jersey Equity Reports

<p>1. If a man, when insolvent or in debt, advances money as a gift to his wife or her father, they being at the time ignorant of the indebtedness or insolvency, and the donee receives the money in good faith, supposing that the donor'was perfectly solvent and that the gift could not injure his creditors, present or future, and was not intended for such purpose, and purchases property or enters into business with the money, but afterwards, upon learning of the embarrassment of the donor, pays him hack in full the amount received, there is no fraud in such transaction, or any other ground to infer or create a trust for future, or even existing creditors, in the property purchased and its advance, or in the profits of the business, after the money is returned, or even while it is kept in good faith.</p> <p>2. A trust is held to result by operation of law, where one purchases land with his own money and takes the conveyance in the name of another; in such case the title is deemed to be in trust for him who advanced the money.</p> <p>3. If one purchases land, and takes the title in the name of his wife or •child, it will be held to be a settlement on the wife or an advancement to the child, unless it is shown to. have been otherwise intended, and no trust will result. But in such case, if the purchaser takes the deed in the name of his wife or child for the purpose of defrauding or delaying creditors, and not for the purpose of making a settlement or advancement, a trust will result to the purchaser, and the land be liable to his debts.</p> <p>4. When the person to whom the conveyance is made makes the bargain for the purchase for his own benefit, and obtains part, or even the whole of the purchase money from another, who knows that it is to be paid for a conveyance to the grantee for his own benefit, no resulting trust can arise.</p> <p>5. Where a wife purchases real estate for her own benefit, and the purchase is understood to be made for that purpose by.the husband, and he advances the money therefor as a gift, no resulting trust is thereby created in him for the benefit of his creditors.</p> <p>6. When the person to whom the conveyance is made pays part of the purchase money, no trust results to any one who advances the residue, unless the part of the purchase money paid by him in whose favor the resulting trust is sought to be enforced, is shown to have been paid for some specific part or distinct interest in the estate, for some aliquot part. A general contribution of a sum of money toward the entire purchase is not sufficient.</p> <p>7. A mortgage given by a husband to a trustee for his wife, after he had become a member of a firm of which she had gone out, to secure to her .the capital which she had contributed to the firm, but which had become insolvent before she left it, is void as against creditors of the firm.</p> <p>8. A mortgage given by a father to secure to a son, money of the son used by the father in the business of the firm, though given when the firm was insolvent, is valid.</p> <p>9. Mortgage reformed, by substituting “heirs” for “successors,” it having been the evident intention to mortgage the fee. Such reformation will not affect a subsequent judgment, the record of the mortgage being the only notice at the entry of the judgment, and that notice being of a conveyance for life only.</p>

This cause came on for hearing upon bill and answer. The suit was brought by the executors to have a construction of the will of their testator, and for directions in the execution of their trust. The defendants claim that they are entitled to have the principal of the residue of the personal estate paid over to them immediately.

<p>Argued on final hearing upon pleadings and proofs.</p>

<p>This cause was argued on final hearing upon bill, answer, replication, and proofs.</p>

<p>Argued on final hearing upon bill, answer, replication, and proof's.</p>

Tlie argument of tlie cause came on upon a general demurrer of tlie defendants, tlie executors of Nathan Drake, and upon tlie answer of the other defendants, the replication of the complainant, and the proofs of both parties,

<p>Argued on exceptions to the master’s report.</p>

<p>1. Where a party purchases land at its full, fair value, and, supposing it to be free from encumbrance, erects buildings of considerable value, and judgment creditors of the former owner of the land, with knowledge that these buildings were being erected, and having reason to believe that it was done under a mistake, by their silence and acquiescence fraudulently encourage him to go on and erect his buildings, and then issue an execution, the sale of the buildings will be restrained.</p> <p>2. If enough of the buildings had been erected, without the knowledge of the defendants, to satisfy their judgment, by adding to their value the price of the lot, the defendant should be allowed to sell. This does not sufficiently appear by the answer; and therefore injunction continued to the hearing.</p>

<p>1. A declaration of trust, though not executed at the same time and place with the deed whose purposes it declares, being dated on the same day, and being the consideration of the deed, must be considered as part of the same transaction, and they must be construed together.</p> <p>2. A court of equity will not enforce an executory contract when the consideration is founded on fraud, or is malum in se, or malum prohibitum. It would not create a trust in such case.</p> <p>3. But where the trust is declared bv a writing executed and delivered and the estate is vested in the complainant, and the object of the suit is to compel a naked trustee to convey the property held in trust to the cestui que trust, it will not bar the relief sought, that the conveyance to the trustee was made for the purpose of delaying and defrauding the complainant’s creditors.</p> <p>4. If, instead of a declaration of trust, the instrument executed had been a mere contract to re-eonvey the property ; or if the bill had been filed to establish a trust, either as a resulting trust or on a parol agreement; then the defence that the conveyance had been made to delay and defraud .creditors would bar the relief.</p> <p>5. Courts of equity have recognized and established this distinction between conveyances and executory contracts.: where the title is vested, they never avoid it for want of consideration; and, on the other hand, they never enforce an executory contract without consideration- — they treat it as a nullity.</p> <p>6. A conveyance or declaration of trust by an infant, by a deed actually delivered, is voidable, but not void. But the infant, after coming of age, may by his acts confirm the deed.</p>

<p>Argued upon bill, answer, and proofs.</p>

This cause was argued on a general demurrer to the complainant’s bill. The bill set forth the will of Thomas Evans, the father of the complainant and of the defendants; and that the will was proved before the surrogate of the county of Burlington, in which, testator resided, and that letters testamentary were, on the 24th day of May, 1869, issued by him to the complainant and the defendants, who were by it appointed executors.

The argument was upon a rule to show cause why an injunction should not issue to restrain the defendants from paying out moneys raised for school, road, and poor jaurposes, for any other purpose than that for which they were raised, and from borrowing any money in anticipation of taxes, and from expending any money already borrowed for any purpose whatever.

<p>1. An assignee takes a mortgage subject to all the equities to which it was liable in the hands of his assignor. And where the mortgage has been pledged as security for the payment of a note, he is entitled in a suit for foreclosure, only to a decree for the balance due on the mortgage, after-deducting the amount of the note.</p> <p>2. Where the mortgagor has paid the note, and the note and mortgage have been delivered to him, he is subrogated in the place of the payee of the note as his assignee, and will be allowed the amount as a credit on the mortgage.</p> <p>3. A deduction allowed by the payee from the amount really due on the-note, does not enure to the benefit of the assignee. A receipt being taken in full of the payee’s claim on the bond and n ortgage, the mortgagor is entitled to a credit on the mortgage for the full amount of the note.</p> <p>4. The pledging by note of a bond and mortgage as security for its payment is a lawful pledge. It does not require a sealed or written instrument to assign a bond even at law. In this case a mere delivery of the bond and mortgage would have been sufficient.</p> <p>5. This assignment does not come within the provisions of the second section of the act of March 14th, 1863, (Nix. Dig. 613,) requiring it to be in writing ; but if it did, the written pledge in this case is sufficient.</p> <p>6. That the maker of the note pledging the mortgage as security for its payment was a married woman, does not affect the validity of the assignment. Her husband was present when she gave it, and approved it.</p> <p>7. That the complainant did not know of this assignment, does not affect it.</p> <p>8. That the mortgagee did not have the bond and mortgage in her hands for delivery, at the time she assigned them, was notice to the assignee that they were held by some one as owner or claimant. But he was entitled to no notice ; he took them subject to all equities in this respect.</p>

<p>1. Tlxe only matter that can be considered upon exceptions to a master’s report, is the validity of the exceptions. The question whether there should have been a reference having been considered and determined when the order was made, cannot be reviewed on the argument on the exceptions.</p> <p>2. The rule of the court is, that the report of a master on matters referred to him, wnll be taken as correct, until some error is shown. The burden of this is upon the exceptant.</p> <p>3. The fact that a report contains surplusage will not set aside the other part of the report or sustain an exception. But where the master has ascertained and reported upon matters which are in themselves mere surplusage, as a means of arriving at the conclusions which he was required to report, as such they are proper to be stated in his report.</p>

<p>This was an application for an injunction against the-defendants, to restrain them from selling the lands of the complainant for taxes, at a- sale for which they were advertised. The facts appearing by the bill and answer were, that the complainant purchased the lands in question of one New-kirk ; that his counsel had procured á' certificate from Love, the city collector, of the amount of taxes and assessments in arrear, being $1491.50. That on the day when the deed was-delivered and the consideration paid, Newkirk went to the office of Love and paid the arrears by giving a check on a bank in Connecticut, which the collector received, and he thereupon receipted the several tax bills for these arrears. Newkirk took these to the office of complainant’s counsel; on the faith of this receipt the deed was accepted, and the consideration paid to Newkirk; the check of Newkirk was not paid, and the defendants, who had entered these taxes and assessments as paid upon the proper books, canceled the entry and advertised the land for sale. There was no agreement tn\ accept the check as absolute payment. The only receipt was the words, “Received payment. Jas. H. Love, Collector,” at the foot of the bills. There was nothing to show that Love had notice of the use to be made of these receipts. The complainant’s counsel deposes, in an affidavit annexed to the bill, that when he asked, for the search ho told Love that a client of 1ns was about purchasing the property. Love in his answer states that ho had no recollection of this, either when he gave the receipts or at the time of the answer. The argument was on a rule to show cause upon the bill and answers of both defendants.</p>

<p>This was a motion to dissolve an injunction. Argued upon bill and answer,</p>

<p>Argued on final hearing upon bill, answer, replication, and proofs.</p>

<p>1. An injunction will not be dissolved or refused upon new matter set up in the answer, not responsive to the bill.</p> <p>2. An agreement between two proprietors upon the same stream, that the upper proprietor shall have the right to discharge all the waters drawn from a canal feeder over the lands of the lower proprietor, and that the lower proprietor shall be entitled to have all the waters drawn from the feeder flow over his lands, entitles the lower proprietor to the flow of all the water actually drawn from the feeder, although in excess of the quantity which the upper proprietor has the legal right to draw from the feeder.</p>

<p>The cause was argued upon the pleadings and proofs, before the Vice-Chancellor.</p>

<p>This cause was heard by the Vice-Chancellor, upon the pleadings and proofs.</p>

<p>1. Tlio evidence in this case held not sufficient to show fraud and avoid certain assignments charged to be without consideration, and fraudulent and void as against the complainant.</p> <p>2. But one of the mortgages assigned being for a greater amount than was given for it by the assignee, and the circumstances being suspicious as to the fairness of the transaction, the assignee was decreed to assign it to the complainant on his paying the amount of the securities given in exchange for it.</p>

<p>The motion to dissolve was argued upon bill and answer before the Vice-Chancellor.</p>

<p>1. An agreement to extend tlie time of payment of a mortgage, in consideration of a note for 8500, is invalid, and an assignee of the mortgage, who had no notice of such agreement, and took the mortgage as then due and payable, is entitled at once, and before the extended time has elapsed, to a decree for the amount of the mortgage, less the value of the note.</p> <p>2. But the mortgagee, having covenanted with the assignee that a pertain sum was due upon the bond, will be allowed to avoid the credit by giving up the note; otherwise the present worth of the note must be endorsed as a credit on the bond.</p>

<p>This cause was heard upon the pleadings and proofs, before the Vice-Chancellor.</p>

<p>1. Where an illegal reservation has been made by the mortgagee, and the mortgagor afterwards effected a new loan by the assignment of the mortgage, representing it to be good, he is precluded from setting up the original usury against the assignee and those claiming under him.</p> <p>2. Usury in the contract between the mortgagor and the assignee being-proved, the amount of bonus paid directed to be deducted from the principal of the mortgage, and a decree for the balance allowed, without costs, and without interest on the balance of principal from the time interest was last paid.</p>

<p>The argument was before the Vice-Chancellor, on motion to dissolve injunction upon answer filed.</p>

The argument was had upon exceptions to the master’s report, and the cause set down for hearing on further directions upon the master’s report.

<p>1. A direction by a testator that his executors invest $25,000 of the estate and pay the interest thereof to his daughter during her life, and after her decease that the executors appropriate and expend the legal interest of said sum towards the proper maintenance and education of the daughter’s child or children, authorizes only so much of the income to be expended as will maintain and educate her child in a manner proper or suitable to his condition or fortune. Under such direction, no part of the income could be appropriated to the support of the father without an order.</p> <p>2. In general, a father is bound to support his infant children, and is not entitled to have the income of their estate appropriated for their support without an order of some proper court, based upon his inability to support them properly.</p> <p>3. Nor is he entitled to the whole of the income of his child’s estate, on the ground that it is necessary to enable him to support and maintain an establishment suitable for such child as a member of his family. Where the executor has paid over the whole income, in such case, to the father, such payment will not be confirmed, even if made in good faith.</p> <p>4. Where a trustee has invested the trust fund in business, trade, or speculation, he can be called upon to account for the profits made by it, or at the option of the cestui que trust, to pay interest at the highest rates, and with yearly rests, or compounded. But it is only in cases of gross misconduct; never for a mere neglect of duty, as,for not investing the trust funds, but letting them lie idle.</p> <p>5. A trustee cannot be called to account for the profits of a business in which the fund was originally invested lawfully, merely because he neglected to withdraw it from that business.</p> <p>5. But whore a part, of the trust fund consists of moneys advanced to the trustee, and the trustee, in violation of the testator’s directions, neglects to invest, and continues to use the money in liis own business, and where, by not paying- in his debt, he is enabled to keep certain railroad shares, of which he actually received the income half yearly, the trustee will be charged with annual rests and compound interest. The excess on the half yearly interest in this case being too small for investment, the trustee will only be held for the yearly rests.</p> <p>7. Where a trusteee, in violation of the trust, fails to invest the fund, and uses it in his own business, he is not entitled to commissions.</p> <p>8. Where the executor was a debtor of the testator-, and a trust fund established by the testator consists of the debt, which the executor has never paid into the estate, but upon which he paid the interest as it accrued, he is not entitled to commissions.</p> <p>9. An executor or his representative is not entitled to commissions on any part of the assets not collected.</p> <p>10. The principal of a specific sum bequeathed as a trust fund is not liable to commissions; they must conic onl of the residue of the estate.</p> <p>11. The executor, by agreement with the infant’s father, having kept Sill000 as commissions, the amount must be included in the balance on which compound interest is to be computed.</p>

<p>1. A parol agreement by tbe grantee, at the time of taking a deed, that he would assume a mortgage upon tbe property as part of the consideration, will be enforced in equity. A covenant in the deed that the premises are free from encumbrances, or any other covenant, will not estop the assignee of such mortgage from recovering on such undertaking.</p> <p>2. The proof in this case is sufficient to warrant a decree for deficiency in proceeds of sale against the grantee. But the allegation of the bill being that the undertaking was a stipulation contained in the deed, and that the grantee became bound by the acceptance of the deed, while the proof is that it was not contained in the deed, but was a parol promise at the making of the deed,, the variance is fatal to such a decree.</p> <p>3. An agreement between solicitors to amend the bill so as to conform to the facts, there being no amendment actually made, cannot avail on the hearing for final decree. Neither an agreement to amend, nor an order giving leave to amend, amounts to an amendment, even if filed.</p> <p>4. To entitle a complainant to a decree in a foreclosure suit for any deficiency of the proceeds of sale in discharging the mortgage, the party sought tó be charged must have been served with notice that such decree would be asked for against him.</p> <p>5. The usual covenants in a deed are not part of the conveyance of real estate. They are mere personal covenants. A covenant against encumbrances, therefore, by a married woman, resident in the state of New York, in a conveyance of her husband’s property, situated in this state, the law of New York not authorizing a married woman to enter into covenants as to her husband’s property, does not affect, nor does any estoppel arising therefrom affect, a mortgage upon the property given by the husband prior to the conveyance, and which, after the conveyance, was assigned to the wife, and by her assigned to another. ITer assignee would be entitled to a decree but for the defect in the pleading.</p>

<p>The argument was on a rule to show cause why an injunction should not issue to restrain the defendant from building a bridge across the Earitan river at South Amboy over-lands under water, in front of lands of the Camden and Amboy Company, leased to the complainant.</p>

<p>The argument was upon a rule to show cause why an injunction should not issue to restrain the defendants from suffering or permitting any other person than the complainant to take or save any of the blood of the animals slaughtered at the abattoir of the stock yard company, at Communipaw, in the county of Hudson.</p>

<p>1. A sworn answer, directly responsive to the charge on which the equity of the bill depends, and of a fact within the personal knowledge of the. defendant, must prevail against the uncorroborated testimony of the complainant.</p> <p>2. A recital in a deed of a consideration, and that it was paid, does not estop the grantor from showing that some other or additional consideration was agreed to be paid ; but such recital, under seal, in a solemn instrument, cannot be overcome except by clear, strong evidence against it.</p>

<p>On motion to dissolve injunction for want of equity in the bill and affidavit, upon which it was granted.</p>

<p>1. An ante-nuptial contract to release or not to claim dower, in consideration of an annuity or a provision out of personal property covenanted to be provided in lieu of it, will not bar the claim of dower if the provision on part of the husband fails.</p> <p>2. In such case the widow can elect to rescind the contract and claim her dower, but she cannot have both. And having put in her claim agiinst her husband’s estate — who bad died insolvent — under tlie covenant to secure her annuity, and having accepted her pro rata share of the estate for it, she is barred from claiming dower.</p> <p>3. An administrator of an intestate who owned the equity of redemption in lands sold under a decree for foreclosure, who is decreed to be entitled to the surplus after satisfying the mortgage, for the payment of the intestate’s debts, must execute a bond, with sufficient sureties and with condition as required by the statute in the case of lands sold by the order of the Orphans Court.</p>

<p>1. The mortgage being given for $800, when, by agreement, only $700' was advanced, is usurious. The amount actually advanced only can be recovered, without interest or costs.</p> <p>2. The assignee, even without notice of usury, takes subject to that defence. '</p>

<p>1. An entry made by one partner on the books of the firm during the co-partnership, will, after its termination, he evidence against the other partner, if he at the time knew of the entry, or had an opportunity to examine the books and did not dissent from it;</p> <p>2. If one partner agrees to contribute the stock on hand in his business and the other assets of that business, against a specified sum to he put in by the other partner, this stock and assets, and that only, must be put in as his capital in the concern, whether it exceeds or falls short of the amount stipulated by the other partner.</p> <p>3. A new foundation for a new engine put in a mill in place of an old one discarded, built for it because the foundation of tbe old engine, if repaired, was not sufficient for the new engine, must be considered as an addition and not as repairs under articles distinguishing additions from repairs.</p> <p>4. It must appear from the master’s report and the proofs and documents accompanying it, that exceptions which would be valid if true, are founded on fact. '</p>

On motion on behalf of William B. Evans and Samuel B. Evans, that the evidence taken in either one of these suits may be used on the hearing of the other, and that the two' suits may be heard together.

<p>1. In a suit to foreclose a mortgage whereon, at the making of the loan, twelve per cent, interest was demanded, and agreed to be paid, and at the expiration of the first six months, interest at that rate was paid and received as the interest for that time, the principal only, less the excess of the amount so paid above the legal interest, can be recovered, and that without interest or costs of suit.</p> <p>2. The mortgagee is bound to pay the tax on his mortgage, and cannot recover it of the mortgagor.</p>

<p>On motion to dissolve injunction, made upon bill and answer,</p>

<p>On petition for divorce, and master’s report upon reference.</p>

<p>1. A commissioner appointed under the act of March 17th, 1862, has no power to adjourn the examination, but only to continue it when once commenced, from day to day, while actually proceeding with the examination of witnesses.</p> <p>2. No notice having been given of the .time and place of taking depositions, they must be suppressed. The adjournment does not supply the place of the notice required by the statute.</p>

<p>Argued on final hearing, upon bill, anstvers, and proofs.</p>

<p>1. A cestui que trust is entitled to have the interest on the fund held in trust for her paid to her yearly, without any deductions for commissions, until commissions are allowed and settled by the proper court.</p> <p>2. A trustee who uses the trust fund in his own business, like any other debtor, must seek the cestui que trust to pay the interest.</p> <p>3. A trustee who, contrary to the directions of the will, fails to invest the fund, and in flagrant violation of the trust, uses the money in his own business, is not entitled to commissions.</p> <p>4. The trustee using the trust fund having retained the interest, must pay interest upon it from the day it became due.</p> <p>5. A trustee will not be removed for every violation of duty. For acts done in bad faith, or that have diminished or endangered the trust fund without bad faith, it is the duty of the court to remove him.</p> <p>6. But when it appears that the trustee is a responsible man, of large property, and engaged in no hazardous business, and that the fund has not been in any danger, and that he supposed the money was safe in his hands as in any investment he could make, and that retaining it would save expenses to the fund, his good faith is not impeached, and he will not be removed.</p> <p>7. Whether a co-trustee vtho has paid no attention to the fund, but left its administration entirely in the hands of the acting trustee, will be removed, depends upon the conduct of the acting trustee. Under the circumstances of this case, he will not be removed.</p> <p>8. Vexatious and troublesome conduct on the part of a trustee may be good ground for removing him from the trust, but held insufficient for that purpose in this case.</p> <p>9. The fund must be invested on bond and mortgage at the highest rale of interest allowed by law, if such investment can be procured, and so as not to be subject to taxes if the trustee resides in a part of the state where such exemption exists.</p> <p>If). Costs to be paid by trustees out of their own estate.</p>

<p>1. A plea tliat the complainant “is incapable of taking care of herself or her property,” not specifying the particular incapacity, is bad and insufficient.</p> <p>2. A plea that goes to the wboleljbill, and is coupled with an answer not in support of it, but which denies tlie equities set up in the bill, is overruled by the answer.</p> <p>3. A motion to strike out an insufficient plea is not correct practice. The plea should be sot down for argument.</p>

<p>Argued upon bill, answer, and proofs.</p>

The argument was had on rule to show cause why an injunction should not issue, upon the bill of the complainants and the answer of the defendants, and the affidavits annexed to them.

Argued on motion by complainant for a receiver, and on motion by defendant to dissolve the injunction heretofore granted.

<p>1. Where the conduct of the husband is the cause of the wife’s leaving her homej and his actions since have been such as to prolong her absence for three years, such absence is not desertion contemplated by the statute, and no divorce can be had.</p> <p>2. Where the husband has not made the advances or concessions which a just man ought to make to put an end to his wife’s desertion, induced, though not justified by, his conduct to her, the desertion, though willful and continued, is not obstinate.</p>

<p>1. An allegation tliat since September, 1869, (the bill being filed in November, 1871,) the defendant committed adultery with P. M. G. at a house in Amity street, in the city of New York, sufficiently individuates the offence. The time need not be more specifically alleged.</p> <p>2. The offence being sufficiently specified, the demurrer being general, overruled.</p>

<p>1. A party to a suit can be compelled by a subpoena duces tecum, to produce papers and documents to be used on the trial as evidence.</p> <p>• 2. A subpoena duces tecum commanding a party only to appear at a certain place and time named in the writ, and bring with him a certain book, but omitting the direction to testify, is invalid, and the party refusing to obey it cannot be attached for contempt.</p>

<p>The argument was on motion to dissolve the injunction in this suit, made on bill and answer.</p>

<p>1. Where a will first authorizes executors to soil testator’s real estate, expressly, at their discretion, and then directs them to convert into money and invest all the rest of testator’s estate not already in money, the words “all the rest,” ex vi termini, exclude the real estate.</p> <p>2. Shares in the capital stock of corporations are neither money nor securities, hut simply the title of the corporator to his proportion of the corporate property and income.</p> <p>3. Where movables are directed to be sold, and no provision is made for maintaining or keeping the family in the family mansion, executors have no right to leave the furniture in the possession and use of such of testator’s children as stay in the mansion.</p> <p>4. Where a testator directs a specified part of his property to be converted into money and invested, and the interest paid to his children, this ■would not include in the direction to invest the proceeds of lands authorized hy another clause of his will to be sold at discretion, or other assets not directed to he invested.</p> <p>5. When a testator has disposed of part of his property by particular bequests and limitations over, and does not dispose of a large part, and makes no residuary disposition, the courts, with no other positive guide to his intention, will not, hy speculations or conjectures, intend that he designed to dispose of the whole in the same manner and by inadvertence omitted it; but will rather intend that he designed that the residue should descend as directed hy law, free from limitations over, which are not favored in the law of the state.</p> <p>6. Directions in a will that if one of the sons of testator shall marry a certain person named, he shall take no part of testator’s estate, but that the exectitors should dispose of testator’s estate as if that son had died in testator’s life intestate, and without issue, takes effect as a residuary bequest upon the marriage of that son to the person named after testator’s death.</p> <p>7. A condition to a bequest to a son of the testator, that it should be void if within a stated time he should marry a daughter of a person named, is not illegal as a restraint upon marriage.</p> <p>8. Such condition is not void for uncertainty because it appears that there are two persons of the name in the condition — father and son — if it appears by evidence that the son was unmarried, and had no children, and that testator’s son, with his knowledge, was paying attentions to one of the two daughters of the father of that name. This is a latent ambiguity arising from extrinsic evidence, and may be explained by such evidence.</p>

<p>Argued on final hearing, upon bill, answer, and proofs.</p>

<p>1. The rule of law is well settled, that a general or absolute gift of the residue of an estate will carry with it all legacies which have lapsed by the death of the legatee in the life of the testator. But this rule, like all other general rules for the construction of wills, is limited to cases where the testator has not shown a different intention; and where the testator has limited or circumscribed the residuary bequest or devise, it does not prevail, unless the terms by which it is limited include lapsed legacies.</p> <p>2. If a testator, after several money legacies, gives “whatever of my property shall remain after payment of the above,” to two persons named, and one of the money legacies lapses by the death of the legatee in testator’s life, such lapsed legacy does not fall into the residue; but as to it, the testator is intestate.</p> <p>3. In a suit by one of the next of kin of testator against his executors, where no account is called for, and where the complainant demands a certain aliquot part of a specific sum in which the other next of kin have no interest, they are not necessary parties.</p>

<p>1. Land bought with partnership funds, although the title be taken in the name of one of the partners, will be treated in equity as partnership property.</p> <p>2. The same principle applies to improvements made with partnership funds on the separate property of one of the partners.</p> <p>3. It is not necessary that judgment should be first obtained against the co-partner in whose name the title is vested, to enable a partner to maintain a suit in equity for an account, and to have the property declared partnership assets.</p> <p>4. The rule that a fraudulent or voluntary transfer of property cannot be contested by a creditor at largo, but only by one who has obtained a judgment that would he a lien upon the property if not transferred, is well established, hut does not apply to a partner calling on a co-partner to account.</p> <p>5. Where a part of the purchase money of the property alleged to have been fraudulently conveyed by a partner remains unpaid at the time of filing a bill for account against him, the grantee, as to that amount, is not a purchaser for value without notice. And the property is liable to that amount, with interest from the date of the conveyance, provided so much of the partnership funds have been expended thereon.</p>

<p>1. Upon the argument of a rule to show cause why an injunction should not issue in a case where an injunction had been granted in part, the question whether the existing injunction should not be removed, cannot be considered. That can be removed only upon notice and motion to dissolve, iti accordance with the rule of the court.</p> <p>2. Any citizen, acting either as an individual or as a public official, under the orders of local or municipal authorities, whether such orders be or be not in pursuance of special legislation or chartered provisions, may abate what the common law deemed a public nuisance. In abating it properly may be destroyed, and the owner deprived of it without trial, without, notice, and without compensation.</p> <p>3. Such destruction for the public safety or health, is not a taking of private property for public use, without compensation or duo process of law', in the sense of the Constitution.</p>

<p>1. Uncertainty in material allegations is not fatal to a bill whose object is the discovery of material facts alleged to be entirely in the defendant’s knowledge.</p> <p>2. A bill by a partner of a lottery firm against bis co-partners for discovery, for a sale of the property, and a distribution of the proceeds, will not be entertained by this court.</p> <p>3. Even were the partnership contracts entered into in such states where such contracts are legal, this court will not enforce or administer them.</p> <p>4. A contract which, though valid and would he enforced in the state where it was made, is in violation of a public law of this state, will not be enforced here, on the ground of comity.</p> <p>5. It will not avail the complainant that his suit is not to enforce an illegal contract, hut simply to compel an account and distribution of profits already made. Such distinction cannot be invoked where the illegal act is also a misdemeanor, punishable by fine or imprisonment.</p>

<p>This cause was argued before the Vice-Chancellor, on bill, answer, and proofs.</p>

<p>1. Stated generally, the law is that when the mortgagee purchases the equity of redemption of the mortgagor, his mortgage interest is extinguished. But this general doctrine is subject to qualifications. Merger is not favored in equity, and is never allowed, unless for special reasons and to promote the intention of the party.</p> <p>2. Where the equities are subserved by keeping the mortgage alive, and no injury or injustice is thereby wrought, it is not extinguished.</p> <p>3. Where the mortgaged premises were conveyed to a mortgagee, though, not purchased by him, and he did not derive, or expect to derive, any benefit from the conveyance, and it was not his intention to have his mortgage extinguished, his interest does not merge, but the mortgage will be-treated as a security for the amount advanced.</p>

<p>The cause was argued on the pleadings and proofs.</p>

<p>1. An agreement by R. to join with W. in the business of planting and selling oysters, by which R. was to find the capital and W. to go to Virginia and plant and buy oysters, to be sent to R. in his vessels to New York for sale, each to have one-lialf of the net profits, is a partnership.</p> <p>2. On the termination of such partnership, planted oysters remaining- in the beds after payment of all partnership debts, are the common property of both partners, of which, as in case of any personal property held in common, one tenant in common cannot dispose of the share of the other without his authority.</p> <p>3. If such tenant in common turn over such property to a firm of which he becomes a member, such firm is accountable to the other tenant in common of the property, for the value of his share of the property so turned over and used by the new firm.</p> <p>4. The purchase of the property of one man from another who is in possession of it, without authority from the true owner to sell it, will not change the title, nor protect such purchaser against the true owner. The doctrine of equity, which protects a bona fide purchaser without notice, only applies to a purchaser of the legal title, without notice of the equitable title of a third person. And in such case notice to one partner would he held as notice to the firm.</p> <p>5. In equity, the defence of the statute of limitations may be set up by plea, answer, or demurrer; hut if not sot up in any way in the pleadings it cannot avail.</p> <p>6. The admissions of one partner are evidence against the others, in a suit brought against all for partnership liabilities.</p>

This cause was argued on final hearing, upon the bill and the answers of Mary P. Lewis and of the infant children of Edwin A. Stevens.

<p>Argued upon final hearing, on bill, answer, and proofs.</p>

This cause was heard upon the separate general demurrer of Nathaniel Higgins, one of several defendants, to the bill of the complainants.

<p>A purchaser of lands from a grantee whose deed is void against the creditors of his grantor by the statute of frauds, will not be protected by the provisions of the sixth section in favor of bona fide purchasers for valuable consideration, unless he has parted with something of value in the purchase. A conveyance or mortgage for a pre-existing debt, without parting with some security, is not for a valuable consideration within the provisions of that section.</p>

<p>A conveyance made by a bnsband to a trustee for tlie use of his wife, on the execution of articles of separation between them, will not be set aside on account of the subsequent adultery of the wife while living separate from him.</p>

<p>1. The filing the written contract provided for by the second section of' the mechanics’ lien law, only protects the building from liens for work or materials furnished to the contractor. If the owner orders materials or employs mechanics on his own account, a lien attaches for the same.</p> <p>2. The mechanics’ lien law was not intended to protect purchasers or mortgagees, but mechanics and material-men only. Many of its provisions, are necd&arily, to effect its object, exposed to the policy of the registry acts of this state, and make it impossible for a mortgagee or purchaser, at certain times, to ascertain what encumbrances exist. The express provisions of this act cannot be construed against the plain meaning of the words, so as to carry out the policy and intention of the registry acts.</p>

<p>1. An advancement in money, made by a father in his lifetime to one of his sons, cannot have any effect upon the share of the real estate of the father, which, at his death, descends to the son. Only advancements or settlements in land can have such effect.</p> <p>2. Whether an agreement by parol, or in writing without seal, by a son with his father, on receiving an advancement in money, that it shall be in full of the son’s share of the father’s real estate at his death, can have any effect. — Qucare.</p>

<p>Argued on final hearing, upon pleadings and proofs.</p>

<p>Argued, on final hearing, upon pleadings and proofs.</p>

<p>Argued upon final hearing, on pleadings and proofs.</p>

<p>Where the children and devisees of a testator executed a written agreement to divide all his property equally, although his will gave to his three sons a valuable lot, and divided the residue of his estate equally between his sons and daughters,, and one of the sons at the signing of such agreement execute to the other sons a deed for his share in that lotj with the verbal understanding that it was for the purpose of enabling them to carry out the agreement of equalization, no implied promise arises that these grantees will pay to him the amount- specified in the deed as the consideration of the conveyance. The circumstances negative such implication.</p>

<p>This cause was argued on final hearing, upon the pleadings and proofs.</p>

<p>Argued on bill, answer, and proofs, upon final hearing.</p>

<p>On demurrer to bill of revivor.</p>

<p>When an executor who lias so far administered the personal estate of his testator as, to convert it into money, dies, and administration de bonis non is granted, the administrator is not entitled to demand of the executor of such deceased executor the part of the estate converted into money; for that, the representative of the deceased executor must account to the legatee or next of kin. He is only entitled to such chattels or dioses in action as have not been so converted, and exist as they were at the death of the first testator.</p>

<p>Argued on final hearing, upon pleadings and proofs.</p>

<p>"1. A purchase money mortgage lias preference over lien claims for work and materials put upon the property by contract with the purchaser, "between the execution of the contract of purchase and the conveyance.</p> <p>2. An assertion by the person holding the legal title to lands, made to parties about to erect buildings thereon under agreement with the person who has a contract of purchase therefor, that they would ho perfectly safe in going on, is not a contract with thorn to put up the buildings. It is not such consent as will bind the owner or the property ; to have such effect it must be in writing.</p>

<p>This cause was argued upon bill, answer, and proofs.</p>

<p>1. Where the complainant’s solicitor consented that the defendant might have an adjournment of the sale of his property, hut, owing to the bad faith (if there was any) of the sheriff, or to the negligence of the defendant or the solicitor in not giving the sheriff instructions and attending the sale, tlie sale was proceeded with and the property struck off, the sale will not be set aside as against the complainant. He is entitled to his decree.</p> <p>2. An agreement to pay the debts of another must be in writing. Such agreement can be enforced at law, and is no defence or set-off to a suit for the foreclosure of a mortgage debt.</p>

<p>Argued on final hearing, upon’bill, answer, and proofs.</p>

<p>Argued on final hearing, upon bill, answer, and proofs.</p>

<p>Where a mortgage is canceled by mistake, or tlie canceling is procured by fraud, a court of equity will set aside and disregard the canceling so made or procured, and gire relief upon the mortgage as if not canceled.</p>

This was a motion on part of Thomas J. Giberson, one of .the defendants who had answered, for leave to amend his answer, or to file a supplemental answer; and on the part of the defendant James Giberson, to open a decree pro eonfe.sso entered against him, with permission to answer.

<p>L. The guaranty of a bond cannot create a lien by way of mortgage on real estate of tlie guarantor, nor will the fact that such bond is secured by a second mortgage on lands upon which the guarantor holds a prior lien by mortgage or judgment, create a lien on such lands, or the interest which tlie guarantor has in them.</p> <p>2. Priority of record will not give preference to one mortgage over another given at the same time and held by the same person. Sueli mortgages, in the hands of assignees, are concurrent liens, payable ratably out of the proceeds of the mortgaged jiremises, after payment of costs of both.</p>

<p>1. The estate or interest of a widow in lands in which she is entitled to dower, is the right to have one-third set off to her by metes and bounds, to enjoy the same for her natural life. Like all other tenants for life, she is not entitled to commit or suffer waste, and must keep the premises set off to her in repair.</p> <p>2. When partition can be made of lands wherein an estate in dower is had, the dowress retains her estate as it was before. If dower has not been assigned, she retains the right to have it assigned. If an assignment has been made, she retains the part set off to her unaffected by the partition.</p> <p>3. If partition can he and is made, the dowress is not a necessary party to a partition suit in equity.</p> <p>4. When a sale is made under proceedings in partition, the dowress is entitled by the supplement of 1855 to a just and reasonable satisfaction for her estate. This means full compensation for the loss which she sustains by having her estate taken from her by the decree of the court. The value of her estate must„be computed from the use and profits she was entitled to derive from it if not sold.</p> <p>■ 5. It was not intended by the supplement of 1855 that the interest of one-third of the net proceeds was to be paid the dowress, or a sum in gross ■computed from the interest of such one-third, as a compensation for the sale of her estate.</p> <p>6. When one person owns a life estate or an estate for years, and the reversion belongs to another, the owner of the reversion is entitled to all the benefit to accrue from the rise in value of the property before the falling in of the precedent estate.</p> <p>7. Buies 130 and 131 are the rules of this court in sales of lands in partition proceedings, authorized by statute, and as such are, until changed, the binding law of the court.</p> <p>8. It is a proper ground of exception that the master, in his conclusions as to matters of fact, has made a report contrary to evidence.</p> <p>9. The conclusions of a master, who has examined and seen the witnesses, are always regarded in equity as entitled to great respect, and where his conclusions are clearly supported by competent witnesses who are unimpeached, his report will not be set aside because there is conflicting testimony, unless it clearly appears from the weight of such testimony and the nature of it that the master has erred. Ho error appears here.</p>

<p>1. Suspicious circumstances attending the confession of a judgment, in the absence of proof that the debt was not real, or that it was got up for a fraudulent purpose, will not warrant such decree.</p> <p>2. The conveyance of the debtor’s real estate having been made for a. sum much less than its value, and the circumstances connected therewith showing that the conveyance was made to defraud complainants, it is void against them, and the lands will be sold to satisfy their judgment.</p>

<p>The whole equity on which the injunction is founded being denied, and the complainant having an adequate remedy at law for the grievances stated in the bill, if they exist, injunction dissolved.</p>

<p>Argued on final hearing, upon bill, answer, and proofs.</p>

<p>Argued on final hearing, upon • bill, answer, and replication.</p>

<p>This was an application on part of the complainant, one of the executors of Francis Price, deceased, in a suit brought by her .against the defendants, Rodman M. Price, Edward L. Price, and Zachariah Price, her co-executors, for an account. The application was founded upon the testimony taken in the cause for the final hearing.</p>

<p>Argued on final hearing, upon bill, answer, and proofs..</p>

This was an application for an injunction to enjoin the National Railway Company from proceeding further in the construction of their railroad across the state of New Jersey, intended to be used and operated as part of a through line between the cities of New York and Philadelphia. The argument was had upon a rule to show cause why an injunction should not issue pursuant to the prayer of the bill.

<p>A demurrer will lie wherever it is clear that, taking the charges in the bill to be true, the bill would be dismissed at the hearing; but it must be founded on this, that it is an absolute, certain, and clear proposition that it would be so. Where the demurrer is general to the whole bill, and there is any part, either as to the relief or the discovery, to which the defendant ought to put in an answer, the demurrer, being entire, must be overruled.</p>

<p>This cause was argued before the "Vice-Chancellor, on bill, answer, and proofs.</p>

<p>1. A mortgagee who knows that a prior encumbrance exists, or a concurrent legal encumbrance entitled to be a prior lien, will not bo perinitted by his act of registry to gain priority over the other for want of registry.</p> <p>2. The statutes regulating the registry of deeds are statutes of notice. They are to prevent frauds and wrongful priorities, and not to encourage or to shield them.</p>

<p>Argued before the Vice-Chancellor, on bill, answers, and proofs.</p>

<p>Michael D. Vreeland, by his will proved October, 1830, devised lands to each of his three grandchildren, Michael, Isaac, and Margaret severally. He further devised as follows :</p> <p>“Item. I further order and direct if any of my grandchildren, Michael, Isaac, or Margaret, should die leaving no lawful issue, then in such case that the survivors should have that property which I have devised to the then deceased, in equal portiong, share and share alike.”</p> <p>Michael and Margaret, by their deed of bargain and sale with full covenants, including a general warranty, and dated July 31st, 1872, conveyed and released to Isaac the real estate devised to him by his grandfather as above.</p> <p>Afterwards, Isaac duly agreed with the defendant Blauvelt to sell to him, and Blauvelt agreed to buy a portion of the land so devised and so conveyed. The defendant declined to complete the purchase, and the bill is against him for specific performance.</p> <p>. The defendant demurs, on the ground that the bill does not show a good and indefeasible title.</p> <p>The cause was argued before the Vice-Chancellor.</p>

<p>1. An assignment executed by the husband and wife, of a policy of insurance on the life of the husband in favor of the wife, and given as collateral security for the husband’s indebtedness then existing, is a valid assignment.</p> <p>2. Knowledge by the wife that her husband was in great difficulty arising out of his indebtedness and of the pendency of suits against him, it appearing that the motive to the execution of the assignment by her was the benefit to her husband by the security thus afforded to his creditor, will not invalidate the assignment on the gronnd of duress.</p> <p>3. An assignment'by the husband and wife of her reversionary choses in action, passes an interest therein sub modo, to become effectual only in the event of the husband and wife living long enough to enable the assignee to reduce the chose in action into possession.</p> <p>4. Such assignment having no effect against the wife’s right by survivorship unless the chose in action is reduced into possession, it will be void -when the fund cannot fall into possession during his life, as where it is expressly limited to the wife in the event of surviving him.</p> <p>5. The reversionary interest secured to the wife by a policy of insurance on the life of her husband, is her sole and separate property, under the fourth secfion of the Insurance Company’s charter, and the act for the better securing the property of married women. And she has, therefore, the policy being' an obligation to pay money to the wife after her husband’s death, the power to assign it. Nor is it material that her interest is contingent on her surviving her husband. In tliat case the assignee would take it; otherwise, the children living at the husband’s death.</p> <p>0. That the fund created by a policy of insurance on tbe life of a husband, for the benefit of the wife, was created for the particular purpose of providing for the widow and family of the insured at his death, does not invalidate an assignment of such policy, made to secure the husband’s indebtedness. The general act in respect to such policies did not intend to restrict them to that particular purpose, and expressly exempts them from the claims of the husband’s creditors, only when the annual premium does not exceed §100.</p> <p>7. By the law of New Jersey, a life insurance policy was not prohibited as a wager policy, or condemned by general principles of expediency and morality. Before the statutory enactments with regard to such policies, they were held to he not contracts to indemnify against loss, but to pay a given sum upon tlie happening of a given event.</p>

<p>Argued before the Vice-Chancellor, on exceptions to master’s report.</p>

<p>On appeal from decree of the Orphans Court of Hunter-don county.</p>

This was a hill to redeem. The property mortgaged had been owned by the mortgagee, and had been conveyed by him to the mortgagor, and the mortgage in question had been given by the latter to secure a part of the purchase money. Some time after the mortgage had fallen due, the mortgagor teildered the amount of the principal and interest to the mortgagee, who refused to receive it. The bill to redeem grew out of this refusal.

<p>The opinion of the Chancellor is reported in 5 C. JE. Green 55.</p>

<p>1. An order of the Chancellor, made at the final hearing, for an issue to he tried by a jury, is appealable.</p> <p>2. On an appeal from such an order, the court, in its discretion, will decide the entire controversy or send the case hack with instructions.</p> <p>3. If the issue is a simple one and the evidence is defective, the case should not he referred to a jury, hut the taking of further evidence ordered.</p>

<p>1. A married woman cannot charge her separate estate by a contract of suretyship, unless in consideration of a benefit to herself or her estate.</p> <p>2. The rule is the same, whether such separate estate has been created by deed or will, or by force of the statute relating to the property of married women.</p> <p>'3. A married woman executed a joint and several note with her husband, stating therein that the money was to he a charge on her separate estate, and it appeared that this.money was to be applied to the payment of a mortgage given by the husband and the wife on the lands of the husband. Held, that the feme was bound, as she derived a benefit from the transaction, in relieving the lands in which she had a dower right from the encumbrance.</p>

<p>The opinion of the Chancellor is reported ante p. 32. .</p>

<p>1. Where there is a limitation to the issue of the body, followed by tbe addition of a limitation to tbe heirs general of such issue, such addition will not prevent the word “issue” from operating to raise an estate tail.</p> <p>2. The tenth section of the act relating to descents does not apply to estates limited in special tail.</p> <p>3. The whole practical effect of this clause seems to be to abolish the rule in Shelly’s case, when an estate is given for life, with a remainder to the heirs general of such donee.</p> <p>4. Every kind of estates tail are regulated by tbe eleventh section of said act.</p>

Tho bill is filed, to foreclose a mortgage dated April 1st, 1869, made by Henry A. Jones and wife to Samuel A. Meeker, one of the defendants, for $14,090, payable on the 1st of April, 1871. About the time the mortgage fell due, a parol agreement was made between Meeker and Jones for the extension of the time of payment of the principal.

<p>1. Under the Statute of Distributions of this state (Nix. Nig. 305, §1 12, 13,) first cousins will take the personal estate of the intestate, to the exclusion of the children and grandchildren of other first cousins deceased Collateral relatives can not take by representation, except in the case of the chidren of a deceased brother or sister of the intestate.</p> <p>2. The effect of the proviso “ that no representation shall be admitted among collaterals after brothers’ and sisters’ children,” is to limit or qualify the right of representation among collaterals, so that they can take only as next of.kin, per capita, except in the one case of the children of the deceased brothers and sisters of the intestate, among whom alone of the collaterals the right to take per stirpes, by way of representation, exists.</p>

<p>Appeal from decree of the Chancellor. The opinion is reported in 7 C. E. Green 59.</p>