Volume 26 — New Jersey Equity Reports

<p>Testator directed liis executors to set apart and appropriate a portion of his estate, sufficient to produce certain annuities, and which was to be reserved as a fund for their payment, The residue of his estate he gave and devised to his executors in trust for the use of his children, to be equally divided between them, share and share alike; the shares of his sons to be paid to them, respectively, as they should attain twenty-one; the interest of the shares of the daughters to be paid to them yearly during their lives, and on their death, their respective shares to be equally divided among their children.' When the eldest son became of age a settlement of the estate was made, and his portion paid to him, as was also the portion of the other son, upon his coming of age. The estate consisted largely of stock which, since the payments to the sons, has paid large extra cash and scrip dividends. The sons claim to be entitled to a share of this increase of the estate. One hundred sitares of this stock and ¡'20,000 in bonds of the same company were paid by the surviving executor to one of the sons, (who held an assignment of the other’s interest,) on account of the sons’ shares in the increase of the reserved fund and the fund retained for the daughters. (There had been a largo devastavit in the estate.) Held—■</p> <p>1. That the payments to the sons on attaining majority, were in full' of their shares of testator’s estate, except their interest in the reserved fund; and, accordingly,</p> <p>2. That the bonds and stock so paid to the sons on account of their shares of the reserved fund, with all interest and dividends, must be accounted for.</p> <p>3. The executors having regarded such stock as a proper investment oif the estate, should have made an appropriation of it to the shares of the daughters and the reserved fund, immediately after the settlement of their account, whereby the clear balance of the estate was ascertained ; and that appropriation must now be made, ratably, to the daughters’ shares and the reserved fund.</p> <p>4. The sons’ interests in the reserved fund should be held to be security for the daughters’ interest in any waste from delivering over the §20,000 of bonds.</p> <p>5. The stock dividends were declared in respect to earnings, and not carried to account of accumulated profits or surplus earnings, and the daughters are entitled thereto.</p> <p>. 6. An apportionment of trust funds among cestuis que trust, not actually made, but existing only in the mind of the trustee, is not binding on the cestuis que trust.</p>

<p>1. Where the will enjoins duties pertaining purely to the office of executor, and also directs the executor to hold the balance in trust for the purposes declared in the will, a trust is created within the meaning of the Orphans Court act.</p> <p>2. Where, in such case, the duties of the executorship have heen fully discharged, and the estate settled, and the trustee dies, the Orphans Court has jurisdiction to appoint a new trustee. (Nix. Nig. 642, ¡Í 13.)</p> <p>3. If, in making such appointment, the proceedings of that court are irregular-, the irregularity cannot he inquired into collaterally.</p> <p>4. Quasre. Whether the Orphans Court has power to appoint a trustee to execute a part of the trusts of the will, under the thirteenth section.</p> <p>5. An estate held in trust under a will for several persons, the income of the shares to be paid to them, severally, during their lives, and at their deatli, to their children, will not he dismembered, and a share of one of the cestuis que trust directed to be paid over to a trustee, appointed for him upon his application, though the appointment was duly made by a court of competent jurisdiction, when the divisibility of the trust fund and the right of the cestui que trust to have the share of the fund in which he has a life interest separated from the estate, are open questions; and where such dismemberment of the estate would do violence to the testator’s intention, and defeat his manifest design.</p> <p>6. A provision that trustees should have full power to “retain all the trust property in their hands unsold and undivided until after a specified time, does not necessarily imply that they should divide the property after that time.</p>

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

<p>1. The general rule is that where the equity of the bill is completely •answered, the injunction will be dissolved.</p> <p>2. It affords no ground of exception to the rule, that the bill is verified by an affidavit to all the material facts, and the answer is only verified by the usual oath of the defendant, which it is claimed gives the bill a preponderance, when the alleged equity is only a matter of inference from the affidavit, and is distinctly and positively denied by the answer.</p> <p>3. A delay of six .years, however occasioned, in prosecuting a suit upon a bail bond, of itself, constitutes no claim to equitable relief by injunction to restrain the suit.</p> <p>4. That a dissolution of the injunction.to stay a suit at law, would leave the complainant remediless, alone, affords no sufficient reason for .holding the injunction till the hearing, when that remedilessness consists in the want of a valid defence to the suit.</p>

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

<p>Tlie release in question in this case, held to have been intended to relieve the land from the lien of a mongage, and not to remedy a defect hi till.-- the release purporting to be. a. oomph'.* release of the party’s right in the premises, without limitsiioe, exec; non, or reservation, and .here being no indication in the instrument itself that it was intended merely to remedy a defect in title, and no evidence that such defect, in fact, existed.</p>

<p>1 On final hearing, on pleadings and proofs.</p>

<p>1. Where a party, under agreement not to carry on a specified business, under color of another name, engages in a business which is within the spirit of the agreement, he will be restrained from continuing it.</p> <p>2. Where the answer fails to disclose the true character of the business so engaged in—whether it was., in fact, such as the defendant might carry on without breach of his covenant, or whether it was so only color-ably, the injunction will not be dissolved upon the answer, but will be retained till final hearing.</p>

<p>Land purchased and owned by a debtor, but the title to which was taken in the name of his Wife to prevent his creditors from subjecting it to the payment of their claims against him, was levied upon and sold under an •execution issued upon a judgment against the debtor, (the judgment •creditor and a general creditor, who had not established his debt at law, ■becoming the purchasers.) No title having passed by the sheriff’s sale, •the judgment creditor’s debt, on bill filed for that purpose by both creditors, was charged on the property. The general creditor is entitled to no relief.</p>

<p>1. Under the eighth section of the revised act concerning legacies, (liev. ■ Stnt, 1874, p. 489,) it is discretionary with the executor, whether he will require security before paying over to a legatee the amount of a bequest for life or years.</p> <p>2. Where the testator gives to a legatee for life the absolute possession and control of the fund, the executors may pay it over without requiring security.</p>

<p>■ Bill for relief. On final hearing, on pleadings and proofs.</p>

<p>1. It is tlie settled rule of this court that a divorce a vincub will not be granted on the testimony of the complainant alone, as to the cause of ■divorce.</p> <p>2. It is not enough in a suit for divorce, that the fact of desertion is sworn to ; tlie circumstances must be proved.</p>

<p>1. It is sufficient excuse for laches in not applying for leave to amend an original bill to bring into court a necessary party, till the hearing upon bill, answers, and supplemental bill filed for the purpose of bringing in all parties then thought necessary, that counsel supposed no amendment was necessary ; and the court will not, as of course, dismiss such original bill, but may permit the complainant to proceed thereon..</p> <p>2. Evidence of fraud taken under an original bill, is inadmissible as to defendants brought in by supplemental bill only charging them with a knowledge of the pendency of the original suit.</p> <p>3. Where the case made by the supplemental bill cannot stand as against defendants thereby made parties, without the evidence under the original bill, which is inadmissible as to them, and no advantage can accrue to complainants from the supplemental hill, the new defendant will not be required to answer it, but the bill will be dismissed.</p>

<p>1. A voluntary conveyance by a debtor to his wife is void as against a creditor whose debt existed at the time.</p> <p>2. Where any of the matters charged in the bill, and which are an essential part of the complainant’s equity which entitled him to an injunction, remain unanswered, the injunction will not be dissolved on the hearing upon bill and answer.</p> <p>3. When property in litigation in this court under a creditor’s bill, is liable to depredation, and will be inevitably sacrificed if sold by a sheriff under an existing levy, it is the duty of the court to protect it; and for that purpose, a receiver will be appointed to take charge of, and sell it under the direction of the court.</p> <p>4. Judgment creditors holding liens upon a debtor’s property, but not made parties to a creditor’s bill against their debtor, are quasi parties, and they may be permitted to come in, if they see lit.</p>

<p>A defence based on matter of fact as to liability to pay interest on an award on proceedings to condemn land for a railroad company, available on a trial by jury, but as to which no evidence was offered, nor any request made to tlie judge to admit any evidence respecting it—though he directed the jury to find against the defendant as to the interest, which direction was considered and sustained, and the liability specially found against the defendant on review by a court of law of competent jurisdiction, cannot be made the ground of relief in a court of equity.</p>

<p>On motion to dissolve injunction, on bill and answer.</p>

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

<p>1. To a suit, the object of which is to put at rest a claim which the defendant makes to a lien upon lands under an execution, the sheriff restrained by injunction issued on filing the bill from proceeding- against the land under the execution, is not a necessary party.</p> <p>2. A party seeking to quiet title in such a case need not wait until after the land is sold and the deed delivered to the purchaser, before coming into this court for relief, under the act “ to compel the determination of claims to real estate, and to quiet the title to the same.”</p> <p>o. That act is remedial, and should be construed liberally.</p> <p>4. The fact that the execution, under which claim is made to a lien upon lands, which claim is sought to be set at rest by a suit to quiet title, issued out of this court, does not oust the court of its jurisdiction, under ihe provision of the act to quiet title, which excludes jurisdiction where a suit is pending to enforce or test the validity of the title which is denied •or disputed.</p> <p>í). A suit pending to enforce or test the validity of the lien within the meaning of the clause of the act excluding jurisdiction, is one where the validity of the lien is liable to question in the proceedings to enforce it.</p>

<p>On motion to dissolve or modify injunction. On bill, and answer, and affidavits.</p>

<p>On petition for divorce, answer and depositions.</p>

<p>1. The title to property sought to be subjected by a creditor’s bill to bis debt, held to have been in the husband, and not in the wife, at the time lie contracted the debt.</p> <p>2. An injunction -will not be dissolved upon an answer only partial and equivocal. It was modified, in this case, to permit the debtor to make a conveyance of the property, in pursuance of an existing contract.</p>

<p>On bill and answer, and affidavits annexed. Motion to. dissolve injunction.</p>

<p>A payment by a mortgagor to tlie holder of the mortgage in suit, made and received as a premium for an extension of the time for payment of the principal of the mortgage, should be credited on the mortgage as of the lime when the payment was made.</p>

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

On motion, in each of the above cases, for an order directing that the damages sustained by the defendant, Richard S„ Kuhl, by reason of the injunction, be ascertained, &.c.

<p>A cross-bill filed by leave of the court, merely for the purpose, so far as certain of the defendants are concerned, of presenting positively and distinctly the issues which such defendants themselves intended to present by their answer in the original suit, although the pleadings were not apt for that purpose, and the complainant in such cross-bill seeking no relief against those defendants which was not before sought in behalf of another party as against them in the pleadings in the original suit, is not liable to demurrer by such defendants.</p>

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

<p>1. The guardian of a party defendant, declared a lunatic after the bill was filed, should bo made a party to the suit.</p> <p>2. The costs of a petition, filed by the guardian after the filing of the master’s report in the cause, alleging apprehension lest the lunatic’s interest should suffer by delay in the suit, and praying that the cause might be proceeded with and her interest protected, allowed; costs of an order of reference, obtained by the guardian, and of the master’s report thereon, disallowed.</p>

<p>1. Tlie rule willi regard to bequests made in the form of a general legacy, and of pure bounty, where there are no expressions in the will, or inferences to be drawn therefrom, manifesting an intention to give them priority, is that in the event of a deficiency to pay them in full, they shall abate ratably.</p> <p>2. The presumption in such eases is, that the testator intended that all the legacies should be paid equally. Such presumption of intended equality will not bo repelled by any ambiguous expressions in the will, but must be allowed to prevail, unless the will contains unequivocal evidence of the testator’s intention to give some of the legatees a preference in case tlie fund should be found insufficient to pay all.</p> <p>8. There are exceptions to the rule, but the burden of proving that a legatee is entitled to priority is upon the party seeking it, and the proof must be clear and conclusive.</p> <p>4. Neither relationship of certain legatees to the testator, nor a provision ■against lapse as to their legacies, nor a direction that all the legacies shall be paid “ in the order in which they are stated in the will, and out of the first moneys that shall come into the executor’s hands, after payment of debts and funeral expenses,” where the testator contemplated that there would he a residue after payment of all the legacies in full, constitute any ground for preference.</p>

<p>1. In the trial of an issue directed under a bill filed to quiet title, to inquire and determine whether the defendant had any such estate or interest in the property as was claimed by him, the defendant is bound by the title set up in his answer; and if he then claims under a title substantially different, and objection is made, a new trial will be granted as a matter of course, if the verdict be in his favor.</p> <p>2. It may also be cause for granting a new trial, if the complainant is, on the trial of .the issue, surprised by the claim of the defendant to title under an instrument, or from a source, not stated or referred to in the answer.</p> <p>3. But if there be no objection to the production of the evidence, or to the claim, at the trial, and there is no allegation of surprise, there would seem to be no good reason for ordering a new trial merely because the title proved, differs, though it may be radically, from that set up in the answer.</p> <p>4. Where a different .title is established in favor of the defendant, at the trial, from that set up in his answer, if no objection was made at the trial, and no surprise is alleged, and it appears that justice will be done by establishing the title proved at the trial, it is competent for this court to direct an amendment of the answer, if necessary, to conform to the finding of the jury. The. court is not restricted to a decree in favor of or against the title set up in the answer. •</p> <p>5. A new trial was ordered, because the verdict was clearly against the weight of evidence.</p>

<p>On bill, demurrer, and plea.</p>

<p>1. Where it clearly appears that a testator intended by a direction to. sell certain real estate, an absolute conversion of such real estate for all the-purposes of the will, the proceeds will be assets in the hands of the executor for the payment of legacies, as well as of the debts and funeral expenses-in terms directed by testator to be paid out of such proceeds.</p> <p>2. The general rule is, that where the name or description of a legatee is-erroneous, and there is no reasonable doubt as to the person who was-intended to be named or described, the mistake will not defeat the bequest,. The rule applies as well to a corporation as to an individual.</p>

<p>On motion for receiver, on order to show cause.</p>

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

<p>1. Under a deviso of twelve acres of -woodland, parcel of a larger tract, die right, of selection is in the devisee; and upon a conveyance thereof, before selection, the right passes to the grantee.</p> <p>2. Under a general power to sell lands to pay debts, executors have no power to sell lands specifically devised, for the payment of debts due from such devisees to the testator, and which he directs to be taken from their respective shares, but which are not collectible, from want of property, except by the sale of such lands.</p> <p>8. Under a general gift of the residue to children in equal shares, a direction that the debts due from certain children but taken from their shares, and a limitation of the shares of the sons to them and their wives for life, with remainder to their children in fee; the entire interest of the sons’ shares,—the remainder, as well as the life estate,—is subject to the payment' of the debts due from the sons, respectively.</p> <p>4. In this case, the limitation of the sons’ shares for life, is clearly in the whole of the residuary estate, and is not restricted to that part of the homestead farm only, which was given to the widow for life, by reason of a reference to the residuary estate as “ the last mentioned property to be disposed of at the death of my widow.” The death of the widow, in the residuary section, merely fixes the time of the division.</p> <p>5. Where all the parties are before the-court, under a bill filed by the executors for a construction of the Will and for directions, the accounts may be settled here.</p>

<p>Under testamentary direction, executors set apart certain real and personal estate, sufficient to cover the aggregate amount of legacies to testator’s children, and, under a mistaken apprehension of testator’s intention, transferred the personal and conveyed the real estate to the guardian, appointed by the will, whereas it was testator’s will that the execulorsshould take care of all property devised and bequeathed to his children, until the period fixed at which they were to become respectively entitled to its control and management. The guardian was decreed to convey the real estate and transfer the personalty to the executors, to be held by them, on the trusts declared in the will.</p>

<p>The cause was heard on bill, answer, and proofs-.</p>

<p>1. Where a partition is made upon wrong principles, or in disregard of the rights of the parties, or where there is a great and evident inequality-in the division, the return of the commissioners will be quashed.</p> <p>2. Equal partition among all the owners, of each parcel, is not required. And a partition so made, without necessity, and practically destructive of the value of the parcel divided, will be set aside.</p>

<p>1. The act of 1852 gave to married women only the jus tenendi of tlreir property, not the jus disponendi.</p> <p>2. A married woman has no power, under the act of 1864, to dispose by will of any interest to which her husband is, at her death, entitled by law in her real or personal property. After her death he may, as her administrator, reduce to possession her ehoses in action not reduced to possession in her lifetime.</p> <p>,”. A will of a married woman, living separate from her husband, but made without his consent or knowledge, bequeathing to another a legacy not received by her, nor reduced by him to possession during her lifetime, is of no effect, as against the husband. ] le, therefore, and not her executor, is entitled to receive the legacy. .1 lis rights are not forfeited by his adultery or desertion of his wife.</p>

On the 2d of January, 1866, the defendant, Christopher Clarke, executed to the defendant, Erastus Hedges, a lease of certain land and premises at the corner of Eifth and Bloomfield streets, in Hoboken, for the term of ten years and four monthsj from the 1st of January, 1866. The lease was afterwards recorded in the office of the clerk of the county of Hudson.

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

<p>1. Where, after compensation has been made for damages, as well as for the value of the land condemned, by a railroad company, the company threaten, not to take more land, but, by a change in the mode of construction of their road across the land (a change from a bridge resting on piers to an embankment, not contemplated when the land was condemned), to deprive the complainant of a lane through his farm, and the company are restrained from obstructing the lane until they make compensation therefor, but are afterwards permitted to do the threatened injury on securing to the complainant an indemnity which should be satisfactory to this court, the amount of damages is a matter of equitable consideration only.</p> <p>2. Where, in such case, an issue is framed by order of the court, to submit the question as to the amount of damages, to a jury, the object of the issue is merely to inform the conscience of the court as to the amount of. compensation which, in equity, should be required to be made; and the verdict will be disregarded, if deemed unwarranted, and the amount of compensation determined by this court, in its discretion.</p> <p>o. In such a case, the damages resulting from the deprivation of the lane, are the only consideration for the jury. That is the only injury for which the railroad company must answer. The injury to the complainant’s farm, apart from this, from the existence of the embankment, is entirely foreign to the question.</p>

<p>1. A defendant required to abide by the case made in his answer, and not permitted to take advantage of another case made by the proofs.</p> <p>2. Vnder a formal denial of the complainants’ title, without any specific objection thereto, the answer basing the defendant’s claim to title upon a conveyance made before the judgment and execution under which the complainant purchased, and asserting the bonafid.es of the conveyance, and its complete validity, the defendant was not permitted at the hearing, after years of exx>ensive litigation in the snit, and the taking of a very large amount of testimony on the subject of the validity of the conveyance under which defendant claimed his title, and a i-evivor of the suit, by which the heirs-at-law of the grantor of the deed to defendant, who were entitled to the property if the conveyance in question should he set aside, had become the complainants in the suit, to avail himself of an alleged defect in the original complainant’s title, by reason of the execution under which he purchased, being issued in the name of the judgment debtor after his death : that fact not being charged in the answer, but only brought out in the evidence, and the new complainants being not only devisees of the original complainant, but also the heirs-at-law of the grantor,</p> <p>3. The conveyance under which the defendant claimed title, being the result of persistent efforts by threats and persuasion on the part of the defendant, to induce the grantor to transfer the property to Mm, when the grantor was very old and infirm from long continued habits of intemperance, and in a condition to cause Mm readily to yield to such threats and persuasion, and made for a consideration far below the real value of the property, the complainants were permitted to redeem.</p>

<p>1. The fair and reasonable intendment of an allegation, in a bill to foreclose a chattel mortgage, that the mortgagor resided in a certain county at 'the time of giving the mortgage, is, that he still resided there at the time of filing the copy, as required by the “ act concerning chattel mortgages,” and relieves the bill from liability to demurrer, because it does not thereby appear that the county in which the copy was filed, is the county in which the mortgagor then resided.</p> <p>2. Ail averment of the filing of the copy, “together with a statement of the amount claimed thereon, as provided by statute, for the renewal of chattel mortgages,” is a sufficient averment of compliance with the provision of the act, requiring the filing of a. statement exhibiting the interest of the mortgagee in the property therein claimed by him, by virtue thereof.</p> <p>". To a suit to foreclose a chattel mortgage, the mortgagor of the holder of another mortgage on the property is not a, necessary party.</p>

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

<p>1. If a trustee commits a breach of trust in the assignment of a bond and mortgage, and the assignee is a party to the breach of trust; or, if there is any fraud or collusion between them; or, if the assignee knows, or is sufficiently informed when he accepts the bond and mortgage, that the trustee has in contemplation a breach of trust, and intends to misapply the money, the assignee will he decreed to have taken the bond and mortgage in trust for the beneficiaries under the trust.</p> <p>2. Trustee decreed to account, and removed ; assignee decreed to deliver the bond and mortgage to a receiver, and to account for all interest collected by him, thereon.</p>

<p>The uncorroborated testimony of the complainant, discredited by liis own conduct, cannot avail him, in llie face of the explicit denials of the defendant’s answer and testimony in matters constituting the equity of the bill.</p>

<p>The owner of mortgaged premises, subject to a, purchase money mortgage given by her, and containing an agreement on the part of the mortgagee to release portions of the mortgaged premises upon the delivery to her of a new mortgage or mortgages on the released portions, for such sums as might, in her opinion, be fairly proportioned to the whole sum; such new mortgage or mortgages to be the first lion or liens upon the premises so to be released; executed, on the 1st day of April, 1873, a conveyance of portion of the mortgaged premises. On the same day, the purchaser executed three mortgages on the parcel so conveyed, to secure part of the purchase money. These mortgages contained a statement. “ given to secure the payment of a portion of the purchase money.” The papers were all left in the hands of the attorney, to bo delivered or exchanged, and recorded as soon as a release could be procured from the original mortgagee of the premises so conveyed. A final arrangement for release was made on the 9th or 10th of July. On the 11th of July, one of the three mortgages aforesaid was assigned to the original mortgagee ; this mortgage was intended to be the first lien on the premises, in accordance with the agreement aforesaid; and on the 12th of the same month, a release of the premises so sold, executed on the 5th of the preceding month of May, and left with the same attorney to be held, until further instructions, was directed to be delivered. The papers were all put on record at the same time. Between the 1st of April and the 12th of July, the purchaser erected a stable on the lot so released. The vendor (a married woman) saw this building in process of erection, but gave no consent thereto, nor did she file any dissent. The original mortgagee knew nothing of it. Held—</p> <p>1. That lien claims for materials and labor in the construction of the stable, were prior to the lien of the mortgage assigned to the original mortgagee.</p> <p>1 2. That the mortgage assigned to the original mortgagee was given toseeure purchase money, gives it no priority over the lien claims; the liens had attached, and were encumbrances on the land 'when the purchaser-took title, and her mortgage for purchase money was subject to them.</p> <p>3. The vendor having filed no notice of dissent, as provided by the ninth section of the mechanics’ lien law, her mortgages are also subject to-the mechanics’ liens; that they were given for purchase money, cannot, avail her.</p>

<p>1. Where a controversy is already before this court, and the whole matter may be adjusted here, and injustice to some of the parties to it, ought to he disposed of here, jurisdiction will be retained.</p> <p>2. Where the effect of the dissolution of an injunction will be to permit the defendants to proceed at law, to enforce their claim against a fund in controversy, and to compel the holders of the fund, in order to proteo* themselves against loss from conflicting claims, to seek the aid of this court, the injunction will be retained.</p>

<p>1. A fund in court, under a foreclosure suit, directed to be transferred to the credit of a suit for specific performance against the mortgagor, adjudged bankrupt while these proceedings were pending, and to be subject to equities accordingly.</p> <p>2. The fund, held to belong to the assignee of the bankrupt, but retained in court, subject to a formal application by the purchaser under the foreclosure, (complainant in the suit for specific performance) for indemnity out of the same, for money paid by him in purchasing an outstanding title, superior to the bankrupt’s, to a part of the mortgaged premises, which he had contracted to sell to such purchaser, but to which he had no title at the time of making the contract, upon which the suit for specific performance was brought; and, also, for indemnity for expenses of the foreclosure suit? which were necessary, in order to free the title from the lien of the inchoate right of dower of the bankrupt’s wife.</p> <p>3. Interest on money ordered to be paid into court, and paid in with such money, by the purchaser, not allowed him, he having been in possession of the premises ever since the making of the order.</p> <p>4. An attachment levied on the bankrupt’s estate, after the commencement of proceedings in bankruptcy, and before the adjudication, is not a lien on the fund superior to the title of the bankrupt’s assignee. The assignment vests in the assignee all the bankrupt’s estate as it was at the-filing of the petition in bankruptcy.</p> <p>5. That the assignment to such bankrupt’s assignee was not recorded in tlie county where the lands lie, cannot aid such attachment. The recording of the assignment is not essential to the validity of the transfer, and the failure to record it does not affect the title and rights of the assignee.</p> <p>6. Tlie limitation declared by the second section of the bankrupt act, ¡hat a suit by or against an assignee, touching ¡he property and rights of i he bankrupt, must be brought within two yesuv, does not extend to or include an application by the assignee for moneys paid into court, belonging, in part at least, to tlie bankrupt’s estate, and directed to remain in court to answer an alleged claim against it, when established.</p>

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

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

<p>Municipal authorities were restrained from converting to the purposes of a street, a parcel of land, under proceedings under the city charter, no award having been made in regard to the compensation of the owners of the fee, and the conversion of the property to the uses of a street, as proposed, doing them irreparable injury.</p>

<p>$100 of the $1600 for which the mortgage was given in pursuance of an agreement between the mortgagor and mortgagee, held to have been a premium for the loan, and the usury sufficiently pleaded.</p>

<p>On final bearing, on pleadings and proofs.</p>

<p>On final hearing, on pleadings and proofs';</p>

<p>This court lias tlie power io control, in a suit between trustees for different creditors, the sale of property conveyed and mortgaged to them as security for debts due such creditors, in such manner as to protect the equitable rights of all parties in interest, so far as it may be done without prejudice to the rights of any. But its exercise rests in sound discretion ; it should be only fcr cause.</p>

<p>1. On principles of comity, the aid of this court will be extended to a receiver of a foreign corporation seeking to obtain possession of property of the corporation here, as against the officers of the company who may be endeavoring, by fraud or subterfuge, to withhold it.</p> <p>2. To such a suit the corporation is not a necessary party.</p> <p>3. That such officers are in possession of the property by purchase under judgment and execution, will not prevent this court from examining into their action, when the case made before it leads to the conclusion that the suit in which that judgment was recovered was a contrivance, designed to protect them in the possession of the property of the company as against the receiver and the creditors and stockholders.</p>

<p>1. Testator gave all his property, real and personal, to his executors, with directions to divide all the income equally between his wife and daughter, share and share alike ; at the death of his wife, the whole fund to go to liis daughter, when she should arrive at full age; if the daughter, should die without leaving lawful issue, the fund to go to his nephew, P. M. P. M. died in testator’s lifetime. The widow is dead. Hdd, that the daughter was entitled to the entire fund, absolutely. Held, also, that the children of P. M., even if the daughter should die without leaving lawful issue living •at her death, would not be entitled to the fund, either as next of kin to P. M., for the gift to him lapsed, or as next of kin to the testator, P. M.’s ■death in his lifetime leaving the bequest to the daughter unaffected by the limitation.</p> <p>2. Where there is an absolute gift, subject to be defeated by a contingent ■executory gift over, which could never, by possibility, take effect, the primary gift is the same as if there was no provision for its defeasance.</p> <p>3. Where a devise over fails, and the terms of the first devise are sufficient to carry the whole interest, and there is nothing in the circumstances indicating that such could not have been the intention of the testator, the estate remains in the former taker.</p> <p>4. If an executory devise be void, for 'remoteness, or any other cause, ¡the prior devise will be absolute.</p>

<p>1. A deed sought to be declared fraudulent upon a creditor’s bill, held to have been a mortgage. Inadequacy of consideration, therefore, of no moment.</p> <p>2. The mortgagee having conveyed bis interest before the bill was filed, no decree can be made against him.</p> <p>3. Hor can a decree be made against his grantees, who are not parties to the suit.</p>

<p>A statement in a deed that the conveyance is made subject to certain-mortgages (among -which is the one sought to be foreclosed) held, not to deprive the grantee of the right to set up the defence of usury: it appearing that he did not purchase the property subject to those mortgages, oír any of them, and that the statement referred to was inserted merely with a view to preventing a breach of the covenant against encumbrances, it having been agreed that the grantor should remove all the encumbrances from the property; and the grantee having paid the full consideration off the purchase.</p>

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

<p>1. Where municipal authorities are constituted, by charter, the judges of the necessity of the extension of a. street, this court will not, in the absence of all allegation of fraud or evil practice, gainsay or review their conclusion.</p> <p>2. Bui, however necessary the work, and however conducive to the public advantage, if it is proposed to execute it in disregard of contravention of constitutional rights, the duty of this court is obvious, and will be discharged.</p> <p>8. The complainants seek to restrain the municipal authorities of Jersey City, and others, from building a bridge or viaduct, in extension of Washington street, in that city, across a tide-water passage-way, through which they claim the right, by private grants, and as riparian owners, under grant from the state, of free and uninterrupted communication. In 1863, The Morris Canal and Banking Company, and The Central Railroad Company, granted, to complainants’ grantors, a passage-way, for the navigation, of vessels, to and from a certain block of land and the channel of the Hudson river, by a canal one hundred and fifty feet wide, from said block to the basin of the canal company, and a convenient passage-way across die same to said channel. In 1867, the stale granted to the canal company all its right, title and interest in certain land covered with water, including that over which was the water passage-way granted by that company to complainants’ grantors. This grant was upon the express condition that, for the purpose of preserving a water basin, &e., and of leaving open, in the premises thereby granted, a public navigation for all vessels to and from the Hudson river and all waters west, &c., the canal company should forever keep open certain existing gaps, one hundred and fifty feet in width, and like gaps, of like width, in any structure to be erected on the premises thereby granted, lor free public navigation between above points. This grant provided for the free access, through this passage-way, of all owners and occupants of shore property, lying north and west of the-property described in the grant. Among these were the complainants. Other conveyances were made to the complainants, hut hy none of them, did they acquire any title to the land whereon the abutments, or the central pier of the proposed bridge, are to stand. On hill to enjoin the erection of a bridge over the tide water passage-way, held—</p> <p>1. The complainants’ claim is to an easement only; and whether the right of passage granted by The Morris Canal Company to the complainants’ grantors, or that which was secured to the shore owners by the act of the legislature of 186V, be considered, the easement is a public one.</p> <p>2. The purchase by the canal company, under the act of 1867, so far? and only so far, as necessary for the grant of the water passage-way, which, without title, the- canal company had granted in 1863, enures, by estoppel, as against them, to the benefit of the complainants.</p> <p>3. The right of passage-way thus granted was a public right, and the effect of the grant was, and is, merely to prevent the canal company, and. their grantees, from interrupting or interfering with that right, as secured by the agreement, and to compel the company, as between them and the complainants, and their grantees, entitled to the benefit of the agreement,, to maintain the passage-way. It was the public right of navigation, guaranteed, to a limited extent, to a shore owner, against destruction or obstruction by the grantee of the state, as owner of the land between high and low water marks.</p> <p>4. The right secured to the complainants, as shore owners, by the act of 1867, was the public right, the common right of navigation, which the legislature intended to secure to the shore owners, against the acts of the canal company, or its grantees.</p> <p>5. The legislature did not. intend, by that act, to grant any new right, or to increase an existing one, but merely to secure the enjoyment of an existing public right.</p> <p>4. The legislature has the power to authorize the construction of a public work, which will interfere with the enjoyment of a public right of navigation, and that without providing for compensation for the injury.</p> <p>5. This court will not enjoin the construction of a public work, authorized by the legislature, unless the intervention of the court is clearly called for.</p> <p>6. Under a section authorizing the extension of a street, in a certain way and under certain restrictions, and providing that the authorities so empowered may also, at their discretion, extend other streets named in the-same section, and similarly situated, held, that it was thereby intended to-confer the power to extend such other streets in the same way, and subject to the same restrictions.</p> <p>7. The power to “open and extend” streets, construed, in this case, tp... signify construction, as well as laying out.</p>

<p>A mortgage given to a bank to secure payment of 810,000 in six months, contained a proviso as follows: “ This mortgage being given to secure whatever amount of indebtedness may at any time hereafter exist from the said John Byard to The First National Bank of Paterson,” &c. Held, that the mortgage was not restricted by the proviso to the indebtedness o the. mortgagor to the bank, arising from direct dealings between them, but was security also for the amount of notes made by the mortgagor to the order of a third person, and by him endorsed to the bank and discounted for him.</p>

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

<p>1. Ender a provision, “ my will is, and I do direct that, during the minority of my daughter Hattie, the income of the estate hereinbefore bequeathed to her, shall be paid to her mother, (she remaining my widow* unmarried,) for the support, maintenance, and education of said daughter; and, in case of the death of her mother, or her marriage, then, so much of said income as may be necessary for the liberal supiport and education of said daughter, shall be poaid by said executors, whom, in case of the death or marriage of my said wife, I appoint to be the guardians of said Hattie,” the widow is'entitled to receive, so long during the minority of said daughter as she remains such widow, the whole income of the daughter’s share of the estate.</p> <p>■ 2, Hor will the widow, so long as she faithfully discharges the obligation devolved upon her by the trust, be required to account for any excess of such income over what could be shown to be the amount required for the proper maintenance, support, and education of the daughter, according to her condition in life.</p>

<p>On petition of William A. Guest to open the final decree and set aside the execution.</p>

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

<p>1. The equity upon which the right to an injunction to restrain proceedings at law upon a note rests, being distinctly denied by the answer; and the complainants having a defence, which, if sustained at law, would be good, and which he may show in the action at law, injunction dissolved.</p> <p>2. It is also a good ground for dissolving the injunction in such a case, that there is great reason to believe that the complainants’ conduct towards the defendant, in regard to the note, has been such as to estop them from setting up their defence in equity, against them.</p>

<p>1. The indebtedness of the West Line Railroad Company being more than double its assets; there being no income to meet the expense of the necessary repairs; its property being of such a character as materially to deteriorate in value pending a protracted litigation; and it being clearly for the interest of all concerned in the property that it should be sold as early as possible, and almost all of the first mortgage bondholders represented by the trustees asking for the sale, the road and its franchises were ordered to be sold by the receiver, pending proceedings for foreclosure by trustees for the first mortgage bondholders, which disputes about the extent and validity of the mortgage lien threatened greatly to delay.</p> <p>2. The property was directed to be sold free from all encumbrances, except a mortgage held by the public school fund of the state on lands under water-.</p> <p>3. The power of this court to sell the property of an insolvent corporation, free from encumbrances, (Nix. Nig. 409, § 24,) is not abridged by the dispute as to a mortgage being in reference to the extent to which it is an encumbrance, and not distinctly and solely as to its legality or validity; the legislature intended to include cases in which the objections are to the extent of the lien alone.</p> <p>4. A power given by an act repealed in a revision, but which, by the revision, in the same instant that it was repealed, was immediately re-enacted, so that there was never a moment when the act repealed was not in force, is not taken away by the repealer.</p>

<p>1. It is not, in all cases, requisite that a person seeking to be made a party to a foreclosure suit by petition, should first cause the instrument "under which he claims an interest in or lien upon the mortgaged premises, to be recorded, registered, entered, or filed.</p> <p>2. Where the applicant has fully stated, in his petition, his title and interest, and whence and in what manner derived, he cannot be deprived of his right to be admitted a party to the suit, because he does not set out the instrument under which he claims, at length; it being alleged that the complainant holds the instrument, and refuses to deliver possession of it.</p> <p>3. In such a case, a bill, in the nature of a cross-bill, may be filed to prevent the complainant from depriving the claimant, by means of the foreclosure, of the benefit of his interest.</p>

<p>1. A gift of a fund.“until tlie youngest child of my daughter, Amy Eliza, attains the age of twenty-one years,” and after said child attains the age of twenty-one years, the proceeds of the fund to be divided by the executors between the children of said daughter, share and share alike vests in a child dying before the period fixed for distribution, an equal share with those surviving at that period; and the administrator of the legatee so dying is entitled to that share.</p> <p>2. When a particular estate or interest is carved out, with a gift over to. the children of the person taking that interest, or the children of any other person, the children, if any, living at the death of the testator, take an immediately vested interest in their shares, and on the death of any of the children during the life of the tenant for life, their shares (if their interest is transmissible) devolve to their respective representatives.</p> <p>3. Where the absolute property in a fund is bequeathed in fractional-interests, in succession, at periods which must arrive, the interest of the first and subsequent takers vest together.</p> <p>4. A bequest in the form of a direction to pay, or to pay and divide, vests immediately, if the payment be postponed for the convenience of the estate, or to let in some other interest.</p>

On petition of The Yew Jersey and Yew York Eailway Company, that the receiver of the Erie Eailway Company be ordered to restore the connection between the roads of those companies, severed by him, and to refrain from again-interrupting the connection, and that they may be compensated for the damages sustained by the interruption.

<p>The defendant having an income of 5800 a year, alleged to be from the bounty of his daughters, to whom lie had transferred, before Ms marriage, property of the value, as he alleges, of $142,000, but which transfers appeared to have been made for his own benefit, and the defendant appearing to be as well able to provide for his wife’s maintenance as at a former time, when he had proposed a separation, and offered to pay her S1200 a year, and the complainant’s income from her separate estate being considered, alimony was allowed, from the time of moving therefor, at the rate of 5600 a year, pendente Hie.</p>

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

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

<p>]. 1'pon a bill filed by a wife against her husband, to secure to her a part of her separate property alleged to be in his possession, an injunction was issued to restrain the husband from in any wise disposing of the property until the right of the wife should be determined.</p> <p>2. An order directing the husband to deliver the property to the wife, or appointing a receiver to take the property, was, under the circumstances, refused.</p> <p>3. Without special circumstances demanding the intervention of equity, a married woman is not entitled to its aid to enable her to obtain possession of her property withheld from her by her husband.</p> <p>4. Equity will not lend its aid to the causeless disruption of family relations, or countenance unjustifiable disregard of the obligations of the marriage contract. They, therefore, who come into this court for relief, in such cases, must not only come with clean hands, but must show a reason valid in conscience, as well as a legal right for the assistance which they seek.</p>

<p>A refusal to adjourn an inquisition for a reasonable lime, that the party imay make the necessary preparation for trial, when he has been prevented from making that preparation by the day naniejl in the notice, is good .ground for setting aside the inquisition.</p>

<p>On bill, answer and proofs.</p>

<p>1. The right to impeach a conveyance of land made in fraud of creditors, is peculiar to creditors, and can never be exercised by a representative, except he sits in the seat of a creditor ; and, hence,</p> <p>2. A receiver, appointed under the act to prevent fraudulent trusts and assignments, (that act not conferring upon him such right,) has no power to impeach a grant made by the debtor in fraud of' creditors.</p>

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

<p>Under a gift, in trust, of tlie rents, issues and profits of eaoli and every undivided fourtli part of a fund, to be applied, (each of said fourth parts,) to the use of each and every one of four several cestuis que trust, during their respective lives, and, after their deaths, the said several portions, the use whereof is so limited to them respectively, to their respective children ^ the children of any of such cestuis que trust dying, are entitled to the immediate possession of the property limited to the use of their parent.</p>

<p>1. A contract which contravenes the provisions or policy of a public law, is void; but a transaction to be void in law as a contract, must first have life as a completed treaty between the parties.</p> <p>2. Putting the title to one’s lands in the name of another, with the avowed purpose of escaping liability to be drafted, under the late enrollment act of Congress, was not in contravention of either the policy or provisions of that act, no property qualification having been thereby required to make one liable to be drafted; hence, that act, of itself, does not deprive such grantor of the right to compel a reconveyance of the property to him.</p> <p>3. If a grantor invests his grantee with title to his lands, by appropriate instruments, executed with the requisite legal formality, the deed is his solemn act, done in the exercise of a legal power, and he will not be allowed to gainsay, impeach, or destroy it. But the legal formalities must be complete; amere signing and acknowledging a deed, when it is intended to be voluntary, passes no title to the grantee.</p> <p>4. It is not necessary, to make a delivery of a deed, that it should be actually handed over to the grantee, or to another person for him; but •where there is no actual transfer, it must satisfactorily ajipear, either from the circumstances of the transaction, or the acts or words of the grantor, that it was his intention to part with the deed.</p> <p>5. A, with his wife, executed voluntary deeds to B and C, without their ■knowledge. He gave the deeds to his wife, telling her to be careful of them, without other instructions, or any authority to deliver them. During his absence from home, and without his knowledge or consent, his wife induced B and C to convey the property to her. Held, that the deed from SB and C was a nullity.</p>

<p>1. If the parties to a grant have used dear and appropriate language, rnd their meaning is plain, the duty of the court is simply to enforce the expressed intention. But if the language is uncertain, and susceptible of having different meanings put upon it, then regard must ho had to the general object of the grant, its subject matter, and the situation of the parties; every clause and provision must be searched, and, if possible, effect given to each. If the intention can thus be clearly gathered, it must prevail, and be carried into effect.</p> <p>2. Under a grant of the right to take water from a pond of the grantor to another, conveyed by the grant, “ as now carried in the trunk or feeder that carries the water from paid pond to the grist mill; ” the grantee “ to have the right, at all times, to enter upon the lands of the grantor adjoining said trunk or feeder, to alter, repair, or renew the same at his convenience,” the grantee has not only the right to change the form, material, and size of the trunk, but its location, so far as inay be necessary to give him the full benefit of the grant.</p> <p>3. The thing granted is an artificial water-course, consisting of structure and location, and right of alteration gives the grantee the right to change both location and structure.</p> <p>4. The modern rule is not that the words of a deed musí, in all cases, be taken most strongly against the grantor; but they are to be understood in a just and fair sense, and the whole instrument is to be considered in ascertaining the meaning of the parties. But, if the grantor has used language reasonably and fairly susceptible of two different interpretations, one more favorable to the grantee than the other, that must be adopted as the true exposition of the grant which is the more favorable to the grantee.</p>

<p>1. Equity cannot compel a conveyance by a married woman of her separate property, under a contract therefor made by the husband, nor decree a conveyance by the husband of the lands of the wife, in pursuance of such, contract.</p> <p>2. The court has power to decree compensation for the lands of the wife which the husband cannot convey; but its exercise is discretionary.</p> <p>3. Compensation is to be awarded, when it appears from a view of all the circumstances of the case, it will subserve the ends of justice; it will be denied, when, upon a like view, it appears it will produce hardship or injustice to either of the parties. No inflexible rule can be adopted.</p> <p>4. Generally, it will be denied where the party asking it had notice at the time the contract was made, that the vendor was agreeing for more I than he could give or convey, and it appears that the venctó has not, in J consequence of the contract, placed himself in a situation from which he/ cannot extricate himself without loss.</p> <p>5. Where the party seeking performance of a contract knew, at the time-the contract was made, that the defendant did not have title to part of the-land he agreed to convey, and where he shows no special ground entitling him to equitable relief; where he has not changed his situation in consequence of the contract so that he must suffer loss, if it is not specifically performed, and his claim to relief stands solely upon his right to the advantage he has obtained by the contract.; and where nothing appears from which it can be fairly inferred, a suit at law will not afford him full and complete redress, a court of equity will, in the exercise of a sound discretion, deny compensation and' leave the complainant to his ordinary legal remedy.</p> <p>6. In a suit for specific performance, a husband will not be decreed to procure his wife to join in -the execution of a deed for the purpose of releasing her inchoate right of dower, if she is unwilling to do so.</p> <p>7. The husband may be decreed to convey and to give indemnity against the claim of the wife. But a decree of indemnity will only be made where it appears that the wife’s refusal to convey is not her voluntary act, but made in bad faith, by the device of the husband, to escape his just obligation.</p> <p>8. Where the party seeking performance had reason to believe that the defendant supposed and understood the contract was without binding force, and entirely optional with him, he is entitled to no relief.</p>

<p>Heard on pleadings and proofs.</p>

<p>1. In cases of adverse independent titles, the party holding the property must defend himself as well as he can at law, and he is not entitled to the assistance of a court of equity, for that would be to assume the right to try merely legal titles, upon a controversy between different parties, where there is no privity of contract between them and the third person who calls for an interpleader.</p> <p>2. A bailee is not entitled to call upon a party to interplead as to the right to the properly, on the ground that., as to such party, he is a stakeholder or trustee, when, at the time of the bailment, the party was unknown, and had no connection with the transaction, and if his claim respecting the property is true, the bailee’s possession of the property, if not tortious at its inception, became so after demand and refusal to deliver it.</p>

<p>Heard on bil3, answers, and proofs.</p>

<p>Heard on bill and answer.</p>

<p>On order to show cause.</p>

<p>1. The evidence in this case, held to establish a resulting trust.</p> <p>2. A purchase by a party claiming a resulting trust, of the property in respect to which the claim is made, at a sale under judicial proceedings, subsequent to the original purchase—held, under the circumstances, not to have been inconsistent with the claim of ownership.</p> <p>8. Occupancy of land is equivalent to notice to all persons dealing with the title, of the claim of the occupant.</p> <p>4. If a tenant has changed his character, by having agreed to purchase the estate, his possession amounts to notice of his equitable title as purchaser.</p> <p>5. The plea of purchaser for valuable consideration without notice of complainant’s title, must aver that the person who conveyed or mortgaged to the defendant was seized in fee, or pretended to be seized in fee, and was in possession, if the conveyance purported an immediate transfer of the possession at the time when he executed the purchase or mortgage deed.</p> <p>6. Every man purchases at his peril, and is bound to use some reasonable diligence in looting to the title and competency of the seller. It will not answer to rest upon mere reputation or belief, unless the party intends to rely upon his covenants alone.</p>

<p>1. The proceeds of sale by a married woman of her contingent dower in> her husband’s lands, are regarded in equity as her separate estate, and will be secured to her against her husband and his creditors..</p> <p>2. Beal estate purchased by her with such proceeds, she has a right to hold as against her husband and his creditors, and equity will protect it.</p> <p>3; Under the act of 1864, the will of a married woman is valid without her husband’s assent, except as to his legal rights in her property; with his assent, it is absolutely valid.</p> <p>4. The assent by a husband to his wife’s will is an effectual waiver of his claim to her property after deeease, a renunciation of his reserved rights, and is conclusive not only against him, but against his creditors also.</p>

<p>1. It is the duty of a trustee to protect the trust estate from any misfeasance by his co-trustee, upon being made aivare of the intended act, by-obtaining- an injunction against him; and if the wrongful act has been already committed, to take measures, by suit or otherwise, to compel the restitution of the property, and its application in the manner required by the trust.</p> <p>2. Without such action, he would himself he liable, notwithstanding an indemnity clause in the instrument creating- the trust, providing that neither trustee should be held responsible for the acts, omissions, or defaults of the other, in which they should not jointly participate, or of which they should not be jointly guilty, and limiting their liability, respectively, to. ordinary care, diligence, and fidelity.</p> <p>3. A discretionary power in trustees to make a gift, wliioli is matter of bounty merely, and not of right, cannot be exercised by one trustee alone. Tiie concurrence of both is necessary.</p> <p>4. A person creating a trust by solemn instrument, cannot sanction a Ufmstavit of the estate, or a breach of the trust, where, by the terms of tiie trust, other persons have a contingent interest in the trust estate, and their rights and interest may he affected by tiie breach.</p> <p>Trustee removed, with directions as to accounting.</p>

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

<p>Bill to foreclose. On final hearing, on pleadings and proofs.</p>

<p>1. The New Jersey Southern Railroad Company, (formerly The Raritan and Delaware Bay Railroad Company,) under the chartered powers of the latter company, to which they succeeded, had power when the mortgage in controversy in this suit was given, to mortgage after-acquired property.</p> <p>2. That mortgage held to cover railroad stock (of another railroad company) subsequently purchased by the mortgagors. It was not necessary to its validity, as to the stock, that it should have been filed in accordance with the provisions of the “ act concerning chattel mortgages.”</p> <p>3. Such mortgage, even if the stock is within the act concerning chattel mortgages, is, as to the stock, good as against everybody but those who are hindered or defeated.</p> <p>4. The capital stock of a corporation is not goods and chattels within the meaning of the act concerning chattel mortgages. Hence, á mortgage of such stock need not be.filed in accordance with the provisions of that act.</p> <p>5. As between mortgagor and mortgagee, a mortgage of chattels is good without filing, and a mortgage of chattels which has not been filed, is valid against a subsequent purchaser or mortgagee of the chattels, with notice.</p> <p>6. Where railroad companies were by legislative authority authorized to consolidate their capital stock, and by supplement one of them which had then mortgaged its after-acquired property was authorized in ■ lieu of consolidation of capital stock, to purchase the stock of the other company, and the purchase, and sale, and delivery of the stock -was - actually made, for the purpose of consolidation, and an actual consolidation of the roads was in fact made, and .completely recognized, the purchase, and the sale, and delivery of the capital stock was held to be a consolidation in accordance with the provisions of the acts.</p> <p>7. The covenant for further assurance as to such after-acquired property contained in the mortgage, would be specifically enforced. Equity would, in such case, supply all formalities.</p>

<p>The ownership of property at the time of the execution of an attachment, held to have been in the debtor, though the title was in another, and' so taken, by reason of the embarrassed circumstances of the debtor, that it might be beyond the reach of his creditors. And a conveyance by the auditors, under the attachment, held, to have conveyed a valid title to the property; a deed from the party so holding title in trust for the debtor, declared fraudulent, and the trustee decreed to execute a conveyance to the purchaser under the attachment; and a mortgage, executed by the grantee of the trustee, declared invalid, by reason of actual notice to the mortgagee, of the attachment and the claims of the creditors under it.</p>

<p>On bill ami answer. On motion to dissolve injunction.</p>

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

<p>1. Where a defendant is entitled to notice of proceedings before a master, under an order of reference, a rule nisi to confirm the master’s report should be taken.</p> <p>2. The complainant took no rule nisi to confirm the master’s report, but gave notice to the defendant’s solicitor of the filing of the report; exceptions were filed, but not within eight days from the time of service of the notice ; motion to strike out exceptions on that account, refused.</p> <p>3. In such case, either party might set down the exceptions for hearing.</p> <p>4. Objections to a report, that the master has sent np no evidence in support of his finding as to certain matters of fact, should be brought before the court, by motion to refer the report back to the master on those points, or that he send up the, evidence on which liis report in those respects is based. Such objections are not the subject of exception.</p>

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

<p>On demurrer to bill for divorce, on the ground of adultery.</p>

<p>1. A clause of forfeiture of principal and interest of a mortgage for failure to pay the interest within ten days after it fell due, enforced.</p> <p>2. Belief will not be afforded in equity on the ground of mistake, where the defendant’s liability is the result of pure carelessness.</p>

<p>On demurrer to creditor’s bill.</p>

On order to show cause Avhy attachment for contempt should not be issued against the defendant, James K. Swayze, and counter motion on his behalf, to open decree on the ground of surprise.

<p>On bill for decree annulling the marriage between the parties.</p>

<p>Motion for reference to ascertain the damages sustained by ¿lie defendants, by reason of the injunction issued in the «rase, which was granted on terms that the complainant give bond according to the 46th rule of the court.</p>

<p>Bill to foreclose. On final hearing., on pleadings and proofs.</p>

<p>1. Tlie uncorroborated testimony of the complainant, as to the cause of divorce, is insufficient to warrant a decree a vinculo.</p> <p>2. In a suit for divorce, on the ground of desertion, the master must report, the facts and circumstances under which the desertion took place, and the reasons which caused or provoked it, if they can be ascertained.</p> <p>3. The evidence in this case, held to indicate a separation, on the part of the complainant, from her husband, desired and sought by her, and no intention on his part to desert his wife.</p>

<p>1. An injunction may be granted at the suit of a mortgagee, to prevent the removal from the mortgaged premises of timber trees cut down in waste of the security before the service of the injunction, where the person against whom relief must be sought for the waste committed is insolvent, or where no redress can be obtained at law, or in equity, if the removal bo permitted, or where there is fraud.</p> <p>2. But where the bill alleges neither of such considerations, and prays an account from the person who has committed the waste, an injunction will not be granted.</p>

<p>On demurrer to bill to foreclose.</p>

<p>On demurrer to bill for specific performance.</p>

<p>1. Machines in a factory held not to be fixtures, and not subject to mechanics’ liens, as part of the really.</p> <p>2. By a decree in a foreclosure suit, certain machines on the mortgaged premises, regarded as fixtures so far as the complainants’ mortgage was concerned, were sold with the premises, to raise the amount due on that mortgage, which was undisputed. The balance of the money was to be brought into court to abide the event of litigation between defendants. The owners of the premises had filed tlieir answer, and also a cross-bill in that suit against lien claimants, their co-defendants, insisting the machines were not a part of the realty. Held, in the suit under the cross-bill, that the effect of the decree for sale in the foreclosure suit, was only to transfer the litigation between the parties to the cross-bill from the property to the surplus, and not to affect the rights therein of the complainants to the cross-bill.</p> <p>3. In the disposition of such surplus, the complainants were held to be entitled to receive not the full value of the machines at the time of the sale, unless the property was sold at a full price, But an equitable proportion of the surplus, having due regard to the depredation of the whole property in the sale, if it, in fact, brought at the sale less than its value.</p>

<p>1. The rule that, where the answer fully denies the equity of the hill, the injunction will be dissolved, is not inflexible. The dissolution of the injunction rests in the discretion of the court. In this case, under allegations of gross fraud, and of abuse by a son of confidential relations existing, according to his own admission, between- himself and an aged mother, in procuring conveyances of property from her to himself, with circumstances of suspicious character, the injunction was retained till the hearing.</p> <p>2. The affidavit of a third party, annexed to an answer, cannot be r.ead upon a motion to dissolve an injunction upon the answer, where the complainant's affidavit alone is annexed to the bill..</p>

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

<p>1. Where a husband uses the money of his wife in paying for land, the title to which he takes in his own name, a trust will arise in favor of the wife, which a court of equity will protect against the husband’s creditors ; but the design of the parties to create the trust must clearly appear, and the conduct of the wife be free from suspicion.</p> <p>2. But where the husband has taken the title to property in his own name, with his wife’s knowledge, and she has permitted him, for years, to represent the property to be his, and upon such apparent ownership, to obtain business credit and standing, equity will not protect the property from the husband’s creditors, even if the design to create a trust in favor of the wife were clearly established by the evidence.</p> <p>3. He who is silent when conscience requires him to speak, will not be permitted to speak when conscience requires him to be silent. And every transaction falls fairly within the operation of this maxim, where an innocent person, exercising reasonable prudence, has been misled to his injury, by false lights or appearances, held out with the consent or knowledge of the person subsequently alleging that the true state of affairs was totally different from what it seemed.</p> <p>t. A claim of a trust, in favor of tlie wife, to property conveyed to the husband absolutely, should always be regarded with a watchful suspicion, and when attempted to be asserted against creditors, upon the evidence of the parties themselves, uncorroborated by other proof, it should be rejected m once, unless the statements are so full, clear, and convincing, as to make iut; iainuss and justice of the claim manifest.</p>

<p>1. Where an injury results from the default or misconduct of a receiver, appointed by a court of equity, while acting under the color of the authority of the court—there being no dispute as to the power of the court to make the order under which he claims to have acted—the court may, in •its discretion, either take cognizance of the question of the receiver’s liability, and determine it, or permit the aggrieved party to sue at law.</p> <p>2. But if the ¿rower of the court to make the order is dis¿mted, the court ■then has no choice: it must assume exclusive jurisdiction, and inhibit the aggrieved person from seeking redress against the receiver in any other tribunal.</p> <p>3. A receiver o¿rerating a railroad under the order of a court of equity, stands, in respect to duty and liability, just where the corporation would, were it o¿>erating the road; and the question, whether or not the receiver is liable for negligence, must be tested by the same rules that would be .applied if the corporation was the actual party defendant before the court.</p> <p>4. To permit a train to ¿>ass on a track between a de¿3ot, and another ■track on which a ¿>assenger train was standing while discharging and receiving passengers, just as ¿rasseugers were ¿lassing from the de¿30t to take that train, and across which track they were obliged to walk to reach their train, without any ¿provision having been made on the ¿sart of the conqiany .to avert danger—held, to have been actionable negligence.</p> <p>5. Held, that there was no contributory negligence in this case, barring a right of action under the sixty-seventh section of the act concerning ■railroads.</p> <p>C. The rule, that any pierson who goes upon a railroad track, incautiously, or without using all reasonable precaution to escape injury, assumes the hazard, and if injury ensues, is without remedy, is to be .applied in determining the liability of a railroad corporation where the injury is sustained by a person while crossing the track on a public highway ; but it has no application to a case where, by the arrangement of the corporation, it is made necessary for passengers to cross the track in passing to and from the depot to the cars.</p> <p>7. When a railroad company has created extra danger, it is bound to ■use extra precautions, and the precautions to be adopted must be adequate to insure the safety of every passenger who exercises ordinary care.</p> <p>8. Damages for injuries arising from negligence of a railroad company, must cover present loss and that which may arise from future incapacity; they must also embrace compensation for pain and suffering. .</p> <p>9. A married woman can only recover damages for her personal injury and suffering. The loss of income from her incapacity, and the expenses of her cure, must be recovered by her husband.</p> <p>10. The damages and costs, directed to be paid out of the current earnings of the road; the injuries having been inflicted while the road was under the control of a receiver.</p>

<p>1. Oil a bill for specific performance, llie court will grantor refuse its aid, according to the justice of the case; it will never extend its aid to a suitor wbo has practiced a fraud, or procured the contract by a misrepresentation of a material fact.</p> <p>2. Ail intentional misrepresentation of a fact materially affecting the value or use of the property, will deprive the party making it of all right lo a remedy in equity.</p> <p>3. The remedy by specific performance is discretionary ; the question is not, what must the court do, but what, in view of all tlio circumstances of the case in judgment, should it do to further justice. When the contract has been fairly procured, and its enforcement will work no injustice or hardship, it is enforced almost as a matter of course; but if it has been procured by any sort of fraud or falsehood, or its enforcement will be attended with great hardship or manifest, injustice, the court will refuse its aid.</p>

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

<p>John II. Luddeke erected a building in the city of Newark, for Brenner and Mayer, under a writteii contract, which was duly filed. The complainant furnished material used in. its construction, at Luddeke’s request, demanded payment of him, and on his refusal to pay, gave notice, in writing, to Brenner and Mayer, of the refusal and the amount due, pursuant to the third section of the mechanics’ lien law. After ■service of the notice, disputes arose between Luddeke and Brenner and Mayer respecting the payment for the building, ■a suit was brought, and a judgment recovered by Luddeke for ■over $6000. Soon after the recovery of the judgment, the ■complainant filed his bill on behalf of himself and such other persons as held similar claims and had given like notices, and who should contribute to the expense of the suit, Averring that Brenner and Mayer were satisfied with the •correctness of his demand, claiming a right to a part of the ■debt represented by the judgment, alleging that Luddeke was attempting to collect it to the prejudice of his right, and praying an injunction to restrain its collection by Luddeke. An injunction was ordered. The bill states similar notices were given by three other materialmen or workmen, and that the fund represented by the judgment was claimed by two other persons under assignments made by Luddeke.</p> <p>On the petition of Brenner and Mayer, representing that 'the fund was claimed by several different persons in hostile rights, they were ordered to pay the money into court in ■discharge of the judgment.</p> <p>Hearing on demurrer filed by Luddeke and Maria Richey, who claims an interest in the judgment under an assignment by Luddeke.</p>

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

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

<p>1. A married woman, in taking a conveyance of .lands encumbered by a mortgage, can make a valid contract to assume the payment of the mortgage in payment of the purchase money, on which she can be held for deficiency by the mortgagee.</p> <p>2. An assumption by a grantee of a mortgage debt, incorporated in his deed, though not actually sealed, is a covenant.</p> <p>3. A parol agreement by a grantee to pay a mortgage on the premises conveyed to him, is valid.</p> <p>4. The words “gift” and “grant,” in the 3d section of the married woman’s act, are not used in a purely technical sense, but were intended to embrace all modes of acquiring land by deed. She has capacity to purchase land, to take title in her own name, and to hold it as her separate property.</p> <p>5. A feme covert has capacity to make all contracts necessary and convenient to her as the owner of goods or lands; but she has no power to incur obligations as a person sui juris, where the pmrpose of the contract is neither to benefit her or her separate estate.</p> <p>6. A promise by the grantee to the grantor, to pay a mortgage debt as part of the purchase money of the land conveyed, does not render the grantee surety for the grantor, but, as between the parties, the grantee is the principal debtor, and the grantor the surety.</p> <p>7. A deed must be read according to the manifest intention of the parties and if, by mistake, the words “party of the first part” are written where “ party of the second part” should have been written, the mistake will not be permitted to defeat the intention of the parties, but the court will give effect to the deed so as to carry out their intention.</p>

<p>1. The evidence in this case, held to establish the correctness of the amount with which the Orphans Court charged the guardian of minors, as the rental value of a farm belonging to them, and of the amount which it allowed him for their board, while living with him.</p> <p>2. A guardian filed his accounts four years before the pronouncing of a decree by the Orphans Court on exceptions thereto. The decree was pronounced January 1st, 1878, requiring a restatement of the accounts, and making an addition to the original balances. The decree was reduced to writing March 4th, 1873. Held, on exceptions thereto, that interest was properly charged oil the addition to the original balances, to the time of pronouncing the decree; that not charging it to the date of the decree, was correct; that not charging interest on the original balances, was correct.</p> <p>3. An accountant should not be charged with interest on the balance of his account, held in hand ready for distribution, pending the decision of the court upon exceptions, unless it appears he has made use of the money. If he has made use of it, he is chargeable with interest for the time he has used it.</p> <p>4. An inquiry whether a guardian has made use of a balance due his wards on the filing of his accounts, before the final allowance of the accounts, may be made in this court.</p>

<p>On appeal from the decree of the Orphans Court of Burlington county.</p>

<p>On appeal from the decree of the Orphans Court of the county of Somerset.</p>

The mortgaged premises were sold under a decree of foreclosure, and the purchasers, the appellants in this court, applied to the Chancellor, by petition, to have their deposit returned, and to be relieved from their bid, on the ground that a non-resident defendant, the widow of the mortgagor, had not been made, legally, a party to the suit, and that the title, consequently, was defective. The grounds of this exception are stated in the opinion.

<p>Appeal from an order of the Court of Chancery. The opinion of the Chancellor is reported in 9 G. E. Green 402.</p>

<p>1. An net of tin- legislature, the effect of which is to make a loan of money become due before the time fixed in the contract, cannot be enforced.</p> <p>2. A mortgage was given by a railroad company to trustees, to secure certain bonds, one of the terms of which mortgage being, that if the principal or interest should not be paid at the times stated, the principal sum secured by the mortgage should become immediately due “at the election at the trustees.” Held, a subsequent act of the legislature could not authorize a sale of the property, free from this mortgage, the trustees not having exercised such election, and the mortgage moneys not being due.</p>

<p>On appeal from a decree of the Court of Chancery, dismissing complainant’s bill.</p> <p>The opinion of the Chancellor is reported in 10 C. E. 'Green 188.</p>

<p>1. As a general rule, all persons wlio liave acquired an interest in the lands mortgaged, where the mortgage is duo and liable to. be foreclosed, have a right to disengage the property from all encumbrances, when it becomes necessary to do so in order to make their own claims available or beneficial.</p> <p>The junior mortgagee succeeds, by subrogation, to the rights and interest of the prior mortgagee in the lands, and the right to redeem a mortgage does not carry with it the right to an assignment of the mortgage, unless die redeeming party occupies the position of surety for the mortgage debt.</p> <p>As to sureties, the right to an assignment is limited to such securities as continue to exist, and do not, by payment, become extinguished as to the principal debtor.</p> <p>4. The mere fact that a person occupies the position of a second mortgagee, or subsequent judgment creditor, does not entitle him to redeem the prior mortgage. Unless some special equity exists in the subsequent encumbrancer, the prior mortgagee has a right to retain his security, and may refuse to surrender it, so long as the mortgagor does not wish to discharge it.</p> <p>5. If the second encumbrancer happens to be in such a position that he is in danger of losing the benefit of his security, unless he is permitted to redeem, and the circumstances are such that equity would subrogate him, upon making these facts known to the first mortgagee, and making him an unconditional tender of his money, he would he put upon Ms inquiry, and, after taking a reasonable time to be advised, his refusal to accept the tender and deliver up his mortgage would be at his peril.</p>

<p>1. B. purchased and placed in Ms sasli and blind factory, a moulding machine and a planing machine, to be used by him in his factory. They ■were rested on the main floor of the building. One was bolted to tlie floor for greater firmness in use ; the other was of sufficient weight to be sfeadv without fastenings. B. executed a mortgage upon the real estate, including the building in which tlie machines were. Subsequently, lie executed a chattel mortgage upon the machines. Held, that the machines-were not fixtures subject to the real mortgage, but passed under the-chattel mortgage.</p> <p>2. To constitute such chattel a fixture, there must be actual annexation to the freehold, of a. character evincive of an intent to make it a permanent accession to the freehold.</p>