Volume 25 — New Jersey Equity Reports

<p>The Raritan and Delaware Bay Bailroad Company, to secare bonds issued by authority of their charter, executed a mortgage upon all and singular the railroad of the company, and upon certain branch railroads, and upon “ all the railways, branches, ways, rights of way, and other lands, all tracks, bridges,” &c., (describing the property in detail,) and all real and personal property held or acquired, or thereafter to ho held or acquired by the company for use in connection with the railroads or branches of the company, or with any part thereof, or with the business of the same, including “ steamboats, boats, barges, locomotives, tenders, ears, and other rolling stock or equipments, and all machinery, tools, implements,” &c., and “ all and singular the other personal property of any nature, kind and description whatsoever, belonging to the company, and also all franchises, property, Ac., then held or thereafter to be acquired.” The name of the company had been changed to “The New Jersey Southern Railroad Company.” The trustees under the first mortgage, filed their bill to foreclose, making only the company and the trustees under the second and third mortgages, defendants. They took a d ecree pro confesso against all the defendants, with the usual order of reference. Subsequently, certain of the first mortgage bondholders filed their petition, alleging that the New Jersey-Southern Bailroad Company, after' the execution of the first mortgage, became the actual and substantial owners of certain property for use in connection with their road, among which are the Long Branch and Sea Shore Bailroad and its appurtenances, and certain steamboats and other boats, and that afterwards they extended the L. B. and S. S. road, and built with their own funds a pier and costly buildings, to be used in connection with the road. The petitioners claimed that the bill in this cause was insufficient to secure their claim to a lien on this after-acquired property, and prayed to be admitted as complainants with the trustees, on behalf of themselves and all others who should come in, &c., and that the trustees might be instructed to make such amendments to the bill, or to file such supplemental bill as might be necessary to bring before the court for adjudication, the question which might exist as to the actual ownership of the L. B. and S. S. road and its property, and for a receiver of all the roads. Held—</p> <p>1. That the lien of the mortgage attached to all such after-acquired property the instant it was so acquired, and by operation of the covenants in the mortgage, the trustees held it on, and subject to, the trusts of the mortgage.</p> <p>2. A supplemental bill should be filed by the trustees, distinctly and fully setting up the claim insisted on by the petitioners, and making all parties in adverse interest, defendants. The litigation under the stipple-mental bill to be confined to the subject matter thereof. The frame of the bill and the parties to it to be settled by the court.</p> <p>3. Bondholders are not necessary parties to a bill for foreclosure by their trustees, of the mortgage given to secure the bonds. Under the'circumstances of this case, the petitioners are not proper parties complainant, but they will be admitted as defendants, if they desire.</p> <p>4. Question of receivership not passed upon, the trustees having filed their petition that the receiver apipointed under another application might be directed to deliver to them as trustees under the mortgage, the possession of the New Jersey Southern Bailroad, including the L. B. and S. S. road and its appurtenances.</p>

<p>On motion to dissolve injunction.</p>

<p>Motion to discharge writ of ne exeat refused, on the ground oi insufficiency of the answer and affidavits.</p>

<p>1. A refusal to adjourn a sale, in tlie exercise by the sheriff of a reasonable discretion, is not sufficient ground for setting the sale aside.</p> <p>2. A requirement that twenty per cent, of the purchase money shall be paid at the close of the sale, and satisfactory security be given for tlie balance, will not suffice to set aside the sale, where no complaint was made of the terms, nor any relaxation of them requested, and where it does not appear that any one was prevented from bidding by reason of them.</p> <p>3. Where an agreement is made by the complainant with a mortgagee defendant, present at the sale and intending to buy in the property to protect his claim if necessary, that if such mortgagee would not bid, and would permit him to buy the property, he would pay his claim, and by reason of the latter not bidding in pursuance of such agreement, the property brought much less than it otherwise would have done, thereby throwing-upon die mortgagor, against whom the complainant had taken a personal decree tor deficiency, a liability for a greater deficiency, such agreement is a fraud upon the mortgagor, which vitiates the sale.</p>

<p>On final hearing on bill and demurrer.</p>

<p>On motion to dissolve injunction.</p>

<p>On final hearing on pleadings and proofs.</p>

<p>The avails of a wife’s labor in her husband’s business belong to him, and property purchased therewith, in the name of the wife, cannot be held by her against her husband’s creditors.</p>

<p>A died seized of real estate, leaving a widow and an infant daughter. I? married the widow, and assuming from her having administered on her former husband’s estate that she was the owner of the real estate, erected houses thereon, and improved it in various other ways, and also paid off a mortgage of §300 upon the property. He also, voluntarily assumed the care and support of his step-daughter. Dower had never been assigned to the widow. Upon the death of her mother, the step-daughter brought an action of ejectment against B to obtain possession of the premises. B then filed his bill to restrain the prosecution of that suit, and praying that the value of the improvements and of the land, irrespective of the improvements, might be ascertained, and the defendant required to pay him for the improvements and the amount of the mortgage paid by'him,'or release the land on receiving the value thereof, over and above the improvements, after deducting therefrom, the mortgage debt, and a proper allowance for her support while living in his family. Held,</p> <p>1. That the ’mistake being the result of inexcusable negligence, equity will not relieve from its consequences.</p> <p>2. The defendant being an infant during all the time in which the improvements were being made, no relief can be had on the ground of acquiescence.</p> <p>3. Though the mother be considered as having been in possession of the premises as guardian of the defendant, and as having made the improvements as such guardian, the complainant is not, therefore, entitled to have from the defendant, the value of the improvements. A guardian 11411 not be allowed the cost or even the value of the buildings erected on the estate of the ward, without authority.</p> <p>4. Having voluntarily assumed the support of his step-daughter, thecomplainant is not entitled to compensation for that support. In the absence of an express promise, made by the child after attaining majority, to repay the step-father, no compensation can be recovered by him, at law or in equity, for such support.</p> <p>5. TIio money paid in satisfaction of the mortgage, with lawful interest from the time of payment, declared an equitable lien on the land, and churned thereon.</p> <p>ti. Taxes paid by complainant and the improvements made by him in this case, balance the rents and profits that might be due the defendant.</p> <p>7. Had defendant been applicant for exercise of equitable power, instead of complainant, assistance might have been extended to her on terms, or refused altogether.</p>

<p>On petition and proofs.</p>

<p>Oil final hearing on pleadings aud proofs.</p>

<p>1. A party to a collusive divorce is bound by it, and cannot, in another suit for divorce, brought in this state, take advantage of the fraud and illegality "of the proceedings upon which such decree was based.</p> <p>2. The judgment of a court of general jurisdiction in any state in the-Union, is equally conclusive upon the parties in all the other states, as in the state in which it was rendered. This, however, is subject to two qualifications : 1. If it appear by the record that the defendant was not served, with process, and did not appear in person or by attorney, such judgment is void; and, 2. If it appear by the record that the defendant appeared by attorney, the defendant may disprove the authority of the attorney to-appear for him.</p> <p>3. When a decree of divorce has been acquiesced in for several years, and the plaintiff has again been married, the court will not disturb the decree for the purpose of giving alimony. Such, intervention should be based on public policy, but no such reason should suffice where, after the noquiescpnco of both parties in the decree for four years, an innocent person has been involved, by marriage, and. the opening of the decree wonld involve her in distress, and perhaps disgrace.</p>

<p>On final hearing on pleadings and proofs.</p>

<p>•On final hearing on pleadings and proofs.</p>

<p>Where the conduct of a party sought to be attached for a violation of an injunction, is, literally, a breach of the injunction, but not so in spirit, and it clearly appears that there was not only no intention to disregard the injunction, but a supposition that his action would receive the approbation of the court, he will not be adjudged guilty of contempt.</p>

<p>On motion to dissolve injunction, on bill and answer, and! affidavits annexed thereto, respectively.</p>

<p>Bill to foreclose a mortgage given as security for money that might be advanced, dismissed; no money having been advanced under the arrangement from which it originated.</p>

<p>On final hearing on bill and answer.</p>

<p>In each of these cases an order to show cause was granted, under circumstances which appear in the opinion of the Chancellor.</p>

<p>1. Acceptance of interest upon a mortgage, without claim of forfeiture, : after the expiration of the time when, by its terms, the principal became ■due, accompanied, by an acknowledgment of the receipt, as of the very day on which it fell due, and the receipt of interest on the mortgage subsequently, without any claim of forfeiture — held, a waiver of the forfeiture-</p> <p>2. The holder of that mortgage was third mortgagee, and a bill had been filed by the second mortgagee to foreclose his mortgage, and a final decree 'had been entered in favor of the first, second, and third mortgagees. The owner of the equity of redemption had permitted the suit to proceed to descree and execution, expecting to be able to pay off the first and second mortgages before sale. He has paid them off, and now asks that the execution be stayed except as to the costs of the holder of the third mortgage, ■which is not yet due. Execution stayed, on the payment of costs and -interest.</p>

<p>1. The sheriff’s return “served” upon the subpoena, is presumptive proof of the service of the notice required by the 38th rule.</p> <p>2. A personal decree for deficiency of proceeds to pay the mortgage debt,, does not become a lien upon the real property of the person against whom! it is taken, until after the sale, and in case a deficiency, is found to exist-Hence, a motion to vacate a personal decree for deficiency, when only the-interest of the mortgage was due at the date of the decree, hut the principal did not become due till two months afterward, was refused, it appearing; that the sale did not take place until after the principal became due.</p>

<p>1. A creditor, admitted as such by rule under an attachment, has a lien ■ on the property attached, which entitles him to maintain a bill to remove the encumbrance of a conveyance, made with intent to defraud the creditors.</p> <p>2. It is not necessary, in such case, that the consideration of the debt should be stated in the bill. The claim of the creditor, verified by affidavit, as required -by the statute, (which appears by the bill,) is a subsisting ■ debt for the purpose of creating the lien.</p>

<p>1. A judgment recovered against a debtor, whose wife, to whom he was married before the pasáage of the married women’s act of 1852, was possessed of separate real estate before the passage of that act, is a lien upon his life estate therein.</p> <p>2. A suit to foreclose a purchase money mortgage on lands, conveyed to the mortgagor by deed with covenant against encumbrances, which were, at the date of the deed, and at the commencement of the suit, subject to judgments, the amount due on the judgments exceeding that due on the mortgage, so that no deduction could be made from the mortgage debt, stayed until the premises should be released from the lien of the judgments.</p>

On order to show cause why au injunction should not be issued restraining the defendant, Bigelow, and the sheriff, from selling under an execution for the sale of mortgaged premises.

Leonard C. Cool, by his will dated December 19th, 1860, and proved on the 24th of May following, after directing payment of his debts and funeral expenses, gave to William Davis $100, and to David Deals and Leonard Cool Davis S50 each, these legacies, however, were not to be paid in ten years unless the proceeds of his farm, over and above keeping up the repairs, farming utensils, and stock, and the support of his wife and his two children, should be sufficient to pay them,…

<p>1. A judgment recovered against a devisee for life, vested under tlie will •with power to consent that the executors should sell the real estate at their ■discretion, and appropriate the income for the support of such devisee and liis family, during the devisee’s life, does not work an extinguishment of the power. The lien of the judgment is subject to the power.</p> <p>2. The power to consent to a sale is not extinguished in all cases where the donee of the power is the life tenant, even by the absolute alienation by him of his life estate. The rule is, that so long as nothing is done in derogation of the alienee’s estate, the alienation has no operation on the .power.</p> <p>3. When a power is executed, the person taking under it, takes under him who created the power, and not under him who executes it. The only exceptions are, when the person executing the power has granted a lease or any other interest which he may do by virtue of his estate, for then he ■is not allowed to defeat his own act. But suffering a judgment is not within the exception as an act done by the party; it is a proceeding in invitum, and therefore falls within the rule.</p>

<p>Bill for injunction, and to set aside assignment of dower. On final hearing on pleadings and proofs.</p>

<p>On final hearing on pleadings and proofs.</p>

<p>On motion for attachment for contempt.</p>

<p>On exceptions to master’s report, and motion to dissolve injunction.</p>

<p>On exceptions to master’s report.</p>

<p>On final hearing, bill and cross-bill, answers, replications and proofs.</p>

<p>A principal who has executed a contract for the sale of lands, and authorized an agent to receive an installment of purchase money under the contract, and given the purchaser to understand that the balance was to be paid to such agent, cannot repudiate the agency and refuse to execute the deed, because the agent, to whom the purchaser has paid the whole of the purchase money, is unable to pay it over to the principal.</p>

<p>1. Where a wife refuses to join in a conveyance of lands which her husband has sold, and there is no proof of fraud on the part of the husband in her refusal, the court will not compel the husband to procure a conveyance or release by her, or require him to furnish an indemnity against her dower.</p> <p>2. Specific performance in such case .refused, and the purchaser left to his remedy at law, it not appearing that he was willing to pay the full balance of the purchase money and accept a deed from the vendor alone.</p>

<p>1. It is not incumbent on a foreign corporation, complainant, to prove their corporate existence when the answer raises no question as to their existence, or right to sue, but sets up a defence on the merits alone.</p> <p>2. The unsupported testimony of a defendant seeking to avoid a mortgage debt on the ground of usury, that the broker to whom he applied for the loan which the mortgage was given to secure, told him that he was the agent of the mortgagee, to make loans, cannot affect the mortgagee.</p> <p>3. A requirement by the lender, (an insurance company,) that the borrower take out a policy of insurance as a condition of making the loan, is not, of itself, evidence of a usurious agreement.</p>

<p>1. Cestuis (jve trust arc necessary parties to a bill for foreclosure by tlieir trustee.</p> <p>2. An allegation in tlie answer, as a defence to a bill for foreclosure of a purchase money mortgage, that “part” of the land intended to be conVeyed, lias been omitted from the description by metes and bounds, without stating what part, or whether the land is not otherwise sufficiently described to be fully identified, is insufficient.</p> <p>3. The defence of an alleged error in his deed cannot avail the defendant under his answer tp a suit for foreclosure of a purchase money mortgage.</p> <p>4. A defendant can have positive relief against the complainant, even as to the subject matter of the suit, only by cross-bill.</p>

<p>On order to show cause why defendant should not be committed for contempt as for violation of injunction.</p>

<p>On motion to dissolve injunction.</p>

<p>1. Where, at the reference before a master, an encumbrancer finds that ¡a co-defendant, also holding an encumbrance upon the mortgaged premises, •claims an unjust priority over him, and nothing has appeared in the case to lead him to suppose that such priority would be claimed, and he is unable effectually to litigate the matter and resist the claim before the master, the court will, if necessary to his protection, and to effectuate the ■ends of justice, give him leave to.file a cross-bill.</p> <p>2. In tbe absence of proof as to the time of delivery of a deed, the 'presumption .is, that it was delivered on the day of its date.</p> <p>3. If, by agreement, a deed is to be delivered at a future day, and the vendor takes a purchase money mortgage on the land, but does not record if before the day on which the deed is to be delivered, and the deed is not delivered before that day, and, in the meanwhile, the purchaser •erects buildings on the land, the estate of the vendor is not subject to a lien for materials used in the construction of such buildings, and the purchase money mortgage is entitled to priority over the lien claim.</p>

<p>Bill for partition and account. On final hearing on pleadings and proofs.</p>

<p>1. A stated account is, prima facie, a bar to a suit for account. But the-defendant in pleading it, must, by his plea, although neither fraud noierror be charged, aver that the stated account is just and true, to the best of his knowledge and belief.</p> <p>2. For want of such averment, plea overruled, with leave to amend.</p>

<p>On final hearing on pleadings and proofs.</p>

<p>On final hearing on pleadings and proofs..</p>

<p>On final hearing on pleadings and proofs.</p>

<p>On exceptions to master’s report, made on petition of Edward Salisbury and Maria Theresa, his wife.</p>

<p>1. The right of substitution or subrogation is a purely equitable one, and the extent to which it will be exercised must often depend upon circumstances. Whether it will be extended to the extremest point, so as to include all the rights of the creditor, must often depend on whether it is necessary to the protection of the surety that it should be so.</p> <p>2. Where a surety, who was subrogated to the rights of a land owner to whom the former has been compelled to pay the debt of his principal for land, taken by the principal, (a railroad company,) under the exercise of the right of eminent domain, applied to this court to enjoin the use of the company’s road over the land — Hdd, that it was not necessary to his protection to prevent such use, there being nothing tobe gained by him through such injunction; the company being insolvent and its affairs in the hands •of a receiver, and the road being operated for the accommodation of the public, merely by a trustee of holders of bonds of the company, with a view to a more advantageous sale of the properly on foreclosure.</p>

<p>On motion to dissolve injunction.</p>

<p>Bill of interpleader as to moneys deposited in bank by trustee in name ■of cestui que trust, and demanded by both. Expenses of trust directed to . be paid to trustee, and balance to cestui que trust.</p>

<p>1. E. D. L. & Co., carpenters, contracted, on the 28th of March; I872J. with the mortgagor, to do the carpenter work for a house to be erected out the mortgaged premises. Complainant’s mortgage was recorded on the 4th of April following. Operations for building the house were not commenced! on the ground until after the mortgage had been recorded.. E. D. L. & Co-claimed a lien for the amount due them for their work under their contract, and that it was prior to that of the mortgage, on the ground that they had' commenced the building before the recording of the mortgage. The evidence was, that the only work they had done before the recording of the mortgage, was “marking on the rods the length and width of the window-frames,” but the window-frames were not made until the 8th of April, four days after the recording of the mortgage. Held, that the mortgage was entitled to priority over the lien.</p> <p>2. A mortgage recorded before the commencement of a building, and given to secure advances to be made to pay for the construction of the building, for the payment of which advances in installments the mortgagee bound himself by written agreement when the mortgage was given, is entitled to priority over a lien claimed under the mechanics’ lien law,for work done in the construction of the building.</p>

<p>1. Final decree set aside and defendants let in to answer, on proof of surprise.</p> <p>2. A complainant wlio holds a bond and mortgage given to him by the mortgagor, as collateral security merely, for a debt alleged to be due to him from tlie latter, should, in proceedings for the foreclosure of the mortgage, prove his debt, and if it be less than the amount due on the mortgage, take a final decree for the amount of liis debt and interest only.</p>

<p>'1. A bequest of a sum of money generally, without distinguishing it from testator’s other moneys, or mentioning out of wliat fund it is to be paid, is a general legacy. A designation of such bequest in the residuary clause as a “specific” legacy, will not change-its character as general, where the term is evidently used by the testator with reference to-the fact that it was a legacy of a specified sum of money.</p> <p>2. Though, as a general rule, the gift of the interest of a fund, standing by itself, is a gift of the corpus, yet, if from the context of the will it appears that the interest only was intended for the legatee, the gift of the interest will not pass the principal.</p> <p>3. A gift of §50,000 to A, “the interest thereof to-be paid to her during life,” and the principal to her children at her decease, does not pass the corpus of the fund to A.</p> <p>4. As between the tenant for life and the remainderman, the rule, at least as to funds that are not permanent, is, that what is not specifically given is to be converted into money, if the property and the parties are not abroad. In this case, the testator has directed the conversion.</p> <p>5. Where there is a bequest of the income of a sum of money to one for life, and then the principal to another, without any trustee being named in the will other than the executor, he will he held to be trustee.</p> <p>6. In this case, the court refused to appoint a married woman trustee of funds of which she was entitled to the interest for life, upon considerations of marital influence, domicil* and near relationship to the remaindermen...</p> <p>7. When trustees are discharged from tlieir trust under the will, several trustees will be appointed to take charge of different portions of the estate, if for any reason it is necessary or desirable.</p>

<p>On final hearing on bill and proofs, and report of special master.</p>

<p>1. A purchase money mortgage has preference over lien claims for work done and materials furnished in buildings and improvements put upon the mortgaged premises by the purchaser, between the execution of the contract of purchase and the conveyance, not only to the extent of the purchase money, but also for all advances made in accordance with the contract of purchase, for building the houses, improving the grounds, and paying taxes and municipal assessments. It does not affect the priority of the lien of the mortgage, that the property had been conveyed to another before the conveyance to such purchaser, and that the money was advanced by a third person.</p> <p>2. The mortgage and deed being delivered simultaneously, the seizin of the purchaser was a merely transitory one, to which no lien could attach.</p> <p>3. An agreement by the vendor, under contract of purchase, to furnish the vendee funds for the erection of buildings upon the premises, is not the consent intended by the fourth section of the mechanics’ lien law.</p> <p>4. But if it -was such consent, and such consent need not be recorded, the lien in such case must be subject to all liens incurred by the purchaser, which by the contract were to be discharged of record before conveyance.</p> <p>5. A lien will not attach to premises when the owner is not made party to the suit.</p>

<p>On final hearing on pleadings and proofs.</p>

<p>On final hearing on pleadings and proofs.</p>

<p>'On petition to set aside sheriff’s sale.</p>

<p>1. The title of a purchaser at a sheriffs sale tinder an execution, issued upon a judgment recovered under a mechanics’ lien, general as against the ■owner and special as against the lands, is paramount to all encumbrances put upon the property after the commencement of the building.</p> <p>2. A mortgagee is not an “ owner ” within the meaning of the mechanics’ lien law, and is not entitled to notice of a suit upon a lien claim. The owner of the legal estate is alone to be made a party.</p>

<p>On order to show cause why injunction should not he issued.</p>

<p>On motion to set aside order for proofs) and to- dismiss the-bill,</p>

<p>On petition to be relieved from bid at sheriff’s sale under foreclosure of mortgage.</p>

<p>1. A receiver under tlie supplement of March 17th, 1870, to the act to prevent frauds by incorporated companies, directed to sell the property, part free from encumbrances, and part subject thereto, and the order and manner of sale specifically directed.</p> <p>2. Question of constitutionality of that act not passed upon.</p>

<p>On petition for divorce.</p>

<p>1. It is the established rale of this court, that an injunction will not be dissolved for new matter in avoidance alleged in the answer, not responsive to the bill.</p> <p>2. When the defendant in an injunction bill to restrain his proceeding to collect a judgment recovered against the complainants, has not answered ft charge of insolvency, and a dissolution of the injunction might leave the complainants remediless in the premises, and compel them to bear burdens from which, in equity, they should be relieved, the injunction will be retained until the hearing.</p>

<p>Where a railroad company had entered into a written agreement forth eir right of way, with the person who was the ostensible owner, and also, the owner of record, of the property over which the right of way was sought,, and by virtue of a license in such agreement, entered into possession and graded their road-bed and proceeded to lay their track, an injunction to. restrain them from the use of the property at the suit of the wife of such ostensible owner, who claimed that at the time of making such agreement,, she was the real owner of the property by deed unrecorded, and that the agreement and license were made' without authority, was refused; it appearing that she was cognizant of the entry of the company and of their work upon the property, and gave them no notice of her ownership, nor repudiated the agreement or license, and the company were guilty of no< negligence.</p>

<p>This cause was argued on bill and answers.</p>

<p>Decree and execution for sale of mortgaged premises amended, "by reducing the amount decreed to be due, by tlie amount of interest which had been paid on the mortgage, but not allowed. A further reduction by the amount of an alleged premium for an extension of the time of payment of the mortgage, disallowed, such money having boon paid to the then holder of the mortgage, partly as compensation for inchtcing the complainants to purchase it, and partly as indemnity against the loss which he should sustain in the sale.</p>

<p>A personal decree for deficiency of proceeds of sale has not the force and effect of a judgment at law, until the excess of the mortgage debt over the proceeds of sale has been ascertained. Hence a mortgage given by the party against whom such decree was taken, upon other lands, registered . after the decree was made, but before the sale under it, is a lien on those lands prior to the decree.</p>

<p>On motion to open decree pro confesso and let in defendants, Charles E. Miller and wife, to answer.</p>

<p>Application for order for possession by purchaser of mortgaged premises at sheriff’s sale; order accordingly.</p>

On order to show cause why an injunction should not issue. On bill and answer, and affidavits annexed thereto, respectively.

<p>In a suit to foreclose a usurious mortgage, the mortgagor is not entitled to a deduction of all the interest paid on the whole principal sum of the mortgage, hut only of the interest on the excess of such principal sum over the amount actually loaned.</p>

<p>1. Where testator gives the net income of a share of the residue of his estate to a son, absolutely, but not the principal, disposing of the latter, in case the son die without having received it, leaving issue, and making the payment of the principal to the son entirely discretionary with the executor, such share does not vest in the son so as to he transmissible in case of the decease of the son without having received it.</p> <p>2. Such share, in case of the son’s death without issue, does not fall into the residue, but is undisposed of. Though the rule is that a general r -hi-nary bequest carries lapsed and void legacies, it is one of the einphmi'i that it does not include any pari of the residin' itself, which fails.</p>

<p>The pendency of an action at law by A against B, in a court of another state, constitutes no bar to a suit in equity hero by B against A for the «ame object.</p>

<p>Bill for specific performance. On final hearing on pleadings and proofs.</p>

<p>The right to prize money vests in the captor from the time of the capture, and not from the condemnation. Henee, prize money for prizes not condemned for six years after the captor’s death, was adjudged to pass to his legatee, under a residuary clause: “all the residue of funds now held by me, and all property to which I may become entitled.”</p>

<p>1. When the jurisdiction of a state court has once attached to a suit, no subsequent change in the condition or residence of a party can oust it, without express provision to that effect. Hence, the court refused an application to remove into a Federal court a suit brought by a citizen of this and a citizen of another state, against defendants, some of whom were citizens of this, and some, citizens of another state, made on the ground of the death of the non-resident complainant.</p> <p>2. The fact that a bill prays an injunction, will not,, without reference to the object and purpose of the bill, be'regarded as of itself sufficient to bring the suit within the meaning of the words of the act of Congress of July 27th, 1866 : “a suit brought, instituted, and prosecuted for the purpose of restraining or enjoining the defendant,” and to afford a ground of removal into a Federal court, under that act.</p>

<p>On bill and general demurrer.</p>

<p>On final hearing on pleadings and proofs.</p>

<p>1. The Hudson Tunnel Bailroad Company, claiming to be a corporation organized under the General Bailroad Law, having entered upon land of complainants without their consent, and having made large excavations therein, were restrained from further prosecuting their work until they should make compensation.</p> <p>2. Such entry having been made, not only without the permission, but against the warning and protest of the complainants, the defendants have no equity to be permitted to proceed with their work, even in view of their effort to make compensation, on the ground of acting in good faith in beginning their work, and under misapprehension of the authority of the municipal authorities (by whose permission they entered) over part of the premises. There is neither mistake, accident, or exigency.</p> <p>3. That part of the land taken was part of a public street, does not affect the right of the owners to compensation.</p> <p>4. The necessity of first making compensation is not avoided by the plea that the work in which the defendants are engaged is an exploration. It is not the exploration contemplated by a charter, giving license^ to enter upon lands to explore, &c.</p> <p>5. Equity will enjoin a trespass which is continuous, and invades proprietary rights.</p>

<p>1. A contract entered into by a married woman for the sale of her estate will not be enforced.</p> <p>2. But equity will charge such estate with the value of property delivered to her as the consideration of the contract, and with moneys expended by the vendee in the erection of a house on the land, and in otherwise improving it, with her knowledge and consent.</p>

<p>1. An adjournment of a sale of real estate under a public statute, for any period not exceeding one week, need not be advertised in the newspapers. A formal adjournment of the sale from week to week is sufficient.</p> <p>2. Application to set aside master’s sale refused, no improper control of complainant’s solicitor over the adjournments, nor any surprise upon the petitioner, appearing; nor that any greater price could be obtained upon a re-sale, or that a re-sale could in any way benefit the petitioner.</p>

<p>1. It is the duty of a wife who sues for a divorce, to eease cohabitation with her husband until the termination of the suit.</p> <p>2. Where a wife files her bill for divorce on the ground of adultery, the husband will not, because the wife claims to be the owner of the house in which they dwell, be compelled to leave it until it shall be determined by the result of the litigation whether the charges against him are well founded or not.</p>

<p>Motion to open decree fro confcsso and let in defendants to answer.</p>

<p>1. The words in the will used to dispose of certain personal property, held to constitute a specific bequest.</p> <p>2. When express directions are given in a will to sell land and no person is named to make the sale, the power of sale is held by implication to be in the executors, in cases where it is their duty to distribute or pay out the proceeds.</p>

<p>1. Where lands, subject to curtesy, are sold by commissioners in such manner as to pass title free of the curtesy, the interest of the proceeds will belong to the tenant by curtesy, during life.</p> <p>2. The lands in this case held not to have been sold free of curtesy but subject to it, because the order of the Orphans Court directing the sale was made without the tenant by the curtesy having been made a party to the proceedings, and without any adjudication whatever, respecting his estate.</p>

<p>A deed of conveyance of lands having been delivered to the complainant by the defendant, and afterwards, before it was recorded, having been entrusted to the defendant for the purpose of having certain informalities in the deed corrected, the defendant refused to return it — held, that he should be decreed to execute the trust reposed in him, by restoring the deed, or? if destroyed by him, to give another good and sufficient conveyance for the premises.</p>

<p>1. A separation from her husband, by the wife for more than three years, though begun by her without such reasons as would have sufficed on her part to procure a divorce from him, held not to entitle him to a divorce, because of his neglect to do anything to induce her to return.</p> <p>2. The desertion, though willfully begun, held not to have been obstinately continued, but to have been in fact made compulsory against her by .the conduct of her husband.</p>

<p>■ 1. Where the words of the grant are clear and unequivocal, there is no room for the application of the principle that the grant must be construed most strongly against the grantor.</p> <p>2. The conveyance in this case gave the right to take the water from an upper to a lower pond — held, that no right could be inferred to take the water from the upper pond to a wheel below the lower pond. The jiarties must be confined to the plainly expressed agreement in the deed.</p>

<p>The writ of assistance refused, because the sale under the execution was not sufficiently advertised as to one of the tracts sold. The writ is discretionary, and will be granted only in clear cases.</p>

<p>1. A mortgage signed in blank and given to an agent, by whom it is afterwards filled in and delivered, is not a legally executed deed. The most that can be claimed for it is, that it may create an equitable lien, which this court may, under proper circumstances, enforce.</p> <p>'2. If admitted to be an equitable lien, it cannot prevail over equitable rights of another who has also the legal title.</p>

<p>1. The facts as proved, held not sufficient to support the defence of usury, but, if sufficient, held not to be stated with sufficient certainty in the answer.</p> <p>2. Where a policy of life insurance is issued in good faith, at fair and customary rates, as part of an operation wherein a loan to the policy holder is the other part, the legality of the loan cannot be questioned, though it was dependent on the taking out of the policy. The transaction must be judged by the criterion of good or bad faith.</p> <p>3. The bargain will not be held to be usurious because suspicious circumstances attach to it, nor because such bargains are susceptible of being made a mere cloak to cover usury. That the policy was taken out as a cloak or device to evade the statute, must be established by cogent proof, direct or inferential.</p> <p>4. The facts and circumstances of the usurious bargain must be particularly set forth in the answer.</p>

<p>Lands which were conveyed by a husband to his wife about the time when he contracted debts for which a judgment was afterwards recovered against him — held, to be subject to the judgment, on the ground that the conveyance to the wife was in fraud of creditors.</p>

<p>In a suit to foreclose a lost mortgage, the mortgagor cannot resist payment of either principal or costs on the ground of a refusal to indemnify him.</p>

<p>1. Leave given to amend injunction bill, after answer filed, without prejudice to the injunction or other orders made in the suit.</p> <p>2. The answer not to be withdrawn, but left on file, and the suit to proceed upon the newly engrossed amended bill.</p>

<p>1. As a general rule, equity -will not interfere to restrain tlie collection, of a tax, which is illegal or void, merely because of its illegality, but there must be some special circumstances attending the injury threatened, to-bring the case within some recognized head of equity jurisdiction.</p> <p>2. The jurisdiction to declare such illegal or unconstitutional character,, and to annul the title sought to.be derived from the sales,, belongs to the. courts of law, and when recourse to those courts is omitted to be had, either through the neglect or choice of the party aggrieved, there exists, no equitable element on which this court can give relief.</p>

<p>1. A deed absolute on its face, held to be a mortgage, it having been intended by the parties to be a mere security.</p> <p>2. The general rule disallows costs to the complainant in a suit against a mortgagee to redeem. In this case, the special circumstances held tobe such that neither party should have costs against the other.</p>

<p>It appearing from the bill and appended affidavit, and not being contradicted, that the complainant’s lands in Elizabeth had been sold by the city for assessments, in connection with other lands not owned by him, and that the complainant’s offer to redeem his own lands had been refused by the city, unless payment were also made of the assessment on the lands not his, an injunction was granted restraining the city from executing and delivering a declaration of sale of complainant’s land.</p>

<p>Where a mortgage is shown to be an open one, tiio holder of it can recover nothing but -what is proved with reasonable certainly to be due. iloubts ami indefinileness should work against the mortgagee and not in his favor. The burden of proof is on him.</p>

<p>In fixing a yearly sntn for alimony, after final decree for divorce from: bed and board, tbe large and valuable real estate of tlie liusband ouglit not to be regarded as an ordinary farm, in judging of his faculties, 'l'hc defendant should be called on to change the character of the property in which his wealth is invested, if such change is requisite, to make suitable provision for his wife, driven, by his extreme cruelty, from his house..</p>

<p>Motion to relieve complainant from bid at sheriff’s sale,, and to open and amend the final decree in the cause, and to. amend the execution.</p>

<p>In partition. On bill and answer. Motion to dissolve injunction.</p>

<p>1. An acknowledgment of service of a copy of the citation in a divorce suit is not evidence of a legal service, to give the court jurisdiction where the defendant does not appear. There should be evidence of the service of a copy ol’ the petition also.</p> <p>2. In a suit for divorce for desertion, the desertion must appear from the facts sworn to.</p>

<p>1. In examining a lien claim alleged to be a cloud upon title, the court will not admit extrinsic evidence in aid of tlie claim, but will examine tlie record evidence only.</p> <p>2. Where a lien claim was filed after the commencement of a suit in this court to foreclose a mortgage which was on the land before the work was done or materials provided for which the lien -was claimed, and the lien claimants were not made parties to the suit, and did not apply to be made parties, the claim was held to be cut off by virtue of the provisions of the “act relating to the Court of Chancery,” (JPamph. L., 1870, p. 40,) by sale under the foreclosure.</p> <p>3. The act “ to compel the determination of claims to real estate in certain cases, and to quiet the title to the same,” (Pamph. L., 1870, p. 20,) applies to a lien claim.</p>

<p>The defendant, under and in the assertion of a claim of right, threatened to enter upon the complainant’s premises, of which the latter was in possession, and himself to secure a right, of which he alleged he had been deprived, and, in so doing, would inflict irreparable injury on the complainant, who denied his right, and there was evidence in the defendant’s answer, from which acquiescence, on the part of the defendant, might be deduced. The court restrained the defendant, by prelimary injunction, from doing the threatened -injury.</p>

<p>Tlie acceptance by a creditor of a copartnership, of a note made by one of the partners in the name of the firm, after the death of the other partner, held, under the circumstances, not to discharge the estate of the deceased partner from the debt, there being no evidence from which the ■conclusion could be drawn, or the implication arise, that the creditor intended to discharge the estate of the deceased partner.</p>

<p>On order to show cause why injunction should not issue. On bill and answer, and affidavits.</p>

On order to show cause why purchaser ’at sheriff’s sale of mortgaged premises should not be ordered to complete his purchase.

<p>A widow, whose dower has not been assigned, cannot be required to account for the rent of the mansion-house, although she has rented it and received rent for it. Her tenant’s possession is hers.</p>

<p>"Defendants obtained an extension of time to answer, on an ex parte application, alter the expiration of the time limited by law for answering. In their answer, they set tip usury. It was ordered that so much of the answer as set up usury, be struck out, or that the defendants introduce into the answer ail otter to pay the principal actually received, with lawful interest*</p>

<p>1. The warrant for sale of land for taxes, under the act “to make taxes .a lien on real estate, and to authorize sales for the payment of the same,” (Jfix. Dig. 9í7,) must be issued to a constable of the township. There is no authority for issuing it to the collector of taxes.</p> <p>2. A deed made by a collector, under a sale in pursuance of a warrant issued to him under that act, held void.</p>

<p>On final hearing on pleadings and proofs.</p>

<p>1. Eptiiiy will relieve against a conveyance made without consideration, and when the grantor, through intoxication, was, to the grantee’s knowledge, 'nor himself. But, under the circumstances, complainant not entitled to costs.</p> <p>2. Taxes paid by the grantee, with interest from time of payment, must l-e repaid to him.</p>

<p>1. A mortgage given by a husband and wife, in trust for the wife, to secure io her money alleged to have been loaned by her to her husband out of her separate estate, held to be a lien on the mortgaged premises, in the hands of an assignee for value, subsequent to a junior mortgage by the same parties.</p> <p>2. The assignee, in such case, has no higher equity against the junior mortgagee, than the trustee and her cestui que trust.</p>

<p>An injuna ion, issued on bill and answer, restraining the defendants from tarrying on iheir business in specified ways, was, after tbe lapse of a year, modified without opposition on part of complainants. Under the modified injunction, the business was carried on for another year, when the cause was brought to bearing upon the evidence. The proof being held to be insufficient to justify a decree putting an end to the defendants’ business, the cause was ordered to stand without final decree, with permission to either party to apply for leave to produce additional proofs, or to be heard anew. Meanwhile, neither party to pay costs to the other.</p>

<p>1. Gsnry will not bo inferred when the opposite conclusion can be reasonably and fairly arrived at.</p> <p>2. To sustain sucli a defence it must be shown that there -was a usurious uyveement.</p> <p>!>. The chattel mortgage in this case held not to be usurious in view of the nature of the whole transaction.</p>

<p>In a anil to foreclose a purchase money mortgage, the mortgagor and grantee in the conveyance, is entitled, by virtue of the covenants against encumbrances therein contained, to have the amount of tax liens outstanding on the mortgaged premises deducted from the amount due on the mortgage, and a decree taken only for the balance. And the assignee of such mortgage holds it subject to the same equity.</p>

<p>1. The rule against the right to sever and remove fixtures, is stronger as between mortgagee and mortgagor than as between landlord and tenant.</p> <p>2. Two machines, mainly of iron, one weighing thirty-six hundred pounds and the other two tons, placed directly on the floor of a factory, with no other support, and driven by connections with secondary shafting,, which was connected by bands with the main shafting driven by a steam engine, changeable in their position as convenience might require, and that could lie taken in and out of the factory without difficulty and in little time — held, between mortgagee and mortgagor, not to be fixtures, and that no title thereto passed by a sale under foreclosure of a mortgage on the land made prior to a chattel mortgage on the machines.</p> <p>3. The intention to make a thing annexed to or placed upon the freehold, personal property, does not alter its legal character of fixture, if it be such. Whether fixture or not, depends on facts, and not on the opinion of the person making the annexation ; and in this view, evidence is inadmissible to show his intention.</p> <p>4. But the intention as to making a permanent or temporary annexation to the freehold, is a competent and material subject of proof.</p> <p>5. Movable machines, whose number and permanency are contingent on the varying circumstances of business, subject to its fluctuating conditions and liable to he taken in or out, as exigencies may require, are different in nature and legal character from steam engines, boilers and other articles secured by masonry or other substantia] annexation, designed to be permanent, and indispensable to the enjoyment of the freehold.</p>

<p>1. The tearing out of the seal affixed to a will, and' of part of the testator’s signature, and the obliteration of the rest of his name and of the names of the witnesses, are a cancellation of the will.</p> <p>2. Troin the finding of a will in testator’s box thus cancelled, the presumption arises that the cancellation was his act, done animo cancellandi and chat by that act, he intended to render the will null and void.</p> <p>8. A general allusion in a letter found in the same box, to testator’s will, and a conversation with the executor therein named, shortly before testator’s death, in reference to a request made by the will and which was then known by the executor, aro too loose and uncertain to establish a will contrary to the cancellation by the testator himself.</p>

<p>1. A party having no interest or elaim under the intestate, in lauds ordered to be sold for tlie payment of his debts, but setting uj) a claim thereto by title paramount, is not entitled to appeal front the order of sale.</p> <p>2. He only, who is aggrieved by such order, has the right to appeal and a party aggrieved is one whose pecuniary interest is directly affected by the decree, or whose right of property may be established or divested thereby.</p> <p>3. The Orphans Court cannot try title to lands, under proceedings for sale thereof for payment of debts.</p>

<p>A stranger to partition proceedings before the Orphans Court, having no right that will be affected by a partition, and claiming the land by title paramount to that of the parties to such proceedings, has no right of appeal from an order appointing commissioners to make partition. He is not a person aggrieved by such order, within the meaning of the constitutional provision for appeal.</p>

<p>The, Orphans Court has power to revoke letters of guardianship obtained through false representations.</p>

<p>On appeal from the decree of the Court of Chancery. The opinion is reported in 8 G. E. Green 409.</p>

<p>The' opinion, of the Chancellor is reported in 8 C. E. Green 47.</p>

<p>1. Estimates as to the value of property must be demonstrably erroneous to induce the court to interfere with them on appeal.</p> <p>2. When property is sold by a trustee in violation of the terms of the trust, equity will hold such trustee responsible for the highest value of such property.</p> <p>8. The non-joinder of parties, whose absence simply renders the defendant liable to a revival of the litigation, cannot, as a general rule, be taken advantage of at the final hearing.</p>

<p>The opinion of the Chancellor is reported in 9 C. E. Green 338.</p>

<p>1. An order refusing to allow an answer to be amended does not so enter into a subsequent interlocutory decree deciding the merits, that it can be reviewed on an appeal from such interlocutory decree.</p> <p>2. It is a matter for consideration, how far exceptions, taken on a viva voce hearing before the Vice-Chancellor, should be specified in the petition of appeal.</p> <p>3. An answer which admits that a mortgage was executed to the complainant, a corporation, of “ the purport and effect set forth in the bill,” does not raise any issue as to the corporate existence of such complainant, or its capacity to take such mortgage.</p>

<p>1. Under the statute of frauds of this state, a bona fide purchaser acquiring either a legal or equitable title to lauds from a grantee, to whom the title has been fraudulently conveyed, will be protected against a-judgment subsequently obtained against the fraudulent grantor.</p> <p>2. In this case lands were conveyed by a husband, mediately to his wife, in fraud of his creditor. The wife, having the title, agreed to sell the. lands to, and received the consideration fromi a bona fide purchaser, but did) not make a valid title; a creditor then obtained a judgment against the-husband and levied on the lands. Held, that the equitable title of the-purchaser would be preferred and enforced in equity.</p> <p>3. The statute of frauds, in this respect, discussed and construed.</p>

<p>This was an appeal from a decree made in accordance with the opinion of the Vice-Chancellor, reported in 9 C. E. Green 441.</p>

<p>This was an appeal from a decree made in accordance with the opinion of the Vice-Chancellor, reported in 9 C. E Oreen 418.</p>

<p>1. In order to ascertain testator’s intention as expressed in liis will, tlic whole will, so far as it in anywise relates to the subject matter in question, must be read together.</p> <p>2. The question is not wliat the testator supposed he had done or intended to do, aside from the language of the will. It is the duty of the court to construe the will in the light of the terms used and give to them their legal and natural import.</p> <p>3. The heir-at-law' will not be disinherited, nor forfeiture of an estate decreed, except upon words free from doubt.</p>

This was an appeal from the decree of the Chancellor ordering that an injunction issue pursuant to the prayer of the respondents’ bill, except that the defendants should not be enjoined from such temporary obstruction of the highway in question as might be reasonably and necessarily incident to constructing a suitable culvert over the same. The opinion of the Chancellor is reported in 9 G. J7. Green 217.